Columns Putting Mediation in Context Leda M. Cooks

L a provocative NegotiationJourn a l article, Albie Davis (1993) articulates a growing concern among many professionals in dispute resolution: too many career hopefuls (i.e., dentists, attorneys, surgeons and w o m e n ) are entering the field while actual paying jobs remain scarce. In the same article, Davis also raises the c o n c e r n that p e o p l e ( w o m e n , for the most part) want to take part in the "mystique" (or magic) of mediation as an alternative form of dispute resolution. In the article, entitled "Mediation: The Field o f Dreams? If We Build It, T h e y Will Come;' Davis n o t e s that m a n y would-be m e d i a t o r s s e e m to view mediation as a cure-all for the ills o f t h e l i t i g a t i o n s y s t e m . Also problematic for Davis is the n u m b e r of p e o p l e w h o seem to be attracted to mediation because o f some utlre-

solved conflict(s) in their lives. Davis then suggests that p e o p l e w h o want to mediate put their time and energies to more efficient use by advising or creating g r o u p s that can b e t t e r utilize their skills. Few people would argue that m e d i a t i o n is a f i e l d t h a t a t t r a c t s m a n y diverse interests o r that t h e popularity o f mediation is growing. In fact, few dispute resolution practitioners (e.g., McEwen and Milburn 1993) would debate the fact that (at least in a v o l u n t a r y setting) t h e r e seem to be far m o r e mediators than opportunities to mediate. The attractiveness o f mediation to those seeking to provide an accessible alternative to the legal system is one reason for this burgeoning interest; other reasons p e o p l e seek traini n g in m e d i a t i o n s e e m t o b e a c o n c e r n for helping out their com-

Ledla M. C o o k s is assistant professor of communication at the University of Massachusetts at Amherst. Her mailing address is: Department of Communication, Machmer Hall, University of Massachusetts/Amherst, Amherst, Mass. 01003. 0748-4526/95/0400-0091507.50/0

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1995PlenumPublishingCorporation

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munity and an interest in helping disputants (and themselves) solve their o w n problems. D e p e n d i n g on the c o n t e x t (e.g., l a b o r - m a n a g e m e n t , c o r p o r a t e disputes), m o n e y , too, may be a motivating concern. Generally though, volunteers and others w h o are interested in mediation feel that they have some ability to intervene in and help manage conflict. Consequently, given the context of increasing numbers of volunteers and mediation professionals and (in most voluntary programs) decreasing n u m b e r s o f d i s p u t a n t s , t w o major questions emerge: Who should mediate? And c o r r e s p o n d ingly, w h a t constitutes an ability to mediate? The w h o concerns articulated in t h e Davis ( 1 9 9 3 ) a r t i c l e dovetail w i t h the r e c e n t effort to provide a standardized assessment for the mediation field (Test Design Project 1993). In e i t h e r case, the reaction to a burgeoning field is to separate those who "have" the skills from those w h o do not. This concern with professionalization may be expressed in several different ways. Davis is explicit in raising the question of who belongs in this professional community, but leaves the question a question. However, the discussion both in the Interim Guidelines put forth by the Test Design Project and in the subsequent commentary in Negotiation Journal privilege c o m m e n t on w h a t is n e e d e d (assessment of skills and demystifying the process) over who determines the "community" standard (see, for example, Bush 1993; H o n e y m a n 1993; Menkel-Meadow 1993). Indeed, the w h a t question also implies a who (as in who decides the 92

