Reflections on Libertarian and Communitarian Mediation

In April 2007 I was invited by the U.S. Department of State’s American Center in Mumbai of to teach negotiation and mediation in several law schools in western and southern India. In my trainings there I used many of the same small-group discussion exercises, simulations, and video demonstrations that I use here in the United States. My student-centered teaching methodology was new to the Indian participants (who were used to lecture-based pedagogy), and I was pleased to see that Indian law students got as deeply involved in small group discussions as my students in Salt Lake City.

In Bhopal, India, I met with Mohan Gopal, who is the director of the Indian National Judicial Academy, which trains senior judges from all over India. Gopal said that mediation experts from foreign countries should come to India to tell what their countries do to resolve conflicts; then India would pick and choose what, if anything, it wants to adopt or adapt. He said that Indians do not need to learn from Americans how to negotiate, because Indian parents teach these skills to their children while they are quite young.

When I asked Indian law students how Indian litigants felt about court-annexed mediation in India, they said litigants preferred getting judicial decisions rather than working together to resolve problems outside court. I asked why this was so, because India for millennia has had well-established mediation practices in villages and temples. The law students responded that litigants have confidence in the fairness of Indian judges and their decisions, even if it took them many years to get these decisions.

When I returned to Utah I pondered why Indians have such respect for traditional mediation practices but have so little confidence in court-annexed mediation. Then it occurred to me, just as Director Gopal had explained, foreign mediation experts were teaching their concepts of mediation in Indian court-annexed programs. These foreign concepts are quite different from traditional Indian mediation practices.

The American Arbitration Association, the American Bar Association, and the American Association for Conflict Resolution have collaborated to promulgate Model Standards of Conduct for Mediators. These are mediation principles widely regarded as best practices for mediators in the United States. The Model Standards emphasize that mediation is grounded in the overriding principle of self-determination of the parties in dispute, and that mediation is confidential and should be conducted by an impartial mediator who has no conflicts of interest with the parties. These concepts assume that dispute resolution in mediation focuses on the individual liberty of the disputants, especially their individual rights and their free agency to make decisions that affect their rights.

I realized that these concepts are in sharp contrast to the practices used in traditional Indian mediation. For example, assume two villagers in India have a dispute they cannot resolve. The disputants may be required to submit to village mediation. The entire village may attend the mediation, which therefore is not confidential. The mediation is conducted by a mediator—the village elder—who knows the disputants and all the other villagers. This village mediator is not impartial: because the dispute is a threat to the stability and harmony of the entire village, it is not just between the disputants. The village mediator is motivated to achieve an outcome in mediation that restores and maintains the village’s stability and harmony. Therefore, the mediation does not privilege the self-determination of the disputants. They may be required to accept an outcome imposed on them by the village mediator, or else they will face social sanctions by all other villagers for their refusal to comply with the imposed outcome.

I call the set of assumptions behind American mediation (and other western mediation practices) “libertarian,” in contrast to the set of assumptions behind traditional Indian mediation (and mediation in other traditional societies), which I call “communitarian.”

I do not regard western libertarian mediation as better than traditional communitarian mediation; they are just different. I do regard them in their “pure” forms as end points of a continuum which at one end privileges individual rights, and at the other end privileges communal interests. It is possible to adopt mediation practices anywhere along this continuum by borrowing and mixing concepts to customize a form of mediation uniquely adapted for a particular dispute involving unique disputants and other interested and affected parties. For example, there is a form of divorce mediation in the United States called “circle mediation” which includes not just the divorcing parents, but also their brothers and sisters, parents, and adult children. This “community” of interested parties encourages the disputants to reach an agreement that is in the best interests of the disputants’ minor children; they also help the disputants comply with that agreement.