Confronting Social Injustice as a Mediator Michael A. McCormich Using literaturefrom several disciplines and reflections on the author’s mediating experience, this article asserts that mediators should confvont social injustice. The author suggests that the ethic of impartiality be joined by other guiding principles such as transformation, equality, relationship, and justice. Mediators, he contends, need to challenge power imbalances, appeal to moral authority, and encourage disputants to exercise self-actualizing and cooperative forms ofpower: This is possible, he argues, when the mediator helps the peryetrator of an injustice subjectively experience the harm done to the victim. Such an approach necessarily implies a revision of our notion of impartiality.
In order to address the moral wrong of a social injustice-be it racism, sexual harassment or other forms of sexism, economic exploitation, or any other type of discrimination or oppression-we as mediators are compelled to recognize the primary need and empower both victim and perpetrator to eliminate unjust or oppressive behavior. The continuation of such behavior is not negotiable. This point is not likely to be argued. But whether certain behaviors are oppressive, or intenlional, is hotly argued in most conflicts where injustice is alleged. This question invites denial, an urge to punish, attempts at self-protection, and political and spiritual resistance, depending on which side of the conflict one is on. If it is the responsibility of the mediator to name the problem-and to help devise a fair and durable resolution, as I believe it is-then we need to redefine our impartiality. Certainly, our impartiality is central to our utility in conducting a dispute resolution process that allows the disputants to define the terms of any agreement. But, as so many other practitioners and critics have noted, singular reliance on the principal of impartiality too often leaves existing power imbalances unchallenged and thus provides nothing better than second-class justice for the less powerful. Our ethic of impartiality permeates our practice and terminology For instance, we refer to the parties to a dispute as “disputants”or “clients,”at least in part to avoid any act or perception of bias. Although I honor the rationale MEDIATION QUARTERLY, vol. 14, no. 4, Summer 1997 0 Jossey-Bass Publishers
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for and use of our chosen vocabulary, it is important to be clear about power imbalances in conflicts allegedly involving injustice. Power imbalances often perpetrate injustice and are used to victimize those with less power. It is the victimizing behavior that should be labeled and positively challenged, not the person who has victimized another. This kind of acknowledgment is essential to an analysis of mediating social justice issues. Although I would never directly refer to a client as a “perpetrator” or a “victim,”these terms provide a clarity and conciseness that has proven useful in my reflections, as I express in this article. To foster just and therefore more durable resolutions, mediation must aim also to transform the disputants and their relationship. It must empower all disputants to explore the context of their conflict and acknowledge the wisdom of changing the power dynamic and redistributing resources among them. For this to occur, disputants must give truly balanced recognition to one another’s experience and needs. We need to make significant changes in our practice of mediation if it is to be used in this way. In an attempt to help clear a mediating path through conflicts involving social injustice, I aim, in this article, to accomplish the following: 1. Define the limits of mediator impartiality in the act of addressing social injustice as a moral wrong 2. Explore the legitimacy of the goals of conflict resolution of different stakeholders 3. Define some kinds and uses of disputant power that mediators should invite in order to begin to transform an unjust situation 4. Explore the sources of and opportunities for empathy (or recognition) in a conflict involving social injustice
The Limits of Mediator Impartiality To address the first objective, we must ask, “How does a mediator facilitate a just and durable resolution to a dispute involving social injustice?” and “What principles, guidelines, or loyalties do we turn to in order to serve the underlyng interests of the stakeholders?” In their analysis of what they call “activist mediation,” Forester and Stitzel answer this by asserting that one does not do it by appealing to neutrality To do so in the face of substantial power imbalances is to instill unjustified confidence in the mediation process and promise more than it can deliver (1989). Rather, the mediator should work to ensure the representation of the interests of all affected parties on the way to a mutually accepted outcome. It is crucial here to distinguish between interests and rights. A legalistic, or rights-based, approach to resolving questions of injustice may lead to establishment of equal rights, as defined by the dominant culture (that is, white, male, heterosexual, middle-class, etc.). However, to actually satisfy the inter-
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ests or needs of an oppressed group, which often differ from the needs of the dominant group, it is necessary to tailor resolutions to those specific needs. For instance, acquiring the right to vote did not necessarily assure African Americans safe access to the polls or representation in government. Likewise, a company establishing a generic “equitable” leave policy for all employees could easily fail to take into account a female employee’s need for pregnancy leave. Because the interests of oppressed groups have been downplayed or ignored, it takes more explicit attention to them than to the well-known interests of the dominant group in order to fashion mediated agreements that truly satisfy those needs. A mediator committed to representation of all the interests cannot be preoccupied with neutrality. One way to ensure that all the interests or needs get addressed is to offer a culturally sensitive mediation process. Different cultures and subcultures often have different goals for dispute resolution. A party’s goals can be situational, and they can also be defined by the party’s identification and practice with their group. For example, members of the business community and of legislative bodies often enter a conflict with the expectation that it will be resolved through compromise, since that is the typical path to resolution in their environments. Groups who have been historically oppressed, on the other hand, may be looking for justice rather than a compromise. Other groups, particularly those in power, often look for compliance with community norms. (This is sometimes expressed as an appeal not to rock the boat.) Within groups or between groups who clearly recognize their interdependence, the goal might be mutual satisfaction. One crucial difference between groups is the degree of importance assigned to relationship and the way in which that is defined. In reflecting on the value that African Americans have historically put on their relationships with others, Molefi Kete Asante has said, “Relationship is the most profound truth in the world. . . . It moderates the individuality of European culture” (Asante, 1995). Carol Gilligan’s seminal work on female psychology and contextual morality, In a Dijferent Voice (19821, reveals the priority that women tend to give to relationships when in conflict, in contrast to the more abstract concept of fairness that men tend to rely on. Gilligan contends that women tend to look at the needs of all in a conflict, rather than just their own. In The Civil Rights Society, Kristin Bumiller echoes this perspective on the distinctive morality of women, which she says is focused on issues of caring and com; munity rather than justice and autonomy (1988). In fact, there is much evidence to support the assertion that the dominant culture in the United States (that is, white, male, middle-class) is the most individualistic in our society, compared to most other cultures or subcultures (Latino, various Asian American groups, Native Americans, Arab Americans, Jews, African Americans, women, people with physical disabilities, etc.). If we define morality in part as how we treat each other and the extent to which we try to meet each other’s needs as well as our own, then this widespread emphasis on relationship
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appears to be a key to resolving conflicts in which social injustice is an issue. William P Smith (1985, p. 371) began to capture this more inclusive definition of morality years ago when he said that the traditional mediator, in keeping with community standards of justice, has a clear limit on what could be considered a reasonable settlement. Perhaps, then, we as mediators should become more sensitive to disputants’ desires to protect or heal relationships and to define a “reasonablesettlement” more in terms of what is just in the eyes of the whole community, as well as those of the disputants. The cultural differences I have described have everything to do with how well a disputant’s interests are represented in a mediation. Those differences are integral to the power imbalances invariably found in a conflict involving social injustice. If, as I have said, the continuation of oppressive behavior is not negotiable, then we must find a way to correct the power imbalances by empowering all disputants to meet that particular need as well as others. One means of accomplishing this is to encourage the use of certain kinds of power that are consistent with the taking of personal and collective responsibility for oppressive attitudes and behaviors and the healing of cross-cultural relationships. The first step toward employlng these little-used sources of power is to challenge the use by disputants of what many have called “power over”: the attempt to intimidate and dominate one’s adversary There is an old Celtic motto that says, “Never give a sword to a man [or woman] who can’t dance.” As a mediator, I interpret this to mean that I should never allow a disputant to assert his or her power until he or she has considered the price of an attempt to dominate and the necessity of addressing everyone’sneeds if a truly durable resolution is going to be attained. My charge, then, is to persuade the disputants to question their motivations and priorities and to find the strength to act out of their most ethical selves. This is part of what has come to be called “transformational mediation,” as defined in part by Bush and Folger in The Promise ofA4ediation (1994). Bush and Folger have made an invaluable contribution to mediation theory, but one way in which I differ with them is that I consider a disputant’s personal transformation, by virtue of position or relationships in society, a step toward institutional transformation. Since injustice is so often institutionalized, any influence a disputant can exercise in the institution should be considered taking a step on the way to a mediated settlement. In Racial Healing: Confvonting the Fear Between Blacks and Whites (19951, Yale law professor Harlon L. Dalton says that our long-term goal should be to transform how power and prestige are distributed in our society. If mediation is to play a role in correcting social injustices, as I believe it can and should, then the transformational practice we adopt must include the objective of redistributing power and the ethics and strategies for achieving that. The central ethic of our discipline, that of neutrality, is particularly problematic in this regard. Forester and Stitzel(l989) have gone so far as to say that our neutrality promises acquiescence to power inequalities. My own mediation experience confirms this. Far too often, the victim of an injustice (such as racial,
