Practice Issues in Community Mediation Robert E. Mackay, AmandaJ. Brown We report thefindings ofa study of three Scottish mediation programs undertaken in 1997. We used a qualitative method, drawing on interviews with referrers, practitioners, service users, and managers, as well as case documentation. We conclude that (1) practitioners have to take seriously the interface with legal and official administrative processes, (2) volunteer mediators need to develop confidence in promoting mediation as a practice, (3) the projection of directface-to-face mediation as an ideal-typical model has to be reexamined, and (4)existing traditions of conjlict resolution in minority ethnic communities should be owned as a part ofa strategy of social inclusion. The purpose of this article is to draw attention to some important practice issues that have arisen in the development of neighborhood community mediation programs in Scotland. The identification of these issues is timely because there is increasing interest in central and local government in Great Britain in the development of such programs; those who contemplate establishing them can learn from the examples. Mediation UK-the umbrella organization for community mediation practice in the United Kingdom-has attempted to be a standard bearer for good practice but cannot act as a regulator. Therefore, many different programs develop without external professional scrutiny. This article demonstrates that some practice issues are common to the development of programs and procedures, irrespective of jurisdiction, but that particular issues relate to Scotland, which has its own separate legal system. We hope, therefore that the conclusions from this study will influence policymakers and practitioners in the way they develop and deliver mediation programs. We introduce the background context to the development of neighborhood community mediation programs and refer to previous debates about the Note: This article is based on a study supported by the Scottish Office of the U.K. govemment. The material in this article also appears in the research report to be published by the Scottish Office Central Research Unit. Permission to publish material from studies is granted routinely and can be confirmed. MEDIATION QUARTERLY, vol. 17, no. 2, Winter 1999 0Jossey-Bass Publishers
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process and practice of mediation. After describing our method of data collection, we discuss issues that arise from the structuring and process of practice. We draw on a study of development and practice issues in three community mediation programs in Scotland that was funded by the Scottish Office.
Background of the Study In the United Kingdom, community mediation refers to a process involving an impartial third party who assists people who are in dispute in neighborhoods to come to a mutually acceptable solution to their difficulties. In the United States community mediation may refer to a wider range of mediation activities, including interventions in the criminal justice system, family disputes, and environmental issues. In this article we have adopted the U.K. usage. Community mediation services were first established in Britain in the 1980s and expanded rapidly In 1996 Mediation UK-the umbrella organization for mediation services-reported that there were one hundred programs, the majority of which were concerned with community mediation (Mediation UK, 1996). In the main, programs use trained volunteer mediators. In Scotland this type of service has been slow to develop, and in June 1997 only four programs were in operation, with a further one in the planning stage. Community mediation has been developed at a time of increasing concern about antisocial behavior, incivilities, and neighborhood disputes. The impetus for its development follows the pattern of the wider movement toward the development of alternative dispute resolution (ADR) in other areas of social life where formal legal procedures are seen as either too costly or inappropriate, as in the areas of victim-offender mediation, family mediation, and commercial forms of ADR (Moody and Mackay, 1995). As a species of ADR, community mediation attracts the same types of critique that have been leveled at other forms of ADR. These relate primarily to coercion (Merry, 1982), extension of social control (Abel, 1981; Tomasic, 1982), compromise of legal rights (Tomasic, 1982), access to justice (Mays and Clark, 1996), and power imbalances between the parties (Mackay, 1995; Gillicuddy, 1991). Earlier studies looked at different aspects of mediation practice, such as the mediation process and the role of the mediator. The Process. Typically the process follows a pattern of visiting the parties separately and then bringing them together on neutral ground to work out an agreement. However, Mediation UKs Survey of Community Mediation Schemes [Programs] (Mediation UK, 1995) showed that in only 27 percent of cases did the parties meet face to face in “direct mediation.� The most common way that cases were dealt with was by indirect or shuttle mediation-the mediators met both parties separately and acted as go-betweens. In 27 percent of cases there was work with only one of the parties. The identification of stages in direct mediation has been well documented (Folberg and Taylor, 1984; Moore, 1986; Cameron, 1988; Mediation UK,
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1996). Authors differ as to the number of stages involved, but all include the following steps: Making introductions and establishing ground rules Story telling, with each party stating their view without interruption Discussing facts and questions Generating options and building an agreement Reaching agreement and writing a plan Implementing and reviewing Quine, Hutton, and Reed (1990) outline different models of direct mediation involving the mediators in meeting the parties separately before bringing them together or conducting the whole process with everyone together. It is usual, especially in direct mediation, for mediators to work in pairs. Role of the Mediator. Quine, Hutton, and Reed (1990, p. 65) identify a number of key elements in the mediator role:
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Not taking sides Careful listening to and validation of what disputants say Attention to and validation of each disputant’s feelings about the situation Management of the session in relation to agreed guidelines A capacity to keep working despite uncertainty about the outcome A commitment to letting the disputants find a resolution (or not)
The issue of how much pressure mediators apply has been taken up by Dingwall and Greatbatch (1993) in their research of family mediation. Although mediators may present themselves as neutral, Dingwall and Greatbatch assert that they encourage some outcomes while resisting others. Welton (1991) argues that perceived impartiality is important and that mediators have little control over the parties’ perceptions. Kolb (1985) shows that mediators use particular behaviors to convey the impression of authority and professionalism and to encourage the parties to think positively about a settlement.
