Mediated More Than Mediator And Mediation

This composition was triggered by Barry Goldman’s article: Not even wrong. He believes that in ADR we are making the same mistake that medicine did for centuries. The mistake is the excessive preoccupation for the spiritual purity of the facilitator. Goldman wrote about the evolution of medicine: the belief in the necessity of ritual purity delayed for centuries the discovery of antisepsis.

If we look at the evolution of old professions we realize that they walked through similar processes like in medicine. At the beginning the focus was in the practitioners’ powers. Next, the core of attention changed to the rituals the original professionals followed. In their later development the center of attention switched to the understanding of the subject matter of the profession.

What is today the predominantly state of ADR?

The crux of most literature, rules and institutions in ADR are first the characteristics of the mediator; and secondly the rules, rituals and processes involved in mediation. Very little is found about the people mediated. I believe this order of priorities is a sign of an infantile profession.

In an ideally mature field of ADR, what should count most are the mediated achieving a negotiated agreement. The ADR (Alternative Dispute Resolution) is precisely ending a dispute by the mediated themselves. The purity of the facilitator, the nature of the rituals and rules, the processes followed and the relevant institutions constitute the circumstances in which the mediated make decisions. Therefore, the study of how the mediated perceive, order and react to conflict and their rights and duties; should be the principal subject matter of the ADR vocation. It may be that the dispute resolution equivalent of antiseptic could be to distinguish between the mediated, and the contiguous mediators, rules, rituals, processes and institutions.


Luis Miguel Diaz

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… MORE >

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