Human, not too human: Why is mediation a profound alternative to the legal proceedings?

Pages139-167
DOIhttps://doi.org/10.1108/S1059-4337(2009)0000050008
Date09 December 2009
Published date09 December 2009
AuthorRan Kuttner
HUMAN, NOT TOO HUMAN:
WHY IS MEDIATION A
PROFOUND ALTERNATIVE
TO THE LEGAL PROCEEDINGS?
Ran Kuttner
ABSTRACT
This chapter presents an attempt to understand why mediation has gained
so much popularity in the western world in the past three decades.
I demonstrate how mediation, of all the processes that have sprung under
the umbrella of the ADR movement, responds to some basic human needs
and offers a way to thoroughly deal with authoritarian tendencies and
patterns common, too common, in modern everyday life. A wider
understanding of these needs can help emphasize the added values of
the mediation process as a profound alternative to the legal proceedings as
a mechanism for transforming disputes.
Once paradise is lost, man cannot return to it. There is only one possible, productive
solution for the relationship of individualized man with the world: his active solidarity
with all men and his spontaneous activity, love and work, which unite him again with the
world, not by primary ties but as a free and independent individual.
– Erich Fromm
Studies in Law, Politics, and Society, Volume 50, 139–167
Copyright r2009 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000050008
139
In 1971, when mediation was just emerging as a legitimate alternative
dispute resolution practice, Fuller (1971, p. 315) described the key to
understanding mediation as follows:
A serious study of mediation can serve, I suggest, to offset the tendency of modern
thought to assume that all social order must be imposed by some kind of
authority. When we perceive how a mediator, claiming no authority, can help the
parties give order and coherence to their relationship, we may in the process come to
realize that there are circumstances in which the parties can dispense with this aid, and
that social order can often arise directly out of the interactions it seems to govern and
direct.
The assumption that order must be imposed by outer authority,
emphasizes Fuller, is reexamined with the help of the mediator’s unique
form of intervention. That outer authority – or rather, authoritarian
tendency – is replaced by direct interaction. ‘‘The central quality of
mediation,’’ Fuller (1971, p. 325) writes, ‘‘[is] its capacity to reorient the
parties toward each other, not by imposing rules on them, but by helping
them to achieve a new and shared perception of their relationship, a
perception that will redirect their attitudes and dispositions toward one
another. This quality of mediation becomes most visible when the proper
function of the mediator turns out to be, not that of inducing the parties to
accept formal rules for the governance of their future relations but of
helping them to free themselves from the encumbrance of rules and of
accepting, instead, a relationship of mutual respect, trust and understanding
that will enable them to meet shared contingencies without the aid of formal
prescriptions.’’ This chapter explores the loss of this capacity and will
elaborate on the quality to orient the parties to each other in a dialogic
manner, at the expense of formal governing rules. The first part deals with
Erich Fromm’s analysis of twentieth-century personal and social mechan-
isms to escape from freedom, presenting his diagnosis of authoritarianism as
a prominent malady derived from changes that occurred in modern times.
Emphasis will be put on the loss of dialogical abilities as a symptomatic
manifestation of that malady. The second part addresses how the legal
system is recruited to function as an escape mechanism, thus serving a need
contradictory to the need for dialogue. In the third part, mediation is
presented as a process which in its philosophical foundations aspires to
restore the lost dialectical sense of freedom, both on a personal and on a
social level.
RAN KUTTNER140

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