Mediation

Theory, Policy and Practice

Carrie Menkel-Meadow, Carrie Menkel-Meadow

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351792172
• Edition: 1
• Topic: Sciences sociales
• Subtopic: Sociologie

This title was first published in 2001. This volume of essays explores the theoretical and jurisprudential bases of mediated forms of dispute resolution, from legal, anthropological, sociological, psychological and political sources. It also presents ongoing disputes about the field itself, including its threat to conventional litigation and justice seeking adjudication, and its promise in providing more humane and tailored solutions to human problems.

Part I

Theory, Purposes and Goals of Mediation

[1]

MEDIATION—ITS FORMS AND FUNCTIONS

LON L. FULLER*

It is characteristic of the experienced mediator that he often proceeds most effectively to his goal, especially during the early stages of his efforts, by circumlocution and indirection. Perhaps I may be forgiven, therefore, if my approach to the subject of mediation itself displays something of those qualities. I have, in any event, thought it expedient to preface my analysis by putting mediation in the wider context of some assumptions of methodology that appear to shape our efforts to comprehend social phenomena generally.

I

In every branch of human study that has achieved or aspires to the name of science there seems to repeat itself a fundamental difference in the assumptions men make as to the nature of the thing they are examining. This schism in basic orientations extends over a wide range of subjects. Something of its pervasiveness becomes apparent when we recall the slogan-like terms conventionally employed in describing this opposition of viewpoints: structure versus process, substance versus procedure, statics versus dynamics and—on a more elevated plane—Being and Becoming. As these terms indicate, this recurring difference is not so much thought of as a quarrel about the most profitable posture of the mind as it is about the essential nature of the thing being studied.

There are, of course, thinkers who with some difficulty—and often with some attendant obscurity—attempt to straddle the choice. Certain paradoxes also often emerge when we compare closely related subjects. For example, social anthropology, which has traditionally dealt with the more “static” primitive societies, tends, I believe, to be more “process-oriented” than its sister science of sociology’, practitioners of the latter subject being inclined to stick with social ”structure” without displaying much curiosity about how it got there.

Legal scholarship has, on the surface at least, been spared the anguish of choice visited on the practitioners of related disciplines. For one thing, law does not pretend to be a “science” and hence can permit itself a certain obscurity about its basic premises, attributing this condition simply to the nature of its subject. Legal reasoning is, in general, quite happy to proceed eclectically, fitting its methods and starting assumptions to the problem at hand. Then, too, American law teachers may assert that the case method combines in a happy mixture an analysis of both structure and process; it studies not only the established rules, but also, to the frequent discomfort of the beginning student, examines painstakingly and at great length the dialectical processes that bring them into being. Finally, a defense of legal scholarship against the charge of being one-sided can be derived from a glance at the law school catalogue where will be found listed, not only courses in “substantive law,” but also courses in “procedure.’’

With respect to this last point it should be pointed out that law school courses dealing explicitly with procedure are concerned with the highly structured procedure observed in the trial of cases in court. It tells the student, for example, something about the problems of proving a contract in court; it tells him little about the extracurial procedures by which contracts come into being. In the case of the highly formal written contract, this omission may be quite innocent. But what of the contract “implied-in-fact?” Here any attempt to articulate dearly the modes by which contractual obligations arise taritly out of human interactions would present structure and process in an incomfortably intimate embrace, for in this case the thing that emerges from the process—“the contract”—is, as it were, simply an aspect of the process itself.

As for the case method as practiced in American law schools it can indeed be said of it that it combines in a felicitous mixture a study of both process and structure. The structure of the law of contracts as it goes into Restatements and textbooks is viewed as being in large measure a product of the judicial process. That process is in turn viewed as being shaped by the existing structure of rules and by the tensions that may arise between that structure and the court s conception of the proper disposition of the controversies (often of”novel impression ”) that are brought before it for decision. Thus, structure and process are viewed as interacting, each serving to shape the other.

The trouble with the case method, for all its explicit and perceptive orientation toward process, is that there is not enough of it in the law school curriculum. It is largely confined in practice to a particular kind of law-making, a species of legal ordering that for historical reasons has come to be known as “the common law,” though a more apt designation would have been “adjudicative law.” The adjudicative process is, however, only one way of bringing human relations into a workable and productive order. Other processes include statutory enactment, administrative direction, contractual ordering effected by the parties themselves, and the tacit accommodations that ripen into something equivalent to customary law. These various forms of social ordering are interrelated in complex ways; formal adjudication may of course serve as an adjunct to any of them for purposes of interpretation and enforcement.

The standard law school curriculum deals with the results of all these forms of social ordering; we do indeed teach students a little bit about customary law and a great deal about statutory law, administrative law and contracts. We do not, however, spend much time exploring the social processes by which these various forms of “law” come into being. Because these processes are neglected we inevitably lack a perspective from which to appraise the relative aptness, for solving a given problem, of the various competing forms of social ordering.

No one has contributed more to a correction of this defect, and to an enlargement of this perspective than the late Henry M. Hart. His mind had a strong bent toward process and procedure. The famous course he created, which is now taught (still from multilithed materials) in some two dozen law schools, was and is called The Legal Process. The course consists in a series of diagnostic and prescriptive exercises. Instead of asking, “What is the rule?” or even, “What is the best rule?” it asks, “What is the nature of the basic problem and how shall we choose among the various procedures of social ordering that might be applied to it?”

