By Jonathan Rodrigues[1]
By listening we will understand who we are in this holy realm of words.
Do not parade, pleased with yourself.
You must speak in the language of justice.[2]
Joy Harjo’s poetic verse reminds us, preachers and practitioners of mediation, that there is nothing to lose in keeping an attentive ear to critics, as it can inspire a better understanding of ‘why’we do ‘what’ we do. Effective and ethical practice depends as much on how mediators think about, as how they perform, their role and function.[3]
Much has been written about negotiation performed “in the shadow of the law”[4], problem-solving processes boosting power imbalances[5], and informal justice mechanisms using consent and concern to conceal coercion[6]– all subjective, yet well-researched opinions; and therefore accepted in an unabashed spirit. This essay aims to look beyond the identity crisis fuelled by mediation non-believers, who have condemned the process as an oppressive mechanism[7], and highlight that silver lining – of hope – in the practice of mediation.
Robert Bush and Joseph Folger suggests that mediation empowers people to find “closure” and “move on” from conflicting moments, while John Winslade and Gerald Monk propose “deconstruction of conflict-saturated stories” and “construction of alternative stories” to resolve disputes. If mediation is that “process that works as a human bridge between justice and peace”[8]it is almost obvious that the critics will strike at the unique core – the four pillars of mediation[9]– that characterise the uniqueness of the process.
Intentionally ducking the popular critics, this essay will explore confidentiality, neutrality and autonomy, using non-traditional themes to absorb criticism of its limitations and articulate confidence in its value. Critics have reservations about discussions behind closed doors – what parties say or don’t say, and what mediators say or don’t say – that make them distrust the process. These suspicions can be empathised with, but they aren’t necessarily the truth.
Spoken Untruths, Unspoken Lies – Mediator’s role (Neutrality)
Critics argue that ill-informed litigants are delusional in thinking that settling out of court allows them to substitute private contract for law[10], when the reality is – the law relevant to the dispute affects settlement as parties with a stronger case can demand more to settle privately. This underlines the mediation lawyer’s role – to evaluate potential legal remedies, costs and risks associated with adjudication, before determining the party’s reservation point[11](point beyond which a party won’t compromise) in the bargaining process. With or without legal counsel, Russell Korobkin exposes the dark side of a confidential settlement.
False statements made at mediation can create bargaining power imbalances as it changes the opponent’s perception of – their own substantive legal entitlements and the speaker’s preference for adjudication as compared to settlement, leading the opponent to offer a higher settlement price than she otherwise would. With lawyers considering “deception . . . the spirit of negotiation,”[12]and some scholars arguing that the capacity to mislead is the mark of a successful negotiator,[13]where does the mediator draw the line on confidentiality and neutrality? Is the mediator expected to advise against it or take a step further and terminate the mediation, if deception is influencing the settlement?
The laws of contract, tort, and professional responsibility proscribe some affirmative misrepresentations made in the course of bargaining—subjecting the perpetrator to rescission of a resulting agreement and reinstatement of the original lawsuit, a damage award,[14]or professional sanctions, but for a false statement to be actionable it must be “material” and lead to “justified” reliance by the listener.[15]Lawyers may be subject to professional discipline for false statements that are material even if the listening party does not rely on their veracity.[16]However, can a lawyer be liable for lying about the client’s reservation point or lack of authority to settle to buy time?[17]
Alternatively, disputants have no general duty to disclose information voluntarily to their negotiation counterparts, although some courts have found actionable nondisclosure when a party’s failure to provide truthful information induces a false belief on the part of the adversary, even when the party has not provided any information likely to create the false impression.[18] Courts have rescinded settlement agreements based on the doctrine of unilateral mistake when one party knows that the other party is mistaken as to a material fact but makes no effort to intervene.[19] With laws letting absolute privilege for statements made in mediation,[20]where evidence of deceit in mediation cannot be introduced in court; the mediator must be responsible for not letting the atmosphere of trust and confidentiality be abused by deceptive negotiation strategies.
