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Practice and Paradox: Deconstructing Neutrality in Mediation

Published online by Cambridge University Press:  27 December 2018

Sara Cobb  and
Janet Rifkin
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Abstract

Based on our research on the practice of neutrality in mediation, we deconstruct the practice of neutrality in mediation by examining both the discourse of neutrality operant in mediators’ accounts of their practice and the discourse processes in mediation sessions. We identify three key terms—justice, power, and ideology as a system of terms central to the rhetoric of neutrality. We challenge existing definitions of neutrality in and by analyzing the discourse processes in mediation practice, which allows for an alternative description of neutrality as a practice in discourse.

Type
Articles
Information
Law & Social Inquiry , Volume 16 , Issue 1 , Winter 1991 , pp. 35 - 62
Copyright
Copyright © American Bar Foundation, 1991 

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References

1 Elsewhere we have referred to neutrality as a “discourse of origin” for law as well as ADR. Sara Cobb &. Janet Rifkin,” Neutrality as a Discursive Practice: The Construction and Transformation of Narratives in Community Mediation,” in S. Silbey &. A. Sarat, eds., 11 Studies in Law, Politics and Society (Greenwich, Conn.: JAI Press, 1991) (“Cobb & Rifkin, ‘Neutrality’”). Here we are using Foucault's archeological metaphor to make the point that neutrality is a discourse which has legitimized the development of law and law-related practices by providing these practices with “objective” positions from which judgments can be made or procedural guidelines enforced. Michel Foucault, The Archeology of Knowledge: Discourse on Language (New York: Pantheon Books, 1972). For a more thorough discussion on the relationship between law and objectivism and the associated base of pluralism see Trubek, David,” Where the Action Is: Critical Legal Studies and Empiricism,”36 Stan. L. Rev. 575 (1984); John Brigham &. Christine Harrington,” Realism and Its Consequences,” 17 Int'l J. Soc. L 41 (1989); Christine Harrington, Shadow Justice: The Ideology and Institutionalization of Alternatives to Court (Westport, Conn.: Greenwood Press, 1985) (“Harrington, Shadow Justice”); Susan Silbey &. Austin Sarat,” Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstitution of the Judicial Subject,” 66 Denver U. L Rev. 437 (1989); J. Forester,” Envisioning the Politics of Public Sector Dispute Resolution” (presented to the Law & Society Association, Berkeley, Cal., 1990) (“Forester, ‘Public Sector Dispute Resolution’”).Google Scholar

2 See Society for Professional Dispute Resolution, Ethical Standards of Professional Responsibility (Washington, D.C.: the Society, 1986) (“SPIDR, Ethical Standards”).Google Scholar

3 Handler, Joel, The Conditions of Discretion: Autonomy, Community and Bureaucracy (New York: Russell Sage Foundation, 1986) (“Handler, Conditions of Discretion”).Google Scholar

4 Peter, Carnevale & Pegnetter, R., “The Selection of Mediator Tactics in Public Sector Disputes: A Contingency Analysis,” 41 J. Soc. Issues 65 (1985).Google Scholar

5 Deborah, Kolb, “To be a Mediator: Expressive Tactics in Mediation,” 41 J. Soc. Issues 11 (1985); Shapiro, D., Drieghe, R., & Jean, Brett, “Mediator Behavior and the Outcome of Mediation,” 41 J. Soc. Issues 101 (1985); David, Greatbatch &. Robert, Dingwall, “Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators,” 23 Law & Soc'y Rev. 592 (1989) (“Greatbatch &. Dingwall, ‘Selective Facilitation’”).Google Scholar

6 Nancy, Thoennes & Jessica, Pearson, “Predicting Outcomes in Divorce Mediation: The Influence of People and Process,” 41 J. Soc. Issues 115 (1985).Google Scholar

7 Kolb, , 41 J. Soc. Issues (cited in note 5).Google Scholar

8 Greatbatch & Dingwall, “Selective Facilitation” (cited in note 5).Google Scholar

9 We collected more than 30 mediation sessions from community mediation programs in western Massachusetts. Using discourse analysis, we have examined neutrality as a discursive practice, specifically as the management of stories. In addition to this data set, we interviewed 15 mediators, bringing to the surface the definitions, metaphors, semantic frames, and narrative content that are specific to the way mediators “talk” neutrality.Google Scholar