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Puffing Medtaffon tn Context

standards), although that determination certainly becomes muddled in the process of determining the p r o p e r "scientific" standard of measurement. Can this ability be recogn i z e d and assessed in s o m e standardized way? Whether the standard raised is a d e t e r m i n a t i o n o f p r o p e r traits o r an assessment o f "states," t h e " l a n g u a g i n g " o f t h e debate itself needs to be reexamined. What, for instance, constitutes our notions of "competence" (i.e., assessment of mediator abilities) or "community" (i.e., in this case, professional mediators)? The skills recognized as competent for some mediators (such as the nurturing skills that Davis discusses as problematic) represent only one dimension of the mediation process and the contexts in which mediation occurs. Indeed, d e p e n d i n g on the context, nurturing or empathic behaviors on the part of mediators is more often than not balanced, deemphasized, or replaced by aggressiveness, assertiveness, or unemotional behavior. Moreover, the determination o f any b e h a v i o r as p o w e r f u l , ignorant or (in)competent does not exist in isolation but rather is socially situated and determined. Thus, the emphasis given to skills t h a t d r a w p e o p l e to t h e field o f m e d i a t i o n and t h e a s s e s s m e n t o f skills-based training deflects attention from the process of mediation? Mediation occurs as a joint production o f meaning among disputants and mediators, each with their own social, cultural, and thus political location. Discussion o f traits and skills leads us away from the ways in which meaning is situationally deter-

m i n e d and culturally inscribed and t o w a r d an a b s t r a c t ideal o f w h a t could or should be. In other words, the presumption is of shared understandings about conflict and dispute resolution not only between the mediator(s) and o n e disputant but a m o n g all parties to the mediation and all w h o recognize mediation as a field. While such a scenario is unrealistic, it n o n e t h e l e s s s t r u c t u r e s t h e m e a n i n g s g i v e n to t h e m e d i a t i o n process and to the skills recognized as (in)competent. My focus in this brief essay is not specifically to r e f u t e the claims o r c o n c e r n s v o i c e d in t h e "Field o f Dreams" article; rather, my emphasis is o n the larger social and political c o n t e x t that frames Davis's interest in t h e f u t u r e o f m e d i a t i o n in t h e United States (as well as the interest of many influential others involved in c o n s t r u c t i n g p o l i c y d e s i g n and procedures). In other words, w h y is the "who" question being asked at this particular p o i n t in time? W h o defines the policy concerns for mediation programs and what issues are being raised a r o u n d the assessment of mediators? Who's

Interested?

Asking questions about "who" should mediate means looking at the social c o n t e x t in w h i c h such questions are framed. Davis is writing to a c o m m u n i t y o f r e a d e r s w h o are, presumably, active in the area of conflict resolution and-or conflict management. Many of these readers are t h e m s e l v e s t r y i n g to " d e f i n e " t h e field of mediation to better regulate a growing industry and set limits on what can and cannot be accom-

plished (or gotten away with) during t h e m e d i a t i o n p r o c e s s and u n d e r conditions o f a w r i t t e n agreement. Specifically, t h e society o f negotiators, mediators, etc., addressed here have a vested interest in maintaining a certain standard by w h i c h mediator behavior and the mediator process can be judged. As the field heads toward professionalization, this debate about w h o has the requisite skills to be a mediator and u n d e r w h a t c i r c u m s t a n c e s mediation can o c c u r has grown. I n d e e d , Davis is p a r t o f a large n u m b e r of m e d i a t i o n scholars and professionals w h o have voiced conc e r n o v e r t h e n u m b e r o f lawyers, psychologists, social w o r k e r s , etc. eager to b e c o m e Alternative Dispute R e s o l u t i o n (ADR) p r o f e s s i o n a l s . These commentators often seem apprehensive about the reasons people choose to go into the field (e.g., Are t h e y in it f o r t h e m o n e y ? Do they enjoy the control and p o w e r of mediation?), y e t t h e y rarely w r i t e specifically of any resulting negative impact on the process. T h e a t t e m p t to assess m e d i a t o r motivation independent of the process (mystical or not) results in v e r y little t a n g i b l e " e v i d e n c e " o f c o m p e t e n c e . If mediation (as a comm u n i c a t i v e act) is c o - c o n s t r u c t e d through the actions of both the mediators and disputants (all acting f r o m t h e i r various s o c i a l / c u l t u r a l / political locations) then the real data exists in the "reality" created in the process itself. Still, the breadth of services mediators provide, along with the growing support for mediation programs from governmental institutions for the purNegotiation Journal April 1995 93

