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(We can) (r)ethink emancipation in terms of an aesthetic ethics where the individual has the capacity to reinvent her or his mode of being, to enact... a form of transfiguration wherein the individual sees her/himself a s a work of art. (Jabri, p.592).
Perhaps Professor Fiss was right -- mediation provides a venue for parties to escape the normative space of law, where judgment, through the process of litigation, can "bring a recalcitrant reality closer to our chosen ideals" (Fiss, 1984, p.1089). Perhaps, mediation, by fostering headlong (if not headstrong) moves to settlement, withers normative assessment and even ethics, before it has a chance to grow toward the public sphere where it can "right" injustice. Perhaps the "disparities in resources" that preoccupy Professor Fiss can only be recognized and redressed in formal legal settings, and, therefore, mediation functions like the perfect (bio)culture where the fungus of power imbalances, flourishes, and colonizes relationships. As a mediator, Owen Fiss continues to prick -- my conscience; he sits, like a harpie, looking over my shoulder as I practice for his admonitions, prescient in 1984 when he wrote "Against Settlement," call us, within the field of mediation, to reflection on the normative frameworks by which we can evaluate mediation practice. For certainly the instrumental (and technical) "promise" of ADR has not provided the field of mediation with anything other than a pragmatic moral frame, that when challenged, as it has been by Fiss, deflates.
But since Fiss wrote this admonition, there have been normative developments in mediation. Perhaps most notably, Bush and Folger, in their book The Promise of Mediation (1994), offer an alternative to the settlement ethos -- a focus on the transformation of relationships through the fostering of respect and recognition. While this book was groundbreaking in that it did offer an alternative ethics for practice, it draws on psychological theory to explain the production of respect and recognition. The result is, in my view, that while they point us in a good direction and away from settlement, the new normative theory inevitably falls back into a version of Rousseauian romanticism, for psychology, anchored firmly in the Enlightenment, seeks to describe relationships in terms of intrapsychic phenomena like respect and recognition. These are internal traits/ conditions that are better understood as the outcome of interaction, but without attention to the nature of that interaction itself as a normative process, we are left with intuitions to ground ethical practice. