MEDIATION/CONCILIATION

By: Carl D. Schneider

Mediation is a dispute-resolution process in which an independent third party helps disputants to settle a conflict in a mutually acceptable fashion. The disputing parties, whether individuals or nations, are active participants. A goal-directed, problem-solving process, mediation occupies a position midway between self-help approaches and formal third-party decision-making processes. Mediation differs from formal litigation in that the process is voluntary; the mediator has no coercive power or authority to impose a settlement on the parties.

Conciliation is a term often used interchangeably with mediation; at other times, it is used to refer to a more unstructured process of facilitating communication between estranged parties.

Mediation and conciliation are perhaps best distinguished historically. In the family sphere, conciliation arose when the Los Angeles Family Conciliation Court was established in 1939, the first of a whole movement of conciliation services associated with domestic relations courts which grew up around the country; these affiliated in 1963 as The Association of Family and Conciliation Courts, an international association concerned with the provision of family counseling as a complement to judicial procedures. Family mediation developed as a broad art, movement in the 1980s, most significantly in the divorce mediation movement.

Along with ombudspersons, arbitration, and consumer complaint agencies, mediation has gained currency as there has been growing recognition of the difficulties and deficiencies involved in the heavy reliance in American society on the formal adversarial court system to handle disputes and to provide for social ordering. Proponents of mediation argue that among the benefits of the process are its privacy, informality, convenience, timeliness, lack of expense, and effectiveness. As Folberg comments: “It is ideally suited to polycentric disputes and conflicts between those with a continuing relationship, since it minimizes intrusion, emphasizes cooperation, involves self-determined criteria of resolution, and provides a model of interaction for future disputes” (p. 13). Research indicates that family mediation is effective in achieving higher levels of satisfaction and compliance with the agreements reached and in limiting the adverse impact of the conflict (Pearson, 1982).

1. Mediation: Limits and Issues.

The very aspects of mediation that constitute its advantage over the adversarial system also embody its problematic areas. Since mediation is a private, informal process less controlled by statutory law, precedent, and rules of procedure, many people have raised concerns about its capacity to ensure a fair process and a just settlement. Many question whether mediation is not unduly subject to the unequal bargaining power of the respective parties involved.

There are other problems and limits to mediation. Some disputes are not amenable to mediation. “One cannot negotiate everything. Deeply cherished beliefs and values are simply not negotiable… Either we believe in God, capital punishment, and a woman’s right to have an abortion or we do not. These views may change, but they are not negotiable” (Rubin, 135-6). Some disputants are unwilling or unable to employ mediation to resolve their conflict (e.g., the ideologically committed, the mentally ill, substance abusers). Mediation normally involves dealing directly with the other party. Some people find this too compromising, difficult, frightening, or painful and cannot or will not have their case mediated. However valuable, mediation is one form of dispute resolution, and it does not replace the need for a formal system of justice.

As a new field, family mediation lacks licensure or registration. Some people question whether it is or ought to be regarded as a separate profession. Tuff questions abound. There is much debate about how to ensure adequate quality control. More broadly, there are questions about the ethics of bargaining and negotiating and about how to make mediation services available to people at all income levels.

2. Divorce and Family Mediation.

The major American organization of neutrals, SPIDR (Society of Professionals in Dispute Resolution), includes mediators working in labor, community, and environmental mediation. In the context of the social revolution in which American society averages one million divorces a year, however, the most rapid expansion of mediation services and the area most relevant to pastoral care is that of divorce and family mediation. (Prior to 1981, the Family Mediation Association had one hundred members nationally; by the mid- 1980s, several thousand divorce mediators had been trained.)

Conducted by mediators with training in family law, the divorce process, conflict management and family systems and therapy, divorce mediation deals with family disputes relating to a decision to separate or divorce. Its end product is a memorandum of agreement, a written document detailing the agreements reached with regard to the division of marital property, spousal and child support, and child custody and parental access.

3. Mediation and the Church.

The history of religious involvement in family dispute processing is inadequately documented. However, examples include the bet din, Jewish courts which date back to biblical times. A broad-scale contemporary expression of church involvement in family mediation is the evangelical Christian Conciliation Service, a ministry of the Christian Legal Society, organized in 1961, and now a national network which attempts to offer mediation and arbitration of disputes “based upon a biblical mandate and spiritual principles.”

The modern pastoral care movement, however, has involved itself only minimally with mediation. The tendency of the church to view conflict as a negative phenomenon to be avoided contributes to this reluctance. This seems unfortunate since there appears to be not only historical precedent but also theological rationale for such activity. An examination of the biblical concept of shalom and the Christian doctrines of reconciliation and forgiveness would seem to give warrant to the claim that conflict resolution and mediation represent two contemporary forms of reconciliation and healing as expressions of the classic mission of the church and the work of the pastor (cf. II Cor. 5:17-20; Mt. 18:15-17; 5:22-24; I Cor. 6:1-5; Eph. 2:13-17).

Pastors ought not to assume, however, that they can do mediation without special training. Specific skills are necessary. When referrals are to be made, mediators may often be located through local or state (family) mediation councils or through such national organizations as the Academy of Family Mediators (for family mediation) and SPIDR (for other forms of mediation.

As American society seeks more effective and informal means of social ordering and dispute resolution, pastors have an opportunity to involve themselves in mediation as a significant mode of ministry: Lon Fuller (1971, p. 328) speaks of this opportunity in his description of the “central quality of mediation, namely, its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.”

Bibliography.

L. Buzzard and R. Kraybill, Mediation: A reader (1980).
L. Buzzard and L. Eck, Tell It to the Church (1982).
R. Fisher and W. Ury, Getting to Yes (1981).
J. Folberg and A. Taylor, Mediation 1984).
L. Fuller, “Mediation: Its Forms and Functions,” Southern California Law Review, 44 (1971), 305-39.
J. Hayes, Divorce Meditation (1981).
R. Kraybill, Repairing The Breach (1980).
S. Leas and P. Kittlaus, Church Fights (1973).
J. Pearson and N. Thoennes, “The Benefits Outweigh the Costs,” Family Advocate (1982), 26-32.
J. Rubin, “Negotiation,” American Behavioral Scientist (1983), 135-6.
D. Saposnek, Mediating Child Custody Disputes (1983).