Having personally romanticized mediation as “a place beyond right and wrong, exclusively built for your privacy…,” I realise the societal standpoint in terms of the agreement reflecting cultural notions of justice, beyond mutual consent [21]was conveniently overlooked in my mediation vocabulary.
The myth of being heard – A Feminist Perspective (Autonomy)
Trina Grillo isn’t convinced that mediation provides a just or humane alternative to litigation, while other critics believe mandatory mediation is destructive to many women and some men[22]as well. Politely calling bluff on mediation’s sacred principles of informality and empowerment, she denounces the process imposing a canon of mannerisms – how to speak, make decisions, behave in tense moments – about appropriate conduct, which often excludes the possibility of participants speaking with their authentic voices. [23]
Terming the self-determined decision-making privilege “purely illusory”, Grillo points out that parties have no say in their own participation, their lawyer’s participation, and are not permitted to choose the mediator[24]. She expresses bigger concerns of neutrality and confidentiality with regard to mandatory mediation in California, and with private communications between parties and mediator protected by Evidence Code[25], Grillo doubts if leaving the decision of inclusion or exclusion of lawyers to the discretion of the mediator is ethically correct, considering claims of mediators coercing parties to settle, condemning past behaviour or even prohibiting discussion of a particular issue.[26]
Menkel-Meadow writes of stereotypes attached to mediation approaches – that seeking clarification of facts is characterised as feminine, while pursuit for legal principles is a masculine method to end conflict.[27]Critics underline that any talk of precedents, legal rules and legalised formulation of facts, which are essential elements of being heard in a mediation setting, are often disregarded as irrelevant and unnecessary burden to the mediator[28], who is more interested in the solution or settlement, than the process. Mediation critics oppose the use of informal sanctions to encourage parties to replace the rhetoric of faults, principles, rights and values with the pageantry of compromise and relationship.[29]It is often assumed that the participant’s past history is only a basis for predicting future needs, intentions, abilities and reactions to decisions[30]– a rather dim perspective of disputants who wish to understand why the conflict occurred and how did it affect the ongoing relationship, which for many leads to closure, beyond settlement.
Grillo suggests that mediators handhold the parties towards reasonableness and compromise, rather than moral vindication, by making parties speak in the language of interdependent relationships instead of individual rights.[31]A mediator dictating the permissible jargon contradicts the basic principles of the voluntary process, and opening guidelines such as “There is little value in talking about the past…” or “unless I specifically request it, we will talk about plans for the future”[32]could make mediation an emotionally claustrophobic experience. However, sweeping aside mediators who tend to make parties cringe, most international mediators would encourage freedom of speech – “The way you choose to do it (speak) is the way I want to hear it” or “anything I say in this mediation is an invitation for you to consider and nothing more”[33].
Many cultures dissuade women from expressing resentment, and label anger as bad[34], or weak or embarrassing. Anger is often a source of her energy, strength, and growth; and an “injunction” from a mediator to suppress anger is an act of violence.[35]Grillo’s activism is relatable to many women struggling to voice out their plight in torturous workplace and family disputes. Mediation isn’t empowering when it forces a woman in distress, battling the negativity of the past, to build a constructive relationship with her adversary.[36]Having assured disputants an opportunity to speak in confidence, besides an atmosphere of trust and civility, it is vital that the mediator acknowledges and manages anger to clear the way for effective communication.[37]Censoring anger is destructive and many mediators endorse the art of skilfully transforming anger into something beneficial, like compassion.[38]
The second-wave feminism celebrates the difference of women from men and calls for an acknowledgement of their distinct moral voice [39]and the “ethics of care”, which was stereotyped as feminine[40]became the new normal through which legal questions could be also addressed, and judges were beckoned to attentively listen to the voice of women[41]. The transformative mediation model took heed of this development and, instead of focusing on efficient solutions and overcoming biases, it re-emphasizes the process and the values of “ethics of care” in mediation.[42]The transformative model reasserts the importance of relationships and communications, via self-empowerment and recognition of the other.
