Advocating Community Mediation in British
Columbia: A Discourse and its Dangers
George Pavlich
Over the past decade or so, community-based modes of regulation have (re-)
entrenched themselves in numerous countries around the world. In these
contexts it is quite common to hear references to community policing,
community corrections, community health, community work, community
psychiatry, and so on. Such trends have a direct counterpart in the field of
dispute resolution: community mediation. As part of a wider alternative
dispute resolution (neighbourhood justice, or community justice) movement,
the rise of community mediation is an attempt to localize dispute resolution
in informal contexts, outside the courthouse. Community mediation programs
are non-profit agencies that use techniques of mediation (rather than say
adjudication, or arbitration) designed to help disputants work out settlements
in familiar (‘community’) environments.
One way to investigate the emergence of community mediation in different
contexts is to examine the discourse of its advocates. The underlying
assumption of such inquiry is the creation of social identities (eg. community
mediation) entails the mutually constitutive interaction of power relations and
knowledge.1 By examining the advocates’ discourse, one glimpses the
1
See E Laclau and C Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic
Politics, Verso, London, 1985; M Foucault, The History of Sexuality: An Introduction, Vol 1,
Pantheon Books, New York, 1978; M Foucault, Discipline and Punish: The Birth of the Prison,
Vintage, New York, 1979; M Foucault, Power/Knowledge: Selected Interviews and Others Writing
1972-1977, Harvester Press, Brighton, 1980.
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AUSTRALIAN JOURNAL OF LAW AND SOCIETY
(1997) 13
knowledge which guides their program implementation.2 In turn, this permits
a better understanding of the social identity (form) that community mediation
has developed in context. Whilst such knowledge draws on symbols that may
transcend particular contexts, local inflections are significant. Thus it is
important to ground one’s analysis in local contexts before attempting to
show the comparative significance that one context may have for reflecting
on another. I have here elected to look at British Columbia, Canada (B.C.).
One of the first specifically community mediation programs to emerge in
B.C. developed out of the Justice Development Commission’s (JDC) Small
Claims Project in the summer of 1975.3 As a response to "justifiable
criticisms" of the Small Claims Court, the project was seen to provide a
feasible option for managing disputes:
The use of "mediation"’ as an integrated part of the court process was
successfully demonstrated to the satisfaction of both the public and the
judiciary. Mediation can be used to increase the perceived quality of
"justice" while complementing the present role of the courts).4
Such unequivocal acclaim for mediation helped to clear the social space
within which community mediation was to develop and - particularly in the
1980s - expand.5
By 1990, the use of mediation had taken root in various programs. There
were three community mediation Centres (one in Victoria and the other in
Surrey6), an International Commercial Arbitration Centre (BCICAC), a
mediation section in the Better Business Bureau, Victim Offender
2
I have elsewhere provided a detailed examination of the power relations involved in the rise of
community mediation in British Columbia, and so will not reiterate this here, see G C Pavlich,
Mediating Community Disputes: The Regulatory Logic of Government Through Pastoral Power,
unpublished PhD thesis, University of British Columbia, 1992.
3
There were related experiments prior to this - such as the 1974 Victoria Diversion-Mediation Project
which diverted "minor" criminal offenders out of the court system (see Solicitor General, Canada
Diversion: A Canadian Concept and Practice: In A Report of the First National Conference on
Diversion, October 23-26, Quebec City, Ministry of Supply and Services, Ottawa, 1977) - but these
were not explicitly touted as community-based projects.
4
Justice Development Commission (Courts Division), Final Report: Small Claims Project, AttorneyGeneral, Vancouver, British Columbia, 1976, p 46.
5
See Pavlich, above, n 2; D E Peachy, C Skeen and A-M Tymec, Directory of Canadian Dispute
Resolution Programs, Network for Community Justice and Conflict Resolution, Kitchener, 1988; C
Edwards, "Growing Interest in School Conflict Management" (1990) 25 (Summer) The Mediator 1.
6
The Mediator, 19 (Winter) (1988) 5.
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ADVOCATING COMMUNITY MEDIATION IN BRITISH COLUMBIA
Reconciliation projects, two school-based mediation programs and a wellendowed multicultural conflict project7. In addition, mediators in the
province were involved in international (The Community Justice Initiatives
Network), national (Family Mediation Canada established in 1985), provincial
(Mediation Development association of British Columbia) and even regional
(Southwest Mediators’ Network) mediator networks.. There are also various
mediator training facilities, with Universities in the region reflecting a notable
interest in ADR8.
The following paper explores three aspects of a discourse used by advocates
(lawyers, social workers, community advocates, educators, etc.) involved in
deploying community mediation programs in B.C. More specifically, the first
section describes how they (a) define community mediation, (b) understand
its emergence in the province, and (c) view the mediator’s role. The
empirical evidence for this section rests on previous research conducted by
the present author.9 This research was conducted over a two year period and
involved: in-depth interviews with most of the principal advocates involved
in the deployment of community mediation in the pro vince; extensive content
analyses of documents and journals in the field; observation of mediation
sessions; participant observation of public education days, mediator network
meetings and a training program; and questionnaires to clients involved in
mediation. The second section of the paper offers a critical look at the
previous section in order to problematize certain issues silenced by the
discourse.