Method Our initial plan was to obtain data from all three programs. However, due to funding problems that led to the closure of one program (Program B) and the failure of another to become operational (Program C, not described), we were able to obtain data in relation to only two of the programs (Programs A and B) and principally only in relation to one (Program A). Even in relation to Program A, the amount of data we were able to obtain was severely limited by the dearth of referrals arising during the period of fieldwork. There were only fifty-four referrals in the first nine months of 1997, of which only three
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progressed to direct face-to-face mediation between the parties. This rate of progression (5.5 percent of referrals) is very low as compared with the U.K. average of 26.5 percent (Mediation UK, 1995). In order to examine the process of mediation we undertook semistructured interviews with referral agents, program coordinators, management committee conveners, mediators, and parties. These interviews contained open-ended questions on topics related to the practice and operations of the programs, with provision for focusing in on particular issues raised by respondents. Respondents were asked about their expectations, experiences, and evaluations of their involvement in the practice of mediation. We had also planned to undertake observations of practice, including face-to-face mediation. Low referral rates meant that we were able to observe only two visits by mediators to parties. We interviewed eight referral agents and supplemented these with telephone conversations with two key staff members to clarify points. We informally interviewed administrative staff. We interviewed Program Ak trainer by telephone. We interviewed eight mediators (five female, three male)-just over half the population of fifteen mediators (twelve female, three male). We obtained data from interviews with respect to twelve cases. These involved eighteen parties (sixteen from Program A, two from Program B), involving eleven cases (one from Program B). The original sample of thirty-two parties in Program A was derived from the following categories: (1) closed cases, (2) cases where the parties had met in face-to-face meetings, and ( 3 ) current and new cases (some of which were already closed by the time of our scheduled visit). The cases were chosen by the program staff. We received the names only of those who agreed to be interviewed. In five cases we obtained accounts from both parties, and in one of these we also observed practice by mediators on a visit to one of the parties. Interviews with mediators and parties were tape recorded and transcribed. Observational visits were tape recorded. We also examined the records of the cases in which we had interviewed parties. In order to obtain an up-to-date view of new record-keeping procedures, we also examined the records for new referrals in August and September, 1997. We also had access to other program documentation, particularly case records and correspondence.