Settlement is like Sex? – the “alternative” closet (Confidentiality)
A bunch of critics of dispute resolution seem to suggest that mediation theorists and practitioners have been living in denial all along, implying that the juridical subject be reframed from a bearer of interests to a bearer of desires.[43]Just like Daniel Del Gobbo[44]attempted to discuss the queer theory perspective on dispute resolution, I find it intimidating to marry a collaboration between legal theories of sex and settlement, but it’s a risk worth taking considering that Queer theory hangs its hook on critiquing whatever purports itself to be settled or resolved,[45]and critics are anxious of confidential mediation behaviour.
Initially, shifting from interests to desires seems inapposite because the analogy between sex and settlement is obviously imperfect[46], but the practice of settlement, interestingly, like sex, is constituted by the mutual interplay of the parties’ wants and desires in reaching a negotiated agreement over new and potentially pleasurable terms that may or may not come to pass.[47]Similarly, participants interests may be prone to change in the negotiation on account of the other parties’ stimulating behaviour, intervening events in their lives, and their affective responses to the bargaining environment, which may or may not have a rational basis.[48]All that matters is that the settlement process feels good-socially, culturally, economically, legally-or that it feels better in the moment, at least, than an adjudicative process which would distribute pleasure and danger in a less satisfying way.[49]
Del Gobbo’s stance that consensual dispute resolution (CDR) is an alternative practice in relation to the liberal legalism of rights, just how consensual sex between LGBTQ2people is a non-normative sexual practice to mainstream sexual culture, is to be understood with how critics of mediation have grown sceptical about what goes on behind closed doors.
At the core of identity discourse, on the other hand, lies a ‘Levinassic’ face-to-face encounter with the other. It is a dialogic engagement and a much more dangerous experience since at the heart of this meeting is the idea that we know how we enter the dialogue but never know who will conclude it.[50]
As an “alternative” legal form, CDR has been historically marginalized byliberal legal scholars who have sought to limit and altogether ban its use, drawing parallels to how consensual sex between LGBTQ2people has been condemned morally and legally.[51]Private interests are forbidden for the public value of rightsand Owen Fiss would justify that “when parties settle, society gets less than what appears, and for a price it does not know it is paying.”[52]In this extremity, where Fiss would condemn mediation as a “perverse”[53]for its unorthodox process of justice and peace, and other critics view intermediaries as con-artists[54]using “psychological ploys” to serve the interests of powerful parties, there is an obvious attempt to push consensual dispute resolution back into the closet and keep it obscure. The fear of the unknown is what seems to bother most critics of mediation and the rebellious nature of mediation (similar to queer sexuality) – its ability to look beyond regressive norms and customs is probably its most attractive feature.
Del Gibbo reads Fiss’ work as “judicial paternalism that is effectively operating as a form of conservative sexual morality”. Equating adjudication to “good sex” and settlement to “bad sex”, many would agree with Del Gobbo that “privileging of rights over interests is a homophobic and heterosexist distinction that undermines the dignity of individuals” and strips them of empowerment of self and recognition of others as human beings. Settlement promises an independent journey of justice and peace that is stubbornly desire by the participants, despite the pressures of society to repress it. [55]I must agree with Del Gobbo disapproval of Fiss’ work as a condescending attempt by the state to enforce its vision of pubic values at the expense of the subject’s own private and potentially queer interests in resolving their disputes through a consensual process.
In conclusion –
Disputes are often a mixed bag containing emotional and legal complaints, and mediation provides an opportunity to bring intuition and emotion into the legal process[56], permittingdisputants to voice their true (often closeted) sentiments, in an open-ending, non-traditional and liberating process. There are critics who claim informal processes moderate the antagonistic adversarial posture of disputants[57], and such isolated incidents have critics denouncing institutionalised mediation programmes, stating “self-empowerment has no place at the bar”[58], but mediation’s empowering nature is availed by people, worldwide, who voluntarily decide to participate and make their own decisions. It is juvenile to frame mediation’s identity based on few anti-settlement crusaders who equate mediation to truce or civil plea-bargaining, and as liberalism’s 20thcentury champion, John Rawls, put it – “Within the limits of justice, each is free to plan his life as he pleases”.