10 The interrelationship between these terms is consistent with Foucault's focus on the “system of relations” in discourse. Michel Foucault, Power and Knowledge (New York: Pantheon Books, 1977) (“Foucault, Power and Knowledge”). Write Dreyfus and Rabinow: Whatever is meant by discourse “establishing” a “system of relations,” it should be clear that in Archeology the assertion that discourse is autonomous covers more than the claim that discourse can be made intelligible in its own terms. It is rather the extreme and interesting claim that discourse unifies a whole system of practices, and that it is only in terms of this discursive unity that the various social, political, economic, technological, and pedagogical factors come together and function in a coherent way. This claim is striking because one might have thought that the institutional practices would have to be already coherent and unified in order for unified discursive practices to develop, or at least, that there would have to be some common cultural practices underlying both the institutional and discursive practices in order for these sets of practices to mesh with each other.Google Scholar

Dreyfus, Hubert &. Rabinow, Paul, Michel Foucault: Beyond Structuralism and Hermeneutics 65 (Brighton, Eng.: Harvestor, 1982). We are claiming that neutrality is a discursive unity made up of this constellation of terms.Google Scholar

11 By “poststructural” we refer to those approaches to social science that focus on the discursive structures which organize and constrain the interpretation of any text and cut the text loose from any intentions or instructions of the author. Paul Ricoeur, Hermeneutics and the Human Sciences (New York: Cambridge University Press, 1981); Michael Shapiro, Language and Politics (New York: New York University Press, 1984) (“Shapiro, Language”); id., The Politics of Representation; Writing Practices in Biography, Photography and Policy Analysis (Madison: University of Wisconsin Press, 1988); id., Language and Political Understanding: The Politics of Discursive Practice (New Haven, Conn.: Yale University Press, 1981). This focus on the ideological nature of discourse, coupled with the disruption of any necessary correspondence between sign and signifier (Jacques Derrida, Speech Phenomena and Other Essays on Husserl's Theory of Signs (Evanston, 111.: Northwestern University Press, 1973)), erodes the base for empiricism and manages to focus on the interpretive processes the text inscribes into its own reading. Poststructural approaches terminate in the analysis of the ideological and political aspects of discourse as the practice that positions or “interpellates” subjects in social space and constitutes their social world. V. Volosinov, Marxism and the Philosophy of Language (Cambridge, Mass.: Harvard University Press. 1973) (“Volosinov, Marxism”); Stuart Hall,” Signification, Representation, Ideology: Althusser and the Post-structuralist Debates,” 2 Critical Stud, in Mass Communication 91 (1985).Google Scholar

This approach to social science is visible in such disciplines as anthropology (James Clifford & George Marcus, Writing Culture: The Poetics and Politics of Ethnography (Berkeley: University of California Press, 1986), semiotics (Roland Barthes, Mythologies (New York: Hill &. Wang, 1957) (“Barthes, Mythologies”); Jacques Derrida, Writing and Difference (Chicago: University of Chicago Press, 1978)), communication (Kenneth Gergen, Toward Transformation in Social Knowledge (New York: Springer-Verlag, 1982) (“Gergen, Transformation”); John Shotter, Social Accountability and Selfhood (New York: Basil Blackwell, 1984) (“Shotter, Social Accountability”); Rom Harre,” A Metaphysics for Conversation: A Newtonian Model of Speech-Acts in People Space,” 22 Research on Language & Soc. Interaction 1 (1989)), and legal studies (Silbey & Sarat, 66 Denver U. L Rev. (cited in note 1); Harrington, Shadow Justice (cited in note 1); Richard Hofrichter, Neighborhood Justice in Capitalist Society (New York: Greenwood Press, 1987) (“Hofrichter, Neighborhood Justice”); Sally Engle Merry & Susan Silbey,” What do Plaintiffs Want? Reexamining the Concept of Dispute,” 9 Just. Sys. J. 151 (1984); William L. F. Felstiner, Richard L. Abel, & Austin Sarat,” The Emergence and Transformation of Disputes: Naming, Blaming, Claiming….” 15 Law & Soc'y Rev. 631 (1980–81); Lynn Mather & Barbara Yngvesson,” Language, Audience, and the Transformation of Disputes,” 15 Law & Soc'y Rev. 775 (1980–81)). Most of this research uses the reflexive relationship between the knower and the known in a “deconstructive” move that examines and challenges the position of the knower as a social actor in a given historical and discursive space.Google Scholar