Structure and Models of Practice As indicated earlier, our main source of data was Program A. However, Program B had similar operational arrangements, despite different forms of funding and their location in different local authority areas. This is largely attributable to the movement of one key person who had been employed by both programs at different times, who had played an important part in training, and who served on the management committee of one project while working for the other. None of the key staff had a background in mediation. Their development as mediators was facilitated by attendance at workshops provided by Mediation
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UK and by the purchase of training from a mediation trainer. Thereafter, in Program B a staff member became responsible for training volunteers. Provision of the service in the main by volunteer mediators was a key element of the practice of both programs. It was not difficult to recruit volunteers. In Program A, they came to play an important part in the management of the program. Difficulties in providing continuing training and supervision became an important issue for the volunteers. In both programs, at the time of the study there was an office base in the center of the urban areas served by the program. When there was no staff available, messages and inquiries were left on answering machines. Outline of Practice in Program A. Referrals could come from any source but were primarily derived from the police, the Housing Department, and Environmental Health. Except in the case of referrals from the police in which referral of parties was simultaneous, Program A took referrals of one party in a dispute in the first instance. Attempts were made to recruit the first party to mediation. If successful, the second party was approached. The mediators would attempt to sell the idea of a face-to-face meeting. Failing that, shuttle mediation might be attempted or advice given. If an agreement was made, this would be in a written form, signed by both parties and the mediators. Mediators undertook to follow up contact with the parties to monitor the effectiveness of agreements. There was an agreement with the police and with the Housing Department to inform them of the outcome of mediation (whether an agreement had been reached or not) but not to disclose what had happened in mediation or what the agreement contained. In our own sample the types of case included problems with children (five) (includes Program B case), noise (three), harassment (two), pets (one), boundary (one), other (one). On analysis, the case described as “other” was in fact a case of racial harassment. The sources of referral were self (four), police (one, but possibly two; record unclear), Housing Department (two, including Program B case), housing agencies (two), lawyer (one), and employer (one). Referral Issues. One of the key issues for Program A was the low level of referrals in its second year of operation. There appeared to be two reasons for this. First, it emerged that one key agency had decided to suspend referrals, but the program’s management had not picked this up and dealt with it. Second, the program’s practice in response to referrals left it up to parties to contact the program after the initial notification by the referral agent, leading to delay and loss of business. Nevertheless, there was a sufficient number to consider the implications of the policies that the program and the agencies held about the types of cases that ought to be referred. Suitability of Referrals and Burs to Continuing Work. Generally, British views about the level of seriousness of a case to be referred are conservative (Dignan, 1996). However, Cameron (1988) has suggested that “it is difficult to put an upper limit on the seriousness of disputes suitable for mediation” and that no dispute is too trivial (p. 87).
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There was overall consensus among referrers about the types of cases suitable for community mediation. These included domestic noise complaints, problems with children and pets, clashes of lifestyle, and disputes over parking, litter, and boundaries. This list was similar to that produced by mediators. One mediator thought that community mediation should also tackle more disputes involving members of ethnic minorities and that mediation should attempt to deal with multiparty mediation, including work with youth gangs. It was suggested that mediation should go beyond disputes between neighbors to mediating in communities and with particular groups, such as students. Contra-Indications. A number of case types were seen as contraindicated. These categories cut across the suitable problem types. Length of Dispute. Some agencies were referring cases that were already entrenched. However, a distinction should be drawn between long-standing and escalated disputes. The former may be very bitter, intractable, and difficult to settle; the latter type may escalate quickly but still be susceptible to mediation. An example is a street mediation that originally arose over a dispute between two families but that engulfed many families on the street. Mental Illness. Mental illness in one of the parties was seen as a contraindication. It was suggested that a key issue here is the capacity of people who have certain types of mental illness to make an agreement and to keep to it. This cannot be judged easily by volunteer mediators and is clearly a matter for which they need support. Criminal Charges. There was consensus among referrers and mediators that outstanding criminal charges were a contra-indication. However, the police indicated that they did not have a firm set of criteria for referral and that they would not exclude the possibility of referral simply because there had been a charge. The general policy of the program was that if there were criminal charges, referrals could proceed to mediation. However, mediation and reparation diversion programs do successfully operate in the shadow of criminal proceedings (Warner, 1992). Civil Proceedings: Actions for Breach of Tenancy Agreements. The Housing Department would not make referrals when there was enough evidence of a significant breach of a tenancy agreement or when there were many sources of complaint. This meant that the Housing Department was not exercising discretion to divert cases from civil proceedings, with the result that some potential referrals were lost. A perverse effect of this policy was that inappropriate and serious cases could be referred when it was impossible to judge who was at fault or when there was insufficient evidence to take a tenant to court. Other Factors. There was consensus among referral agents that a threat of violence was a contra-indication to referral and continuing mediation and that intoxication should prevent mediation from proceeding. A number of structural issues gave occasion to disputes that were not within the control of the parties. These included disputes arising from poor insulation, lack of resources for children’s play, and inadequate support to those
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with mental health difficulties who needed community care services. In some
