For many of us, mediation or ADR represents a method that transcends more painful forms of communication that can arise in conflict – disrespectful or ineffective communication, the prolonged frustrations of the traditional justice system, or even violence. It’s a method to turn to that allows us to work towards our goals with the help of a third party, when we are struggling to feel comfortable communicating with the other disputant. But mediation is not always seen through this positive lens. Since the field of mediation and ADR began to grow and become popular, there have been debates about its relationship to justice. While the goal of mediation is often to move both parties in the direction of an acceptable solution, some have argued that by giving all parties an equal voice at the table, mediation can pacify, dampen, and privatize deep grievances that need to be addressed through more traditional, adversarial forms of justice such as court procedures and, if necessary, political redress. This is a terribly important question for mediators and ADR practitioners to consider – but there is more than one way to consider it.
In 1984 Owen Fiss, law professor at Yale, published a controversial essay titled Against Settlement, and sent ripples through the fast growing field of ADR. Fiss argued that ADR overly emphasizes settlement and peace in the place of justice, and that by assuming a rough equality between the parties involved in a bargaining process ADR masks real power imbalances. He posited that despite all critiques a more overtly contested process, such as the traditional court system, provides a more just and socially beneficial outcome.
Fiss’ intervention was an important one, and there is still significant support for his arguments today, despite the growth and continuing maturation of the ADR field. For a great response to the “gap” problem between mediation and justice, I suggest reading through Charlie Irvine’s post on Mediate.com.
However, this configuration also sets up a dichotomy that we can challenge. Justice is not simply a matter of chasing an idealized outcome. Often crippling injustices occur throughout such a pursuit, and mediation can play a very important role in achieving social justice through process.
While mediators and ADR practitioners certainly must be mindful of the complex relationship between settlement and justice in the court systems, mediation or ADR can also provide justice by making progress possible.
As a matter of social justice (which is often structural), it is important to recognize that paralysis or protraction rarely has equal effect. A delay in process can often favor those who are in power, or at least heavily favor the status quo. Being able to wait for and sustain lengthy proceedings is often an attribute of privilege and generally requires financial backing. There are many circumstances in which achieving justice for those who are suffering is related to making progress and moving forward with some level of expediency – especially when the problem involves a structural injustice. In Colorado Springs, mediation is being used to address structural social justice regarding access to transportation.
CDR Associates, a prominent firm that specializes in “collaborative decision resources” including mediation, is facilitating a Steering Committee in Colorado Springs to help integrate diverse community needs and concerns into the region’s plans for transit and specialized transportation services. Involving representation from service providers, jurisdictions and military installations, schools, and organizations that represent the needs of low-income, minority residents and people with disabilities, the committee will attempt to address a wide variety of interests. This is a case where mediation not only insures that community groups with less privilege and access have a seat at the table where pertinent decision making is taking place, thus opening up access to power, it could also facilitate a structural transformation in the community so that those groups have a substantially increased quality of life in the longer term.
Different forms of process will always be necessary to address diverse forms of conflict or grievance, and it is vital that subjugated groups not be pacified into settling for an agreement that forces them to remain disempowered. However, structural transformation is both necessary for truly addressing ingrained social justice issues, and extremely difficult. Mediation is one tool that can help advance these goals, and make different forms of justice possible.
Ellen F. Kandell is a certified professional mediator and attorney with over 30 years of public and private sector experience. She provides mediation, group facilitation and training to diverse, national clients. Get in touch with her via email, LinkedIn, Twitter, or give her a call at 301-588-5390.