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Potholes on the Road to Justice: Race and Mediation

Just Court ADR, October 17th, 2011

Mediation is about giving everyone a chance to share their stories, balancing power dynamics and leveling the playing field. But what if the ground on which we presume to build the field has holes too big to backfill sufficiently?

Those issues that lend themselves most to mediation in the court setting disproportionately impact racial minorities. A recent study conducted by the ISAIAH, a non-profit coalition of faith-based organizations in St. Paul, Minnesota, shows that the housing crisis deepened the racial divide in the already-divided city. The study recommends local or statewide mediation (passed in 2009 but vetoed by then-Governor Pawlenty) to prevent further foreclosures and help stabilize neighborhoods.

Family courts, where parties are most likely to encounter a court-connected mediation program, report a higher percentage of minorities relative to the overall population. Yet, some critical race theorists argue that the family model most courts, and thus most court-connected mediation programs, use is built off of the 1950s ideal white family,  one in which only two generations live in a two-parent, heterosexual, middle-class household. If so, mediation needs to better respond to the population it is determined to serve.

Critiques of small claims mediation programs also exist, with a 1993 study finding that though minorities were more satisfied with mediation than non-minorities, minorities (especially females) settled for far less money than their white counterparts.

How race and perceptions of race play out in mediation has been the subject of a few scattered studies, some arguing that the very characteristics of mediation—confidentiality and informality—perpetuate racial inequality. So, I was glad to see the most recent issue of Capital University Law Review, which was devoted entirely to ADR and minorities. Professor Sharon Press’ article about court-connected mediation and minorities examines past critical race theory critiques of mediation, then makes suggestions for how court-connected mediation programs can address these critiques.

A few recommendations are not new. Improved mediator training to increase fairness in light of racial inequality has been suggested before. The diversification of mediator pools has been a goal since community mediation centers began in the 1960s. Prof. Press does present an encouraging “new” idea: better monitoring and evaluation of court processes to determine whether racial justice is being achieved and more reporting of these evaluations on a broader scale.

Especially since different mediation programs are at such different stages of development, and since differences in both process and substance can impact racial justice, I’d have to admit, along with Prof. Press, that there is still a long way to go.

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