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sexual, or age discrimination) is left with full responsibility for naming and challenging the discriminatory act by virtue of our perceived need to maintain the trust of the perpetrator by remaining nonjudgmental. But, as Dalton (1995) asserts as he strategizes about racial healing, white folks need to accept partial ownership of America’s race problem. To generalize from that, mediators must, while conducting an impartial process, help perpetrators of any kind of injustice own their contributions to those inequalities. An opportunity for this kind of transformation of power, both personally and institutionally, can be seen in a dispute that I mediated between a campus radio station and a minority student group. The dispute was over a racial slur that was uttered on the air by one of the station’s sports commentators. The minority student group sought legal grounds to have the commentator dismissed from his job but was advised that it had a weak legal case. The group and the student radio station then agreed to mediation. The minority group brought the same demand for dismissal to the mediation. I was able to get the radio staff to openly recognize the injustice of the slur and the need to ensure against making additional slurs. However, because the station did not have in place a policy dictating dismissal for use of such language before the slur was uttered, the station staff refused to fire the commentator. Claiming the high moral ground, which was certainly theirs, the minority group continued to demand that an example be made by firing the commentator. I sought to motivate the radio staff to consider this demand by asking each of them to reflect on a time when she or he had been mistreated because of being different or a member of a particular group. (One of the staff people was a woman; another was a member of the same group that was the target of the slur.) In this way, I hoped to create some recognition of the minority group’s pain and their desire for retribution. This attempt failed. Of course, my request for empathy and recognition ran the risk of signaling the radio station staff that I sympathized with the position taken by the minority group. Perhaps that is why the staff refused to offer any reflections on their own past mistreatment. It could be that my attempt to invite recognition was too direct and too transparent an effort to influence a resolution. I then suggested that the parties address the previously identified underlying interests of preventing further slurs and protecting against future allegations of racism. To that end, I proposed that the two groups work together (and with other interested campus groups) to develop an ongoing radio program that would address issues of discrimination and prejudice and thereby launch an educational campaign for the entire campus community. Both groups responded quite positively to this idea. However, the leader of the minority group remained firm in his demand for dismissal. The minority leader’s rejection of my suggestion may have been a function of two factors. One factor, I suspect, was that the option was not generated by the disputants themselves, particularly the minority group. The need for selfdetermination may have precluded his accepting anything not originating with
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him or at least his group. An even more significant factor, I believe, and one that the minority group leader openly acknowledged, was the need to hold the radio commentator accountable for his behavior, that is, the need to make an example of him. In subsequent conference workshops in which I have discussed this mediation, perhaps the strongest support for the demand to dismiss the commentator was expressed as the need to hold a perpetrator of racism accountable for his or her actions, for there to be a consequence for the violation to act as a deterrent to further violations. For many who have been victims of injustice, this stance appears to hold great power and the promise of having the desired effect. As my next step in the mediation, however, I appealed to the minority group to move to even higher moral ground by asking them to consider the morality and the utility of demanding that the perpetrator be punished. Would that not, I asked, serve to reinforce the commentator’s view of them as the enemy or the “other,” as his slur exemplified? And if he continued to hold them in such negative regard, might that not prompt him to use such slurs again? Furthermore, were they, the victims of the slur, not treating the commentator as the “other”by trying to use their power (that is, moral authority) to get him fired? The idea behind my challenge was to precipitate a personal transformation among the members of the minority group in the way they exercised their power or moral authority; to help