History of Mediation in the US: Democracy as Conflict Resolution

The formal mediation process did not mature in the United States until the advent of the labor movement in the late 18th century. However, mediation with the small “m” has always been a critical element of American society, part of a democratic settlement process of disputes.

Mediation and its negotiation tools have been part of our search for common principles of social organization. Daily in this country, almost reflexively when citizens at the community, state and federal levels gather with their elected representatives or join in some way in the public expression of position about an issue or policy, we  have engaged in a search for consensus  about  rules and the principles of our social endeavors. The process in America has been described as the principle of institutionalized settlement, a process of conciliation based on social consensus and widely held convictions about appropriate human behavior. For example, voting in our democracy is a citizen’s statement about a social policy that may ultimately manifest itself in rules, regulations or statutes that regulate behavior and reflect social norms. In this country, when the rule of law is respected, it is respected because it fairly represents the resolution and accommodation of the wishes and convictions of a representative group of citizens.

How dispute resolution principles promote a democratic society?

Mediation in practical terms is the process of assessing and considering needs or issues of parties in dispute, negotiating different points of view, exploring consensus, listening and then finding a consensus, often in written agreement or rules of conduct established by the parties.

Since the country was established based on a process that often begins with the condition of conflict and leads to a search for agreement or consensus among affected elements of the citizenry, formal and informal mediation is at the core of how our country’s policies are formed. Think of the great and expansive web of local, state, and federal rules and regulations that govern this country. Although they can be the source of annoyance from time to time, they nevertheless were not promulgated by authoritarian sources unaccountable to citizens. They came to us through a formal process of citizen participation under circumstances where we generally accept them as a means of resolving competing social interests and advancing a consensus view of progress, or at least a majority’s sense of progress. The integrity of law making depends on the necessary involvement and participation of citizens. When our laws or rules derive from an insubstantial number of citizens, their formation contains an incurable defect which can defeat social acceptance. We have seen that phenomenon  recently and throughout our history.

In the wake of the recent, tragic Covenant School shooting, leaders in North Carolina were lamenting that the popular polls in the state identified strong support for gun control but that voting turn-out was remarkably low and failed to reflect the public’s true sentiment about guns. For some reason citizens who may have had views about the need for more gun control were not motivated to participate in the process. Nevertheless, they were forced to be reconciled with the resulting defects in public policy and tragedies that resulted. We often hear grievances about this problem and how it can result in minority rule, but in the end, it is a condition created by a silent majority who has the power to vote, to participate, but chooses not to.

Institutional Settlement in a Democracy, and the Utility of Negotiation and Mediation tools, Require Participation.

The fundamentals of dispute resolution simply borrow the principles of effective citizenship in a democracy that have directed law-making in this country. Thoughtful mediators recess a mediation if it becomes apparent that all the necessary parties are not participating.

In a class of young lawyers over which I presided we began discussing the problem of guns, or gun usage, in America. Why was this social dispute not getting resolved? After all, the country was besieged with gun tragedies almost daily, including the horrific deaths of young children. The students identified all the obvious participants important to a resolution and how gathering them or their representatives might advance a negotiation, an exploration of common ground needed for reform. It was also noted that this process had been tried and seemed to fail repeatedly. Very modest progress might be achieved but nothing that offered a meaningful solution. Why was this? What is keeping the process of social mediation, so familiar to Americans, from working in this case?

After the kind of brainstorming often suggested in formal mediation, the students observed that the process had failed in the gun control controversy because the right people have not been at the negotiating table. The NRA and gun manufactures are missing. They have assiduously avoided the playing field of social negotiation. It was suggested by some students that the NRA and gun manufacturers work in lockstep, stand back from active involvement in the controversy, pull the strings of lobbyists and politicians dependent on their support and comfortably avoid any serious participation beyond their quiet but impenetrable “no” to every reform proposal. In many cases, they are the “missing parties” at the negotiating table and the source of dead-end negotiations.

Participation and a Vision of Progress.

In the next edition of this blog, and before getting into “the do’s and don’ts” of formal mediation practice, I want to mention why and how our culture of institutional settlement contrasts with other systems. For now, it is sufficient to note that the ADR practiced in this country today, specifically mediation, is very much a reflection of our democratic culture and processes with all the same faults and attributes. There are ways and means of avoiding “dead-end” social controversies that may help our country better stimulate and achieve a consensus view of accepted behavior and progress. Creativity can overcome social deadlock.

Proof of effectiveness is the fact that civil law disputes in the United States are successfully resolved by agreement at the rate approaching 90% before trials and that mediation is a tool responsible for as much as 65% of that success. As I’ve suggested, finding consensus in the midst of serious differences has been a hallmark of our law-making and social progress. The utility of negotiation and mediation derives from an expectation that settlement and agreement will promote our personal, enterprise or community welfare. In fact, clearing away and resolving social disharmony through these communal processes have always led the way of progress in America. The process of dispute resolution, formal or informal, similarly advances the fortunes of citizens and business. Participation in dispute resolution also reflects an abiding American assumption that citizen participation can resolve obstacles to greater opportunities and benefits.

When this assumption is challenged, when Americans come to believe they have limited economic prospects, they lose any motivation to participate in the process of social negotiation and policy-making and seek protection and security for their piece of what they see as a static social pie. With no optimistic vision of the future, and a conviction that as a member of a certain social group they are being economically, politically and socially diminished and isolated, those citizens have little interest in anything but self preservation and become indifferent to matters requiring reconciliation, resolution and consensus with others. Consequently, their only interest is in restoring some past status or condition, returning to an idealized condition. They have no progressive vision of the future and their focus is recrimination. They have become incapacitated from participating in search for social consensus. More soon about the fallacy of the “static social pie” and how it inhibits dispute resolution and business and community growth.