Abstract: “Style vs. Model”

Mediation has been endorsed by the U.S. court system as an “alternative” process offering informal justice, at several key points in its history. These key points of history are instances in which the court has been under fire for its failure to dispense justice. In response to the court’s crises the government began after the Civil War, to train and employ mediators based on a generic definition of mediation. At the time of the Pound Conference in 1976, mediation continued to be presented as a generic process, but was frequently offered by volunteers trained through community mediation centers. Combining the court’s generic definition of mediation with concepts taken from traditional non-legal dispute resolution practices, community mediation centers were promoted as representing the community’s interests and needs. In the generic mediation discourse, differences in mediator practices and decisions are accounted for by words like “artistry,” “style,” “approach,” and “orientation.” The discourse on generic mediation has diverted attention away from another discourse that defines differences in a range of mediation models based on their theories of conflict resolution and the norms each references.

Mediation lacks a theoretical base that would give transparency to the process and fulfill parties’ right to self-determination through informed consent. The challenges posed by the Transformative Mediation scholars and Ellen Waldman’s Norm-Generating, Norm-Educating and Norm-Advocating categories, have not resulted in any significant change in training of mediators, evaluation of mediation, or in mediation policy. Without a theoretical basis for mediator interventions and exposure of the political agenda of social control underlying support of mediation, the power structures driving mediation as well as the biases of individual mediators, remain under the radar screen as the dominant discourse perpetuates them.