FOOTNOTES:
[1]Jonathan Rodrigues is a Mediator based in India. This essay was written and submitted as an assignment as part of the coursework during his LL.M. studies in Mediation and Conflict Resolution at the University of Strathclyde, UK, 2019-2020.
[2]Joy Harjo (2015) Conflict Resolution for Holy Beings, W.W. Norton & Company, Inc.
[3]Marian Roberts (2017), Interdisciplinary influences on family mediation: A chronicle of colonisation foretold? Mediation Theory and Practice, Equinox Publishing, 211–231
[4]Robert H. Mnookin & Lewis Koornhauser (1979), Bargaining in The Shadow of the Law: The Case of Divoirce, 88 YLJ. 950
[5]Tidwell, A., (2003) Conflict Resolved?: a Critical Assessment of Conflict Resolution, London: Continuum
[6]Abel, Richard L., 1982. The contradictions of informal justice. In: R.L. Abel, ed., The Politics of Informal Justice. Volume 1. The American Experience. New York: Academic Press, pp. 267-320
[7]Michal Alberstein, ‘The Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations’ (2009) 11 Cardozo J Conflict Resol 1
[8]Carrie Menkel-Meadow (2006), “Peace and Justice: Notes on the Evolution and Purposes of Legal Processes” 94 Georgetown Law Journal 553.
[9]https://www.mediate.com/articles/rodrigues-mediation-in-india.cfm
[10]Russell Korobkin (2005) ‘The role of law in settlement’ The Handbook of Dispute Resolution, 254-276
[11]Korobkin, Negotiation Theory and Strategy, 2002, pp.37-57
[12]W.W. Steele Jr., “Essay: Deceptive Negotiating and High-Toned Morality,” Vanderbilt LR, 1986, 39, p. 1390.
[13]J.J. White, “Machiaveli and the Bar: Ethical Limitations on Lying in Negotiation,” American Bar Foundation R J, 1980, 926-928
[14]Phipps v Winneshiek County, 593 N.W. 2d 143 (Iowa 1999), p. 146
[15]Restatement (Second) of Contracts 164 (1981)’; and Restatement (Second) of Torts 525 (1977).
[16]Model Rules of Professional Conduct R. 4.1 (2002)
[17]See Morta v. Korea Ins. Corp., 840 F.2d 1452 (9th Cir. 1988), p.1456
[18]See, for example, Midwest Commerce Banking Co. v Elkhart City Centre, 4 F.3d, 521 (7THCir. 1993), p.524
[19]Spaulding v. Zimmerman, 116 N.W. 2d 704 (Minn. 1962), p 710.
[20]Rojas v. Superior Court, 15 Cal. Rptr. 3d 643 (Cal. 2004)
[21] J. Auerbach,Justice Without Law? 136, 144-46 (1983);
[22]Williams, DeconstructingGender,87 MICH. L. REV. 797, 813 n.61 (1989).
[23]Trina Grillo, ‘The Mediation Alternative: Process Dangers for Women’ (1991) 100 Yale LJ 1545
[24]Ibid.
[25]CAL. CIV. CODE § 4607(c) (West 1983) read with Section 1040 of the Evidence Code.
[26]Merry & Silbey, Mediator Settlement Strategies,8L. & POL’Y 7 (1986).
[27]Menkel-Meadow, Portiain a Different Voice: Speculations on a Woman’s Lawyering Process, 1 Berkerly Women’s L.J. 39, 50 (1985)
[28]Rifkin (1984) Mediation from a Feminist Perspective :Promises and Problems,2 LAW & INEQUALI- TY 21, 22
[29]Merry & Silbey, n 25
[30]J. Folberg & A. Taylor (1984), MEDIATION 14
[31]Merry & Silbey, n 25
[32]D. Saposnek (1983), Mediating Child Custody Disputes
[33]https://www.mediate.com/articles/berlinB1.cfm
[34]H. Lerner (1985), The Dance of Anger
[35]Trina Grillo, n 22
[36]Rogers & Francy (1988), Communication in Mediation: Is More Necessarily Better?, Mediation Q.,
[37]Griggs, Thelma. (2007). Handling anger in mediation: concepts and strategies.