poses of quality control, has led to increased regulation of the mediation process. Indeed, a major impetus for the Test Design Project (1993) is providing quality services for court-mandated mediation programs. As Silbey (1993) o b s e r v e s , t h e increased emphasis on structuring the process and implementing evaluation of trainees is an outgrowth of the push for professionalization o f t h e i r field. O u t l i n i n g t h e p r o p e r skills that a c o m p e t e n t m e d i a t o r should possess and designing a process by which those skills can be evaluated does, h o w e v e r , r e m o v e t h e p e o p l e f r o m t h e p r o c e s s . To expect that we can somehow isolate and extract the elements of mediation and then replicate it elsewhere assumes that reality is static and u n c h a n g i n g ; it also r e m o v e s t h e social element that creates conflict or love or change. The sense of urgency that drives many mediation debates may stem from philosophical questions about fairness and access to justice (e.g., What constitutes fairness? Who has a c c e s s to j u s t i c e in t h e U n i t e d States?); a b o u t t h e s e l f a n d t h e Other; about identity and difference. Or they may be traced to something as superficial as the day's headlines. In aU cases, however, these debates involve a "community" of peoples. It is this c o m m u n i t y that w e should continue to privilege in discussions about mediation and, indeed, about w h o should mediate.

W h o is Served? While most mediation trainers give lip s e r v i c e to c o m m u n i t y n e e d s ,

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many of o u r models for mediating disputes (e.g., the seven-stage model often used to train community mediators) are based on an ontology that privileges the individual. Thus, individualism has provided the ideological f r a m e w o r k for b o t h t h e legal system and the alternative system for resolving disputes. Conflict here is viewed as the dispute between and among individuals with little or no relevance to the larger network of which they are a part. However, m a n y o f the disputes we mediate involve peoples (mediators and disputants) of different ethnicities, ages, genders, and sexual orientations w h o often question the sense of the traditional model. People e x p e r i e n c e c o n f l i c t culturally and relationaUy, as well as individually. Telling "stories" about the conflict or g e n e r a t i n g s o l u t i o n s that reflect those stories is frequently a p r o c e s s that is insensitive to t h e social context in which the disagreement occurs. If the focus of mediation is on producing an agreement that both parties can live with, the agreement (and indeed the mediation process) must address the ways conflict is experienced in the everyday lives of disputants. Indeed, many contradictions exist in the ways notions of community, neutrality, impartiality, fairness and p o w e r are d e f i n e d and d i s c u s s e d w h e n the w h o and w h a t questions are raised. These paradoxes need to be addressed in greater depth in the framing of standards and p r a c t i c e codes and techniques that address imbalances of power in dispute resolution. While research in mediation is

beginning to look at the relationship b e t w e e n the languaging of p o w e r and ethics in the mediation process and the construction of these concerns in "official" ethical codes (see, for example, Ritkin, Millen, and Cobb 1991; Cooks and Hale 1994), the paradoxes embedded in the notion of a mediation community have yet to be addressed. W h a t is " C o m m u n i t y " ? The idea of community has seldom been open to debate beyond historical accounts of dispute settlement in the United States and Germany (e.g., Lind 1992; Whiting 1985). Recognizing community needs in Alternative Dispute Resolution (ADR) research has most recently meant listening to those voices which are included in the f o r u m (e.g., Sander and Goldberg 1994). Often these voices are professionals in the ADR community whose interests lie in defining policy and-or tightening the standards already in place. Instead of questioning the a u t h o r i t y o f the "community" or recognizing the privilege of defining w h o might be included, the discussion around community standards has wrestled with notions of h o w such standards are best implem e n t e d . Although t h o s e involved with the construction of the I n t e r i m G u i d e l i n e s (Test D e s i g n P r o j e c t 1993) have asserted that the process b e g a n and e n d e d w i t h m e d i a t o r s working in the "field," the recognition that the field itself may be selfc o n t a i n e d and containing n e v e r emerged in the discussion. Simultaneously, outside the academic community, the community in

