Gini Nelson\’s Engaging Conflicts

August 24, 2006

Social Cooperation With the Law Is Foundational To the Power of the Law and Not the Other Way Around, By Guest David B. River

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 12:03 pm

Mediator David B. River responds to attorney mediator Rawle Andrews Jr., Esq. as they continue their dialogue about the respective roles and ethical obligations of mediators and attorney mediators.

Different Worldviews

I have really enjoyed the conversation with Rawle over the last few months, even though our back and forth posts don’t always seem to make much contact. I think this reflects that we are speaking from different views. Something Rawle said – “anarchy reigns in the absence of laws” – reminded me of my studies in nonviolent action. Specifically the writings of Gene Sharp in his discussion of power:

    One can see power as self-perpetuating, durable, not easily or quickly controlled or destroyed. Or political power can be viewed as fragile, always dependent for its strength and existence upon a replenishment of its sources by the cooperation of a multitude of institutions and people – cooperation which may or may not continue. The Politics of Nonviolent Action: Part I, 1973, p. 8.

I sense from Rawle’s posts that he sees the law as a powerful force that keeps order. I, on the other hand, tend to see the law as one outcome of social order and cooperation – it reflects our broad social agreement and relies on social cooperation to function. In other words, I see social cooperation with the law as foundational to the power of the law and not the other way around. Civil disobedience has shown that without cooperation, the law has no power.

The Law relies on the power of authority and sanction. It is functional when people respect and obey the law (authority) or see that the consequence of violating the law is more costly than obeying it (sanction). However, it can fail to deliver justice because people use many other sources of power. A few examples: the power of resources (time and money) allows people to “work around the law,” find loopholes, hire a superior lawyer, outspend their opponent, etc. The power of knowledge and expertise may give one party an unfair advantage over the other. The power of nuisance – simply willing to keep fighting – can cause an opponent to give up simply because it isn’t worth the fight. In many cases, knowing how to use the “’orderly’ resolution of disputes” provided by the courts gives people with abundant resources, knowledge and expertise an enormous advantage that has nothing to do with the intent of the law.

From this viewpoint, mediation is distinct and works with the fundamentals of social functioning – agreement and cooperation. Since it relies on voluntary participation, it must use an entirely different set of tools than authority or the threat of sanction, and therefore may be useful in places where the law does not hold sway or is actually a barrier to justice.

Skillful mediators draw people into a cooperative process not out of their authority or because they can force people into it, but because they respond to the real needs and interests of people in conflict and allow an honest negotiation based on a specific reality rather than broad legal precepts. Agreements reached may or may not have any relationship to a legal outcome in the minds of those parties involved in reaching an agreement.

So, here are the interesting questions to me: Does mediation pose a threat to the law? To justice? To social agreement? If Additional Dispute Resolution (ADR) techniques continue to grow, what will be the impact on our social understanding and functioning?

More on this next time.

Best wishes,

David

Rawle Andrews Jr., Esq. will respond next week.

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2 Comments »

  1. Interesting exchanges.

    I think that you and Rawle haven’t addressed an overriding aspect of law
    which is the demand that the individual cede a portion of his sovereignty to
    the State for laws to exist at all. For example, I cede my right to kill
    whomever I choose to the State’s law of defining what is murder and what is
    acceptable killing (wars, executions, etc.).

    The essence of law is the ceding of sovereignty where the essence of
    mediation is maintenance of either full control over one’s life or a ceding
    power ad hoc for the purpose of achieving an agreement. The law is
    inflexible in the sense that it defines what power must be ceded under most,
    if not all, conditions. Mediation is situationally flexible because the
    disputants can cede different aspects of their control to achieve the result
    of an agreement they consider superior to maintaining full control.

    Another way of looking at it is that law is a suit of clothes where the
    tailor claims that one size fits all and one style suits all occasions.
    Mediation is a custom set of clothes made for the specific persons wearing
    them and for the conditions those persons find themselves in.

    Comment by Paul Cassel — August 25, 2006 @ 11:11 am | Reply

  2. David:

    You state above, “Since it relies on “voluntary participation,” it must use an entirely different set of tools than authority or the threat of sanction, and therefore may be useful in places where the law does not hold sway or is actually a barrier to justice.”

    What about my earlier comment, wherein I questioned the new pilot program in the DC Court of Appeals, where they, the Court, selects certain cases for MANDATORY Mediation? The participants there have no choice and it is not voluntary. They are brought to the mediation table kicking and screaming that they want their day in court. It has not been determined whether this will be a binding mediation, but in all likelihood it will be. What then? What if the mediation falters? What if, after the final determination has been made and entered, one party believes that it was taken advantage of in some way or they didn’t receive the outcome that would have been determined differently at trial? Do you believe that the participants have no other recourse?

    However, I agree that if the participants “volunteer” to participate in mediation that they are bound by that decision, because they CHOSE to mediate rather than litigate. Here again, we get back to John Q. Public making a choice, making a decision and having to live by that decision.

    Mediation does have its place in today’s society, but again it’s by choice that mediation survives. Those choices sometimes are made for us, as noted above, but in general it is still our choice to mediate or litigate.

    Just my two cents worth to this most recent portion of the blog.

    Best regards,
    Don

    Comment by Don — August 25, 2006 @ 11:22 am | Reply


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