cases joint action by residents, perhaps involving community mediation, may be helpful. In one case the parties did join together to campaign for better play resources for children. Party motivation was another important factor in referral. Although some parties may have an investment in conflict, even those who wish to see it ended, mediation will not always be the answer. Some people want redress; they may accept referral only because of fear that refusing mediation will tell against them in the eyes of referrers, with the result that they may be portrayed as being intransigent and therefore to some degree at fault if a case comes to court or if decisions have to be made about allocating alternative accommodation. Aims of Mediation. When asked what they thought they were trying to achieve through mediation, most mediators commented that the intention was to enable neighbors to live peaceably together, even if this meant that they ignored one another. [We arel “not trylng to make people friends but trymg to help them get on with their lives.” One respondent referred to the preventive aspect of mediation: [We arel “trying to solve problems before they become serious.” Another spoke of “reinstating communication between neighbors,” resolving conflict without apportioning blame, and trymg to achieve a situation where both parties could win. Mediation does not tackle underlymg problems but promotes acknowledgment that the other party “is undergoing some kind of emotional reaction.” Selection of Mediators and Working in Pairs. All mediation practice in this study was conducted by pairs of mediators. The reasons for this were cited as protecting the mediators, providing a different focus on the jointly worked case, and sharing the burden of the work. Coworking provided an element of cosupervision in the debriefing process. It was suggested that marching mediators to cases by gender and age occurred. However, this could not happen routinely Availability was the practical criterion for allocation of mediators. One mediator did comment that there was an imbalance in the workload of the volunteers but attributed this to variations in availability. Selling Mediation. Mediators needed to encourage the parties to choose mediation, in particular face-to-face meetings, as the best way to settle their dispute. In order to achieve this, they adopted a number of approaches, including exploring the fears of the parties as well as looking at the options available to resolve the dispute. Several mediators took a pragmatic approach and asked parties, “What have you got to lose?” when the only other option might be litigation. One mediator said she highlighted the cost of legal action. Others stressed that mediation was a free and quick service. Another offered practical help to get an older person, who was afraid of going out of the house, to come to the meeting venue.
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Some mediators remarked on differences in the persuasiveness of their colleagues. Some mediators felt it was unwise to push the parties too much because the face-to-face meeting might be unsuccessful or because the parties’ anger might be directed to the mediators. One thought that there was little hope of settling disputes if the parties were not prepared to meet. Another mediator wanted to sell the mediation process much harder: “The biggest thing that I wasn’t quite prepared for when I first went out there . . . the party visits, is how much you have to sell the process. . . . Some sell it very well, others back off.” Emphasizing success rates was seen to be a persuasive technique commented upon by one party In practice, and in common with many other programs, the acceptance of the offer of direct face-to-face mediation was very low. Nevertheless, the acceptance rate was much lower, and this may have been caused by a lack of confidence on the part of some mediators, compounded by a view that mediators should not seek to sell mediation. Acknowledging Feelings and Allaying Fears. Mediators emphasized the importance of allayng the fears of parties about the mediation process. In one case a mediator reassured a party that she could have a break any time during a face-to-face meeting. One mediator stressed that the other party would not be allowed to abuse the party in a future mediation session. Parties were not only afraid they might be abused but that they might behave abusively themselves. The feelings of disputants were often very strong and were related to the impact of the dispute and the stresses this generated. Stressors arose from different sources-some from the dispute itself, others from the mediation process. Although many of the disputes were seen as silly in origin by the parties, they had developed to the point that people were feeling threatened, intimidated, anxious, and fearful of going out. Violence and the fear of it featured in a number of cases, and one involved racial abuse. One party felt that the failure of the mediation process had contributed to the collapse of the relationship with his partner. Dealing with Safety and Power Imbalances. Several parties mentioned that the mediators had made ground rules about conduct in face-to-face meetings. One party reported that the mediator stressed that there should be no verbal or physical abuse. Another related the powerful effect of the mediators on her own feelings: “It was more of a calming presence that I felt with them both and it was safe as well, because I had got to the stage with the neighbor where I felt if she pushed me any more, I was going to hit her. And in that room where we went it was safe.” (In this case the mediators had encouraged the parties to make their own ground rules.) Safety is closely related to the question of power imbalances. Mediators saw themselves as having a role in equalizing power imbalances between the parties and gave a number of examples of how this was achieved. These interventions can be distinguished as taking two forms-regulatory and
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supportive. Regulatory interventions included enforcing ground rules, warning a more powerful party that they should not use bullymg tactics, and calling a halt to the meeting if there was intimidating behavior. Supportive interventions included moving closer to the weaker party, asking a question to ensure that the party had an equal opportunity to express herself or himself, and ensuring reciprocity in the written agreement. One mediator had the experience of parties bringing in people to support them, which she thought was helpful. Promoting Communication. The task of promoting communication between the parties in face-to-face mediation began before they set foot in the same building. In one case, a party was anxious about going to a face-to-face meeting. The mediator reassured her that she could have a break at any time if she felt upset. She said that the mediators were very kind and made her feel comfortable. An important function of mediators is to create an order for the parties to operate in-one that has a quality of safety and control. A mediator reported that it was essential to make proper introductions of everyone in the room, to establish ground rules for conduct in the meeting, and to establish the credentials of the mediators as an independent people. She also had to create a positive climate for the parties, which was facilitated by congratulating them for coming to the meeting and participating; she emphasized the confidential and voluntary nature of the process. A number of mediators placed emphasis on the need to make people feel comfortable: We try and make sure that we put them at their ease, and that they are not feeling that they’re under duress because the whole process has to be voluntary, otherwise nobody is ever going to agree to anything. What is it that’s making them nervous? Is it because they feel the neighbors are going to beat them up afterwards or they’re going to get notes through their door and abuse if they go to the face to face? So you have to identify with what it is that’s causing them to be afraid. A lot of people are afraid, I think, that they will lose their temper, and they will actually hit the other person. We tell them we are trained to handle this, but I’m not sure they ever believe us.