which conflicts occur (the neighborh o o d s in w h i c h m a n y mediations take place) is changing rapidly. This double standard in much of the ADR research imposes the values of one c o m m u n i t y ( p r o f e s s i o n a l s in t h e field of dispute resolution) upon the community in which disputes take place and are (in)voluntarily brought to mediation or some other form of ADR. z T h e i n c r e a s e d p r e s s u r e for professionalizing the field of mediation is coming from many w h o feel that if mediators are indeed responsible for t h e "neutral" i n f o r m a t i o n t h e y give to disputants (as is indic a t e d in t h e i n f o r m e d c o n s e n t clauses of many of the ethical codes written for mediators) then not just "anyone" can be allowed to mediate. Certainly, w i t h t h e a d o p t i o n of mediation in many growing areas of law, (e.g., mediating cases involving racial, ethnic, and-or sexual harassment, or harassment due to sexual orientation), mediators are expected to be familiar with the rights of disp u t a n t s u n d e r relatively n e w and controversial laws. Yet the focus of mediation on the "needs" expressed by the disputants and their future is its strength and what has made it an "alternative" to litigation. Unfortunately, the emphasis on relationship between or among parties has been misplaced in an effort to use mediation to fill the needs of informal adjudication, thereby reducing pressure on the court system. However, to lay blame with any one influence on mediation or ADR is erroneous. Some of the best attributes of the process of mediation - - its flexibility and focus on problem solving

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are the very aspects that make it amenable to many contexts in which it should not be included. While many in the field applaud the application of mediation to a variety of contexts, few scholars or practitioners are looking at the ways mediation itself is being redefined in the fray. In an effort to impose some sense of standards on the process, the emphasis has shifted to the mediator's responsibility to insure that the rights of disputants are not being violated. This shift lends credibility to mediators w h o are experts in the very system mediation was supposedly designed to replace and foreg r o u n d s t h e law a n d r i g h t s in a p r o c e s s t h a t w a s s u p p o s e d to emphasize needs and interests. In this context, the question o f w h o should mediate b e c o m e s a salient and necessary one. -

-

W h o is E m p o w e r e d ? While many scholars have raised the s p e c t e r o f p o w e r in m e d i a t i o n , power is usually examined as a subset o f the p r o c e s s and isolated in terms of mediators' or disputants' responses to (or enactments of) part i c u l a r strategies. This c o u r s e o f study often mirrors an understanding of conflict that implies a "miscommunication" of meaning between disputants which mediators can isolate, identify, and help to reconnect. Thus, e m p o w e r m e n t o c c u r s w h e n disputants can acknowledge patterns of miscommunication and c o r r e c t or change accordingly. Such a view o f conflict and disp u t e resolution tends to reinforce traditional ways o f u n d e r s t a n d i n g

96 Leda M. Cooks Putting Mediation In Context

e m p o w e r m e n t that locate p o w e r as within people rather than as a phen o m e n o n that is actualized through the construction of particular realities and i d e n t i t i e s at a p a r t i c u l a r p o i n t in time. In t h e l a t t e r view, p o w e r is enacted through communication (socially constructed), rather than contained within an individual. The traditional view of p o w e r is r e i n f o r c e d by t h e t h e o r y - p r a c t i c e dichotomy in mediation. Theorists who attempt to explain the process of empowerment often rely on models that are mediator-based, locating strategies and skills that a mediator must obtain or possess to e m p o w e r disputants. Although practitioners of mediation generally agree with this assumption in theory, in p r a c t i c e mediators often raise the process as empowering in its own right. Thus, when disputants are dissatisfied with a particular outcome, it is because they have not followed the mediation procedure correctly. Shaflor (1994) looks beyond these limitations b y e x p l i c i t l y d e f i n i n g empowerment in the dispute resolution process as the transformation or elaboration o f particular forms of life. He looks specifically at the ways in which ideas of p o w e r are socially c o n s t r u c t e d within the mediation p r o c e s s . H o w e v e r , h e limits acknowledgment of the occurrence o f e m p o w e r m e n t to t h e p o s i t i v e (i.e., transformative) outcome of the mediation session. Still, o t h e r s c h o l a r s w h o h a v e asked the p o w e r question have redir e c t e d focus away from o u t c o m e s and t o w a r d p r o b l e m a t i z i n g the process. Cobb (1988), Grillo (1985),