12 Mediation presumes both neutrality and objectivity as both epistemologically and practically possible; however, together these concepts function recursively, invoking and reconstituting each other: “objectivity” (a reality independent of any observer) makes possible “neutrality” (the objective position from which one can participate in social relations free of affiliation to any position.) This neutral position, in turn, makes objectivity possible. In this way, neutrality and objectivity are epistemologically interconnected; generally in law and, specifically, in mediation, these concepts legitimize themselves by invoking each other, a sleight of hand that has been addressed in the critical legal studies movement (Roberto Unger,” The Critical Legal Studies Movement,” 96 Harv. L Rev. 561 (1983); Peter Fitzpat-rick & Alan Hunt, Critical Legal Studies (Oxford: Blackwell, 1987); Austin Sarat,” Critical Legal Studies Outside the Law School,” 4 Focus on L Stud. 1 (1989); Silbey & Sarat, 66 Denver U. L. Rev.). In the philosophy of science, see Richard Bernstein's Beyond Objectivism and Relativism (Philadelphia: University of Pennsylvania Press, 1983) (“Bernstein, Beyond Objectivism”) and Gergen's Transformation (cited in note 11) for detailed discussions of the relationship between neutrality and objectivity in social science.Google Scholar

13 Christine, Harrington & Sally, Engle Merry, “Ideological Production: The Making of Community Mediation,” 22 Law & Soc'y Rev. 709 (1989); Hofrichter, Neighborhood Justice.Google Scholar

14 Abel, Richard L., The Politics of Informal Justice (New York: Academic Press, 1982) (“Abel, Informal Justice”); Harrington, Shadow Justice (cited in note 1); Silbey &. Sarat, 66 Denver U. L Rev.Google Scholar

15 Poststructural approaches to social science in many disciplines share the focus on the constitutive function that language performs; discourse is seen as the way in which social processes emerge, reconstitute themselves, and change. For more detailed descriptions of the constitutive functions of discourse and language, see Gergen's Transformation, Shotter's Social Accountability, and Shapiro's Language and Politics (all cited in note 11), and Elaine Scarry's The Body in Pain (New York: Oxford University Press, 1985). For discussions of the way that language masks its own role in the constitution of social life see Roland Barthes's Mythologies and Michel Foucault's Language, Counter-Memory and Practice, ed. D. F. Bauchard (Ithaca, N.Y.: Cornell University Press, 1977).Google Scholar

16 We were funded to examine the social construction of neutrality in mediation. Because we assumed that neutrality is not an attribute of the mediators, we taped more than 30 mediation sessions and interviewed 15 mediators in order to examine neutrality as a characteristic of the discourse in and about mediation practice. This article deals primarily with the mediator interviews, while other papers describe the method for the analysis of mediation sessions. See Cobb, Sara,” The Social Construction of Intentions in Legal Narratives: A Comparative Analysis of Deductive and Inductive Theories of Responsibility” (presented to the Fourth Annual Roundtable on Law & Semiotics, Reading, Pennsylvania, 1990); Sara Cobb &. Janet Rifkin,” Final Report: The Social Construction of Neutrality in Mediation” (report to the Fund for Research on Dispute Resolution, Washington, D.C., 1990) (“Cobb & Rifkin, ‘Final Report’”); Cobb &. Rifkin,” Neutrality” (cited in note 1).Google Scholar

17 Mediators did not use the word ideology in the stories and accounts we collected, but they did repeatedly refer to processes which contributed to injustice and power imbalances by masking the “real” agendas, feelings, or interests of the disputants. So even though mediators did not use ideology, they were referencing a particular use of the word consistent with the notion of “false consciousness.” We elaborate this discussion below in “Deconstructing Neutrality.”.Google Scholar

18 We have found that themes related to justice, power, and ideology reverberate in the mediators' talk about neutrality and that these terms operate interdependently. We are not, however, claiming that these are the only concepts central to any discussion of neutrality. For example, several mediators described neutrality as related to “empowerment”; but when pressed to define empowerment, they referred back to power, justice, and hidden interests (ideology). For this reason, we chose to limit our description of this “unity” that comprises the discourse of neutrality to these three main terms.Google Scholar