7
See The Mediator 20 (1989) 3. By 1991 this figure had risen tc> 14 (see The Network (1991)),
indicating the rapid growth of mediation in the arena of schools. See The Mediator 28 (1990) and
Interaction 2(3) (1991) for details of this multicultural project which is sponsored by the Canadian
Donner Foundation.
8
As an indication of the scale of growth in number of mediators in the province, the Mediation
Development Association of British Columbia had approximately 75 members in 1985 (The Mediator
11 (1985) 5 and by 1987 boasted a paid-up membership of 600 {The Mediator 13 (1987) 1). Accord,
Resolve, Interaction and The Mediator, these networks publish newsletters/joumals which have proved
extremely valuable as documents that have been analyzed as part of the empirical basis of the ensuing
discussion. In particular, the contents of the following newsletters/joumals have been analyzed for the
period in question. The Law Faculty at the University of Victoria has established an Institute for
Conflict Resolution, and the Nemetz Chair at the University of British Columbia is intended to
increase the profile of alternative dispute resolution.
9
Pavlich, above, n 2.
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AUSTRALIAN JOURNAL OF LAW AND SOCIETY
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The Advocates’ Discourse
What is mediation?
According to pamphlets of various mediation services:
Mediation is a voluntary process where an impartial third person, the
mediator, maintains a respectful environment for two or more people
to resolve a dispute (Westcoast Mediation Services).
Mediation is a voluntary process during which people in dispute
resolve their problems with the assistance of an impartial third person
called a mediator (Dispute Resolution Centre, Victoria)
Mediation is a voluntary, confidential approach to conflict resolution.
It offers people a legal, peaceful, informal alternative to the adversarial
system. Mediation brings people together in a neutral setting to discuss
their situation and find a lasting solution to it (Surrey/White Rock
Mediation Services Society)
The advocates’ discourse coalesces around at least four points when
enunciating the nature of mediation. First, as may be gleaned from the above
quotations, community mediation is portrayed as a "voluntary" process - its
informal processes are differentiated from the perceived coercion of
adjudicative court procedures. It is described as a voluntary and flexible
process empowering individuals to retrieve control of community disputes
from the state. Conversely, individuals who participate in mediation are
required actively to try to find a mutually acceptable settlement:
Mediation is dedicated to the principle that we all have a right to be
actively involved in determining the outcome of our conflicts.
(Surrey/White Rock Mediation Services Society)
An important aim of mediation is therefore to,
...help people to be empowered to resolve their own disputes whenever
they can.10
10
Interview, 12/09/1991.
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ADVOCATING COMMUNITY MEDIATION IN BRUTISH COLUMBIA
A spin-off effect here is to educate individuals; to resolve potentially
disruptive conflict cooperatively rather than througlh confrontation, and this
helps to build peaceful, harmonious communities. Thus, we are told,
mediation helps to:
improve the quality of community life through more direct citizen
participation, reduced community tension and iincreased community
problem-solving skills.11
As such, mediation is directed at ‘community disputes’. Such disputes are not
always clearly defined, but the Canadian Bar Association (CBA) notes:
Community disputes can be defined as those disputes involving persons
with an ongoing relationship because of a community connection.
And this connection:
may be geographical, social, family, religious or other similar type of
relationship.12
At a second level, advocates define mediation as a complementary
‘alternative’ within - rather than a replacement of - tihe existing court system.
It is designed to deal with minor disputes that clog up - and thereby
compromise the effectiveness of - the court system. Thus, as an influential
task force on ADR put it:
Unlike in the United States, alternative dispute resolution in Canada
must not be seen as a movement that is separate from the courts or
superior to judicial decision-making. ADR in Cainada must be seen by
interdisciplinary professionals, individuals
and community
organizations as an expression of commitment to fair, effective and
accessible dispute resolution.13
Echoing a similar position in their British Columbian research Turner and
Jobson recommend that:
11
D E Peachy and A-M Tymec, Membership Handbook, The Nietwork: Interaction for Conflict
Resolution, 1989.
12
Canadian Bar Association Task Force Report, Alternate Dispute Resolution: A Canadian Perspective,
Canadian Bar Association, Ottawa, 1989, p 42.
13
CBA, above, n 12, p 77.
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AUSTRALIAN JOURNAL OF LAW AND SOCIETY
(1997) 13
legislative assistance should be made to facilitate mediation as a
mainstream justice service".14
Similarly, as one interviewee noted:
There are a lot of disputes out there and there are more than enough
for ADR to exist within the justice system as a complement to the
justice system... .15
Third, mediation is aimed at settling disputes. It is sometimes even described
as:
a settlement conference that has many advantages over the normal
discovery procedure [of the courts]...You can sound [the other
disputant] out about settlement in a way that isn’t possible within the
confines of the litigation system.16
This statement underscores a central theme in the discourse which presents
mediation as a way of bringing:
about an understanding of the real dispute, an understanding of the
dispute that leads them to settle...The commitment to settle is really
key, and you have to keep testing for that again and again.17
Settlement, in general, is conceptualized in terms of agreement: if both parties
voluntarily agree to a reasonable resolution, then the matter is considered
settled. In other words, settlement entails:
something mutually acceptably agreed on by both parties; and that
could take the form of something written which they then sign and
agree to abide by, it may not - it may be verbal.18
Such settlement is thought to bring about "dispute closure" which permits
disputants to continue their relationship without the tension of conflict. In
D Turner and K Jobson,7Yze Decision To Mediate, Not to Litigate, University of Victoria Institute for
Dispute Resolution, Victoria, 1990, p 46.
