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31 Ohio State Journal on Dispute Resolution (2016)


Can a mediator play a constructive role in helping citizens confront and resolve the most divisive issues of our times? We believe the answer is affirmative, but we worry that such a view, though richly grounded in our historical tradition, is now neither widely endorsed nor effectively implemented.

We belong to a group of dispute resolution professionals who learned both from mentors and experience that ADR—and mediation, in particular-offers a philosophical map for conducting problem—solving activities among fellow citizens that systematically supports and advances our most noble aspirations for a fair society. Be it the urban riots of the 1960s or the recent, polarizing events from Ferguson to Baltimore, we thought-and were inspired-by the perhaps naive notion that a mediator, in the soaring terms of our Constitution's Preamble, could effectively trigger disputants to become "We, the people;" assist citizens to "... form a more perfect union;" work collaboratively with multiple stakeholders to "... establish justice;" and, in so doing, "... secure the blessings of liberty to [themselves] and to [their] posterity."

At its core, this approach to mediation-this philosophical map-embraces the right of each participant to be treated with respect; participate in the decision-making process; have an equal voice in determining the outcome of the controversy; assume a meaningful role in shaping the fundamental structures of his or her community; and, significantly, shoulder personal responsibility for the progress and outcome of his or her engagement and dialogue.

That map-emphatically-affirms that all participant conduct, including the mediator and all stakeholders, and activities that occur within the mediation process are, constitutionally, justice-based events.

Two questions, then, arise about this mediator's map that we find persuasive: first, is it coherent? Second, if coherent, does it comport with contemporary mediation practice?

We believe that the answers are, respectively: yes-and not entirely. Our hesitation to answer affirmatively stems from our deep concern that the approach to mediation that seems widely embraced by law-trained mediators—what Riskin and Welsh describe as a 'thin vision' of mediation—appears to operate at cross purposes with this conception of the mediator's philosophical map. Specifically, a "thin" approach eliminates as inappropriate the use of mediation in matters laced with social justice dimensions.