Harrington (1985), Lederach and Kraybill (1993) and others have looked at the social context in w h i c h mediation occurs and at h o w mediation processes play into the particular social oppression of groups at the level of interpersonal dynamics? Women

as Mediators

Another dimension of the w h o question discussed in the Davis article is w h y w o m e n , in p a r t i c u l a r , are a t t r a c t e d to the field. Davis draws from gender research characterizing w o m e n as caregivers and nurturers primarily f o c u s e d o n relationships (e.g., Chodorow 1978; Giiligan 1982; T a n n e n 1990). A l t h o u g h o t h e r research o n w o m e n m e d i a t o r s has s u p p o r t e d Davis's conclusions (e.g., C o o k s a n d Hale 1992; L e B e s c o , 1994), such an approach provides a limited understanding both of w o m e n mediators and their power. The mediation process is itself often characterized as r a t i o n a l and i n s t r u m e n t a l (Shailor, 1994); therefore, following the line of reasoning of Davis and others, it w o u l d s e e m t h a t t h e w o r k would be less attractive to w o m e n . However, the number of women mediators tell a different story. For example, Davis suggests that w o m e n mediators may be driven by the negative p o w e r of self-sacrifice or that they may involve themselves in mediation out of a need for retribution. I believe this p h e n o m e n o n is c o m m o n in both m e n and w o m e n in any "helping" profession. As o t h e r r e s e a r c h o n w o m e n m e d i a t o r s has shown, many women mediators c o m e to the table sensing that they can help others t h r o u g h sacrificing o r n e g a t i n g t h e i r s e n s e o f self.

W h e t h e r this t y p e o f b e h a v i o r is called "mortification" (Burke 1961) or "goodness as self-sacrifice" (GiUigan 1982), I am c o n c e r n e d that such labels p r o m o t e a v e r y n a r r o w view of p o w e r and e m p o w e r m e n t . Folger and Bush (1994) attempt to p r o v i d e a m o d e l that looks at the transformative impact of the mediation process, viewing e m p o w e r m e n t as relational r a t h e r than located in the individual. While their approach holds promise, it weighs heavily o n the side of interpersonal dynamics and ignores the ideological aspects of p o w e r e m b e d d e d in the process. Perhaps a better approach to study ing e m p o w e r m e n t and agency lies in the balance b e t w e e n recognizing the interpersonal dynamics of the process and the location of that process within a social/cultural/ political context. Where

is Power

Located?

Perhaps as part of the discussion of community and c o m p e t e n c e in mediation, p o w e r is more usefully viewed as socially constructed - - as situated before, during, and after the "act" of c o m m u n i c a t i n g (mediating, storytelling, and-or disputing) about the conflict. Here, w o m e n mediators can feel e m p o w e r e d t h r o u g h n a m i n g male language in conflict and helping to create n e w stories for themselves and disputants. Women mediators can assert their control over the process in a m a n n e r not easily identified as e m p o w e r i n g (either individually or relationally). As one female mediator/interviewee in a study c o n d u c t e d by Cooks and Hale (1992) observed:

