2 - The Social Organization of Mediation in Nonindustrial Societies: Implications for Informal Community Justice in America

Abstract

This chapter focuses on the social organization of mediation in non-industrial societies: implications for informal community justice in America. American courts are notorious for their failure to resolve minor, interpersonal disputes quickly, effectively, and in a way that satisfies the disputing parties. The increasing urbanism, transiency, and heterogenity of the American society in the twentieth century has undermined informal dispute settlement mechanisms that are rooted in home, church, and community and increased the demand for other means of dealing with family, neighbor, and community disputes. However, many legal experts argue that the formality of the courts, their adherence to an adversary model, their strict rules of procedure and their reliance on adjudication render them inappropriate for handling many kinds of interpersonal quarrels arising in ongoing social relationships. The alternative is to create institutions that appear to grant communities the control over behavior, yet in reality simply provide a forum for handling disputes outside the protections of due process. An uncritical adoption of mediation could undermine social justice in other ways as well. Mediation could become a new mode of social control by local elites over deviant behavior (Hofrichter, 1982). As Silbey (1979) and Hofrichter (1977) argue, mediation might become a means for containing and deflecting grievances that spring from tensions in the society itself, therefore, meeting individual demands without affecting the underlying normative order of society. The public demand for condemnation and punishment of deviant behavior may also be deflected. Mediation experiments offer the promise of more humane and just ways of resolving interpersonal disputes. However, the question remains as to whether this what they provide?