19 See State Bar of Texas, Handbook of Alternative Dispute Resolution (Austin: State Bar of Texas, 1987) (“State Bar of Texas, Handbook”); Mediation Development of British Columbia, Brief on Standards and Ethics for Mediators (Vancouver: Mediation Development of British Columbia, 1986); Solicitor General Canada Consulate, Formation en technique de mediation (Ottawa: Justice Canada, Solicitor General Canada Consultation Center, Ministre de la Sante et de Services Sociaux du Quebec Montreal, 1986); Foundation of Monroe County Bar, Enhancing Mediator Skills (Rochester, N.Y.: Foundation of Monroe County Bar, 1986); Laura Burton, Training Manual for Mediation Workshop (Los Angeles: Los Angeles County Bar Association, 1983) (“Burton, Training Manual”); Albie Davis, Mediation: An Alternative that Works (Salem, Mass.: District Court, 1984) (“Davis, Mediation”); Katherine Jirard, Janet Rifkin, & Annette Townley, Peaceful Persuasion: Dispute Resolution Forum (Amherst: University of Massachusetts Press, 1986) (“Jirard et al., Peaceful Persuasion”).Google Scholar

20 See Folberg, Jay &. Taylor, Alison, Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation (San Francisco: Jossey-Bass, 1984); Linda Singer, Settling Disputes: Conflict Resolution in Business, Families and Legal Settings (Boulder, Colo.: Westview Press, 1990); Stephen Goldberg, Eric Greene, & Frank Sander, Dispute Resolution (Boston: Little, Brown & Co., 1985); Christopher Moore, The Mediation Process (San Francisco: Jossey-Bass, 1986) (“Moore, Mediation Process”); Deborah Kolb, The Mediators (Cambridge, Mass.: MIT Press, 1983).Google Scholar

21 A Foucaultian analysis seeks to identify and construct the discursive formations which constitute a particular set of practices. For example, Michel Foucault (The History of Sexuality, Vol. 1: An Introduction (New York: Vintage/Random House, 1980)) has examined the relationship between discourse which comprises the ritual of the Catholic confession and sexuality. Such an analysis highlights the unity in a discursive field; this unity becomes a means to understand the practice associated with the discourse. See Dreyfus & Rabinow, Michel Foucault (cited in note 10). The third chapter,” Toward a Theory of Discursive Practice,” is particularly pertinent.Google Scholar

22 Luban, David,” The Quality of Justice” (presented to Institute of Legal Studies, University of Madison, Wisconsin, 1987) (“Luban, ‘The Quality of Justice’”).Google Scholar

23 Habermas, Jürgen, Communication and the Evolution of Society (Boston: Beacon Press, 1979).Google Scholar

24 Moore, Mediation Process 15 (cited in note 20).Google Scholar

25 See the view of neutrality-as-impartiality in Burton, Training Manual; Jirard et al., Peaceful Persuasion (both cited in note 19).Google Scholar

26 Underlying this assumption is a Weberian definition of power as “coercion” which requires mediators to maintain continued focus on intrapsychic processes, inferring motives from actions. Max Weber, The Theory of Social and Economic Organization (Glencoe, 111.: Free Press, 1940). Practice, based on this concept of power, requires that mediators treat themselves as locations for possible distortion and bias, i.e., they may inadvertently coerce disputants. See Lukes, Steven, Power: A Radical View (London: Macmillan Press, 1977) (“Lukes, Power”), for a critique of Weber's description of power as “coercion.” He argues that this notion of power masks other processes of domination (such as consensus) and perpetuates a positivist focus on the individual (as opposed! to the system).Google Scholar

27 Fisher, Roger & William, Ury, Getting to Yes. (Boston: Houghton Mifflin, 1981); Burton, J., Conflict & Communication (New York: Macmillan Press, 1969). We note here that Zartman and Touval argue that mediation in international contexts takes as a given that the mediators' own interests or biases must be involved in the mediation process. William Zartman & Saadia Touval,” International Mediation: Conflict Resolution and Power Politics,” 41 J Soc. Issues 47 (1985). This fits with the general movement in social science toward participatory research: rather than attempt “objectivity,” researchers are now including themselves as active constructors of the data they collect. This fundamentally blurs the distinction between the knower and the known and defines science as a reflexive practice.Google Scholar