them see that they could more successfully effect change by abandoning the desire to dominate one individual and taking the responsibility for educating the whole community about the issues. The risk I took with this line of questioning was that of being perceived by the minority group as blaming them, the victims, for the perpetration of the conflict. Although none of the disputants, nor anyone in subsequent discussions of this mediation, expressed this view, the potency of some individuals’ impatience with my reality testing has signaled to me that such a mediating approach may skirt dangerously close to a tactic long practiced by oppressors of many stripes. Yet, it became clear that most of those in the minority group were persuaded that my proposal was the best resolution. However, the group leader’s attempt to personally dominute his colleagues eventually prevailed, and the dispute faded away without formal resolution. Much of what the minority group was seeking in this dispute was the power to stop racial slurs. Such empowerment, according to Bush and Folger (19941, is one of two essential ingredients (along with recognition) of transformational mediation. Clearly, in this case, the transformation needed to extend eventually to the members of the radio station staff. But for a variety of reasons, they were not able to step up to the moral challenge. I sensed, however, that most of the members of the minority group were able, that in fact they saw a chance for empowerment in stepping through their desire to punish and on to the greater
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responsibility of educating the whole campus about a wider range of racial issues. Had the leader of the minority group allowed them to drop their demand for dismissal, thereby clearing the way for a collaborative effort to develop an ongoing radio program on racial issues, the opportunity would have been created for the station staff to recognize the full weight of the matter and to commit themselves to racial healing. Injustice yearns for lasting resolution. Mediation should strive for truly durable settlements, especially when addressing issues of injustice. Durable resolutions consist of practical solutions to problems plus transformation. The proposal I put forth in this case offered a realistic and necessarily long-term solution to the problem of preventing racial slurs. This approach also demanded transformation both in the form of recognition of a moral wrong and empowerment to let go of the urge to punish and take on the greater responsibility of community education. The urge to punish is only one of the ways that disputants try to exercise their power over those they see as their adversaries. Conflicts involving social injustice are witness to other forms of domination and intimidation. One other subtle form is denial on the part of the perpetrator. The act of denial in mediation is often signaled by statements like, ‘‘I hope you don’t take this the wrong way” or “I don’t have anything against people like you, but. . . .” Denial of the intentionality of the racial slur was a tactic employed by the radio station staff in the example given above. A perpetrator exercises “power over” out of an interest in protecting his or her economic position, or position of autonomy or authority. The attempt to dominate often takes the form of exploiting the victim economically or otherwise maintaining economic inequities. An example from my own mediation experience is instructive here. A young Latino immigrant bought a sporty “muscle” car from a used car dealer. After discovering he did not have enough money to continue making the monthly payments, the Latino agreed to mediation in hopes of negotiating a return of the car to the dealer in exchange for his payments on the car to date. Because of language problems that must have been obvious to the dealer when the sale was made, the young man never understood the terms of the sale and the amount of time he had to return the car and nullify the sale. To protect his economic self-interest, the dealer used the Latino’s ignorance to hold him to the sale. Both of these cases are ones in which personal transformation was required in order to reach a fair and durable resolution. In each case, the disputant(s) failed to step up to the challenge of acting from the best part of oneself. In her exploration of racial and sexual politics and culture, bell hooks urges the victims of oppression to move from resistance to self-actualization, to become empowered to do what is necessary to satisfy their deepest interests (1991). Such a move is crucial for either a victim or a perpetrator in mediation to arrive at a resolution that begins to stop the oppressive behavior and relieve the fear behind it. It is incumbent upon the mediator to nurture and challenge
