Comments: Mediation: Why Haven't We Come Further?

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Susan Oberman , Charlottesville VA     11/09/11
nine things wrong with mediation picture
Thank you Elinor and Susan for offering us some reality testing about mediation. However, I do not see the problem as the legal industry's refusal to accept mediation, but the other way around. I also have addressed some of these issues in my article, Style vs. Model: Why Quibble? 9 PEPPERDINE DISP. RES. L. J.(2008). Most mediators distance themselves from the reality that mediation is an option within the law. Parties' rights are protected in mediation and they (and the mediators) need to know what they are. I believe the research shows that people in conflict are not out for vengeance, but for justice. Since mediation functions within the narrow confines of a specific conflict rather than addressing the injustices that produce the conflict, it is no surprise that parties, especially when coerced to reach settlement, leave feeling railroaded or worse. I don't agree with the premise that the demand for mediation emerged from the unrest of the 60's, except from the court itself--the unrest was with the fact that courts were not dispensing justice. After the Pound Conference the court attempted to create a way, through ADR processes, to cut dissatisfaction off at the community level--before it reached the courts and became public--thus producing the rhetoric about community justice centers. The kind of conflict resolution that existed in many places in the world prior to the mid-19th and early 20th centuries in the U.S., was outside the legal process, and was conducted by respected elders within communities in the effort to renew harmony. Mediation has been used in three periods of U.S. history (see STYLE VS. MODEL)to isolate conflict from its base in communities and to individualize conflict, rather than address the real harms done by legal and economic injustices. I argue in Mediation Theory vs. Practice: What Are We Really Doing? Re-Solving A Professional Conundrum, 20 OHIO ST. J. DISP. RES.(2005)that scholar and law professor Ellen Waldman's framework gives us a way to identify real differences in mediation models that would allow us to achieve standards of professionalism that do not now exist. I have found the mediation community resistant to recognizing the importance of Waldman's framework (we continue to hold onto Riskin's "evaluative" and "facilitative" descriptors which he himself has attempted to withdraw), and reluctant to engage in the conversation about what we are really doing. I therefore appreciate your posing the question: Why Haven't We Come Further? to again open up this necessary conversation.