Interview, 26/09/1990 - emphasis added.
Interview, 26/09/1990.
Interview, 26/09/1990.
Interview, 15/01/1990.
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ADVOCATING COMMUNITY MEDIATION IN BRITISH COLUMBIA
turn, for advocates, achieving harmony between individuals leads to cohesion
within communities because it "restores" peace to tense relationships. Peachy
and Zehr detail a form of justice that "restores" peace and harmony to
communities. Even though the rhetoric of this conception of justice is
different from that of professionalised justice, both conceptions make the
dubious assumptions about societal consensus and the "common ground"
between members of a community.19
Fourth, associated with the above definitions, the discourse provides practical,
"how to mediate" guides. These guides may be thought of as the knowledge
and skills which competent mediators are expected to attain. There are
various source texts available,20 but two were most influential amongst
participants in the present study. On the one hand, lawyers who offer
mediation services often refer to Landau et al. On the other hand, the Justice
Institute’s Conflict Resolution Certification Program uses a manuscript
written by one of its key instructors. Since so many mediators in the province
have attended this training course and use Burdine’s basic model (which in
turn draws on a wider body of literature), it is perhaps instructive to examine
this text in more detail.21
Burdine details a four "stage" model of the mediation process. The first stage
requires mediators to "set the tone" of a given mediation by attempting to put
disputants at ease through relaxed conversation. The idea is to underscore
mediation’s ‘informal’ nature. In this stage, the required rules of conduct for
mediation are expounded, and a "commitment" to mediate obtained from
disputants (which usually entails signing ari "Agreement to Mediate").
Burdine’s second stage, "generating the agenda", affords both parties the
opportunity to present their respective sides of the dispute. Here the mediator
19
D E Peachey, "What People Want from Mediation" in Mediation Research: The Process and
Effectiveness of Third-party Intervention Kenneth Kressel and Dean G Pruit (eds) Jossey-Bass
Publications, San Francisco, 1989; H Zehr, "Retributive Justice, Restorative Justice" 16(1) (1986)
Peace Section Newsletter 9-11.
20
For example, J Folberg and A Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts
Without Litigation, Jossey Bass-Publishers, San Francisco, 1984; D E Peachy, B Snyder and A
Teichroeb, Mediation Primer: A Training Guide for Mediators in the Criminal Justice System,
Community Justice Initiatives of the Waterloo Region, Waterloo, 1983; R Fisher and W Ury, Getting
to Yes: Negotiating Agreement Without Giving in, Penguin Books, New York, 1988; K Kressel and
D G Pruit, Mediation Research: The Process and Effectiveness of Third-Party Intervention, JosseyBass, San Francisco, 1989; D Kolb, The Mediators, MIT Press, Cambridge, Mass, 1983.
21
B Landau, M Bartolleti and R Mesbur, Family Mediation Handbook, Butterworths, Toronto, 1987;
M Burdine, Mediation Skills Manual: "How to Mediate a Dispute", J ustice Institute of BC, The Centre
for Conflict Resolution Training, Vancouver, 1990.
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AUSTRALIAN JOURNAL OF LAW AND SOCIETY
(1997) 13
must identify and focus discussion on, possible areas of "common ground"
between parties by "identifying agenda issues" through such techniques as
"reframing." This technique involves restating an idea in a way that "focuses"
the dispute, but which is stated in a "neutral" way. That is:
The mediator changes the frame of the communication by eliminating
the harshness, the confusion or the glare, thus allowing the
communication to reach its intended receiver.22
The third stage involves "establishing" and elaborating upon the common
ground that is assumed to exist between parties. This is achieved by
clarifying positions, needs and interests through such techniques as reframing,
skilful questioning, probing, breaking large issues into manageable
components, and emotion management (defusing anger or hostility).
Burdine’s final stage attempts to find a settlement that is feasible, fair and
satisfactory to both parties (and the mediator). This entails such activities as:
"brainstorming" to search for resolutions; reflecting on the implications of
specific agreements; explicating practical aspects required; drafting an
agreement between the parties; and, monitoring settlements.
As should be evident from this model, and consistent with some of the
themes noted earlier, the intention is to resolve conflict not necessarily by
exploring just outcomes, or seeking the roots of disputes, but to equip
mediators with skills to engineer a social environment conducive to settling
disputes between individuals. The implication here is that the more
technically astute a mediator is, the more likely she or he is to settle disputes.
The ideal is for mediators to deploy through each mediation session a social
field in which the conflict between disputants is voluntarily transformed into
agreement to comport themselves harmoniously in the future. And it is the
knowledge and skills such as those enunciated in Burdine’s model which
mediators should acquire in order to become competent agents of mediation.
On the Rise of Community Mediation
For the most part, advocates argue that community mediation has emerged
in response to the failure of the court system to deal with the needs of the
community. Courtroom adjudication is thought to be unsuited to resolving
minor disputes between community members with ongoing relationships. As
archaic institutions, advocates see courts as more suited to dealing with
22
Burdine, above, n 21, p 41.
