Mediating Interpersonal and Small Group Conflict. Cheryl A. Picard

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       Chapter 2:

       Mediation Theory

      Mediation is an alternative dispute resolution process in which a third party helps the parties in dispute resolve the situation by coming to their own solutions. Mediation is not a new concept. However, a new surge of interest in its use has brought mediation to the fore of modern dispute resolution practice. Increasingly, mediation is being used in an array of social and legal venues. There are those who believe mediation presents a powerful opportunity to express and achieve a higher vision of human life. The more dominant approach, however, emphasizes mediation’s capacity for finding solutions that are expedient, less costly and more satisfying than formal adjudicative processes. Whichever perspective is taken, it is generally agreed that mediation is both diverse and pluralistic and that no one approach or ideology represents the “full story” of mediation. Recent thinking suggests a more integrated and inclusive view of mediation that would give equal weight to the importance of relationships, community, culture, resolution, and change.

History

      The history of mediation is entwined with the core values of Canadian society, most notably justice, self-determination, and the acceptance of humans as rational, problem-solving beings. Rooted in social activistism, early proponents of mediation sought to assist individuals and groups to use non-violent and more effective problem-solving strategies, the hope being that informalism would return justice to the community. While mediation in labour disputes has been long used,⁷ it was not until the 1960’s that mediation realized wider acclaim in the realms of community, family, public policy, and legal contexts. Increasingly, mediators are being called upon to resolve disputes about child custody, contracts, environmental concerns, neighborhood problems, and playground bullying.

       Mediation is one of the oldest and most common forms of conflict resolution.

      Mediation is one of the oldest and most common forms of conflict resolution. Its current practice has evolved from that which existed in other countries and other times. For example, the Bible refers to Jesus as a mediator between God and man. Jewish rabbinical courts and rabbis in Europe were vital in mediating disputes (Moore, 1986). In ancient China, mediation was the principle means of resolving disputes. It has a rich history in Japanese law and customs. In parts of Africa the moot, or neighbourhood meeting, has long provided an informal mechanism for resolving interpersonal disputes (Folberg and Taylor, 1984). Early Native American tribal cultures, including Navahos and Lakotas, used mediation to resolve disputes (Garrett, 1994). Legal anthropologists, convinced of the advantages of informalism based on the experience of comrades courts in Russia, people’s courts in China, and community courts in South America, argued that these systems demonstrated both the “naturalness” and the “universality” of informal dispute processing (Auerbach, 1983). Extended families, elders, clan members, and religious leaders have all offered wisdom, precedent, and models to assist in the resolution of social conflict. With the rise of nation-states, mediators have taken on new roles as secular diplomatic intermediaries.

      Much of what is known about the historical roots of mediation tells us that it has grown out of strong moral and social concerns. Early practitioners of the modern Western era were attracted to mediation for the betterment of society, albeit with differing motives. Social activists were interested in community empowerment. Legal reformers sought legal equality and access to justice. Church groups (especially the Mennonites and Quakers) were interested in reconciliation and restoration of harmony. Peace activists were drawn to collaborative problem-solving by their concern about nuclear war and global destruction.

      Early mediation programs in Canada evolved from court-based programs that were ideologically linked to restorative justice. The first Victim Offender Reconciliation Program (VORP) was started in 1974 in Kitchener, Ontario, and by the late seventies, court-based mediation programs existed in Halifax, Quebec City, Montreal, Winnipeg, and Regina (Lajeunesse and Woods, 1987). One of the first community-based mediation programs, now called Community Justice Initiatives, was established in 1978 by the Central Mennonite Committee in Ontario. Community mediation was dominated by a therapeutic model which emphasized consensus rather than coercion, integration rather than exclusion, and mutually satisfying outcomes rather than strict observation of legal rules. Harrington and Merry (1988) identified three analytically distinguishable streams within the community mediation movement: the delivery of dispute resolution services, personal growth and development, and social transformation. The delivery of service stream saw the courts as inefficient, inaccessible and inappropriate for many kinds of disputes, and had as a primary interest the rationalizing, streamlining, and fine-tuning of the judicial system. The personal growth stream envisioned consensual dispute settlement empowering individuals to take greater control over their lives by enhancing their personal skills for dealing with conflict. The social transformation stream centered on community empowerment through decentralized decision-making, deprofessionalized dispute resolvers, and local rather than state-controlled systems. Each stream held different political interests, developed different organizational models, and was active in different spheres. In the end, Harrington and Merry believe the service delivery stream won out over the other two.

       The use of mediation has come to be regarded as a legitimate means to deal with many social and legal conflicts in Western society.

      In a relatively short period of time, the use of mediation has come to be regarded as a legitimate means to deal with many social and legal conflicts in Western society. Mediation now commands the attention of scholars, researchers, and legislators. New journals and books appear on the bookstands on a regular basis. Professional associations boast large memberships. Universities offer graduate and undergraduate degree programs in conflict resolution and mediation and professional conferences abound. Corporations and individuals from a variety of occupations have responded to the growing demand for non-adversarial dispute resolution.

      Four “stories” characterize the mediation movement – the Satisfaction Story, the Social Justice Story, the Oppression Story, and the Transformation Story (Bush and Folger, 1994). According to the Satisfaction Story, mediation facilitates collaborative problem-solving rather than adversarial distributive bargaining. It is seen as a powerful tool for satisfying human needs and has led to more efficient use of private and public dispute resolution resources. The Social Justice Story tells of mediation helping to form effective grassroots community structures by reducing dependency on professionals and empowering individuals to participate in civic life. According to the Transformation Story, participation in mediation helps individuals gain a greater sense of self-respect, self-reliance, and self-confidence. It strengthens СКАЧАТЬ