Throughout history, social movements have been deeply and subconsciously defined by the ideals behind transformative mediation. Marginalized individuals do not fight purely to solve problems; they strive to achieve empowerment and create unity out of diversity. Similarly, the simplest forms of mediation do not aim to reach resolution – they aim to nurture restoration. While early waves of feminism focused on the pursuit of institutional and legal justice, contemporary feminist movements seek transformation primarily through shifts in social psychology. Interestingly, the same values are applied in the mediation process.
When closely examined, conflict theory and feminist theory hold remarkable similarities – both criticize the adversarial style of conflict resolution and traditional power politics, and both value relationship restoration over the interests of the individual (Lichtenstein, 2000). If this is the case, why do feminists often reject ADR methods? The clear assumption is to give female victims justice and guarantee the retribution of their perpetrators. When a woman is sexually or physically abused, is mediation a viable option? Many individuals would argue against it, and several mediators would deem themselves unsuitable for the case due to the inevitable bias they may feel against the accused.
Despite these challenges, I am interested in assessing the ways mediation can be applied in these situations – especially concerning today’s pertinent #metoo movement.
For decades, feminist scholars have expressed skepticism about mediation due to the process’s qualities that may endanger women in abusive situations. For example, the parties involved are guaranteed equal voices and bargaining power, and the mediator is a neutral party who cannot pass judgment despite the severity of the situation.
In less serious situations, such as familial disputes, the mediation practice has been deemed problematic by taking situations that are primarily political and privatizing them. Today’s society is still rooted in a heavily patriarchal culture, and women choosing mediation over adjudication are often surprised by their lack of control and autonomy over the situation. The feminist critique of mediation primarily focuses on the process’s anonymity that may result in possible continuation of abuse, continued disempowerment of the battered woman, and protection from legal sanctions for the batterer (Lichtenstein, 2000).
Despite valid arguments against mediation, it is important to recognize that the process is part of a larger and ongoing enterprise of social change. Through this lens, mediation can be closely compared to contemporary feminism. Both movements aim to advance political and cultural change through the transformation of social relationships – an ideology fairly nonexistent in the traditional retributive model. The comparison of mediation to feminism reveals three common elements: self-determination, the introduction of values from the private sphere into public life, and reinterpretation of power (Lichtenstein, 2000).
Self-determination is an ideology comparable to empowerment. Through mediation, disputants are able to make their own choices; the adjudication and arbitration processes, however, grant the third party power to determine appropriate solutions for the conflict. Often times, individuals gravitate towards legal processes for two reasons: they find the lack of decision-making comforting, or their desired outcome is revenge. Interestingly, a 2016 study examining the development of hostile behavior in the workplace revealed a direct correlation between harassment intensity and “hot” cognitions that evoke revenge (Wang, Qiang, et al, 2016). When people feel threatened, they believe the solution is retribution. In actuality, they are experiencing a primal desire for power. This is where ideologies of mediation and feminism can be applied. For centuries, power has been perceived as imbalance. The goal of mediation and feminism, however, is to empower parties by facilitating self-awareness. Feminists encourage women to speak and decide for themselves, and mediators use active listening to help participants explore different courses of behavior. This autonomy alone is a form of power. Mediators recognize individuals’ competency and operate under the assumption that each person is inherently capable of discovering what will best repair the situation and relationship. The common misconception about mediation – and idea subject to criticism by feminists – is that the process must lead to an agreement. As our in-class panel of mediators asserted, this is very rarely the case. The real goal of transformative mediation is empowerment of the parties. Through this model, an empowered disputant can flourish into an empowered conflict resolver. Whether or not the mediation results in agreement, parties with newfound self-awareness and empathy inherently become catalysts for social change.
A common thread between early and contemporary waves of feminism is the empowerment of women as full participants in economic, political, social, familial, and cultural spheres, with women defining their own roles in these areas. The early women’s movement focused on establishing women’s basic human rights to work, vote, and own property. Later, the second wave of feminism fought gender discrimination in the workplace and advocated for law reform regarding reproductive rights. Like transformative mediation, these movements encouraged the development of self-determination and self-awareness. Institutional and legal justice may have been the tangible result, but the movements did not come to a halt once certain practices were changed. This ideology can be explained by examining the transformative and restorative branches of mediation. Once a mediation arrives at an agreement, is the situation mended? Most likely not. This gives light to an important aspect of mediation – empathy. As previously mentioned, feminist movements do not end when reform is achieved; typically, the movement’s overarching stimulus is an ongoing battle to eliminate prejudice and power imbalances (Humm, 1990). The greatest goal of feminism, and most social movements, is to raise consciousness, and transformative/restorative mediation’s purpose is nearly identical. Institutional change and agreements derived through mediation are together rooted in the psyche.
