By Chris Gus Kanios
Most of us learn only two basic approaches to conflict. We either stand up and fight or we retreat. We often stay silent, convinced that speaking up will not be productive or that greater conflict may result from a confrontation. Sometimes, however, we go ahead and challenge our adversary with the goal of getting our way, of winning the argument. Some of us have become very good at getting our way.
The American legal system is founded primarily on this win or lose adversarial model. It is the only dispute resolution model most lawyers have experienced. To its credit, this approach has often assisted noble and heroic struggles that have improved or protected the human rights of countless numbers of people. Adversarial engagement has often been at the center of radical political lawyering: to confront, challenge and defeat a powerful adversary. The prospect of advocating forcefully in legal arenas to effect positive social change has motivated many idealistic people to enter the legal profession.
Advocacy has been and is still needed to protect people from powerful forces that will not listen to reason, will not budge from unfair positions, or who otherwise exercise their power in an oppressive fashion. There may always be the need for a legal avenue based on this model given the polarization of society, the vulnerability of less powerful populations, and the discriminatory, greedy, or oppressive tendencies of the dominant culture.
We have, however, all seen the shortcomings of the adversarial system repeatedly played out to the detriment of the participants in the legal system. Even when advocating for a thoroughly legitimate position, the adversarial process steals the opportunity for healing, reconciliation, or transformation. Winning dominates the motivation of the parties and their representatives. Truth often becomes a casualty when standing in the way of victory. Honesty, openness, and vulnerability are dangerous strategies. The process often brands participants as lifelong adversaries regardless of the outcome. Even when the right result has been achieved, hearts and minds are not positively transformed by the experience, they are hardened. The opportunity for any positive change to take place has been lost.
Far too often we have romanticized the ability of the adversarial system to protect against injustice. The odds are virtually always in favor of parties who have the resources to wage legal battles and who enjoy the biases of the legal system. Even when individual rights can be vindicated, underlying societal conditions are rarely transformed. A landowner, for example, might continue to act in selfish, disrespectful ways, despite being forced to rescind an unfair eviction in one isolated incident. Specific overt discriminatory practices may be prohibited as the result of litigation, but the discriminatory ideologies that motivated those practices in the first place have not been transformed and will continue to act covertly or openly in other discriminatory paths. Instead of being an arena to protect the less powerful from abuses of the powerful, the legal system often helps perpetuate the existing power imbalances, leaving the parties to continue their harmful practices.
Finally, the very existence of the adversarial model as the dominant model of dispute resolution emphatically endorses aggressive, individualistic, and selfish tendencies, characteristics that we otherwise recognize as detrimental to a more just and humane society. The process does not promote mutual understanding and recognition. The adversarial model promotes a win or lose syndrome, with participants directing their real needs for respect, consideration, and compassion into one-dimensional legal arguments, often unrelated to the underlying conflicts. Adversaries are to be defeated, not won over, punished, not transformed.
Fighting is certainly not the ideal way to resolve conflict. We prefer a model where such combativeness is unnecessary, where adversaries acknowledge their common humanity, where serious reflection permits one or both of the parties to re-evaluate their views and adopt a more compassionate and just approach to the conflict, and where each party feels respected, not demonized, even when in disagreement. Through such a process, more and more people would learn to empathize with others and seek creative and respectful resolutions to conflict.
Even advocates for social justice who espouse utopic-leaning values are often unable to empathize with adversaries or otherwise engage with them in a way that might transform their thinking. The adversarial system certainly doesnt promote such engagement. The advocates, therefore, end up directing their compassion and concern only for those victimized by the powerful, who are then to be punished and demonized, despite the overwhelming need for the powerful ones to be transformed and the dynamic of the conflict to change. We develop a somewhat schizophrenic approach by advocating for peace, justice, and harmony, fantasizing about a world of peaceful and respectful interactions, while often aggressively seeking to humiliate, injure, and punish, not transform, those we identify as wrongdoers. Our conviction that such punishment is deserved or that our adversaries are not worthy of redemption is at the core of the adversarial model. Many have come to realize that this adversarial approach is not working to create more just and humane communities despite the good intentions of many of its practitioners. They also recognize productive social change must mean more than legal victories in individual cases.
The South African model of truth telling, reconciliation, accountability and forgiveness, even with all its critiques, has been a powerful influence in compelling many of us to seriously consider alternatives to our existing adversarial model. It lends confidence to the search for a better approach to conflict resolution, challenging us to envision a better system, forcing us to reconsider our fear that things might be too difficult to change.
