Theorizing Mediation: Lessons Learned from Legal Anthropology

Marc Simon Thomas

doi:10.18352/ulr.325

Abstract

Since the 1990s, there has been an increasing interest in mediation in the Netherlands, as part of a set of ‘alternative dispute resolution’ methods. Politicians, lawyers and practitioners have embraced mediation as a legitimate method for settling disputes, alongside the adjudication of conflicts in courts of law. However, there is a striking lack of literature aimed at theorizing mediation from a legal perspective. This article argues that the legal anthropology literature on disputes and dispute settlement offers useful insights for understanding mediation from a ‘legal 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 article 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.

Highlights

Since the 1990s, there has been an increasing interest in mediation in the Netherlands, as part of a set of ‘alternative dispute resolution’ (ADR) methods.[1]
This article argues that the legal anthropology literature on disputes and dispute settlement offers useful insights for understanding mediation from a ‘legal research’ point of view
One of the most visible outcomes of this development is the increase of literature on mediation. The bulk of this literature is non-theoretical in nature, and conspicuously lacks any legal research perspective

Summary

Introduction

Since the 1990s, there has been an increasing interest in mediation in the Netherlands, as part of a set of ‘alternative dispute resolution’ (ADR) methods.[1]. There has been a similar growth trend in mediator education and training,[7] while mediation has been frequently resorted to in a political context.[8] In 1996, the Dutch Minister of Justice presented the Alternative Dispute Resolution Platform to investigate the possibilities for formalizing ADR in Dutch law.[9] This resulted in a policy letter ADR 2000-200210 and a subsequent policy letter Mediation en het rechtsbestel.[11] an evaluation of the standards resulting from the latter policy letter (e.g. referring certain cases for mediation by the Legal Services Desk, the so-called ‘het Juridisch Loket’) were presented in a report called Mediation Monitor 20052008.12 More recently, three bills[13] were submitted by Second Chamber representative Ard van der Steur,[14] with the intention of making mediation mandatory in certain cases. The most important lesson here is that mediation should not be seen as an activity that occurs outside of particular social contexts.[26]

A roadmap

An overview of legal anthropology

Understanding disputes

Lessons to be learned

Conclusion