For detailed discussions of this point, see Bernstein, Beyond Objectivism (cited in note 12); James Clifford,” On Ethnographic Authority,” 1 Representations 118 (1983); Shotter, Social Accountability (cited in note 11). This reflexive process also has an effect on the practice and study of mediation: mediators can no longer describe themselves as separate and apart from the active process by which disputes are constructed and resolved. See Greatbatch &. Dingwall's “Selective Facilitation” (cited in note 5) fascinating study of the way mediators use such discursive tactics as “selective facilitation” or “constructing the children's interests” to manage conversation. Robert Dingwall &. David Greatbatch,” In the Interests of Children: The Construction and Use of a Device by Mediators” (presented to the Law and Society Association, Berkeley, Cal., 1990).Google Scholar

28 Kolb, , 41 J. Soc. Issues (cited in note 5).Google Scholar

29 SPIDR, Ethical Standards (cited in note 2).Google Scholar

30 Kolb, , 41 J. Soc. Issues (cited in note 5).Google Scholar

31 As in all the interviews, here the interviewer is using the language of the mediator to frame the questions.Google Scholar

32 Lukes, Power.Google Scholar

33 Peter, Bachrach & Morton, Baratz, “The Two Faces of Power,” 56 Am. Pol Sci. Rev. 947.Google Scholar

34 Lukes, Power.Google Scholar

35 See Althusser's critique of false consciousness in which he argues that the critical endeavor is not the search for truth nor the unmasking of falseness. Louis Althusser,” Ideology and Ideological State Apparatuses,”in Lenin and Philosophy (New York: Monthly Review Press, 1971). Hunt's critique of ideology follows similar lines as he concludes that the focus on false consciousness separates the material from the ideal world. Alan Hunt,” The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law,” 19 Law & Soc'y Rev. 11 (1985). We agree with his description of ideology as a practice through which the conditions for domination and marginalization are “naturalized.” This definition of ideology, coupled with Foucault's focus on discourse, makes possible research on the discursive practices through which dominant descriptions are articulated (the adjective) in social orders and contexts. For descriptions of this process of “articulation,” see Hall, 2 Critical Stud, in Mass Communication (cited in note 11).Google Scholar

36 See Moore, Mediation Process (cited in note 20), ch. 10, for a lengthy discussion about the mediator's mandate to bring hidden interests in the session to the surface.Google Scholar

37 Although practitioners are constrained from organizing a substantive basis for justice in mediation, those we interviewed did discuss the need for some standards (which they could not name) for fairness. This is consistent with Kolb's, 41 J. Soc. Issues (cited in note 5), findings that mediators do apply standards toward the evaluation of outcomes and Greatbatch and Dingwall's research on the way mediators shape agreements and outcomes. Greatbatch &. Dingwall, “Selective Facilitation” (cited in note 5).Google Scholar

38 See Tom, Tyler, “Conditions Leading to Value Expressive Effects in Judgments of Procedural Justice: A Test of Four Models,” 52 J. Personality & Soc Psychology 333 (1987), for discussion of procedural justice. See also Jonathan Casper, Tom Tyler, & Bonnie Fisher,” Procedural Justice in Felony Cases,” 22 Law & Soc'y Rev. 483 (1988), for a basic description of the differences between distributive and procedural justice. Feminists criticize ADR for the absence of distributive or substantive forms of justice that, they argue, contribute to the construction of agreements which impoverish and endanger women in divorce mediation. C. Lefcourt,” Women, Mediation and Family Law,” 2 Clearinghouse Rev. 266 (1984).Google Scholar

39 For discussions of the nature of justice and the treatment of women in ADR, see Rifkin, Janet,” Mediation in the Justice System: A Paradox for Women,” 1 Women & Crim. just. 41 (1989); Lisa Lerman,” Criminal Prosecution of Wife-Beaters,”Responses to Violence in the Family, Vol. 4, No. 3 (1981), at I; id.,” Enforcing the Law Against Wife Abusers,”in Family Violence: Emerging Issues of a National Crisis (Washington, D.C.: American Psychiatric Press, 1989) (“Lerman, 'Enforcing the Law'”).Google Scholar

40 As good examples of the critical legal perspective in mediation, see Abel, Informal Justice (cited in note 14); Harrington, Shadow Justice (cited in note 1); Hofrichter, Neighborhood Justice (cited in note 11); Silbey 66 Sarat, 66 Denver U.L Rev. (cited in note 11).Google Scholar

