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Ideological Production: The Making of Community Mediation

Published online by Cambridge University Press:  01 July 2024

Christine B. Harrington  and
Sally Engle Merry
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Abstract

Through an analysis of the structure of the community mediation movement in the United States and an ethnography of the practices of mediators in local programs, this paper examines how community mediation is made, and how it is ideologically constituted. The ideology of community mediation is produced through an interplay among three ideological projects or visions of community mediation and organizational models, and by the selection and differential use of mediators to handle cases. We argue that ideologies are formed through the mobilization of symbolic resources by groups promoting different projects. Central to the production of mediation ideology is a struggle over the symbolic resources of community justice and consensual justice. Although various groups propose differing conceptions of community justice, they share a similar commitment to consensual justice, and this similarity is produced through reinterpretations of the same symbols. The ambiguities in community mediation are, it appears, being overtaken by consensus on the nature of the mediation process itself.

Type
Research Article
Information
Law & Society Review , Volume 22 , Issue 4: Special Issue: Law and Ideology , 1988 , pp. 709 - 735
Copyright
Copyright © 1988 The Law and Society Association

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Footnotes

We appreciate the valuable suggestions a number of people made on earlier versions of this paper. In particular, we would like to thank John Brigham, Peter Fitzpatrick, Robert Hayden, Robert Kidder, Austin Sarat, Susan Silbey, Adelaide Villmoare, and Barbara Yngvesson, along with the anonymous reviewers for the journal and the Amherst Seminar for its lively intellectual environment. This research was partially supported by the National Science Foundation Law and Social Sciences Program 86-06023 and by the W.T. Grant Foundation.