Sometimes one of the parties was perceived by the mediators to be more vulnerable than the other. In such a situation a mediator might align herself with the weaker party by showing nonverbal support such as sitting closer to her. It was reported that after the initial exchange of statements in mediation, communication between the parties flowed. One mediator spoke of the need to allow the parties “to get on with it” and only to intervene if the parties were repeating themselves or if “things are going off the wall.” However, things did
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not always proceed smoothly One way to intervene if communication did not take off was to use the mediators as chairpersons. Parties in one case spoke of a mediator telling a story that alluded to the problems faced by one of the parties. In fact, this technique miscarried because, although it helped the party to whom the story referred to express herself, it immediately suggested to the other party that the mediator was biased. On another occasion, mediators played a tape recording in the session to confirm perceptions of what had been said. As one party recalled: “It was a case of them playng back the tape recording, and we heard ourselves saylng it. So there’s no way we could actually say that we didn’t say it, because they had the tape recording.” Mediators tried to get parties to focus on the issues, to find common ground. One party referred to a striking intervention in a dispute between residents about children’s behavior, when a mediator reminded them that both sides were concerned about their children. Both sides realized they did not want the police to be involved. Mediators tried to keep discussions from going around in circles; they tried to work with concessions, or acknowledgment of the problem, building from “Oh yes, we have made a noise, but it’s not been that late” to “Maybe we shouldn’t be doing that after all” [mediator’swords]. Style and Presentation of Mediators. There were contrasting views among mediators and parties about the appropriate style for mediators to adopt. Soft or Strong Style. Some mediators saw mediation as a process of setting a scene that allowed the parties to communicate, only intervening rarely in face-to-face meetings. This may be associated with the view of one mediator that “once you’ve got them beyond the stage of fighting, to communicating, the job of mediation is over.” Other mediators saw themselves as having a stronger interventionist role. One party who saw the soft approach in negative terms thought that settling the dispute with her neighbor required more than listening. However, mediators being seen as wanting to help was positively appraised, and another party commented: “Their presence was very much felt, though they did not interfere whatsoever.” Confidence. Confidence was identified as an important quality in mediators. They need to be able to deal with aggression and to communicate this to parties. Mediation should not be presented or perceived as a weak intervention. On two visits of observation a mediator said, “All we can do is try,” in response to anticipated resistance of the other party There is a danger that this does not convey a sufficiently strong message about confidence in the mediation process. The Primacy of Process. Some mediators suggested that process had priority over the need for continuity of mediators and hearing the story of the parties. Continuity of Mediators. Some mediators stated that continuity of mediators was not necessary in a case because the process of mediation itself would bring people to agreement naturally Mediators’ personalities were irrelevant.