II

I like to think there is a special appropriateness in dedicating an article on mediation to the memory of Henry Hart. For of mediation one is tempted to say that it is all process and no structure.

Casual treatments of the subject in the literature of sociology tend to assume that the object of mediation is to make the parties aware of the “social norms” applicable to their relationship and to persuade them to accommodate themselves to the “structure” imposed by these norms. From this point of view the difference between a judge and a mediator is simply that the judge orders the parties to conform themselves to the rules, while the mediator persuades them to do so. But mediation is commonly directed, not toward achieving conformity to norms, but toward the creation of the relevant norms themselves. This is true, for example, in the very common case where the mediator assists the parties in working out the terms of a contract defining their rights and duties toward one another. In such a case there is no pre-existing structure that can guide mediation; it is the mediational process that produces the structure.

It may be suggested that mediation is always, in any event, directed toward bringing about a more harmonious relationship between the parties, whether this be achieved through explicit agreement, through a reciprocal acceptance of the “social norms” relevant to their relationship, or simply because the parties have been helped to a new and more perceptive understanding of one another’s problems. The fact that in ordinary usage the terms “mediation’’ and “conciliation” are largely interchangeable tends to Teinforce this view of the matter.

But at this point we encounter the inconvenient fact that mediation can be directed, not toward cementing a relationship, but toward terminating it. In a form of mediation that is coming to be called “marriage therapy” mediative efforts between husband and wife may be undertaken by a psychoanalyst, a psychiatrist, a social worker, a marriage counsellor, or even a friendly neighbor. In this situation it will not infrequently turn out that the most effective use of mediation will be in assisting the parties to accept the inevitability of divorce. In a radically different context one of the most dramatically successful uses of mediation I ever witnessed involved a case in which an astute mediator helped the parties rescind a business contract. Two corporations were entrapped by a long-term supply contract that had become burdensome and disadvantageous to both. Cancelling it, however, was a complicated matter, requiring a period of “phasing out” and various financial adjustments back and forth. For some time the parties had been chiefly engaged in reciprocal threats of a law suit. On the advice of an attorney for one of the parties, a mediator (whose previous experience had been almost entirely in the field of labor relations) was brought in. Within no time at all a severance of relations was accomplished and the two firms parted company happily.

Thus we find that mediation may be directed toward, and result in discrepant and even diametrically opposed results. This circumstance argues against our being able to derive any general structure of the mediational process from some identifiable goal shared by all mediational efforts. We may, of course, indulge in observations to the effect that the mere presence of a third person tends to put the parties on their good behavior, that the mediator can direct their verbal exchanges away from recrimination and toward the issues that need to be faced, that by receiving separate and confidential communications from the parties he can gradually bring into the open issues so deep-cutting that the parties themselves had shared a tacit taboo against any discussion of them and that, finally, he can by his management of the interchange demonstrate to the parties that it is possible to discuss divisive issues without either rancor or evasion.

But can we go beyond generalities of this sort? I believe we can, but to accomplish this we shall have to begin by examining in detail the functions mediation can perform in a specific illustrative situation. If this illustrative case is aptly chosen we may then, with appropriate adjustments, extend our conclusions to other situations that vary in specific ways from the model adopted for detailed analysis. The model I propose here is that presented by mediational efforts serving to facilitate the negotiation of a collective bargaining agreement between an employer and a labor union. Aside from the fact that this use of mediation happens to be one in which I have had some personal participation, I believe it to be especially suited to our present purpose because it combines in a single illustrative instance a number of the quite diverse functions a mediator can perform.

I begin, then, by supposing that an employer—say, a corporation engaged in manufacturing—and a labor union representing its production force are about to enter into negotiations concerning the terms of a collective bargaining agreement. I assume that these negotiations will range over a wide variety of issues, either because a collective bargaining agreement is being entered by the parties for the first time, or because an existing agreement has come open for renegotiation and the issues Taised by the parties extend over a wide range of subjects, such as rates of pay, seniority provisions, grievance procedures and the timing and length of annual paid vacations.

Now among the characteristics of this relationship that are relevant to our purposes, the first lies in the obvious fact that the parties mediated are two in number, they constitute a dyad, not a triad or more numerous group. To be sure, during the mediational effort some differences of opinion within the union and, less commonly, within the company, may come to the surface, but basically the mediator’s efforts are directed toward an ordering of the relations between the company and the union and he will generally be at pains to stay out of quarrels arising within either of the participating groups.

The second characteristic of concern here lies in the circumstance that normally neither of the parties, the employer or the union, has any real choice but to reach an agreement with the other. The two parties are locked in a relationship that is virtually one of “bilateral monopoly”; each is dependent for its very existence on some collaboration with the other. The employer is not only under economic pressure to reach a contract with the union, but in the United States is normally subject to a legal compulsion “to bargain in good faith” with the elected representative of his employees. The union, on the other hand, being organized for the purpose of collective bargaining, must, if it is to fulfill its reason for being, reach an agreement with the employer.

This “tied-in” relation, it should be noted, extends not only to the union as a collective entity, but in some measure to the individual union member as well. If, dissatisfied with what his union has achieved for him, he considers taking a job with another employer he is likely to be reminded that in his new position he will find himself at the bottom of the seniority ladder and vulnerable to lay-off at the first slackening of production. Furthermore, moving into a new employment may forfeit for him any nontransferable “fringe benefits” his union has obtained for him through collective bargaining, these benefits relating to such things as retirement pay, health benefits, paid vacations proportioned to length of sendee, and the...