41 Although the critical studies literature addresses power and ideology Qerald Auerbach,” Informal Justice? The Legislation of Informal Dispute Settlement in Modern America. Part One: Conciliation and Arbitration” (unpublished, 1979) (“Auerbach, ‘Informal Justice?’”); Abel, Informal Justice, Harrington, Shadow Justice; Luban,” The Quality of Justice (cited in note 22)), few studies have yielded empirical analysis of mediation sessions and, in general, critical studies have tended to exclude a focus on the analysis of micro-level processes. However, as examples of critical research including empirical research on micro practices, see Merry, Sally Engle,” Everyday Understandings of the Law in Working Class America,” 13 Am. Ethnologist 253 (1986); Silbey & Merry, “Interpretative Processes” (cited in note 41); Austin Sarat &. William L. Felstiner,” Law and Social Relations: Vocabularies of Motive in Lawyer/Client Interactions,” 22 Law & Soc'y Rev. 737 (1988); and Barbara Yngvesson,” Legal Ideology and Community Justice in the Clerk's Office,” 9 Legal Stud. F. 71 (1985).Google Scholar

However, these studies are the exception (albeit growing) rather than the rule. Consequently, discussions of power and ideology have tended to remain at the theoretical level. For example, discussions of justice point out that mediation, as an institution, reconstitutes the state's interests, not those of individuals who have little or no access to formal justice procedures (Auerbach, “Informal Justice?”; Abel, Informal Justice; Luban, “The Quality of Justice”); these discussions do not include micro analysis of sessions that address and describe the way in which the state's interests are reconstituted through the discourse in mediation.Google Scholar

42 The controversy between procedural and substantive forms of justice are particularly visible in feminist writings on the mediation of domestic violence (Lerman, “Enforcing the Law”; Rifkin, 1 Women & Crim. Just.) and mediation between parties with disparities in resources (Handler, Conditions of Discretion (cited in note 3); Forester, “Public Sector Dispute Resolution” (cited in note 1).Google Scholar

43 Harrington, & Merry, , 22 Law & Soc'y Rev. at 29 (cited in note 13).Google Scholar

44 Greatbatch & Dingwall, “Selective Facilitation” (cited in note 5).Google Scholar

45 Kenneth, Kressel & Dean, Pruitt, “Themes in the Mediation of Social Conflict,” 41 J. Soc. Issues 179, 193 (1985).Google Scholar

46 Susan, Silbey & Sally, Engle Merry, “Mediator Settlement Strategies,” 8 Law & Pol'y 7.Google Scholar

47 Berger, Peter & Luckman, Thomas, The Social Construction of Reality (New York: Doubleday Press, 1966); Gergen, Transformation (cited in note 11); Kenneth Gergen,” The Social Constructionist Movement in Modern Psychology,” 40 Am. Psychobgist 266 (1985).Google Scholar

48 Boaventura, De Sousa Santos, “The Law of the Oppressed: The Construction and Reproduction of Legality in Pasargada,” 12 Law & Soc'y Rev. 5 (1977); Mather & Yngvesson, 15 Law & Soc'y Rev. (cited in note 11); Felstiner et al., 15 Law & Soc'y Rev. (cited in note 11); Christine Harrington,” The Politics of Participation and Non-participation in Dispute Processing” 6 Law & Soc'y 203 (1984); Merry 4k Silbey, 9 Just. Sys.). (cited in note 11); Silbey 4k Merry, “Interpretative Processes” (cited in note 41); Silbey 4k Merry, 8 Law & Pol'y (cited in note 46); Martha Fineman,” Dominant Discourse: The Professional Appropriation of Child-Custody Decision-Making” (Working paper, Series #2, Institute for Legal Studies, University of Wisconsin, 1987).Google Scholar

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51 Harrington, Christine,” Voluntariness, Consent and Coercion in Adjudicating Minor Disputes: The Neighborhood Justice Center,” in Brigham, J. & Brown, D., eds., Policy Implementation: Choosing Between Penalties and Incentives (Beverly Hills, Cal.: Sage Publications, 1980); Silbey & Merry, “Interpretative Processes” (cited in note 41); Silbey & Merry, 8 Law & Pol'y (cited in note 46); Harrington & Merry, 22 Law & Soc'y Rev. (cited in note 13).Google Scholar

