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Examining Criticisms of Mediation: Implications for Marginalized Groups
Examining Criticisms of Mediation: Implications for Marginalized Groups
Introduction
Due to concerns about lowering costs, equalizing access to legal institutions, and humanizing the conflict resolution process, mediation, an alternative dispute resolution (ADR) approach, has gained popularity over the past 20 years. It is not like other ADR techniques in that the mediator cannot make decisions, pass judgment, or enforce rules. The parties themselves, not a court or arbitrator, decide what constitutes an agreement. According to its proponents, studies supporting the benefits of mediation include the achievement of agreements, lower expenses, fewer court cases, party compliance, contentment, enhanced interpersonal relationships, and improved psychological states. Critics counter that mediation hurts those who are weaker and less fortunate in society. This examines mediation criticism, emphasizing how informal and procedurally devoid it is, which may disadvantage minority groups and women. According to theories of bias reduction, mediation is rarely able to provide one of the two environments needed for prejudice reduction. Although mediation is likely intimate due to its informal format, both parties may bring racial differences or expect a hostile or frightening interaction. Because the mediator lacks the authority to step in and confront the prejudiced party about their internal contradiction, mediation cannot make the interaction one in which prejudice is lessened. Scholars who oppose mediation on the grounds of "pro-rights" also choose judicial litigation because of its formality, publicity, adversarial character, and process when deciding whether the setting is appropriate for the equitable settlement of conflicts involving marginalized parties. To see a certain outcome, they use various techniques, including directive manipulation and facilitation techniques. Thus, the informality and lack of procedure of mediation have drawn criticism, potentially harming marginalized and weak people. More mediator intervention and support of these ideas are necessary to solve this issue.
Critique of Mediation's "Pro Rights" Stance
Its alleged "pro-rights" stance, which maintains that mediation validates an individual's interests for those in society who lack authority, mediation has come under fire. Opponents contend that this strategy fosters the belief in social and political unity across parties, which is often mirrored in the views of the most influential people in politics and the economy. They contend that by emphasizing rights, the underprivileged are free to concentrate on what they see as a justifiable pursuit of their notions of self-interest. Critics further contend that women should take a valuable lesson from the "pro-rights" attitude, which validates self-concern. Women develop a relational ethic of caring in their interactions with others as a result of being socialized to care for others. However, the more relational side may overcompromise if both have uneven views towards being in a relationship. The "pro-rights" feminist critics contend that the just settlement of conflicts affecting women is best served by the formal, adversarial, public aspect of the courts.
Opponents contend that courtroom protocol and formality do not successfully lessen bias against marginalized communities. They contend that the American Creed ideals emphasize an indirect clash between egalitarian values and racial animosity and that procedural norms bar judges and juries with racial bias. This makes it more difficult for parties to identify a range of compromises between their differences and come up with a workable solution. Conflicting parties may get information from a facilitating mediator to reduce their differences and persuade them that there is a Zone of Opposing Points (ZOPA). In that ZOPA, this kind of mediator may also be in charge of developing certain solutions. A negotiated solution depends on formulations because they provide a shared understanding of the issue and its resolution. Mediators may use manipulative techniques, such as intimidation and threats of force, to create new ZOPAs when facilitation is insufficient to persuade parties of the presence of an existing one. Social power, which encompasses both reward and coercive power, is a component of strategic strength. Because it may foster harmony and a sense of community between parties, mediation is becoming more and more popular in the US. However, because of its informality, "out" identity groups may face discrimination and disadvantage. Mediation may be made more equitable and effective by employing intervention strategies and analyzing the needs and goals of the parties. To guarantee justice for underprivileged groups, the mediation process must consider the common value of equality.
References
[1] Gunning, Isabelle R. "Diversity issues in mediation: Controlling negative cultural myths." J. Disp. Resol. (1995): 55.
[2] Zhao, Xinshu, John G. Lynch Jr, and Qimei Chen. "Reconsidering Baron and Kenny: Myths and truths about mediation analysis." Journal of Consumer Research 37.2 (2010): 197-206.
[3] Vukovi?, Siniša. "Debunking the myths of international mediation: Conceptualizing bias, power and success." The Changing Global Order: Challenges and Prospects (2020): 429-451.
[4] Kline, Rex B. "The mediation myth." Basic and Applied Social Psychology 37.4 (2015): 202-213.
- Due to concerns about lowering costs, equalizing access to legal institutions, and humanizing the conflict resolution process, mediation, an alternative dispute resolution (ADR) approach.
- Courtroom formality fails to mitigate bias against marginalized groups.
- Informal mediation risks discrimination against marginalized identities.
