Wednesday, June 25, 2014

Not Suitable For Mediation?

By Sherry F. Colb

My Verdict column for this week discusses mediation as a modality for dispute resolution, a modality in which I have begun training for volunteer work.  The column examines some ways in which mediation offers more than litigation does and  may also reflect a more optimistic and empowering perspective on human interaction than the litigation approach does.  In this post, I want to focus on areas in which mediation might be viewed as inappropriate.

Let me begin by recalling my first encounter with the idea of mediation.  As a law student, I joined the Battered Women's Advocacy Project, in which I had occasion to assist women seeking restraining orders against their batterers.  During my training, one of the things I learned was that judges who faced a woman seeking a restraining order sometimes directed the woman to first try mediation.  At the time, I did not know what mediation was, but I was told  that mediation is completely inappropriate for battered women and their batterers because of the power imbalance between a violent abuser and his victim.  Upon hearing a judge's inclination to order mediation, I was directed to argue against this approach.  Because this was my first exposure to the idea of mediation, I came to think of it as something that works only in the narrow (or perhaps even non-existent) circumstance in which equally powerful parties have a dispute.

Last week, I learned much more about mediation.  In the beginning of the training, our teacher asked us whether we thought mediation would be appropriate for all disputes.  I immediately brought up the battered woman in conflict with her batterer as one context in which it mediation would be ill-advised.  This turned out to be an uncontroversial proposition.  As I discuss in my column, the practice of mediation has various core values, and one of those values is safety, while another is voluntariness.  To the extent that one of the two parties is physically frightened of the other's ongoing violence, there can be no safety, and anything the victim says will likely be driven -- at least in part -- by the desire to mollify her abuser and avoid further abuse.

Beyond putting the case of victims of violence to one side, my mediation training presented me with the surprising notion that parties can mediate despite an apparent (or actual) power disparity.  Mediators-in-training talked about our inclination to give more support to the less powerful party, whether the apparent disparity concerned race, sex or gender, sexual orientation, financial resources, education, or some mix of these and/or other dimensions of inequality.  In mediation, however, our job is to remain as impartial as we can and to have faith the in the parties -- despite their disparate positions -- to direct their own conversation, with mediators providing equal support to both.  We were told that leveling the playing field would not be our job (though, like the parties, we could decide to end a mediation if we felt too uncomfortable with the parties' interpersonal dynamic to continue).

Initially, I resisted the idea of standing on the sidelines while one party seemed to be bullying the other.  If one person spoke much more than the other, then why not turn to the other and say "Do you have something to say too?" or "Why don't we hear from you now?"  But our instructors reminded us that relationships between individuals are far more complicated than we can pretend to know from our seeing the parties and observing some of the disparities between them.  Power dynamics too can be complicated, and the person who says almost nothing might be the one who is less invested than the other in working things out and who therefore, in that one sense, is more powerful and less vulnerable in the conversation.  Stated differently, power disparities may not be what they seem to us.

Furthermore, as mediators, we do not become permanent fixtures in the lives of the disputants, available to step in and "rescue" the less powerful party whenever the more powerful party wields his privilege.  To use the metaphor of a river, we step into a river that flowed long before we came along and that will continue flowing long after the brief moment in which we stepped in.  Instead of trying to "save" the weaker party, then, mediation theory suggests that we can be far more productive and helpful by remaining equally present to each party and by supporting the conversation that the two (or more) of them are able and willing to have with each other.  By doing so, we not only earn the trust of the parties, but we permit each of them to better understand the others' perspective (in a way that is much harder to do when one is listening to an "advocate" or adversarial representative of the other side) and to communicate his or her own feelings and needs in his or her own way.

In one sense, the mediation approach may seem conservative.  Rather than intervene in social inequalities, it leaves the status quo in place and appears to act "as if" everything is fine.  I think this appearance is misleading, however.  We can address social injustices through many routes, including legal change, and legal change will necessarily become part of the backdrop of any conversation that people in mediation will have with each other.  For example, if the law requires reasonable accommodation for a person with disabilities, then the existence of the law shifts the power balance between an employer and a disabled employee without the mediator having to do anything.

Conversations, however, are by their nature going to mirror the relationship between the parties to it, and that relationship will thus inevitably carry baggage that includes racial, economic, and other disparities between people. Nonetheless, the ability to sit down and have a conversation with someone -- even and perhaps especially with someone more powerful than oneself -- while a neutral party steadfastly and equally supports both parties to that conversation, can be enormously empowering for all concerned.

One premise of transformative mediation, put in colloquial terms, is that people generally are motivated to (a) experience a sense of mastery and competence and self-determination in their dealings with others, and (b) treat others fairly and recognize others' needs and interests in a respectful fashion.  More simply, people want to avoid being either a sucker or a jerk.  With those motives in place, mediation can allow people to pursue self-empowerment and consideration of the other in their conversation, and those pursuits are worthy ones regardless of what one's view of social justice might be.

As is probably apparent by now, mediators will often mediate between parties who hold dear very different values from those of the mediator.  The mediator may believe in a strong social safety net, while the parties reject it. The mediator might favor abortion rights, while one or both parties to mediation are pro-life.  This difference between the mediator and the parties, like power differences between the parties themselves, are unavoidable and need not detract from the process.  Impartiality means that the mediator occupies a role and persona that differs from her everyday role and persona.  And it is the willingness to do this -- to step outside of herself and occupy, by turns, the worlds of two (or more) very different people -- that sets the stage for transformations in relationships that ultimately can yield a more peaceful world.