The Devil and the Deep Blue Sea? A Critique of the Ability of Community Mediation to Suppress and Facilitate Participation in Civil Life
| Published date | 01 March 2000 |
| DOI | http://doi.org/10.1111/1467-6478.00149 |
| Author | Linda Mulcahy |
| Date | 01 March 2000 |
This article revisits debate between academics and practitioners about
the potential of community mediation. While mediation evangelicals
make bold claims about the possibility of mediation helping to rebuild
communities, academic critics have been suspicious of such contentions
and claimed instead that mediation has provided just another route
through which the state can interfere in the life of its citizens. It is
argued here that debate on the topic has been clouded by unduly high
expectations of disputes as agents of social change. Their importance
has been understood by reference to their ability to rebuild communities
or their potential to become test cases. It is argued here that mediated
disputes make much more modest challenges to state authority but that
they can be aided in this by the intervention of mediators prepared to
take a pragmatic approach to the unachievable ideal of neutrality. The
article does not conceive of community mediation as an alternative of
the state or its agent. Rather, it suggests that mediators can be embed-
ded within both worlds and act as message-bearers between them.
INTRODUCTION
This article considers whether community mediation is capable of facilitat-
ing the increased participation of the disadvantaged in democratic society.
A key test of the confidence of a democratic structure is its ability to accept
challenges and react in an open minded way to criticism. Academic debates
© Blackwell Publishers Ltd 2000, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Reader in Law, Birkbeck College, Malet Street, Bloomsbury, London
WC1E 7HX, England
My thanks go to Lee Summerfield, friend and colleague, who has supported me through the
process of writing this article and been prepared to argue with me at every juncture. Any
insights I have achieved are probably down to him. I would also like to thank the editors of
this special edition who were extremely patient and supportive of an author who did not man-
age her time very well.
133
JOURNAL OF LAW AND SOCIETY
VOLUME 27, NUMBER 1, MARCH 2000
ISSN: 0263–323X, pp. 133–50
The Devil and the Deep Blue Sea? A Critique of the Ability of
Community Mediation to Suppress and Facilitate Participation
in Civil Life
LINDA MULCAHY*
on the value of informal justice have tended to result in polarized positions
about the ability of mediation to frame grievances and disputes in a way
which challenges, rather than reinforces, dominant normative orders and
state control. Viewed by some as a practice in search of a theory, commu-
nity mediation has none the less provided social theorists with material
through which to examine the nature of the relationship between the indi-
vidual and the state. Proponents of mediation have seduced us with com-
mon sense notions of how disruptions in civil life might be avoided and
calmed. They appeal to a utopian vision of society and human relations to
which we all aspire. In contrast, left-wing critics have prompted a rude
awakening to the harsh realities and injustices in society and argued con-
vincingly that the production of calm could be dangerous when what was
called for was the emergence of a collective consciousness about injustices
in society.
Conflict between neighbours in inner city communities does much to
reveal the tensions implicit in living in disadvantaged, over-crowded, poorly
maintained social housing. They make explicit the ways in which notions of
identity, ownership, belonging, ethnicity, and sexuality are constantly being
challenged and renegotiated within, and between, communities. The study
of disputes leads straight to key issues for socio-legal scholars: norms and
ideology, power, rhetoric and oratory, personhood and agency, morality,
meaning, and interpretation.1It allows us not only to see social relations in
action but also to understand cultural systems and the relationship between
social structure and formal state law.2
This article attempts to plot the various ways in which the development
of academic critiques of informalism have moved on from a rejection of
informalism as an instrument of state control towards a position where it
can be seen to facilitate resistance to the state, albeit in much more modest
ways than those identified by the proponents and evangelicals of commu-
nity mediation. The issue is one which is relevant to contemporary debates
about changing patterns of governance in which increased emphasis has
been placed on compacts between the state and the voluntary sector. These
are said to create a new space within the constitution and allow for the dis-
persal of power through networks which traverse the legal constitutional
boundaries that appear to separate state and civil society.3It is argued here
that community mediation agencies are one such network and the process-
es through which they resolve disputes admit of the possibility of increas-
ing the ability of disadvantaged groups to participate in society.
The article is in four parts. The first section considers the ideological
foundation of the community mediation ‘movement’ and arguments put
forward in support of its growth. The second section considers criticisms of
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© Blackwell Publishers Ltd 2000
1P. Caplan, ‘Anthropology and the Study of Disputes’ in Understanding Disputes: The
Politics of Argument, ed. P. Caplan (1995).
2 D. Trubek, ‘Studying courts in context’ (1980–81) 15 Law and Society Rev. 485–501.
3 See J. Morison, in this issue, pp. 98–132.
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