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ADVOCATING COMMUNITY MEDIATION IN BRITISH COLUMBIA
serious disputes than minor community disputes. Their procedural
inflexibility is deemed costly, time consuming and inhospitable, resulting in
various problems which community mediation promises to avoid. Most
notably, mediation is touted as an efficient (in terms of cost and time) and
accessible alternate procedure which encourages disputants to, "resolve their
issues in a less formal, less structured, less expensive and more satisfying
way".23 Since its outcomes are supposedly freely chosen by disputants,
advocates argue that disputes are more likely to remain resolved than if
settlements were imposed by judges.
With this in mind, advocates claim that community mediation arose out of
a need in the community to resolve conflicts effectively without having to
endure a day in court. As one interviewee put it, advocates saw the need for
community mediation because:
we were hearing about all these problems in the community that didn’t
seem to have a logical place to go...to be resolved.24
Stated differently, it arose because:
Citizens in various communities decided there had to be another way
to resolve conflict and bring harmony to the area where they live.25
Consequently, for some advocates, alternative dispute resolution is, "simply
a modem restatement of the pursuit by all Canadians for social justice and
peace".26
This line of thinking contrasts with two other aspects of the discourse which
problematize the idea mediation is a simple response to the needs of a pre­
existing community. First, most programs complain of a decided paucity of
cases which a prominent member of a funding agency expressed thus:
If mediation is so magical, why aren’t people clamouring for the
services? Because that’s not what is happening. In fact, the opposite -
23
Interview, 26/09/1990).
24
Interview, 12/09/1991.
25
M Brown, "Small Claims Settlement Conferences Welcome - Bet No Substitute for Community
Mediation" The Mediator 32 (Winter, 1991) 1-2.
26
Brown, above, n 25, p 2.
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AUSTRALIAN JOURNAL OF LAW AND SOCIETY
(1997) 13
when community mediation programs open, there’s trouble getting
clientele”.27
This point is confirmed in an article which suggests that:
Mediators in B.C., including the Mediation Development Association
of B.C...have bewailed the dearth of clients and the general lack of
information and knowledge about mediation in our community".28
As such, one can better understand the spirit of this jocular poem entitled,
The Mediator's Lament:
Mediate, not litigate
Cooperate, not obliterate
Facilitate, not vindicate
AND HOPE TO GET SOME BUSINESS”29
This is confirmed by Dolan’s30 analysis of the caseload at one mediation
program. For the period April 1, 1989 to March 31, 1990, the program
reports 544 (mostly telephone) inquiries and 237 cases opened. Of the open
cases, only 42 actually resulted in mediation (28 reached agreement) and 28
in "conciliation”. Some 100 possible mediations were cancelled because
respondents refused to participate in the process. Similarly, and by way of
comparison, from April, 1989 to April 1990, another program reports taking
only 26 cases to mediation (,Statistics, Westcoast Mediation Services Society).
Despite the growth of community mediation programs in the province, and
despite the apparent expansion of alternative dispute resolution more
generally in the province, there is still a rather limited demand from the
community for mediation services. Undeterred by the apparent contradiction
in portraying their attempts as a response to a need in the community, and
yet finding a dearth of cases to mediate, advocates explain the discrepancy
as being no more than a problem arising from a lack of "public
27
28
Interview, 29/01/1991.
The Mediator, 12 (1987) 1.
29
The Mediator, (June), (1985) 13.
30
N Dolan, The Victoria Dispute Resolution Centre: An Evaluation of the Mediation Project, Ministry
of the Attorney-General, Victoria, 1989, p 77.
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ADVOCATING COMMUNITY MEDIATION IN BRITISH COLUMBIA
awareness".31 Consequently, most programs emphasize the importance of
educating the public, or marketing mediation, and are often active
participants in local events (eg, law days, public lectures, education forums,
radio and television programs, etc).32
A second tension within the discourse arises in that community mediation is
said to have emerged as a result of the entrepreneurial activities of volunteer
mediators. For example, oral accounts suggest an early mediation program,
Westcoast Mediation Services, was founded as a result of the active input of
members on the Board of the Westcoast Mediation Services Society.33 It
arose in the wake of a successful practical mediation course run through the
Justice Institute of British Columbia. Those who completed this course had
no easy vent for their newly-acquired skills:
Out of our training here a number of the people that had taken some
of our courses said, "Where do I now go to get some experience in
mediating community disputes?"34
In direct response to this appeal, the Westcoast Mediation Services Society
(in association with the Justice Institute) was constituted by a Board of some
four volunteer members who drafted proposals for the development and
funding of a non-profit mediation program.
In sum, the apparent lack of community demand for mediation services,
together with the indication that programs were deployed by key mediators,
contradicts the idea community mediation was autochthonously deployed by
the community. This discursive tension appears to indicate a group of
significant agents (society board volunteers, trained mediators, government
and private funders, etc.) were far more instrumental in deploying a vision
of community mediation in the Province than ihe community participants to
which such efforts are directed. It also suggests;, perhaps, the political
expedience to advocates of appealing to notions of a pre-existing community
when deploying their programs.
