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Archive for April, 2010

Here’s another open question about mediation in general and with possible implications for the way in which the role of mediation, and related processes, might be implicitly viewed in some parts of Asia.

The idea is this: the concept of “distributive justice” is likely to be well enough known, as a way of thinking about the criteria and principles of justice in the allocation of benefits and costs of social life. Distributive justice concerns processes of decision making and the justification of particular outcomes – that is, what the allocation of the pie looks like once the distribution has been done.

What I have in mind in thinking about mediation involves a bit of a shift away from that focus on the justice of outcomes, and involves the recognition that mediation as an essentially private, participatory process, shifts us away from the main centralised forms of decision making and conflict resolution – Parliament and Courts – towards, as the word implies, a wider distribution of decision making, dispute resolution, and even rule-making powers. Of the last, the most significant examples will be in the field of negotiated rule-making and consensus building, which can also be recognised by and integrated into the government processes at the highest level.

In part this comes to mind through a practical interest in consensus building, both in political setting and in post-conflict settings. In part too it comes from thinking about a parallel – the nature and structure of the Internet. The idea and the structure of the Internet involve open texture, increasingly open source software and applications, and the principle or value of access.That this might not survive is the subject of sustained commentary by Jonathan Zittran in his book, The Future of the Internet – and How to Stop it (Yale UP, 2008): one of his central concerns is that the open texture which has made the Internet possible may increasingly be subject to the constraining preferences of commerce (and of the intellectual property interests of major software and hardware manufacturers); and the physical parallel to this is in the current open nature of computers which – by and large – allow almost anyone with the time and the talent to write software and applications. This seems to me to be a prime example of a distributed process and character; and it works – almost despite that character – to create largely congruent practices.

My partly formed analogy is this: the Internet begins with this open texture and networked structure; it depends on this openness to work, at least in its present form. That this may change, and become less open, is the concern of observers like Zittran. Dispute resolution, at least in the West, works in the other direction: the centralised processes now have parallels in the decentralised, dispersed processes like mediation. Of course, in many jurisdictions, the decentralised nature is only partial in that mediation is a court-linked or court-sanctioned process. But nevertheless, the decisions are made, as it were, off-site.

The comparative question is this: to the extent that processes like mediation involve untethering dispute resolution and decision making from the “mothership” of the formal institutions (even if doing so is implicitly sanctioned by the legal system) what variations are we likely to see between Western and Asian jurisdictions? Seyla Benhabib suggests (“Reclaiming Universalism: Negotiating Republican Self-Determination and Cosmopolitan Norms,” The Tanner Lectures on Human Values, March, 2004, 139ff, online version), that what we have,  and what we need to encourage,  is a “jurisgenerative” politics; that is, a process of greater participation, deliberation and, in the end, rule-making as an essential part of the democratic and cosmopolitan project. And mediation, both as private dispute settlement and – increasingly – as a process for the resolution of policy, planning, and high value disputes – is surely one example of that form of decision-making. Leave aside for the moment the other discussion to be had about public and private dispute resolution: the question that’s interesting for me here is that this is, by design or by accident, a process of distributing decision making. In his magisterial History of the Common Law, Professor Toby Milsom suggested that the history of English legal institutions is marked by the dual processes of centralisation and specialisation  – the former, in terms of the physical and political location of state authority; the latter in terms of distinct functions of legal and judicial institutions. The next step in at least the Western history of law and decision making – through the rise of arbitration and mediation – is the process of decentralisation of decision making and rule making. This is the distributed decision-making I began with.

However, this development necessarily loosens the central hold of the conventional institutions of law- and decision-making. I observed one early response to this implication of mediation while looking at the non-appearance of mediation in Germany in the early 1990s – where the arguments at least for caution in this regard were based on the need for constitutional propriety and the need for consistency and publicity of rule-making in the legal system. There was, for example, a concern with the “reprivatization of social tasks and problems” [D Jansen, “Parallelen in Sozial- und Rechtspolitik: Ein Vergleich der Diskussion zur Selbsthilfe und zu Alternativen zum Recht,” Zeitschrift für Rechstsoziol. 9: 1 (1988)]. That these concerns are not a total bar to the development of mediation is clear in the now robust development of mediation in Germany.

If, as discussed widely in respect of Asian social and political conventions (and in earlier blog entries) there is a preference for the hierarchical structure, for clearer authority structures, then it may follow that mediation will be and remain more closely tied to those structures. This doesn’t make it any less like mediation; but it does mean – I think – that mediation is less likely to be seen and developed as the distributed rule-making process that it is becoming in other parts of the world.

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