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each disputant, often through appeals to their reputation or self-esteem, to act with integrity. In the final analysis, conflict resolution is a moral endeavor, particularly with regard to social justice issues. Mediators can and should draw on moral authority as an antidote to disputants’ attempted use of power over. This is what I tried to do in the racial slur dispute. When the minority group tried to use their moral authority as victims of a slur to justify their demand for firing the perpetrator, 1 asked them to consider using their legitimate moral indignation to rise above their urge to punish. I encouraged them to reach for an opportunity to make allies of the perpetrator and his colleagues by creating a radio program that would address discrimination and prejudice throughout the campus. Earlier I had tried, with only limited success, to get the radio station staff to recognize the injury suffered as a result of the slur. In terms of an ideally balanced resolution, it was my view that any step toward personal and institutional transformation was to be forthcoming first from the source of the slur, that is, the staff. Since that was not happening, I turned to the victims of the slur to provide the transformational step. They were the party most sustained by their moral authority, and thus more prone to view the conflict as a moral one, or as an opportunity to act in the most ethical way As it turned out, this was a strategy that almost worked but ultimately failed. It must be recognized that durable resolution progresses incrementally, and that mediation is only a first step. The first step, specifically the agreedupon resolution, must prescribe opportunities for a measure of transformation among all parties, regardless of who takes the first transformative step. Indeed, the party most inspired by their moral authority, usually the victim in cases of social injustice, may often have to take the first transformative step in order to induce the perpetrator to commit to their own transformation. Yet another method of challenging the use by disputants of power-over tactics is to openly explore and reality test the context of the conflict and the power relationships within it. This is an approach promoted by numerous theorists and practitioners (see Kritek, 1994; Wehr and Lederach, 199 1; Zartman and Touval, 1985). Social injustice does not occur in a vacuum. Each act of injustice is a product not only of individual choice but also of social, economic, and political conditions not always apparent to the perpetrators.and victims of injustice. To ignore these inequities as a mediator is tantamount to relinquishing responsibility for a just and durable resolution that addresses underlymg interests and invites transformation. The mediation model that dominates our discipline does not as a matter of practice take into account social and economic justice. Rather, it applies particular standards of fairness or criteria for what it defines as “reasonable� resolutions. For example, in most commercial mediations the mediator uses the likely litigated result to pressure disputants into a compromise. In other types of disputes, the mediator often looks to what is acceptable to the disputants, within the time and cost constraints of the mediation process and the pressures
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of pending legal action, without taking into account existing power imbalances. This occurs in landlord-tenant disputes, in divorce disputes with regard to financial issues, in those between real estate developers and neighborhood residents, and between employer and employee, as well as many other kinds. This approach to mediation prevails because we as practitioners assume that the quicker a settlement is reached the happier everyone will be. The assumption is often reinforced by institutions (such as the courts) that refer a dispute to mediation and allow a limited amount of time to produce a settlement. Professional associations feed our concern over our productivity by asking prospective members how many mediations we have conducted. We are told that an increasing number of law firms are utilizing mediation because their clients are demanding more efficient, less costly dispute resolution processes. For the sake of protecting our own livelihoods, as well as a service whose economic value has already been substantiated, we cannot afford to ignore the need to pursue timely resolutions. On the other hand, we must also consider the costs of not exploring the contexts of disputes and the power dynamics among disputants. On a societal level, it is in our collective interest to address the economic and social polarization that has led to urban riots as recently as 1992. If our dispute resolution processes continue to ignore the economic exploitation and social prejudices that lie at the root of our most enduring conflicts, can we realistically expect any civil, nonviolent procedure to resolve the growing tensions between those in power and those with little or no social and political influence or economic opportunity? I once conducted a conflict resolution training for a small group of teenage boys in an alternative school. The district used this school to segregate those students who had been labeled “behavior problems.” Most had been repeatedly caught fighting and suspended from their home schools. Some were quite bright, but all of them had poor grades. Most, if not all, came from poor families. My task was to equip them with skills that would enable them to resolve their conflicts nonviolently and constructively. In the middle of my third or fourth session with them, one particularly hard-shelled boy raised his hand to speak. He said, “You know, what you’re saying to us makes sense. I can understand it. But that’s for people with a future.” I realized at that moment that all the reasonable techniques at my disposal would never, by themselves, equip those boys with the tools to build a future for themselves, nor motivate them to relinquish their violent behavior so that more opportunities would be offered them. So at that moment I abandoned my agenda and said, “OK, let’s talk about what’s in the way of your having a future.” Few of the boys left those sessions with skills to resolve their conflicts nonviolently, but our discussions about the social and economic conditions that had buried their hopes for success began to help them understand the behavioral choices they had made and the consequences of anyone trying to dominate others by the use of power over. Raw power, most often economic but also political and psychological, is wielded repeatedly in mediation with little or no challenge from the mediator
