You can go to our
Newsletters.
Or search for a word here:
Another View of Alternative Dispute Resolution
(from Family and Conciliation Courts Review, 10/92 and California Lawyer, 5/95)
Reports on the problems individual women have had with
mediation and arbitration of their cases have been a regular feature
of this Newsletter. Anthropologist Laura Nader takes a more general,
theoretical view of alternative dispute resolution, but she's equally
negative.
Nader sees the movement to substitute mediation and
arbitration for adversarial legal action as a pacification scheme
intended to silence the organized protest groups of the sixties, the
civil rights and women's movements among them. An open process
designed to fix responsibility and defend rights is being replaced by
private hearings where compromise is the primary value. "Coercive
harmony" she calls it, "a form of social control anathema to
democracy."
The forced use of alternative dispute resolution denies the
injured parties their fundamental right of access to the court system
for redress, but there are problems when it is used voluntarily, too.
Public access to the courts allows the exposure of abuses by scholars
and the press while there are no public records of mediation and
arbitration sessions. Also, the emphasis on resolving conflict
instead of adjudicating rights risks turning plaintiffs into patients
needing treatment and making them vulnerable to manipulation by the
mediator/healer.
We all have at least a vague idea of what goes on in a law
court -- if we've never been directly involved in a suit, we've been
a juror or a witness or supported a friend through a messy divorce.
Even watching Perry Mason would give more information about trials
than anyone has before going into mediation or arbitration. The
less confrontational approach may be appropriate if you hope to
continue working with the people who you believe have harassed you or
discriminated against you, but you need to be aware of the risks in
choosing mediation instead of pursuing your case in court. Be
thankful if you have a choice; perhaps by starting with Laura Nader's
writings you can make it an informed one.
-wage@wage.org-