Sharon Press (Hamline) has published Court-Connected Mediation and Minorities: Has Any Progress Been Made? in the Summer 2013 issue of the Dispute Resolution Magazine, available here.
Press’s article provides a wonderful summary of concerns in mediation related to minority mediators and to minorities as parties in mediation. Regarding minority mediators, Press observes:
[C]ommunity mediation began with a strong commitment to employing racially diverse personnel and volunteer mediators. The model of recruiting and training people from the community, people who looked like their neighbors and could understand local conflicts, led to a system in which program administrators and mediators often reflected the racial and ethic diversity of the people they served.
Press notes that the rise of court-connected mediation led both to an increasing professionalization of the field (“wiping out much of the mediator diversity”) and to greater involvement on the part of lawyers (not parties) in selecting mediators. Community connections and local decision-making became, accordingly, less relevant to resolving disputes. Meanwhile, critics have raised concerns around the qualitative results that minorities receive in mediation; the intrusiveness of a state-connected process into private lives; the danger that mediator neutrality turns a blind eye to disenfranchising disparities in power; and the possibility that confidential processes like mediation may inhibit social change.
Press recommends that we improve our data collection, research, and evaluation; increase mediator diversity; and improve mediator training and continuing education, with special focus on culture. She also mentions the importance of “access to information” for participants, reminding program administrators and mediators to pay attention to how we share information about mediation.
This last point — access to information — seems to me to offer some of the greatest possibilities for innovation and improvement. I have spent the summer thinking and writing about this issue, and so I was happy to see Sharon’s discussion of it in her piece. My view is that we often focus on the gatekeepers and the process in mediation, thinking that a well-designed and well-staffed system generally should be able to handle whatever kinds of disputes and disputants come along. But if the ultimate goal is self-determination and meaningful participation, then shouldn’t we think about raising the process literacy (ADR consciousness?) of non-lawyer disputants, especially for those who already are marginalized or disempowered? Such an approach would require more than just better consent forms and clearer mediation preambles — such an approach may, for example, require new commitments on the part of courts and/or law schools to providing skills-based training and process-based information to community members, disputing or otherwise.