31
32
One interviewee suggested the problem of numbers is related to a certain "Canadian mentality" which
purportedly reflects a reluctance on the part of Canadians to, "air ouir laundry in public" (12/09/1991).
See, for instance, D Connor, "Your Marketing Plan (1988) 16 (Spring) The Mediator 1; and The
Mediator, 21 (1989) 3.
33
34
Eg, interviews 15/01/1990; 26/09/1990; 12/09/91.
Interview, 12/09/91.
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AUSTRALIAN JOURNAL OF LAW AND SOCIETY
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The Mediator: Neutrality, Impartiality and Altruism
The mediator ensures that the parties:
clearly communicate their and needs and concerns
listen and understand each other
focus their discussion on resolving the conflict
develop an agreement acceptable to both of them.35
Typically, the discourse depicts the mediator as a neutral, third party who
sets ground rules for disputants to develop their own solutions. The mediator
is portrayed as a passive facilitator who opens closed channels of
communication. She/he does not make decisions, offer legal advice, assign
blame or establish guilt and innocence. On the contrary, the mediator tries to
establish a caring environment to help people locked in conflict communicate
with one another in such a way as to increase the chances of their reaching
agreement.
In this role, the mediator is portrayed as a neutral third party who builds a
safe environment from which to secure an acceptable resolution. Interviews
with various mediators indicate there are differing conceptions of neutrality,
and some even doubt whether it is possible to achieve this.36 Nevertheless,
most view it as a laudable ideal to strive for, such that, in the words of a
prominent mediator:
What I would like to see happen does not become an issue in this
mediation. I have to step back and recognize that its these two people
trying to resolve a problem and I’m here to help them.37
This claim is predicated on an underlying assumption: since disputants are
assumed to harbour some common ground, all that is required is the neutral
assistance of a mediator to recover the underlying harmony lost through
conflict. In more general terms, the discourse suggests no more than neutral
guidance is required of the mediator since his or her role is merely to restore
35
Pamphlet, "Separation and Divorce Mediation: What is it and How Can it Help?", Mediation
Development Association of British Columbia. It is somewhat revealing that the parties should be
referred to as "both of them". This clearly confirms allegiance to the dyadic individualization of
disputes.
36
Burdine, above, n 21.
37
Interview, 11/01/1990.
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ADVOCATING COMMUNITY MEDIATION IN BRITISH COLUMBIA
community consensus and peace which is disrupted when individuals are
locked in conflict.
Moreover, aspiring to neutrality is implicitly seen to be one of the ways in
which a mediator can stand back from the content of particular disputes in
order to concentrate on the rather different process of deploying a social field
within which disputants can work out their own resolutions. For it is here in the ability to deploy fields that help to structure the actions of others
towards agreement - that mediators stake a claim to expertise. Increasingly,
too, this claim is explicitly articulated in the discourse under the guise of a
need to devise and implement standards of practice for mediators which
seems to entail a professionalization of mediation per se?% In any case, this
area of the discourse has helped to sanction the deployment of numerous
certificate or accredited courses through which the required skills of
mediation are relayed to potential mediators. Indeed, as one advocate
succinctly states:
The pressure to certify mediators is increasing rapidly as changes in
legislation expand the opportunities available to trained skilled
mediators.38
39
As part of the process of staking a claim to the expertise of mediators, the
discourse emphasizes mediators are "trained", "professionals", etc. For
example:
Our mediators are professionals from a variety of backgrounds who
have special training in conflict resolution.40
38
For the kinds of standards (which are to be decided by the "mediation community") this discourse has
in mind, see The Mediator 3 (1990) 3-4 and The Mediator 18 (1988) 5. By contrast, advocates of
VORP (mediators associated with the church) are rather more cautious of the quest for mediation
standards, and the possible effects this might have on the community-focus of mediation (eg, D
Worth, "Mediation and Values" 8(3) (November) Accord 12. Similar concerns have been raised in the
United States by such authors as R M Pipkin and J Rifkin, "The Social Organization in Alternative
Dispute Resolution Implications for the Professionalization of Mediation" (1984) 9(2) The Justice
System Journal 204-227; R Shonholtz, "Community as Peacemaker: Making Neighborhood Justice
Work" (1988-89) 15 Current Municipal Problems 291-230; and P Wahrhaftig, "An Overview of
Community-oriented Citizen Dispute Resolution Programs in the United States" in The Politics of
Informal Justice: The American Experience, Richard Abel (ed) Vol 1, Academic Press, New York,
1982; P Wahrhaftig, "Nonprofessional Conflict Resolution" (1984) 29(6) Villanova Law Review 1463­
1476.
39
Burdine, above, n 21, p 7.
40
Joint publication, Surrey/White Rock Mediation Service and Westcoast Mediation Services.
157
AUSTRALIAN JOURNAL OF LAW AND SOCIETY
(1997) 13
At the same time the discourse clearly wishes to preserve its claim to
informality and to ensure mediators are not too clearly differentiated from
participants. Thus, one program depicts the mediator as:
A member of your community, who is fully trained and assessed by
the Centre 41
Thus mediators are both competent, trained dispute resolvers (even,
professionals) and ordinary, non-threatening members of the community with
altruistic desire for social change. They are members of the community who
"really feel the need to help people".42
While mediators in the province come from various backgrounds, they appear
to fall into one of two categories: those that charge a fee for services; and,
volunteers who do not get paid (or receive only token amounts). As one
pamphlet suggests:
In British Columbia, mediation is provided by counsellors, educators,
lawyers, psychologists, social workers or trained volunteers in either
private practices or family counselling agencies, community mediation
centres or Family Court Counsellors’ offices" (Mediation Development
Association of B.C.)