So, although it is critically important to provide protection and advocacy when people may be unfairly harmed, we also need to seek creative ways to respond to the conflicts and injustices that exist in our society so that we all have the opportunity to change, to reflect on our beliefs, values, and conduct, and become better people in all aspects of our lives.
The primary alternative to the adversarial system that currently is receiving so much attention is mediation. There is a wide range of practices that fall under the umbrella of mediation. We believe that much of what currently is practiced as mediation differs only slightly from what occurs in adversarial models. On the other hand, mediation can be practiced in a transformative manner, embodying progressive values and goals. As progressive mediators, our practice seeks a model of dispute resolution that promotes self-determination, mutual respect, and understanding, while ensuring that genuine voices of concern for justice and fairness are not drowned out in an effort to quickly and cheaply adjudicate disputes in the private arena.
Despite its increase in popularity, most people are unfamiliar with the fundamental qualities that distinguish virtually all models of mediation from the pure adversarial experience.
First, parties to a dispute in mediation do not turn over decision-making authority to a third party such as a judge or arbitrator. In mediation, the dispute cannot be resolved unless both parties agree with the result. The mediator is neutral as to the outcome of the dispute, but is very active as to the process itself. The mediation model rejects, therefore, the practice of one party "winning" or "losing". In mediation, both parties are confronted with the need to gain the agreement of the other. The process supports the empowering vision that parties in conflict can resolve their differences without turning the power to do so over to a third party.
Second, the parties in mediation usually meet directly with one another, and reveal their stories and concerns in their own voice to the mediator, often without the presence of attorneys. Our model assumes that people can, under appropriate circumstances, speak for themselves and reveal their real needs and interests. This practice also has the effect of promoting mutual understanding and recognition among the parties, a goal basically irrelevant in the adversarial model, but central to mediation. The adversarial model promotes a dependence on professionals, translates the voice of real human concerns and pain into narrow legal arguments, and often deprives the participants of the opportunity to gain greater understandings and new skills which may help them deal more effectively with conflicts that will arise later in their lives. Mediation seeks a different result.
Third, the goal of a thoughtful mediation process is to come up with remedies and solutions that respond to the real underlying interests and needs of all parties, not just to cut a deal based on the best one could hope for under the circumstances. A thoughtful mediator promotes creative problem solving by the parties. At a minimum, the mediator promotes greater mutual understanding that itself often may often lead to satisfactory results. This characteristic of mediation allows participants to step back from the language of unconditional demands and non-negotiable positions to explore the needs and interests underlying those positions. Mediation allows the parties to fashion remedies that can creatively respond to those needs and interests, perhaps with options that had not previously been considered within an adversarial context.
The mediation model, therefore, seeks an approach where participants stand up for themselves, are given time and support to express their true concerns and interests, are heard and understood by each other, even when in disagreement, and are empowered to develop creative agreements that respond to their real concerns. It is a tall order that is not easily achieved, but is one that holds great promise.
Modernly, mainstream mediation practice has been characterized primarily as a cheaper, more efficient settlement device used to keep cases away from expensive attorneys and costly court fights where the combative dynamic can reach new heights. In this regard, the settlement conference model has value. Settlement of issues will certainly save time and money. Emotionally charged litigants, for example, may benefit by hearing sobering legal realities from a respected and informed neutral source. But the parties are still acting under the shadow of the adversarial model.
Yes, both parties must approve decisions, but mainstream mediators use their professional status and skills to pressure parties into compromises and settlements that the mediator believes are fair results, often by referencing prevailing legal doctrine. Under this approach, mainstream mediators act more as settlement conference judges, listening to each side and then caucusing with each party to assert influence on the actual outcome of the dispute. Parties rarely obtain a sense of justice or satisfaction under such conditions. Their real underlying interests and needs are often not addressed. There is little opportunity to be heard or understood by the other side. There is little opportunity to hear any validation, change of heart or regret. The only topic under discussion is how to split up the existing pie given the ability to predict how a court would decide the case if a settlement could not be reached. Everyone usually keeps their poker faces in place.
The settlement conference model of mediation often replicates the feelings of powerlessness and alienation that many participants experience in the formal legal arena. The goal of mutual understanding takes a back seat to the goal of settling the case. The mediator is so busy meeting privately with each side that there is rarely even an opportunity for the parties to hear each other in a non-adversarial setting. Compromise and settlement are the priorities, not mutual understanding.