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to acknowledge the power dynamic and inequities that define the context of the dispute and the relationship between the disputants. The benefit of such an exploration to the victim of injustice is obvious. We, as mediators, must also help the perpetrator consider the benefit to self. First, we must help him or her see that raw power invites revenge, or at least noncooperation, on the part of the victim. Such revenge can take many forms: a flood of formal grievances, low productivity, bad publicity, loss of business, lack of access to one’s children, or myriad other consequences depending on the dispute and the stakeholders. It can also come in less dramatic and immediately damaging forms, such as an increasingly distrustful and dysfunctional relationship upon which the perpetrator is dependent. To get the perpetrator to exercise the kind of power that reflects taking responsibility for oppressive behavior, we also have to help them see the potential payoffs, such as the loyalty of employees who are treated justly, higher productivity, the preservation of a reputation, and improved working relationships. Reality testing the context of a dispute and its existing power dynamics can also begin to free the perpetrator of the burden of the “lie”:that one class of people is superior to another, that certain classes of people are to be feared, that other classes of people are entitled to their positions and to wield power over and exploit others. Social psychologists have begun to reveal the tremendous stress brought on by having to defend racist attitudes and behaviors and living in fear and distrust of people of different races. It is logical to conclude that such stress results from any attitude or behavior that systematically oppresses any group of people. In the course of mediating a dispute involving social injustice, we can help a perpetrator find relief and opportunity in learning to trust and respect the person she or he has victimized, especially if that relationship is ongoing, and to accomplish more by exercising “power w i t h rather than power over that person. Social justice conflicts often entail the victim of the injustice demanding restitution, in the form of compensation for previously denied opportunities or damage to one’s personhood. Exploring the context of a dispute necessarily includes an investigation of the human costs incurred over time as a result of sustained and intentional power imbalances. Current challenges to restitution measures such as affirmative action focus on fairness to those not receiving special consideration, the seat of responsibility for historical injustices, and the psychological effect on those awarded special consideration because of their membership in an identified group. Along with these issues, in the name of correcting power imbalances and pursuing a just and durable resolution mediators must ask the perpetrator of injustice, “Will you get the cooperation you seek without investing in the full capabilities of the person who feels mistreated by you?” This question of course looks forward, as any good dispute resolution process asks disputants to do. It asks the perpetrator to look long into the future because correcting social injustices is necessarily a long-term effort to address longstanding conditions. Critics of restitution for social injustices are
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quick to assert that individuals or institutions currently accused of historical injustice should not be held accountable for past practices not of their doing. But someone has to take responsibility for correcting the injustice and initiating the kind of investment in human development that it will take to eventually redistribute power in our society It is this redistribution that is necessary if the power imbalances that are at the root of so much social and interpersonal conflict are to be eliminated. The kind of transformational mediation that I am espousing here can play a vital role in that process. Of course, as part of reality testing the context of a dispute and before any kind of restitution can be considered, the mediator needs to facilitate recognition between the disputants of each other’s fears, losses, viewpoints, and needs. As noted above, the interests and perspective of the more powerful party (usually the perpetrator of social injustice) is much more familiar to the victim than is the victim’s reality to the perpetrator. It takes more time and effort to get the victim’s experience recognized by the perpetrator. This raises the question of whether the mediator should try to remain equidistant between the disputants. Those of us who are mediators in the United States and trained in a mediation model that is a product of the dominant culture are agents of that culture. In our attempts to help disputants find common ground, it is all too easy to ask a victim of an unjust act to accept a perpetrator’s statement that his or her behavior was not intended to offend anyone, or that it was a singular, isolated incident. Such assertions lure mediators into thinking that the disputants are closer to reconciliation than they may actually be. Before it can be useful to focus on the future by defining how the disputants will