Moreover, in large measure, this split coincides with a cleavage between
lawyers who use mediation, as opposed to people with non-legal backgrounds
(mainly social science or church-associated) who have trained as mediators.
As one prominent member of the community mediation movement puts it:
What I find intriguing in this field is there’s a struggle between whose
going to dominate it. Is it going to be the lawyers (and judges and
court system) or is it going to be the human service people and
community-based people? ... That’s the same all over North America.
There’s always an interplay between these two groups.43
41
Pamphlet, the Dispute Resolution Centre of Victoria.
42
Interview, 11/01/1990.
41
Interview, 12/09/1991.
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ADVOCATING COMMUNITY MEDIATION IN BRITISH COLUMBIA
In general, "human service" mediators seem to come from the so-called "new
middle class"44 and tend to advocate a vision of mediation as
complementary, but outside of, the legal system. This is hardly surprising,
given that they are outsiders to the formal legal field since they are not
members of a Bar Association and cannot practice as lawyers. No doubt,
their common fear is that if mediation should fall under the exclusive
jurisdiction of lawyers, non-lawyer mediators would soon be excluded from
the informal justice domain. If the human service mediators are reasonably
united on this score, lawyer mediators seem rather more divided: there are
some who support the former’s vision of community mediation; others
oppose the use of mediators who are not formally trained in law; and, still
others are simply indifferent, so long as no untrained mediator spoils the
reputation of the mediation process.
A Critical Look at an Emerging Social Identity
At various sites of struggle, the advocates have erected fields of knowledge
in which the social identity of community mediation has been, and is in the
process of being, constructed in British Columbia. We have looked at aspects
of the advocates’ discourse above. As noted, the discourse is inextricably
related to diverse local power relations that are fraught with perverse, and
often unintended, effects.45 It seems appropriate therefore to reflect on some
problems, and their potential dangers, within the advocates’ discourse.
To begin with, various critics have questioned the over-optimistic image of
mediation as a means of empowering individuals to resolve disputes of their
own volition, independently of the state.46 Despite their different
formulations, these critics tend to identify informal justice as an invidious
extension of state control which occurs under the rhetorical guise of "rolling
back the state".
The point is that community mediation, far from
empowering individuals, actually extends the state’s control network into
44
M Howlett and K Brownsey, "The Old Reality and the New Reality: Party Politics and Public Policy
in British Columbia 1941-1987" (1988) 25 Studies in Political Economy 141-176.
45
Foucault, "The History of Sexuality: An Introduction" above, n 1.
46
Eg, R Abel, "Introduction" in The Politics of Informal Justice: The American Experience, R Abel (ed)
Vol 1, Academic Press, New York, 1982; B de S Santos, "Law and Community: The Changing Nature
of State Power in Late Capitalism" in The Politics of Informal Justice: The American Experience, R
Abel (ed), Vol 1, Academic Press, New York, 1982; R Hofrichter, Neighbourhood Justice in
Capitalist Society: The Expansion of the Informal State Greenwood, New York, 1987; D R Baskin,
"Community Mediation and the Public/Private Problem" (1988) 15(1) Social Justice 98-115.
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recesses of private life that have seldom attracted regulation. This is a
potential danger that must be taken seriously.
Whilst the advocates’ discourse seems overly-optimistic about what
community mediation might achieve, the critics’ (pessimistic) assessment
appears to be unduly rigid. The critics, it seems to me, go too far in denying
the semi-autonomy - and the emancipatory potential - that may be associated
with changing social spaces.47 Perhaps, community mediation is better
understood as part of an emerging political rationality which may not be
entirely subsumable under state auspices. But if community mediation is
neither a completely empowering alternative to the state, nor a mere residual
effect produced by the state, then what is it?
One response to this is to view community mediation as one element in a
complex political rational whose composite appears to be the formation of
community-based forms of control. It is a social identity erected through a
discourse directed at settling individual disputes in community settlings. What
is at stake here is not the necessary expansion of the state by community
mediation advocates, but the possible articulation of different models of
power - the state’s law and sovereign model, with the more pastoral models
reflected by community mediation.48 Such a conception seeks to avoid the
twin dangers of blind optimism on the one hand, and potentially debilitating
pessimism on the other, in favour of a more sober assessment community
mediation’s promise - in view of its contextual identity - to deliver social
justice.
A second danger in the advocates’ discourse lies in its focus on individual
disputes. As Foucault notes, the creation of disciplined, free individuals
within carceral networks of control constitute a ’’dark side" which renders the
assertion of liberal legal right possible.49 To the extent that community
mediation structures fields which help to fashion such individuals, they
become directly entrenched in liberal forms of governance.50 Their capacity
to deliver genuinely alternative forms of justice to professionalised courtroom
justice is concomitantly reduced. Moreover, by treating each dispute on an
47
P Fitzpatrick, "The Rise and Rise of Informalism" in Informal Justice?, R Matthews (ed) Sage,
London, 1988; R Matthews, "Introduction" in Informal Justice?, R Matthews (ed), Sage, London,
1988; Pavlich, above, n 2.
