Theorizing mediation from the perspective of legal anthropology

Abstract

This chapter argues that the legal anthropology literature on disputes and dispute settlement offers useful insights for understanding mediation from an ‘empirical research’ point of view. This is because a lot of current common knowledge on mediation has its roots in a legal anthropological understanding. The argument that is set forth in this chapter is that the most important lesson that can be learned is that mediation should not be seen in isolation, but as part of a social process. This chapter also shows us that disputing is a dynamic process and that disputes develop in stages or phases. In addition to these broad lessons, legal anthropology has had an impact on mediation in a couple of more specific ways as well. First, the well-known assumption that mediation leads to win-win settlements, while court decisions provide win-lose solutions, has its origin in legal anthropological research. This, secondly, also counts for parties’ free choice for an alternative institution. And thirdly, the significance of disparities in power is another thing we have learned from legal anthropological research.