[38]http://www.adrservices.com/wp-content/uploads/2016/11/Fingerman-article.pdf
[39]Carol Gilligan (1982), In a Different Voice: Psychological Theory and Women’s Development
[40]Menkel-Meadow n 26
[41]Katharine T. Bartlett and Rosanne Kennedy (1991) Feminist Legal Theory:Readings in Law and Gender, Westview Press.
[42]Bush (1989), Efficiency and Protection, or Empowerment and Recognition: The Mediator’s Role and Ethical Standards in Mediation, 41 FLA. L. REV. 253
[43]Michael Warner (1999), The Trouble With Normal: Sex, Politics, and The Ethics of Queer Life
[44]Daniel Del Gobbo, ‘Queer Dispute Resolution’ (2019) 20 Cardozo J Conflict Resolution 283
[45]Ibid
[46]Ann T. Spence, (2003) A Contract Reading of Rape Law: Redefining Force to Include Coercion, 37 COLUM. J.L. & Soc. PROInS.57, 70
[47]See Del Gobbo, n 43
[48]Fsisher, Ury &Patron (2011), Getting to Yes: Negotiating Agreement Without Giving In
[49] Carole S. Vance (1984) Pleasure ad Danger: Exploring Female Sexuality
[50]Albertstein, n 6
[51]Del Gobbo, n 43
[52]Owen Fiss (1984) ‘Against Settlement’ Yale Law Journal 93, 1073-1091
[53]I have taken Del Gibbo’s criticism of Fiss’s perceived privilege of a collective authority over individual’s legitimate interests and compared it to homosexuality seen as perverse to heterosexuality.
[54]Laura Nader (1979), Disputing without the Force of Law, 88 Yale LJ 998
[55]Brenda Cossman (2004), Sexuality, Queer Theory, and Feminism After: Reading and Rereading the Sexual Subject, 49 McGIL L.J. 847
[56]S. Goldberg, E. Green & F. Sander, (1985) Dispute Resolution 313
[57]Abel, Richard L., n 5
[58]Deborah R Hensler, ‘Suppose It’s Not True: Challenging Mediation Ideology’ (2002) 2002 J Disp Resol 81
REFERENCES:
- Alan Tidwell (1998)Conflict Resolved: A Critical assessment of Conflict Resolution London: Continuum. Chapter 8 ‘A Critique of Resolution Processes’
- Abel, Richard L., 1982. The contradictions of informal justice. In: R.L. Abel, ed., The Politics of Informal Justice. Volume 1. The American Experience.New York: Academic Press, pp. 267-320
- Bryan Clark (2012) Lawyers and Mediation. Berlin, London: Springer Chapter 5
- David Spencer (1996) ‘Exploding the Empowerment Myth of Alternative Dispute Resolution’ Commercial Dispute Resolution Journal Sep 1st1996
- Laura Nader (1979) ‘Disputing Without the Force of Law’88 Yale Law Journal 998-1021
- S N Subrin (2002) ‘A traditionalist looks at mediation: it’s here to stay and much better than I thought’ 3 Nevada Law Journal196-231
- Owen Fiss (1984) ‘Against Settlement’ 93 Yale Law Journal 1073-1091
- Russell Korobkin (2005) ‘The role of law in settlement’ in in Michael L Moffitt and Robert C Bordone (2005) (eds.) The Handbook of Dispute Resolution, 254-276
- Trina Grillo (1993) ‘The Mediation Alternative: Process Dangers for Women.’100 Yale Law Journal 1545-1610
- Simon Roberts and Michael Palmer (2005) Dispute Processes: ADR and the Primary Form of Decision-Making Cambridge: Cambridge University Press
- Susan S Silbey & Sally E Merry (1986) ‘Mediator Settlement Strategies’ 8 Law and Policy (1) 7-32