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Practice was rather different, however; mediators stayed with the same case if possible. We were not able to evaluate any differences in outcome arising from these approaches (staymg versus not staying with a case). However, this approach does not cohere with the emphasis on building the trust and confidence of the parties in the process itself. As one mediator put it, “The parties invest their trust and confidence in the mediators. Parties need to invest in a relationship with the mediators and to develop trust in their competence .” Hearing the Story. Two mediators made reference to the lack of importance of hearing the story (of the dispute) because it was the process that was important. One party felt very angry about this approach: “I just felt they were belittling everything I’d been through, and they didn’t want to hear. They were so concerned about not taking sides, that I couldn’t even explain how I felt or [what I] wanted to say.” Our observation and our own fieldwork has shown that outsiders to a dispute are going to get part of the story anyway Mediators have to ask what the dispute is about. There is a danger for mediators and researchers of being engulfed by the story and losing control of the working agenda. However, hearing the story may help the mediators gather clues about the parties’ concerns, thus helping to clarify the issues. It also seems necessary to provide an open ear to allow the parties to vent their feelings and for the mediators to gain an appreciation of the level of stress the parties are experiencing. Truth and the Story Line. It is not a function of mediators to interrogate parties or investigate disputes, but they do need to know when there are conflicting versions of events because these will have a bearing on the way the parties operate in mediation. In one case, a party in a face-to-face meeting perceived that the other party was lymg. She did not challenge him in the meeting. Lies, or the perception of lyng in the mediation process, undermines the confidence of parties in any agreements made in mediation. In some cases, a party may have a legitimate interest in not disclosing information of a completely innocent nature in a mediation meeting because of a fear that the other side will use it against them. It is not always possible for parties to state their needs and interests directly This requires a subtle approach on the part of mediators, who must elicit what the true interests of a party are without disclosing them to the other side. Involvement of the Relevant Parties in Process and Agreement. In five cases, relevant parties were not directly included in the mediation process, either as a result of substitution or the use of representatives. Substitution occurred when one party refused to deal with the other or when one party, often a partner, refused to participate. Examples included cases of partners standing in for one or even both of the parties at loggerheads and one case in which a mother negotiated in a dispute involving her grown son’s behavior. Representation occurred when a group of residents agreed to allow some of their number to meet with the other party on their behalf. Representation of a group of
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parties is common enough in commercial and industrial mediation, but substitution is contentious. Mediators justified this practice on the grounds that it was better to get some communication between households than to have none at all. The potential negative consequences of proxy mediation are that agreements may not be ratified or kept and that it may generate tensions between the proxies and the person represented. Use of Sanctions and Legal Status of Agreements. We found that these two themes intersected each other. For instance it arose for one party in discussion about the durability of agreements: “They will agree with this thing in mediation. They will sign the declaration, and it will be alright for a wee while, and then they will start all over again because they know the Housing can do nothing to them.” Another party made a complaint in similar vein about the Housing Department’s lack of power: “Housing can do absolutely nothing about him [the other party]. They just call him in and tell him to behave himself. And this has been going on for four years now.” There was, therefore, a perceived gap in effective enforcement of tenancy obligations-a point one senior housing official conceded. However, there were mixed views about the role of the court. On the one hand, it was suggested that the court had an important role in upholding the law. On the other, there was recognition of the limitations on the powers of the police to enforce the court’s civil interdicts. Eviction clearly was a tough, draconian measure. What, therefore, is the value of mediated agreement? One party expressed a strong view that mediation was necessary to enable agreement to take place, despite the fact that criminal charges had been made against him. But without genuine willingness to find agreement to live at peace, could any mediation agreement work, with or without the threat of sanctions for noncompliance? Mediators emphasized that agreements are not legally binding. A statement to that effect appears on agreement forms. This view was questionable as far as Scots Law is concerned because an agreement might under certain circumstances constitute a contract between the parties. Even if such agreements are not defucto contracts, they can be lodged with the court and thereby become legally binding. Use of this facility or comparable facilities in other jurisdictions, such as the arbitrated consent award in England and Wales, may serve to strengthen community mediation agreements. It is important to recognize the distinction that although participation in mediation should be voluntary, adherence to standards of legally acceptable behavior is compulsory and should be backed by sanctions. Mediation is a mechanism for securing compliance in a voluntary manner. However, the basic motivation to resolve a dispute, or at least to desist from disputing behavior, has to be present. Moreover, the power to enforce sanctions for noncompliance also needs to be in place. There is no inherent difficulty in the concept that mediation may be attempted at any stage of the course of a dispute within the criminal or civil