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If it's [discussion between disputants] happening in a good way, then I let it go; but I can stop it at any time, turn it in another direction if I need to. So I feel very strong. But at the same time, as a mediator I know that I have a lot of skill and a lot of control over what is going on, so I will often really humble myself in front of people... I'll say, "Well you know it seems to me I'm screwing up -- if we're not -- if you guys can't hear yourself then maybe there is something I'm not doing right here" (,p. 288) The mediator goes on to indicate that by putting herself "out there" as a potential scapegoat, she allows the disputants to displace the conflict, at least m o m e n t a r i l y , o n her. H e r e , w h a t may seem at first glance to be setting up oppressive relations (powerful vs. p o w e r l e s s p a r t i c i p a n t s in the interaction) is the skillful enactm e n t of humility to reframe visions of self and other in conflict. This m o m e n t a r y shift in p o w e r r e l a t i o n s (i.e., t h e a s s i g n m e n t o f blame) is an e x a m p l e o f p o w e r as b o t h d y n a m i c and situated. P o w e r h e r e is e n a c t e d as e m p o w e r i n g to both the mediator and disputants, yet is s i t u a t e d within notions of what it means to be female and (in)competent in this social context. In the context of joint enactment (i.e., parties entrenched in blaming the other), the m e d i a t o r ' s m o v e s m a k e s e n s e as transformational. However, the use of m o r t i f i c a t i o n o r v i c t i m a g e in t h e abstract s e e m s only to p e r p e t u a t e oppressive gender relations. The question should focus not on inherent male or female differences, but on w h e r e p o w e r is located in dis-

98 Leda M. Cooks Putting Mediation in Context

cussions about w h o is e m p o w e r e d in mediation. Furthermore, those interested in conflict and dispute resolution need to ask what issues of p o w e r are being addressed in w h y females are drawn to mediation. If, as Salem (1993) and MacArthur (1994) suggest, Western notions o f conflict resolution most directly address the well-being of those most privileged in society, w h a t p u r p o s e does mediation (and the role of the m e d i a t o r ) s e r v e to r e c o n s t r u c t o r replicate oppression? If w o m e n (as mediators and disputants) are the dupes of alternative dispute resolution (as Grillo [1991] has argued) and d i s e m p o w e r e d b y the legal system (as goes the standard argument for mediation), is violence the only remaining vehicle for real a g e n c y ? T h e s e q u e s t i o n s are absent in the debate over w h o c a n be a mediator because the emphasis on p r o f e s s i o n a l i z a t i o n shifts the focus to what is most important for those in m o r e privileged positions; this effectively reduces the possibility o f changes w i t h i n t h e field, thus maintaining consistent service to the larger "market" of disputants. Rethinking Power and Process Mediators and others w h o research and practice in the area o f dispute resolution are beginning to question t h e a s s u m p t i o n s u n d e r l y i n g stage models and working toward different "legitimate" a p p r o a c h e s to conflict. Indeed, one of the necessary changes that I see taking place in this field is the renewed (predating ADR) emphasis on the needs of the "community,'

particularly in intercultural settings w h e r e mediation takes place. Calls f o r n e w a n d d i f f e r e n t a p p r o a c h e s to conflict have led to new ways of thinking about the meaning o f individuals in relation to t h e i r p a r t i c u l a r c o m m u n i t i e s . For e x a m p l e , t h e d e v e l o p m e n t o f an Afrocentric model of mediation (Azariah 1992) that builds o n t h e notions of family and c o m m u n i t y as the central c o m p o n e n t s of any conflict shifts the paradigm away from means-ends strategizing and toward the harmony of the group. Also, Huber (1993) has developed, in c o o r d i n a t i o n w i t h elders from a number of tribes, a model of conflict resolution based on the "Medicine W h e e l " used in Native c u l t u r e s in North America. The Medicine Wheel model emphasizes conflict resolution as a circular process that integrates the spiritual, the emotional, the physical, and the intellectual dimensions of people. Progress around the Medicine Wheel is framed as a process of renewal, with different dimensions e x p r e s s e d m o r e w h o l l y at various points around the circle. Finally, research in p e e r mediation has privileged children's interpretations of conflict and the meaning of conflict in their everyday lives as a

