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Regulation Dehumanizes Mediation

by Luis Miguel Diaz
November 2009 Luis Miguel Diaz
In searching for certainty and quality in mediation, legislators and regulators are increasingly mesmerized by the enactment of mediation rules and the certification of mediators. I want to ponder the convenience of this proclivity bearing in mind a model of human nature.

A Model of Human Nature

The original human being was evolutionarily trained to manage conflicts following patterns like kind greetings, friendly behavior expressions, grooming, close proximity, reconciliation rituals and pair bonding. The human species came to exist because we responded to evolutionary patterns for conflict resolution in societies. If humans had not followed these patterns, the species would be extinct.

So, the skills needed for conflict resolution reside in the genes of every human being. They are not acquired by formal education or in universities; we simply develop them during our lives. They can be improved with practice and training.

The original human used only body language to communicate and everyone was known personally. Dehumanization of the original human began when verbal communication arose and dehumanized even more when verbal communication disappeared entirely and the scripture was invented. Words began to have a value independent from the speaker and listener and misunderstandings in communication and uses of language prevailed. Complete dehumanization occurred in societies where not everybody was known personally. The anonymous human was born.

These three great and fundamental changes have combined to produce human contexts that inhibit evolutionary skills to solve conflicts. From the evolutionary point of view, the human race hasn’t had enough time to learn from this new human context.

Beliefs Underlying Third Party Decision Systems

Systems for conflict resolution wherein a third party decides the outcome of conflicts between other parties are new in our evolutionary history. They take for granted that the third party is unbiased and unprejudiced in evaluating the claims of the conflicting parties. The origin of this premise is found in Aristotle for whom, according to nature, some humans were born to obey and others to rule.

This assumption is false since all humans feel, see and think the world according to their life experience. All human views are biased and prejudiced.

Today the Aristotelian view is camouflaged by bureaucratic systems with rules and processes aimed at selecting people with competence to decide the outcome of conflicts. Judges and arbitrators are thought to be unbiased and unprejudiced.

Beliefs Underlying Mediation

In mediation, the mediator assists the mediated in working out their conflicting personal views and the solution is the agreement of the mediated. There are no rules in reaching the agreement and all are considered equals. Both the mediated and the mediator are recognized as biased and prejudiced.

The success or failure of mediation therefore is not constrained by rules or the exercise of power. There is always space for innovation and evolution.

Mediation has existed in all cultures and has its roots in practically all disciplines in life. Historically, human groups took their conflicts to the elders or people whose intuition and prestige empowered them to facilitate conflict solution. The trust inspired by the facilitator is crucial for the mediated.

Mediation empowers the mediated to control the conflict resolution process and its result. For this reason the certification of mediators by qualifying entities does not make sense. Additionally, mediators lack power to impose decisions and the mediation is not rule oriented.

In contrast, dispute process evaluation and certification skills for judges and arbitrators are an inevitable evil because their decisions are binding on the parties and based on the interpretation of rules. A regulatory approach to mediation with rules and certifications dehumanizes mediation and prevents creativity and progress. In any case, the best guarantee for satisfactory mediations includes converting it partially to a pacifist group culture.

In current human contexts, mediation as a free rule process for conflict resolution offers a promise of hope. Its development could mean unlearning the prejudices that block our evolutionary patterns for solving conflicts, as well as learning strategies for new contexts based on personal relationships.

In conclusion, mediation is a subversive activity because it subverts the use of rules and authorities for conflict solution.

Leslie Brown was kind enough to edit this article

Biography


Luis Miguel Díaz, unfortunately now deceased, fathered four children and distrusted language, theories and authority, including his own as a father. Admires artists and scientists and their lives. He received his Law Degree at UNAM, Mexico (1974); and LLM (1976) and SJD (1986) at Harvard University Law School. President of the Interdisciplinary Center for Conflict Management in Mexico City. Author of more than 100 articles and 15 books. We all miss Luis.

 



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Website: www.solucionegociada.com

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