References

References

ABEL, Richard L. (1985) “Informalism: A Tactical Equivalent to Law?” 19 Clearinghouse Review 375.Google Scholar
ABEL, Richard L., ed. (1982) The Politics of Informal Justice, Vols. 1 and 2. New York: Academic Press.Google Scholar
ABEL, Richard L. (1981) “Conservative Conflict and the Reproduction of Capitalism: The Role of Informal Justice,” 9 International Journal of the Sociology of Law 245.Google Scholar
ADLER, Peter, Karen, LOVAAS, and Neal, MILNER (1986) “The Ideologies of Mediation: The Movement's Own Story.” Paper presented at the annual meetings of the Law and Society Association, Chicago (June).Google Scholar
AUERBACH, Jerold S. (1983) Justice Without Law? New York: Oxford University Press.Google Scholar
BALBUS, Isaac D. (1973) The Dialectics of Legal Repression: Black Rebels Before the American Criminal Courts. New York: Russell Sage Foundation.Google Scholar
BARBER, Benjamin R. (1984) Strong Democracy: Participatory Politics for a New Age. Berkeley: University of California Press.Google Scholar
BEER, Jennifer E. (1986) Peacemaking in Your Neighborhood: Reflection on an Experiment in Community Mediation. Philadelphia: New Society Publishers.Google Scholar
BELLAH, Robert N., MADSEN, Richard, SULLIVAN, William M., SWIDLER, Ann, and Steven M., TIPTON (1985) Habits of the Heart: Individualism and Commitment in American Life. Berkeley: University of California Press.Google Scholar
BOURDIEU, Pierre (1977) Outline of a Theory of Practice, trans. Nice, R.. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
BRIGHAM, John (1987) “Rights, Rage, and Remedy: The Construction of Legal Discourse,” 2 Studies in American Political Development 303.Google Scholar
BRIGHAM, John (1980) “Law as Symbolic and Modern Jurisprudence,” 12 Polity 481.Google Scholar
CAIN, Maureen (1985) “Beyond Informal Justice,” 9 Contemporary Crisis 335.Google Scholar
COHEN, Abner (1974) Two-Dimensional Man: An Essay on the Anthropology of Symbolism and Power in Complex Society. Berkeley, CA: University of California Press.Google Scholar
COHEN, Stanley (1985) Visions of Social Control: Crime, Punishment and Classification. New York: Polity Press.Google Scholar
COMAROFF, Jean (1985) Body of Power; Spirit of Resistance: Culture and History of a South African People. Chicago: University of Chicago Press.CrossRefGoogle Scholar
COMAROFF, Jean, and John, COMAROFF (1986) “Christianity and Colonialism in South Africa,” 13 American Ethnologist 1.Google Scholar
DANZIG, Richard (1973) “Toward the Creation of a Complementary, Decentralized System of Criminal Justice,” 26 Stanford Law Review 1.CrossRefGoogle Scholar
DELGADO, Richard, DUNN, Chris, BROWN, Pamela, LEE, Helena, and David, HUBBERT (1985) “Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution,” 1985 Wisconsin Law Review 1359.Google Scholar
DEZALAY, Yves (1987) “The Forum Should Fit the Fuss. . .' The Economics and Politics of Negotiated Justice: A Comparative and Historical Approach.” Paper presented to the Amherst Seminar of Legal Ideology and Legal Process, Amherst (December 1987).Google Scholar
DUBOW, Fred (1986) “Preliminary Findings: Study of the San Francisco Community Board Program,” unpublished manuscript.Google Scholar
EDELMAN, Murray (1988) Constructing the Political Spectacle. Chicago: University of Chicago Press.Google Scholar
EDELMAN, Murray (1977) Political Language: Words that Succeed and Policies that Fail. New York: Academic Press.Google Scholar
ENGEL, David (1984) “The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Community,” 18 Law & Society Review 551.Google Scholar
FELSTINER, William L.F., and Lynne A., WILLIAMS (1980) Community Mediation in Dorchester, Massachusetts. Washington, D.C.: U.S. Department of Justice.Google Scholar
FINEMAN, Martha (1988) “Dominant Discourses: Professional Language, and Legal Change in Child Custody Decisionmaking,” 101 Harvard Law Review 727.Google Scholar
FITZPATRICK, Peter (1988) “The Rise and Rise of Informalism,” in Matthews, R., ed., Practising Theory. London: Sage Publications.Google Scholar
FOUCAULT, Michel (1979) Discipline & Punish: The Birth of the Prison. New York: Vintage Books.Google Scholar
FREEDMAN, Lawrence (1984) Legislation on Dispute Resolution. Washington, D.C.: American Bar Association.Google Scholar
GEERTZ, Clifford (1973) The Interpretation of Culture: Selected Essays. New York: Basic Books.Google Scholar
GOLDBERG, Stephen B., GREEN, Eric D., and Frank E.A., SANDER, eds. (1985) Dispute Resolution. Boston: Little Brown.Google Scholar
GREENHOUSE, Carol (1986) Praying for Justice. Ithaca: Cornell University Press.Google Scholar
GREENHOUSE, Carol (1985) “Mediation: A Comparative Approach,” 20 Man 90.Google Scholar
GROSSMAN, Joel, and Austin, SARAT (1981) “Access to Justice and the Limits of Law,” 3 Law & Policy 125.Google Scholar
GUNNELL, John (1975) Philosophy, Science and Political Inquiry. Morristown, NJ: General Learning Press.Google Scholar
HANDLER, Joel F. (1986) The Conditions of Discretion: Autonomy, Community, Bureaucracy. New York: Russell Sage Foundation.Google Scholar
HARRINGTON, Christine B. (1986) Overview of the Dispute Resolution Field, New York: Ford Foundation.Google Scholar
HARRINGTON, Christine B. (1985) Shadow Justice: The Ideology and Institutionalization of Alternatives to Court. Westport, CT: Greenwood Press.Google Scholar
HARRINGTON, Christine B. (1984) “The Politics of Participation and Nonparticipation in Dispute Processes,” 6 Law & Policy 203.Google Scholar
HARRINGTON, Christine B. (1982) “Delegalization Reform Movements: A Historical Analysis,” in Abel, R.L., ed., The Politics of Informal Justice, Vol. 1. New York: Academic Press.Google Scholar
HENRY, Stuart (1985) “Community Justice, Capitalist Society, and Human Agency: The Dialectics of Collective Law in the Cooperative,” 19 Law & Society Review 303.Google Scholar
HENRY, Stuart (1983) Private Justice. Boston: Routledge & Kegan Paul.Google Scholar
HOFRICHTER, Richard (1987) Neighborhood Justice in Capitalist Society: The Expansion of the Informal State. Westport, CT: Greenwood Press.Google Scholar
