Paternalism, Self-Determination and the Rule of Law
I return from the Mediators Beyond Borders Founding Congress in Colorado with much to think, and write, about.
Let me begin today by telling you a story drawn from my community mediation practice.
The Parties vs. The Lawyers
Crystal and Keith /* are the unmarried parents of a seven year old girl, Taniyah. They have sought the services of the West Hollywood community mediation center because they want to discuss the resolution of their custody dispute outside the presence of their attorneys.
After introductions, Keith and Crystal push a proposed settlement agreement across the conference table. They are shy with one another but united in their desire to reach agreement without any pressure from "The Attorneys."
Two hours later, we are at item no. 23 -- "neither Parent nor either set of grandparents shall physically strike The Child at any time."
"Is this a provision you agree with?" I ask. "It means you can never slap Taniyah's hand," I add. "Is that something you want to agree to?"
"We don't have a choice," says Crystal. Keith nods in assent.
I let the word "choice" hang in the air for a moment as I begin to understand why these two bright, well-educated and articulate young parents have so reluctantly given their meek and mutual approval to every previous item they said they came to the mediation center to discuss.
The Shadow Conflict
I put the "proposed" agreement aside.
"Why don't you have a choice?"
"Because Taniyah's attorney put this into the agreement," says Keith as Crystal nods in agreement, repeating Keith's remark "we don't have any choice."
Taniyah has an attorney, I learn, because Keith's mother -- one of Taniyah's primary caretakers -- left Taniyah at home with her nine-year old cousin, Arabelle to run an errand. Arabelle, a curious child, led Taniyah on an expedition to her grandparents' bedroom where the two found a stash of light porn -- Playboy and the like. That, I'm told, is the only reason Taniyah has an attorney.
It quickly becomes apparent that Crystal and Keith simply assume that Taniyah's attorney is a decision-maker. I'm still considering how to approach this problem when Keith asks the question that leads to the resolution of the "shadow" dispute between the parents and Taniyah's attorney.
"How do we get our power back?"
Justice, Mediation and the Rule of Law
I tell this lengthy story as preface to another from this weekend's Mediators Beyond Borders Founding Congress. Yesterday, someone suggested from the podium that we should include mediation and arbitration agreements in our own contracts with our own clients.
I raised my hand.
"Why," I asked, "do you want to restrict our clients' access to the justice system?" once again demonstrating a fractious lack of diplomacy that makes some people wonder how I could possibly be an effective mediator. /**
It wasn't a well-placed question but it is of a type I often find myself more or less compelled to shoe-horn into any conversation that assumes mediation is best for other people.
Here's what I wish I could have said in a more diplomatic way at some more appropriate time -- taken from Conflict Resolution, Enforcement of Social Link and Substantive Justice.
I invite comment!!!
A number of scholars have pointed out the danger lying in an ideology of harmony related to ADR where agreement is seen as the panacea in every conflict.
They have argued that mediation was essentially supported by [the] middle upper class and social scientists whereas people . . . involved in conflicts[, including the] working class were expecting law and rights to protect them.
Emphasizing free choice, individualism, autonomy and advantage, and assuming instrumental rather than normative and religious orientations of social action, the concept [of mediation as an ideal form of dispute resolution] seems to describe the culture of professional elites rather than of residents of these urban/ethnic neighborhoods.
As Abel has stated, "there is considerable evidence that people want authority rather than informality. They want the leverage of state power to obtain the redress they believe is theirs by right, not a compromise that purports to restore a social peace that never existed."
According to those scholars, ADR could serve as a means of control and domination in keeping and reinforcing power relations. For instance, Milner Ball has defined ADR as "another form of the deregulation movement, one that permits private actors with powerful economic interests to pursue self-interest free of community norms. "
They argue that in traditional societies . . . mediation is used [when] there is no danger of retaliation from the weaker party. The . . . focus on relationships [diminishes the parties' focus on] justice[;] individual satisfaction has become the main purpose of conflict resolution.
Although they are conscious of the paradoxes of Law which can either "symbolize justice or conceal repression, reduce exploitation or facilitate it, prohibit the abuse of power or disguise abuse in procedural forms, promote equality, or sustain inequality, they argue that "Without legal power, the imbalance between aggrieved individuals and corporations or government agencies cannot be redressed".
* I have changed the parents' names and merged two separate mediations in the interest of confidentiality.
** The answer to this question is as follows: I am not mediating when I am engaged in discussion with friends and colleagues. Just as I do not observe the rules nor use the language of the courtroom at a dinner party, I do not observe the niceties of mediation in public discourse. It would be better if I did. I know that. I'm working on it and will post some insights about constructive public conversations on difficult and divisive topics in my next post.