52 In each discipline the shift to a poststructural perspective grows out of research and practices specific to that discipline. Thus different disciplines have different paths toward poststructural approaches. However, the “pattern that connects” (Gregory Bateson, Mind and Nature: A Necessary Unity (New York: E. P. Dutton, 1979) is the “discovery” of reflexivity, specifically the reflexive relationship between language and any practice. Foucault, Power & Knowledge (cited in note 10); W. Barnett Pearce & Vernon Cronen, Communication, Action and Meaning (New York: Praeger, 1980); Francisco Varela, Principles of Biological Autonomy (New York: North Holland, 1979); Gergen, Transformation (cited in note II); Todd Gitlin, The Whole World is Watching (Berkeley: University of California Press, 1980) (“Gitlin, World is Watching”).Google Scholar

We are also following the movement in communication theory toward poststructuralism which has one line of roots in symbolic interactionism. Mead was one of the first in the discipline to describe the reflexive relationship between actors and the communication patterns in which they were engaged. George Herbert Mead, Mind Self, & Society (Chicago: University of Chicago Press, 1934). We mark this line as a way to distinguish our perspective as “constructionists” (see Foerester, Heinz Von, On Observing Systems (Seaside, Cal.: Intersystem Publications, 1981)) from the “constructivists” who saw language as an extension of mental operations or as a cognitive phenomenon. See Delia, Jesse, Barbara O'Keefe, & Daniel O'Keefe,” The Constructivist Approach to Communication” in F. Dance, ed., Human Communication Theory: Comparative Essays (New York: Harper & Row, 1982).Google Scholar

53 Pearce & Cronen, Communication (cited in note 52).Google Scholar

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56 Gitlin, World is Watching (cited in note 52).Google Scholar

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59 Douglas, Maynard, “Narrative and Narrative Structures in Plea Bargaining,” 22 Law & Soc'y Rev. 449 (1988); Barbara, Yngvesson, “Making Law at the Doorway: The Clerk, the Court, and the Construction of Community in a New England Town,” 22 Law & Soc'y Rev. 409 (1988); William, O'Barr & John, Conley, “Litigant Satisfaction Versus Legal Adequacy in Small Claims Court Narratives,” 19 Law & Soc'y Rev. 661 (1985).Google Scholar

60 Cobb & Rifkin, “Final Report” (cited in note 16); Cobb & Rifkin,” Neutrality” (cited in note 1).Google Scholar

61 For a good review of narrative theory and its application for the analysis of social process. Kenneth Gergen & Mary Gergen,” Narrative Form and the Construction of Psychological Science,” in T. Sarbin, ed., Narrative Psychology: The Storied Nature of Human Conduct (New York: Praeger, 1986) (“Gergen & Gergen, ‘Narrative Form’”).Google Scholar

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63 This description of “position” is certainly reminiscent of Goffman's notion of “face.” Erving Goffman, Relations in Public (New York: Basic Books, 1971). However,” position” refers to a location in discourse, while “face” refers to intrapsychic processes within interpersonal relations. Although the notion of “position” is certainly indebted to Goffman's description of the management of social space, we prefer to focus on discourse rather than intrapersonal processes to address power because critical discussions of social processes using “face” inevitably terminate in discussions of “deceit,”” coercion,” and “control.” Critical accounts of discursive positions terminate in description of hegemonic processes in discourse, a view of power that focuses on the production of consensus.Google Scholar

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65 “Consensus” as we are using it does not mean agreement, as the term might suggest; “consensus” refers to the semantic grounds on which positions in discourse are created, reified, and changed. Applied to mediation, “consensus” does not refer to settlement but to the language and discursive structures in which conflicts are framed and transformed. For a clear discussion of the difference between agreement and consensus, see Charles Taylor's “Interpretation and the Science of Man,” 25 Rev. Metaphysics 3 (1981).Google Scholar

66 In our data set, this happens in 24 of 30 cases; this means than in about 80% of our cases, the second disputant to speak simply refutes or denies the story told by the first speaker. If our data are reliable, it means that much of the time, one speaker in a session is not able to legitimize himself or herself.Google Scholar

67 For a case analysis that documents the marginalization of one of the disputants, see Cobb & Rifkin,” Neutrality” (cited in note 1).Google Scholar

68 Gender-based differences in speaking styles and story logics have been discussed by Carol, Gilligan, “In a Different Voice: Women's Conceptions of Self and Morality,” 47 Harv. Educ. Rev. 481 (1977), and Mary Belenky, Blythe Clinchy, Nancy Goldberger, & Jill Tarule, Women's Ways of Knowing (New York: Basic Books, 1986). Basically, these authors suggest that women use a relational logic as the bases for story themes; this logic tends to generate nonlinear plot sequences. Of course the whole notion of “women's speech” has come under attack as feminists argue that such generalizations cannot contain the diversity present in women's speech and that such distinctions accentuate gendered differences that fuel inequality. D. Tavris & C. Wade, The Longest War: Sex Differences in Perspective (New York: Harcourt Brace Jovanovich, 1984).Google Scholar

