The Discourses of Mediation and the Power of Naming

Abstract

Considerable recent scholarship in law, the social sciences, and literary theory has explored the ways law acts as an important site for the construction of meanings, for the creation of authoritative pictures of the way things are. The Critical Legal Studies movement has helped to push legal scholarship to examine not only the effects of law but also its constitutive role: the way it creates a social world through its categories, principles, and assumptions. Scholars in the social sciences as well as in law are increasingly interested in the power law exerts through its constitutive capacity. Law not only constructs authoritative visions of the social world, of course, but also exerts force behind these interpretations. One aspect of the power of law is its ability to establish a dominant way of construing events and to silence others, thus channeling and determining the outcome of legal proceedings. Legal processes can be seen as performances in which problems are named and solutions determined. These performances include conversations in which the terms of the argument are established and penalties specified. The ability to structure this talk and to determine the relevant discourse within which an issue is framed - in other words, in which the reigning account of events is established - is an important facet of the power exercised by law. This article is an ethnographic study of the ways the process of naming in mediation sessions and in the lower courts exerts a form of cultural domination over the people who bring their interpersonal problems to court. Mediation sessions, lower court magistrate's hearings, and lower court trials of family and neighborhood problems are instances of talk in which individuals present images of themselves and events in ways designed to justify and convince. The conversation is a contest over interpretations of ambiguous events. Did the children throw rocks at the neighbor's car, or were they simply playing a stone-tossing game and hit the car by accident? Did someone put a stick through the spokes of a boy's bike as he raced down a hill, or did he run into a stick, lose his balance, and fall? Were the husband's tirade against his wife's slovenly housekeeping and his angry slap instances of punishment or of spousal abuse? It is clearly difficult to determine exactly what happened in these situations and to decide what they mean. Most of the arguments in mediation sessions and lower court hearings about personal problems concern issues of meaning and interpretation, struggles to agree on what these events mean. Disputants couch their descriptions in language intended to persuade, labeling events and explaining actions in terms which they expect will be effective for both the other party and the mediator, clerk, or judge. They interpret their own actions as fair, reasonable, or virtuous and those of the other side as unfair, small-minded, and irrational. Third parties (mediators, magistrates, and, very occasionally, judges) also develop interpretations of the event and of the character of the people involved which they introduce into the discussion. Power lies in the ability to establish one or another interpretation of events and to make it stick with the rest of the group. This article explores forms of talk deployed by people who use the lower courts and mediation programs to handle their interpersonal problems. It is drawn from four years of ethnographic research, including observations of mediation and court proceedings, interviews with parties, and participant observation in several neighborhoods. The research was carried out in two New England towns in the 1980s. The parties in these cases are primarily white, working-class, native-born Americans; it is people of this social background who tend to bring their family and neighborhood problems to the lower courts asking for help. The mediators and court officials who handle them are more middle-class: relatively more educated, affluent professionals who are also primarily white.