treat each other henceforth, the perpetrator must come to see that she or he has repeatedly acted oppressively. In order for the perpetrator to become motivated to change behavior, she or he must agree with the victim that there has been a pattern of discrimination or abuse. Inviting this kind of exploration runs the risk of allowing victims to view themselves only as victims. Indeed, the argument that victims of injustice are too prone to blaming their plight on conditions outside their control has gained increased credibility in recent years. Yet, much research indicates that those subject to discrimination more often shun the role of victim by refusing to level charges of discrimination and attribute their plight to personal failure (see, for example, Bumiller, 1988). Injustice will never be overcome if we continue to allow such disempowering short-term survival tactics. We need to get the disputants to recognize the injustice and its resultant victimization. Such acknowledgment should not be used to allow those victimized to abdicate responsibility for helping to resolve a dispute in a way that avoids further animosity and builds healthy relationships. However, as Dalton (1995) so concisely expresses it, before we can reframe victimization, we must name it. As mediators, we must let everyone, most of all the victims of injustice, tell their story. Because they have had to live with its effects, the latter know more about it. The practice of domination or maintaining a discriminatory pecking order
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blinds the perpetrator to all its consequences save the benefits to oneself. If he or she were to investigate its effects on the victim, the perpetrator would have to admit the injustice. Our dispute over the racial slur illustrated this. The person who uttered the slur admitted his mistake and his fellow staffers conceded the injustice, but they all maintained that the slur was “unintentional.”A crucial piece of the minority group’s story, one that more accurately and poignantly named the reality of the injustice, was that their historical experience of such language was that it is always intended. From their point of view, the use of such language is always aimed at putting them in their place and reminding them of where they stand in the pecking order. As the mediator in this case, I have since reflected on how the station staff‘s refusal to accept the other party’s piece of the truth and admit the intentionality of the slur may have fueled the minority group’s desire to punish the commentator by demanding his dismissal. Perhaps it was this failure that prevented all the members of the minority group from reaching through their victimization, letting go of their urge to punish, and embracing the practical and moral responsibility of educating the entire community about racism. In retrospect, I believe I should have focused more attention on the question of intention with the aim of getting the staff to accept the truth of the minority group’s sto7. In this case, as in many others, any possible breach of mediator impartiality would have served the grander ethos of personal and institutional transformation and social justice. For me, and I suspect the vast majority of mediators in the United States, to be ready and willing to risk our impartiality in the way I have suggested requires a reeducation process to broaden our mediating skills. Robert A. Baruch Bush, in his inquiry into the ability of mediation to produce social justice, cites the argument put forth by the scholar-practitioners of the University of Michigan’s Program on Conflict Management Alternatives that mediators should “empower” parties not only at the individual level but also at the group and community levels. According to them, this calls for the mediator to educate parties about the larger structural context, showing them how their problems relate to and stem from larger structural inequities (Bush, 1996).In order to be equipped to do that, mediators must be trained in political and social dynamics and structural analysis, as well as in the kind of diplomatic and motivational communication that enables us to challenge disputants’ perspectives while preserving their trust in our ability to facilitate a fair resolution. Using these skills, we will be more capable of inviting the kind of deep recognition of the structural forces at work in instances of injustice. Our case example clearly demonstrates the need for recognition if we are to attain durable resolutions in conflicts involving social injustice. But that recognition must be accompanied by the empowerment of the disputants to act in the most responsible and ethical manner. As Dag Hammarskjold, former secretary general of the United Nations, once said, “You can only hope to find