69 See Gilligan's research on gender differences in moral discourse. We note that the research tools that fall from this perspective yield static descriptions of discourse rather than interactive descriptions; consequently, research to date has not documented the interactive (and political) processes by which one moral discourse dominates another. See Brown, Lynn, Mark Tappen, Carol Gilligan, Barbara Miller, &. Dianne Argyris,” Reading for Self and Moral Voice: A Method for Interpreting Narratives of Real-Life Moral Conflict and Choice,” in M. Packer & R. Addison, eds., Entering the Circle: Hermeneutic Investigation in Psychology (Albany: State University of New York, 1989).Google Scholar

70 See Austin, John, How To Do Things with Words (New York: Oxford University Press, 1962), and Searle, John, Speech Acts: An Essay in the Philosophy of Language (Oxford: Oxford University Press, 1969), for descriptions of “speech acts” as structures in conversation that persons use to “get on” in social life.Google Scholar

71 Barthes, Mythologies (cited in note 11).Google Scholar

72 Volosinov, Marxism (cited in note 11).Google Scholar

73 Merry, 13 Am. Ethnologist (cited in note 41); Goldner, V.,” Generation and Gender: Normative and Subversive Hierarchies,”1 Family Process 17 (1988); Leslie Good,” Communication, Hegemony and Power,” in Angus, I. &. Jhally, S., eds., Cultural Politics in Contemporary America: Communication, Empire and Consumption (New York: Routledge, 1987) (“Good, ‘Communication’”).Google Scholar

74 This definition of mediation as a hegemonic process undermines the pluralist ideology on which mediation has been based. For more developed critiques of the role of pluralism in the ADR, see Cain, Maureen & Kulcsar, Kalman,” Thinking Disputes: An Essay on the Origins of the Dispute Industry,” 16 Law & Soc'y Rev. 375 (1982), and Robert Kidder,” The End of the Road? Problems in the Analysis of Disputes,” 15 Law & Soc'y Rev. 717 (1980–81). For a good review of the role of pluralism in legal processes, see Brigham & Harrington, 17 Int'l J. Soc. L (cited in note 1). Many of these same critiques of pluralism reverberate in such other fields as mass communication (Good,” Communication”) and political science (James Derderian, On Diplomacy (New York: Basil Black well, 1987) (“Derderian, On Diplomacy”).Google Scholar

Most of the literature in mediation focusing on hegemonic processes does not focus on the ideology in the discourse within sessions but rather on macro-level critiques of the relation between mediation and social justice (Abel, Informal Justice (cited in note 14); Harrington, Shadow Justice (cited in note 1); Hofrichter, Neighborhood Justice (cited in note 11). Therefore this definition of mediation as hegemonic practice creates a theoretical set of alliances that allows for the description of ideological processes at micro levels in mediation practice.Google Scholar

75 Foucault, Power and knowledge (cited in note 10); Hofrichter, Neighborhood Justice; Derderian, On Diplomacy; Ernesto Laclau & Claude Mouffe, Hegemony & Socialist Strategy (Thetford, Eng.: Thetford Press, 1985).Google Scholar

76 Gramsci, Prison Notebooks (cited in note 55); Barthes, Mythologies; Harrington &. Merry, 22 Law & Soc'y Rev. (cited in note 13).Google Scholar

77 Forester,” Public Sector Dispute Resolution” (cited in note 1).Google Scholar

78 At the 1990 Law & Society Association meeting, in a panel session on “Deconstructing Neutrality,” Susan Silbey argued that critical research on mediation could do more than point out gaps between the practice and the myths about the practice; she suggested that critical research can question the validity of the practice itself, in this case the validity of mediation as a practice. In our view, this is a worthwhile endeavor, but since validity is always a local issue, related to specific contexts, particular institutions, and unique interpretive frames, the validity of mediation is perhaps a local rather than a global issue. Our poststructural approach to the practice of neutrality provides a theoretical frame for the critical examination of mediation practice at local and micro levels of analysis.Google Scholar