Pirie, Andrew, "Manufacturing Mediation: The Professionalization of Informalism", in Qualifications for Dispute Resolution: Perspectives on the Debate , ed. and Andrew Pirie (Victoria, BC: UVic Institute for Dispute Resolution, 1994), at 165-91.
Saturday Night Live features a skit with a certified joyologist who makes the rounds of talk shows helping people get more out of life. As she sites on the couch, she regularly hikes herself up on her arms and kicks her heals in the air shouting "I love it, I love it, I love it" as the heals alternate in joyful goose-steps.
I have not checked with my certified life underwriter or even realtor who, according to a currently running TV public service announcement must study ethics in order to wear the big "R" on a lapel as to whether they find this skit offensive. It does mock the notion of certification .
Pirie wonders whether formal qualifications will actually marginalize mediation, as has perhaps happened to the previously informal field of joy.
At either end of the spectrum, there are opinions on the value of mediation. Its role in transformation and reorientation to fellow disputants is at one end. At the other it's called naïve and theoretical, and, as a result, what's needed is "no-nonsense" court proceedings (citing Chief Justice Allan McEachern).
Without any sense of irony, Pirie cites the "Freedman's Bureau, a government agency established to manage the transition from slavery to freedom after the Civil War" in the US . The irony is that mediation's failure to prevent that war or deal with the 100 years of reconstruction is cited in other volumes as the discipline's greatest failure.
Similarly, the "Jewish Conciliation Court of America, established to preserve harmony, achieve respectability and prod immigrants along the road to Americanization" is cited. Mediators of good will might differ as to whether there should be a melting pot, whether immigrants were already respectable and how much prodding they needed.
The rhetorical question "what are modern ADR proponents really trying to achieve?" is asked. Citing Goldberg, Green and Sander, four goals are cited: relieve court congestion, enhance community involvement, more access to justice and more "effective" resolution.
(In some jurisdictions mediation may be a less just, inefficient preamble to court cases in which the community has little involvement.)
However, Pirie points to some interesting statistics showing the crisis in court backlogs may not be as bad as some suggest. Citing Bush, the various reasons why ADR is a good alternative including that they "ameliorate, neutralize, or at least do not exacerbate existing inequalities in the societal distribution of material wealth . [and provide] opportunities for . personal change and growth".
(This is not an uncommon set of goals for mediation, but what is equally uncommon is a rationale for why this societal group should be charged with such goals, and a vigorous debate among people of good will as to whether such goals are appropriate and if mediation is the right forum for their achievement.)
Who decides what "[b]ehavioural change is appropriate? Are indeed the "buzzwords of inclusiveness and consensus" for real, a fad or just "state power" by another name? If ADR is another tool of state control, then the informal mediator, insider-partial, society elder all have to go. What's left over is "[j]unk cases" involving the lower classes, little money and unimportant outcomes.
This polarization can be said to support a class analysis of the administration of justice. Modern capitalism needs rules. For those who think the legal system favours the rich and powerful, ADR could be a spoke screen. It creates the illusion of a democratic, depoliticized, non-racial, gender-neutral forum-a system that works, if you will. As a result, as least a corner of the legal system looks fair and therapeutic. But is mediation just a side-show that really poses no threat to the formal system.
The other concern is that ADR may smooth over the aggrieved on a case by case basis, but leave the larger social issues or classes of aggrieved unaddressed. In private conflict, there are no larger lessons learned. (I imagine the historic split Rathwell decision being mediated or Quebec padlock laws going the same route. In the US , what if Brown v Board of Education had been mediated?).
Questions remain, despite the promise of ADR. Are disputants better off in formal or informal resolution systems? Does the informality of mediation mask a new set of "highly formalized structures.rigid rules" creating "dependence of lay persons on a new class of professionals?"
The best question of all is "Do social justice, social solidarity or personal transformation goals rally matter?" (If the answer is yes, then who gets to decide what all these things mean and what success looks like?)
The Qualifications Debate and the New Dispute Resolutionaries
The turn of the phrase captures the evangelical nature of the ADR community, possible excepting Bernard Mayer. The way a field determines the traits, skills, knowledge, education, testing codes and such is thorny. Professions get to regulate and achieve a form of "state-enforced monopoly". With a straight face, Pirie quotes two authors who find that professions are "the most important single component in the structure of modern societies" and "for the sick and suffering democracies, a peaceful solution to their problems".
It is through "political negotiation and persuasion" (quoting Friedson) that an activity becomes a self-regulated profession. Then the services become distinct, there is fear of being "proved a fake" ( Douglas ) and a limitation on the "supply of entrants". The dark side, of course, is refusing entry to particular social or ethnic groups.