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justice process. The criminal courts have the option of deferring sentence to enable a process of mediation to take place. The civil courts also have powers to refer cases involving matrimonial disputes to family mediation (for instance in the Scottish Sheriff Courts, Rule of Court no. 49.23). Confidentiality. Mediators offered absolute confidentiality to the parties in the mediation process. They told clients that nothing would go “outside the four walls” in face-to-face mediation. Notes taken would be torn up. An important implication of this is that if records are minimal, the agency cannot provide useful evidence in any subsequent court proceedings. However, minimal records may lead to loss of accountability There were problems with this approach. First, as one party put it, “How can mediation stay confidential if the parties do not keep silent?” Second, as Davidson (1995) has pointed out, privilege relating to disclosures during negotiations does not attach to mediation in Scots Law, except to family mediation. Third, mediators may have to breach confidentiality if they become aware of a serious offense that may have been or is about to be committed by a party (such as child abuse). Ethnicity There is a danger that referral of disputes involving a party from an ethnic minority may be interpreted as minimizing the possibility that racial abuse is taking place. It courts the charge of providing second-class justice. This issue emerged in one case in which a party felt she had been the victim of racial abuse, but the issues could not be addressed: “[The mediators] did what they could, but my problem is that great acts of vandalism, racism, and almost violence were committed against me, and I feel these were not being addressed.” As with any dispute, a referral agent and a program has a responsibility to ensure that where serious abuse of any kind is alleged, mediation should not become part of a process of condoning or of continuing the abuse. However, we saw no protocols relating to the management of inter-ethnic disputes in the study Ethnic minorities often have their own traditions and mechanisms for dispute resolution within their communities. It may be possible to develop collaborative arrangements with particular communities for dealing with disputes involving members of their own community and other ethnic groups.
Conclusion The developing practice of community mediation has raised a number of issues. In this article we have adhered closely to those that became apparent during the research process. We recognize that our study does not exhaust the range of issues that arise; we have argued elsewhere that practice issues should be considered, not only in their own right but in the context of policy and development issues in the field and in relation to training and management issues.
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Practice issues may be divided into four main categories, the most salient of which is the interface between community mediation and existing administrative and legal processes. The key issues are the function of diversion from formal processes, the use of sanctions, and the credibility of community mediation as a process of dispute resolution. This takes in concerns about the status of agreemems and access to justice. The second area relates to the confidence and effectiveness of mediators as developers and exponents of a new practice. The development of practice has relied strongly on training that has to encompass skills in human relations, conflict resolution, and administration. Practice is being shaped as much by the experience of volunteers in the field as by paid experts. This carries risks but also opportunities for rejuvenating traditions of practice that should be welcomed. Nevertheless, mediators are struggling with issues such as confidentiality and the tension between the focus on process and the expected authority of the mediator’s public role. They need support and open, guided debate about practice issues. The third area concerns the mismatch between the ethos of the ideal, typical model of face-to-face mediation and the messier actuality of shuttle mediation and bilateral advice to parties. The practice of mediators needs to refocus on conflict resolution and management as a task rather than on fulfilling an ideal script. The fourth area relates to the concept of social inclusion. Although much discussion of practice has focused on matching mediators to parties, less has been written about recognizing and working alongside people in communities who have conflict resolution skills either individually or as part of particular traditions or groups. There is considerable scope for work with minority ethnic community groups to foster collaboration on disputes involving members of different ethnic and cultural groups and to foster improved community relations. Above all, however, there is a need to ensure that mediation does not itself reinforce discriminatory or oppressive conduct by other parties or agencies. Our study shows how important it is to pay attention to and understand the expectations, experiences, and evaluations of all the participants in the mediation project. In attempting this, we find pointers to what is really important for the development of practice. References Abel, R. L. “Conservative Conflict and the Reproduction of Capitalism: The Role of Informal Justice.” InternationalJournal of the Sociology o f h w , 1981, 9, 245-267. Cameron, J. “Community Mediation in New Zealand: A Pilot Project.” Journal of Social Welfare Law, 1988,5,284-299. Davidson, N.“Confidentiality and Privilege in Commercial Mediation.” In Moody and Mackay, 1995. Dignan, J. Neighbour Disputes: Comparing the Cost Effectiveness of Mediation and Alternative Approaches. University of Sheffield, 1996.
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Robert E. Mackay is lecturer in social work, Department of Social Work, University of Dundee, Scotland. Amanda]. Brown is research associate, Department of Social Work, University of Dundee, Scotland.