There is a real risk that the "quick fix" approach misses an enormous opportunity to promote a more productive, humanitarian, respectful, and empowering means of approaching, resolving, or respectfully acknowledging differences.
We try to promote a model of mediation that is dedicated to self-empowerment, mutual understanding and recognition, and justice. This model is currently practiced by a small number of mediators, but is in danger of being overwhelmed by the "settlement conference" model being promoted and adopted by many in the legal profession. This progressive model of mediation seeks to create an environment where parties can truly be heard and understood. We believe that working to develop mutual understanding by people in conflict and across personal and cultural barriers is potentially a revolutionary practice that can have applications in a variety of private and public settings. In addition to cases of individual disputes, this practice can have a valuable application for community groups dealing with internal conflict, conflict with former allies or conflict with established adversaries.
Too often, mainstream mediation practice will focus on achieving harmony at the expense of justice or fairness. Parties may be pressured to repress their legitimate concerns and needs in order to "make peace." The goal of progressive mediation should be to promote understandings and resolutions that specifically respond to the sense of justice of the parties, not just to cut a deal that will keep the parties out of court. In doing this, it is recognized that past wounds may have to be explored, that opportunities for reconciliation and forgiveness may need to be incorporated into the process, and that the forward-looking tendency of traditional mediation may have to slow down enough to allow the parties to voice their true feelings and issues. The mediator will also need to take great care to remain truly neutral, allowing the parties themselves to reach new understandings and agreements instead of being pressured to accept the mediators view of what would be a fair and just resolution. And progressive mediators need to make their skills accessible to all in the community, not just those who can easily afford to pay for such professional services.
The risk of mediation is that the inequities and biases of the traditional dispute resolution model get replicated, that participants do not experience deeper understanding or recognition, that culturally incompetent mediators impede cross-cultural understanding, that power imbalances do not get adequately neutralized, that participants get manipulated into agreements that do not respond to their true needs and interests, that mediation becomes a quick, cheap way to settle disputes instead of an opportunity to improve human relations and promote justice, that it deprives the community of public forums to deal with important issues, or that it may drain a social movement of vital passion that may be necessary to move forward.
Recognizing the value of mediative approaches does not mean that adversarial approaches should never be undertaken. Some conflicts may be completely unsuitable for mediation. For example, we do not believe that mediation should be used in cases where domestic violence is present. It is simply too unrealistic to expect a history of domination and abuse to be transformed as a result of the mediation process. It could, in fact, lead to further abuse. And the cycle of violence that exists in such dynamics may not be understood by the mediator who may then unwittingly participate in the perpetuation of a cycle of domination and abuse, insulated from the public arena where a forceful third party intervention may be needed. There will be many other times when adversarial approaches may be necessary, especially when power imbalances between the parties are simply too great to overcome and when one of the parties is unable to adequately assert their true needs and interests. Because of these concerns, great care needs to be exercised in deciding what types of disputes may be mandated into mediation.
The hope of a progressive model of mediation is that it can be a more effective forum for individuals and groups to be heard, to be understood and respected, that resolution of conflict will respond to the genuine needs and interests of the parties, that individuals or groups are less likely to become co-opted or manipulated as in a traditional adversarial model, that ongoing relationships can be healed or improved, that the parties can become transformed in positive ways by the simple yet profound practice of understanding with empathy, that future relations will be improved without the need for constant adversarial processing, that people will be understood and not stereotyped or demonized, that creative justice-centered resolutions can emerge from conflict, and that lasting transformation and justice can result.
The practice of having parties in conflict share their stories in a non-adversarial setting is particularly valuable for those whose voices rarely get heard, whose concerns are often ignored, who often do not have the social standing to obtain the ear of those more powerful. It is in such non-adversarial settings that the truth may have a greater chance to actually emerge, to enlighten all participants in the process.
We see promise in the pursuit of a progressive mediation practice while trying to be reflective and vigilant about its risks and shortcomings.
Chris Gus Kanios teaches at New College of California School of Law where he served as dean for ten years. He also maintains a neighborhood-based mediation practice with Maria Diana Ramos, who contributed to this article. They are both members of the Center for Guerrilla for Law.
[copyright 1999 Center for Guerrilla Law]