48
Pavlich, above, n 2.
49
Foucault, above, n 1, 1979.
50
See also, Fitzpatrick, above, n 47.
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ADVOCATING COMMUNITY MEDIATION IN BIRITISH COLUMBIA
individual basis, community mediation advocates dlraw attention away from
structural conditions which may be fermenting particular sorts of conflict, and
may even hinder the process whereby these conditions can be attacked
directly.51 For example, in a case where one emplloyee hurls racial insults
at another, it is surely a pyrrhic victory for a mediator to procure an
agreement from the disputants. Perhaps, a more empowering informal justice
response to this would be one that does not treat the dispute as an isolated
malady in the relationship between two individuals, but which recognizes the
structural conditions that have nurtured such dispuites.52 Indeed, the pursuit
of social justice in this case would surely reqmire programs to locate
themselves within a wider political strategy directed at expunging (say)
racism from society, and not to define success in terms of individual
settlement.
But there is an even less visible way in which the advocates’ discourse may
be seen to entrench existing conceptions of order. Insofar as it enunciates a
particular vision of freedom for individuals (ie, offering individuals the
freedom to choose their own settlements - not freedom from, say, consensual
settlement), the discourse helps to enunciate a defin ition that links the liberty
of each individual to the security of all.53. In processes such as these, even
the personal aspirations of each individual are aligned with wider political
goals — an effect which certainly problematizes the voluntarism that
community mediation touts as one of its main virtues.54
Third, there are various perils implicit in the advocates’ vision of the
"communities" they see their activities as helping tG> strengthen. It is perhaps
not coincidental that the community is forged as a significant control object
at a time when the welfare state is in decline. That is, as the welfare state is
"rolled back," its regulatory object - the social domain to which social
controls are directed (eg, social welfare) - is fllexed beyond previously
defined limits.55 In the process, this social arena is fragmented into the
51
52
Abel, above, n 46.
H Mica, "Social Conflict, Local Justice: Organizational Responses to the Astructural Bias" (1992)
(Spring) Interaction (supplement).
53
M Foucault, "Omness et Singulatum" in The Tanner Lectures on Human Values (Vol 2) S McMurrin
(ed) Cambridge University Press, Cambridge, 1981; G Burchell, "Peculiar Interests: Civil Society and
Governing ‘the System of Natural Liberty’" in The Foucault Effect: Studies in Governmentality, G
Burchell, C Gordon and P Miller (eds), Chicago University Press,, Chicago, 1991.
54
N Rose, Governing the Soul: The Shaping of the Private Self Romtledge, London, 1990.
55
J Donzelot, "The Mobilization of Society" in The Foucault Effect: Studies in Governmentality, G
Burchell, C Gordon and P Miller (eds), Chicago University Press;, Chicago, 1991, pp 169-180.
161
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disparate communities that community justice advocates, inter alia, are
helping to define.56
Perhaps this heralds the rising dominance of
community over social regulation in an altered (postmodern?) socio-political
environment (eg, community policing, community corrections, community
health, etc). For example, by defining certain conflicts as "community
disputes", advocates have created a space in the dispute resolution arena as
a target for their mediation efforts. By not defining this space as an arena to
compete with the state’s courts (which is implied in the notion of an
alternative, "community justice"), or as a direct challenge to formal legal
processes, the hegemony of professionalised state justice is underscored.
Whilst this may be an astute strategy to secure state approval (and funding),
it has the perverse effect of subordinating questions of social justice - and the
initial impetus to seek fairer and less hostile forms of dispute resolution - to
the liberal state’s more immediate concerns with achieving order through
technically efficient means.
Furthermore, despite its frequent references to "community", the discourse
enunciates rather few (and vague) conceptions of the term (which, of course,
has a certain political expedience). It does implicitly assume functioning
communities are homogeneous, consensual, harmonious and ordered; hence
the discourse’s view of conflict as a necessarily disruptive process in need of
direct amelioration, and its emphasis on settlement. One important danger of
this conception lies in its failure to acknowledge, or appreciate, the important
gulfs that lie between people located in the diffuse subject positions of
postmodern contexts.57 With this in mind, we might legitimately ask whose
consensus mediators take to be that of the "community". Indeed, from the
noted problems of securing sufficient caseloads (the "mediator’s lament"),
advocates’ implicit definitions of community are certainly not
autochthonously developed - if they were, for one thing, it would surely not
be necessary to educate people, or indeed to market mediation services. In
using various processes to market their services (through public events,
brochures, television programs, etc.), advocates help to define a vision of
consensual communities that discourages even positive forms of conflict.
Simultaneously, it encourages the formation of an impoverished - and, to be
56
S Cohen, Visions of Social Control: Crime Punishment and Classification, Polity Press, Cambridge,
1985.
57
B Smart, Modern Conditions, Postmodern Controversies, Routledge, London, 1989; Laclau and
Mouffe, above, n 1.