HUNT, Alan (1985) “The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law,” 19 Law & Society Review 11.Google Scholar
JOHNSON, Earl (1978) Courts and the Community. Williamsburg, VA: National Center for State Courts.Google Scholar
KOLB, Deborah M. (1985) “To Be a Mediator: Expressive Tactics in Mediation,” 41 Journal of Social Issues 11.Google Scholar
LARRAIN, Jorge (1979) The Concept of Ideology. Athens, GA: University of Georgia Press.Google Scholar
LUBMAN, Stanley (1967) “Mao and Mediation: Politics and Dispute Resolution in Communist China” 55 California Law Review 1284.Google Scholar
MARCUS, George E., and Michael M. J., FISHER (1986) Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences. Chicago: University of Chicago Press.Google Scholar
MERRY, Sally Engle (1987) “Disputing Without Culture: Review Essay of Dispute Resolution,” 100 Harvard Law Review 2057.Google Scholar
MERRY, Sally Engle, and Ann Marie, ROCHELEAU (1985) Mediation in Families: A Study of the Children's Hearings Project. Cambridge, MA: Cambridge Family and Children's Services.Google Scholar
MERRY, Sally Engle, and Susan, SILBEY (1984) “What Do Plaintiffs Want: Reexamining the Concept of Dispute,” 9 Justice System Journal 151.Google Scholar
MESCHIEVITZ, Catherine S., and Marc, GALANTER (1982) “In Search of Nyaya Panchayats: The Politics of a Moribund Institution,” in Abel, R. L., ed., The Politics of Informal Justice, Vol. 2. New York: Academic Press.Google Scholar
MCGILLIS, Daniel, and Joan, MULLEN (1977) Neighborhood Justice Centers: An Analysis of Potential Models. Washington, D.C.: LEAA.Google Scholar
MINOW, Martha (1987) “Part of the Solution, Part of the Problem,” 34 UCLA Law Review 981.Google Scholar
NADER, Laura (1984) “The Recurrent Dialectic Between Legality and Its Alternatives,” 132 University of Pennsylvania Law Review 621.Google Scholar
NADER, Laura, and Harry J., TODD Jr., eds. (1978) The Disputing Process: Law in Ten Societies. New York: Columbia University Press.CrossRefGoogle Scholar
NATIONAL INSTITUTE FOR DISPUTE RESOLUTION AND THE U.S. DEPARTMENT OF JUSTICE (1984) Paths to Justice. Washington, D.C.: Department of Justice.Google Scholar
PEARSON, Jessica (1982) “An Evaluation of Alternatives to Court Adjudication,” 7 Justice System Journal 420.Google Scholar
PIPKIN, Ronald M., and Janet, RIFKIN (1984) “The Social Organization in Alternative Dispute Resolution: Implications for Professionalization of Mediation,” 9 Justice System Journal 204.Google Scholar
PROVINE, Marie, and Carroll, SERON (1987) “Settlement as Usual.” Paper presented at the Annual Meetings of the Law & Society Association, Washington, D.C. (June 1987).Google Scholar
RAY, Lawrence (1986) A Directory of Dispute Resolution Programs. Washington, D.C: American Bar Association Special Committee on Dispute Resolution.Google Scholar
ROEHL, Janice A. (1986) Multi-Door Dispute Resolution Centers: Phase I: Intake and Referral Assessment. Washington, D.C: American Bar Association and National Institute of Justice.Google Scholar
ROTHSCHILD, Judith (1986) Mediation as Social Control. Ph.D. dissertation, Department of Sociology, University of California-Berkeley, unpublished manuscript.Google Scholar
SALAS, Luis (1983) “The Emergence and Decline of the Cuban Popular Tribunals,” 17 Law & Society Review 587.Google Scholar
SANDER, Frank E.A. (1976) “Varieties of Dispute Processing,” 70 Federal Rules Decisions 79.Google Scholar
SANTOS, Boaventura (1982) “Law and Revolution in Portugal: The Experience of Popular Justice after the 25th of April 1974,” in Abel, R. L., ed., The Politics of Informal Justice, Vol. 2. New York: Academic Press.Google Scholar
Abel, R. L. (1980) “Law and Community: The Changing Nature of State Power in Late Capitalism,” 8 International Journal of the Sociology of Law 379.Google Scholar
SARAT, Austin (1988) “The New Formalism in Disputing and Dispute Processing,” 21 Law & Society Review 695.Google Scholar
SCHEINGOLD, Stuart (1974) The Politics of Rights. New Haven: Yale University Press.Google Scholar
SHONHOLTZ, Raymond (1987) “The Citizen's Role in Justice: Building a Primary Justice and Prevention System at the Neighborhood Level,” 494 Annals of the American Academy of Political and Social Sciences 42.Google Scholar
SHONHOLTZ, Raymond (1984) “Neighborhood Justice Systems: Work, Structure, and Guiding Principles.” 5 Journal of Mediation Quarterly 330.Google Scholar
SILBEY, Susan S. and Sally E., MERRY (1987) “Interpretive Processes in Mediation and Court,” Unpublished manuscript.Google Scholar
SILBEY, Susan S. and Sally E., MERRY (1986) “Mediator Settlement Strategies,” 8 Law & Policy 7.Google Scholar
SNYDER, Francis (1981) “Anthropology, Dispute Processes and Law: A Critical Introduction,” 8 British Journal of Law & Society 141.Google Scholar
SPENCE, Jack (1978) “Institutionalizing Neighborhood Courts: Two Chilean Experiences,” 13 Law & Society Review 139.Google Scholar
SPITZER, Steve (1982) “The Dialectics of Formal and Informal Control,” in Abel, R. L., ed., The Politics of Informal Justice, Vol. 1. New York: Academic Press.Google Scholar
STARR, June, and Jane F., COLLIER (1987) “Historical Studies of Legal Change,” 28 Current Anthropology 367.Google Scholar
TAYLOR, Charles (1979) “Interpretation and the Sciences of Man,” in Rabinow, P. and Sullivan, W. M., eds., Interpretive Social Science. Berkeley: University of California Press.Google Scholar
THERBORN, Goran (1980) The Ideology of Power and the Power of Ideology. London: Verso.Google Scholar
TOMASIC, Roman, and Malcolm M., FEELEY, eds. (1982) Neighborhood Justice: Assessment of an Emerging Idea. New York: Longman.Google Scholar
WINCH, Peter (1958) The Idea of a Social Science and its Relations to Philosophy. London: Routledge & Kegan Paul.Google Scholar
YNGVESSON, Barbara (1985) “Legal Ideology and Community Justice in the Clerk's Office,” 9 Legal Studies Forum 71.Google Scholar

Statutes Cited

Consumer Controversies Resolution Act, H.R. 2965, 95th Cong., 1st Sess., 1977.Google Scholar
Dispute Resolution Act, S. 957 and H.R. 2863, 97th Cong., 1st Sess., 1980.Google Scholar