starting point for evaluating the usefulness o f a p e e r mediation program @arley-Lucas, Hale, and Tardy 1994; Jones and Brinkman 1993). Each o f t h e s e a p p r o a c h e s to m e d i a t i o n as alternative dispute r e s o l u t i o n (and this list is b y n o means exhaustive) has o p e n e d t h e d i s c u s s i o n a b o u t conflict and alternative dispute resolution to include voices not traditionally recognized in academic venues. Traditional research on the p r o c e s s and o u t c o m e o f mediation s h o w s that p o w e r is o n e haft o f a c o m p l e m e n t a r i t y . Conflict, in this context, is thus defined as the fight over scarce resources (indicating incompatible goals and interdepend e n c e as well). O n e can b e c o m e powerful or can be rendered powerless, but in any case the r e s o u r c e s are finite. Yet, if one is to take the perspective that notions of p o w e r are themselves e m b e d d e d in language, then language can be (and has been) used to create p o w e r contextually, apart from static entities defined as "inherently" powerful or powerless. Such a perspective o n the process o f mediation raises and reframes the important w h o and w h a t q u e s t i o n s that define issues o f mediator p o w e r and competence.

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NOTES 1. Menkel-Meadow (1993) provides further c o m m e n t a r y on the capabilities of the measurem e n t process. 2. For a more in-depth discussion of the ~paradox" of voluntary entry into and participation in the mediation process see McEwen and Milbum 1993. 3. See also Merry and Milner 1993.

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Grillo, T. 1991. The mediation alternative: Process dangers for women. Yale Law Journal 100: 1545-1610. Harrington, Co B. 1985. Shadow justice: The ideology and institutionalization o f alternatives to court. Westport, Conn.: Greenwood. Honeyman, C. 1993. A c o n s e n s u s on mediators' qualifications. Negotiation Journal 9: 295-308. Huber, M. 1993. Mediation around the medicine wheel. Mediation Quarterly, 10: 355-366. Jones, T. and H. Brinkman. 1993. Teach your children well: Suggestions for peer mediation programs in the schools. Paper presented at the annual convention of the Speech Communication Association, Miami, Fla. November. LeBesco, K. 1994. W o m e n mediators and the paradox of neutrality. Paper presented at the annual convention of the Speech Communication Association, New Orleans, La. November. Lederach, J. P. and R. Kraybill. 1993. The paradox of popular justice. In Theposslbility o f popular justice: A case study of communitF mediation in the United States, edited by S.E. Merry and N. Milner. Ann Arbor, Mich.: University of Michigan Press. Lind, D. 1992. On the theory and practice of mediation: The contributions of seventeenth-century jurisprudence. Mediation Quarterly 9:119-127. MacArthur, M. L. 1994. Interim Guidelines ignore cultural factors. Negotiation Journal 10: 173-176. McEwen, C. A. and T. W. Milburn. 1993, Explaining a paradox of mediation. Negotiation Journal 9: 23-36. Menkel-Meadow, C. 1993. Measuring both the art and science of mediation. Negotiation Journal 9: 321-325. Merry, S.E. and N. Milner, eds. 1993. The posstbility of popular justice: A case study of communitF mediation in the United States, Ann Arbor: University of Michigan Press. Rifkin, J., J. Millen and S. Cobb. 1991. Toward a n e w discourse for mediation: A critique of neutrality. Mediation Quarterly 9: 151-164. Salem, P. E. 1993. A critique of western conflict resolution from a non-western perspective. Negotiation Journal 9:361-370. Sander, F. E. A. and S. B. Goldberg. 1994. Fitting the forum to the fuss: Some guidelines for a taxo n o m y of dispute resolution procedures. Negotiation Journal 10: 49-68. Shailor, J. G. 1994. Empowerment in dispute resolution: A critical analysis of communication. Westport, Conn: Praeger. Silbey, S. S. 1993. Mediation mythology. Negotiation Journal 9: 349-354. Tannen, D. 1990. You just don't understand: Women and men in conversation. New York: William Morrow and Co. Test Design Project. 1993. Interim Guidelines f o r selecting mediators. Washington: National Institute for Dispute Resolution.

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