When the second wave of feminism successfully ushered in the reform of rape laws, the victory was heavily psychological, “representing a reconception of women as responsible, autonomous beings who possess the right to personal, sexual, and bodily self-determination” (Berger, Searles, and Neuman, 1988). Renowned psychologist Carol Gillian conducted extensive research on moral reasoning and discovered that, like mediation, the feminist perspective is concerned far more with relationships than rights. Through this, we can understand why mediation is still valuable in the #metoo era where cases of assault seem most rightfully dealt with through the traditional retributive model. Although mediation does not necessarily give female victims justice, it helps shift the perspective that perpetrators must be shunned from society to give the accuser closure. By no means would I advocate in favor of these abusers, but I do believe in the power of restoration. As demonstrated by our in-class case study of Aaron and Powhare’s diverging paths – Aaron being sentenced to the United States’ traditionally punitive incarceration system and Powhare nurtured through New Zealand’s restorative process – the fate of an offending individual can be radically impacted by the judicial response to his or her wrongdoing. The #metoo movement focuses on the empowerment of sexual assault victims, but the fate of the assaulter is discussed in a purely destructive way. In the entertainment industry, allegations against powerful men have begun to severely harm their careers, and the public eye supports their rejection from society. The challenging question is – while this behavior is deserved, will it contribute to positive social change? Or will it ignite the offender’s retaliation? The latter is more likely, which is why practices like transformative mediation are more necessary than ever in conjunction with the #metoo movement. Trained mediators have the ability to navigate these difficult situations and understand the interpersonal dimensions of conflict. They look beyond the basic goal to reach agreement and work to empower offending individuals who are otherwise doomed to a fate of depersonalization, anger, and abandonment. By experiencing empathy – referred to as “recognition” in transformative mediation – individuals become more human to one another and express greater compassion for the other’s perspective. Mediation scholars Robert A. Baruch Bush and Joseph P. Folger coined this idea of “Compassionate Strength”, the culmination of self-determination and dedication to others. Like feminism, transformative mediation advocates for the introduction of private issues into the public sphere (“The personal is political”). Mediation helps elicit feelings of empathy from offenders to encourage rehabilitation. Meanwhile, victims are nurtured to reach empowerment through closure, not revenge or blame attribution. Mediation requires a multifaceted approach, and like feminism, it has taken on the characteristics of a pluralistic movement. Only through versatility can social transformation occur.
What does it mean to take a “versatile” approach to mediation? Feminism is a good example. Over the past century, feminist movements have been challenged by the need to balance advocating for individual liberties and strengthening group solidarity. Early policy reforms expanded women’s civil liberties but primarily benefitted white, educated women. Unsurprisingly, groups of feminists who did not fit these criteria organized separate interest groups to advocate for their unique wants and needs. Maggie Humm, who authored The Dictionary of Feminist Theory (1989), defined thirteen types of feminism to demonstrate the wide variety of sub-groups that formed as a result of invisibility in the mainstream feminist movements. These groups included liberal feminism, radical feminism, cultural feminism, black feminism, Marxist feminism, and spiritual feminism. Each division held a basic belief that allowed it to be defined as feminism but also demonstrated a particular approach to social change. With the formation of unique issues and needs, this multiplicity occurred in response. Mediation has begun to take a similar evolutionary course, and because the process is still fairly new and unrecognized in society, it is our responsibility to advocate for its expansion. Like feminism, alternative dispute resolution offers a wide variety of approaches to suit each unique situation. After all – not every dispute is best handled by a simple process that concludes with a signed, written agreement. Inevitably, the needs of our heterogeneous, multicultural society will give rise to a greater acceptance of mediation and the diversification of its practices.
A study conducted by Leda Cooks and Claudia Hale entitled A Feminist Approach to the Empowerment of Women Mediators more clearly addressed some feminists’ concerns with the mediation process and its unintentional perpetuation of patriarchal roles. It is possible to argue that mediation can reinforce female subordination if a mediator fails to make both parties feel empowered. Through their research, Cooks and Hale determined that female mediators have innate qualities that make them valuable practitioners. In 1986, feminist scholar Julia Wood wrote a response to Carol Gillian’s theory of female development, recognizing that “women look inward for the source of problems while men have a tendency to blame external circumstances.” A similar study the year prior asserted that men did not believe gender was a relevant issue in their role as a mediator, while women believed that gender issues impacted every aspect of their role (Weingarten, H.R. and Douvan, E., 1985). Additionally, the female mediators interviewed reported that they felt more likely than male mediators to view themselves as “co-equal” to the disputants. The conclusion of this study demonstrated that, despite the identical techniques applied during a mediation, male and female mediators inherently approach their goals in the conversation differently. In a general observation, women seemed to be more effective mediators.
While this study does not directly relate to the feminist movements, it supports the connection between the mediation process and feminism due to its conclusions about female behavior and cognition. Sociologist Ann Oakley’s promotion of a modern “sociology of women” demonstrates the clear value of feminist thinking in conducting a mediation. Through her critique of the traditional interview process, Oakley discovered a new perspective that equalized participants. Typically, interviews and poorly-conducted mediations are made extremely intimidating by interviewers who clearly aim to achieve their goal of extracting information from the subject(s). An unintentional hierarchal relationship forms during this exchange, making the interviewee vulnerable and closed-off. Through the feminist lens, the interviewer and interviewee are considered “co-researchers”, equally committed to gaining a better understanding of the situation at hand. This shift is minor and may not adjust a single word of the conversation, but female mediators often make it consciously. This tactic can be traced back to the feminist ideal that “the personal is political.” When mediators are aware of the patriarchal roots that encourage the formation of hierarchy in everyday conversation, they can easily reject these tendencies and make the parties feel equal. As supported by Cooks and Hale’s research on female mediators, men may simply be unaware of these psychological patterns and create unintentional imbalance in a conversation.
Another valuable quality demonstrated by female mediators is intuition – or “being and letting yourself be a woman” (Cooks and Hale, 1992). The researchers refer to intuition as a vital part of empowerment as a mediator and a woman. As previously noted, women have a tendency to look inward to discover the source of a problem. This autonomy of thinking and decision-making, or actively choosing to internalize thinking, can be traced back to feminism. There is a wonderful quote from the film 20th Century Women that addresses this behavioral divide between women and men. In a conversation with her son about helping others cope with tragedy, Dorothea remarks that “men always feel like they have to fix things for women, but they’re not doing anything. Some things just can’t be fixed. Just be there, somehow that’s hard for all of you” (Mills, 2016). Women possess a natural ability to listen and nurture through silent communication; it is a maternal quality and often empowers female mediators in their practice. Although mediators all share a common agenda, the approach directly affects the result. Like feminism, mediation can only grow as a transformative social movement if it embraces the diversification of its practices.