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a lasting solution to a conflict if you have learned to see the other objectively, but at the same time, to experience their difficulties subjectively”(1964, p. 114). As we have seen in the case of the racial slur, getting disputants to experience subjectively each other’s difficulties, especially when the parties view them as the “other” (that is, foreign, inferior, not worthy of consideration), can be a monumental challenge. How do we, as mediators, persuade disputants to identify with each other’s pain? Which comes first: disclosure or trust? What mechanisms, techniques, and processes create an atmosphere safe enough for members of different cultural groups possessing different degrees of power to reveal their pain, paranoia, and fears to each other? These are questions that need to be addressed specifically for each mediating opportunity, but my experience so far has taught me some generally useful strategies and techniques. In disputes such as the ones I have been discussing, the most fundamental task is to get the perpetrators of the injustice to reflect on any experiences of their own in which they felt mistreated because of being different or a member of a group outside the dominant culture. Most people have had such experiences by virtue of having been a child in a world controlled by adults. The challenge is to make it safe enough for a person who is being accused of mistreating others, and who therefore is feeling threatened, to reveal a part of himself or herself that is not in control. This calls for a private conversation, or caucus, in which the disputant is given the opportunity to make himself or herself vulnerable only to the mediator and to explore feelings that may open that person to recognizing the pain suffered by the victim of the injustice. Of course, there are other experiences and emotions to be explored on all sides of a dispute that could cause a disputant to feel uncomfortably vulnerable. Anger is one example, either at being oppressed or at being accused of oppressing. Caucuses can also allow venting to occur and thus drain some of the animosity that is a part of such a dynamic. Another useful process, particularly for large group or community disputes, is the Samoan Circle. This is a process in which members of a large group in a mediation session are invited, in turn, to take one of a few seats facing the rest of the group and speak out on issues that likely will invite strong adversarial responses. Each speaker is allowed a limited amount of time to speak and to choose another participant to sit directly in front of him or her and act as a paraphraser. The other participants are asked to remain silent while the appointed speaker speaks and is paraphrased. That speaker then leaves the seat and anyone else who wishes can take that seat and speak. The process continues until all those who have something to say have spoken and been heard and paraphrased in uninterrupted fashion. This can be a very effective means of getting everyone’s story out, in their own language, giving each speaker a sense of being heard, perhaps for the first time, and diffusing some of the tension in the early stages of addressing large issues among many stakeholders. Substantial progress can be made toward mutual recognition by employing this process.
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Conclusion Mediation can and should be practiced in the service of social change and justice. To that end, I have taken this opportunity to challenge the notion of mediator impartiality. I do not deny the primary role that impartiality rightfully plays in conducting mediations, but I contend that it should be only one of several guiding principles, particularly with regard to conflicts that involve social injustice. In an attempt to facilitate personal transformation (and thus precipitate institutional transformation), we must also honor the principles of equality, relationship, and justice in the eyes of the broader community Implicit in this approach is inclusion of the goals of those who have been victimized. A mediator’s hands-off policy with regard to outcomes too often ignores the legitimate goals of weaker parties and by default allows the powerful to define the terms of resolution. The exercise of power among disputants should be invited in the form of power with, instead of power over, each other. The effort to empower should be one of encouraging disputants to act out of the best parts of themselves, to move from resisting the other’s power to activating one’s own potential. Mediators should not be afraid to appeal to moral authority as it reveals itself in victims or perpetrators of injustice. We drastically and irresponsibly reduce the chances for truly just and durable resolutions by failing to assume that any and all disputants are capable of occupyng the high moral ground. Power imbalances must be challenged by reality testing the context of each dispute. All sides, not just the powerful, should contribute to the analysis of the conflict by thoroughly exploring the potential consequences and payoffs of various options for resolution. Perpetrators of injustice need to be given the opportunity to be relieved of the burden of the lie that extracts such a psychological toll on those fooled into defending their superiority or sense of entitlement. The long-term value of and necessity for restitution for unjust acts requires serious consideration. The true relational meaning of transformation lies within disputants’ willingness to invest in each other’s finest capabilities. The initial key to such transformation in cases involving injustice is to have the perpetrator recognize the victim’s reality. To accomplish this, the influence of the dominant culture, and its attendant power, must be held at bay while the history and patterns of oppression are identified and acknowledged by all. To invite disclosure and trust among disputants, mediators must judiciously employ mechanisms that allow disputants to subjectively experience each other’s difficulties. In this way, we can create a safe atmosphere in which to vent, be and feel heard, and reflect deeply on life experiences that can lead disputants to empathize with each other and occupy common ground.
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Michael A. McComick is director of the Centerfor Conflict Resolution, Salisbury State University.