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ADVOCATING COMMUNITY MEDIATION IN BRITISH COLUMBIA
sure, dangerous - political terrain which, through its emphasis on consensus,
aims at neutralizing all dissent.58
In this respect, the advocates’ version of mediation seems well suited to the
task of neutralizing conflicts that threaten to undermine dominant visions of
a harmonious order. Indeed, since their discourse depicts success in terms of
an ability to settle disputes efficiently, cost effectively, informally and
without delay, it elevates technical concerns above issues of justice.
Simultaneously, it couches the claimed advantages of the mediation process
in the language of convenience and efficient settlement rather than social
justice. This emphasis on technical reasoning is, no doubt, related to the
advocates’ narrow vision of why mediation arose in the first place (ie, to
solve certain problems in the courts, or to find a place for mediators to try
out their newly acquired skills). Even when the discourse does refer to
justice, it invokes a conservative image of a restorative justice which aims to
restore communities to a certain status quo by eliminating individual conflict.
It is unlikely those who must endure the webs of oppression within
fundamentally unequable social environments will easily equate social justice
with the restoration of the very order responsible for their subordination.
Perhaps a discourse that resists this order will have to consider alternative
forms of justice outside of the professionalised and/or universalizing
approaches that have marked modem dispute resolution terrains ~ a point on
which emerging debates on justice under postmodern conditions may yet
have much to say.59
If these comments refer to dangers in the advocates’ definition of community,
there is another peril lurking in the recesses of the "neutral” role they assign
to mediators. Here I am reminded of Gouldner’s somewhat caustic remarks
about sociologists who hide behind the mask of impartiality (objectivity).
Using his words somewhat out of context, we might argue the language of
impartiality is often used by "those whose resentment is shackled by their
timidity and privilege" and ultimately signifies a "devotion or capitulation"
to the status quo.60. Mediators are not, nor can they be, impartial or neutral
facilitators: by placing such a premium on achieving individual settlement
58
C Harrington, Shadow Justice: The Ideology and Institutionalization of Alternatives to the Court
Greenwood, Connecticut, 1985; Baskin, above, n 46.
59
Eg, J Lyotard, Just Gaming, University of Minnesota Press, Minneapolis, 1989; S K White, "Justice
and the Postmodern Problematic" (1987/8) 7(3/4) (Winter) Praxis International 306-319; G Wickham,
"The Political Possibilities of Postmodernism" (1990) 19(1) (February) Economy and Society 121-149.
6(1
A Gouldner, The Coming Crisis in Western Sociology, Heineman, London, 1971, p 439.
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they are located on the side of maintaining the consensual aims of liberal
governance. Maintaining this consensus, especially when it operates at the
direct expense (even oppression) of certain clients is a danger that is simply
glossed by a devotion to mediator neutrality. Certainly a further analysis of
the power relations that present neutrality as an uncontested good would be
useful in searching for an alternative (and more effective) social position to
explore the possibility of justice in postmodern conditions.
Finally, and related to the above point, we ought to be somewhat circumspect
about the related portrayal of mediators as "caring" facilitators.
Notwithstanding benevolent intentions, there is an important danger in using
volunteers as an integral part of the regulatory network: enticing everyday
people to become agents of this mode of regulation increases the quantum of
panoptic controls on social relations. In turn, this strategy renders processes
of control invisible in a way that is related to, but yet different from,
custodial regulation in asylums, etc. The similarity here lies in our not
knowing what control agents are up to, yet as Cohen puts it:
...not because they are hidden behind walls but because they are
camouflaged as being just ordinary members of the community.61
This blurs the boundaries between what might previously have been
demarcated as public and private control arenas. In the process, attempts are
made to secure public political aims through regulating the private domain
under the rhetorical guise of preserving individual freedom and voluntarism.
Perhaps, however, the "caring" mediator could equally be seen as playing a
role in helping to deploy social fields where confidential mechanisms operate
informally and out of the sight as they try to produce particular types of
individuals whose self-image and personal aspirations align with wider
political aims.62 In view of this, there is much reason to be cautious of the
advocates’ optimism about the resistance to alienating disputes that mediation
- with its current social identity - is capable of mustering. For example, one
is here reminded of the purportedly "feminine," "caring", processes of
mediation, a stance which may even countenance rather than attack the
complex patriarchal power-knowledge arrangements that keep women in
subordinate social positions.
Cohen, above, n 56, p 75.
62
164
Rose, above, n 54.
ADVOCATING COMMUNITY MEDIATION IN BRITISH COLUMBIA
Conclusion
I have charted aspects of the social identity of community mediation as
enunciated within the discourse of its advocates in British Columbia. In
discussing the discourse I have pointed to some (by no means all) significant
dangers in continuing the process of deploying such an identity. My aim has
been to problematize important facets of the discourse, not for the facile
amusement of bitter cynics, but as a way of signalling the perverse effects of
even the best-intentioned efforts. In the postmodern condition that Lyotard
so eloquently depicts, we have still to develop ways of facing the
contingency that remains in the wake of our "incredulity towards
metanarratives".63 Ongoing critical reflection which recognizes that no
power configuration is exempt from danger is one positive response to this
condition - and herein lies the impetus for the above attempt to diagnose
perils within the advocates’ discourse on community mediation.
63
J Lyotard, The Postmodern Condition: A Report on Knowledge, University of Minnesota Press,
Minneapolis, 1984.
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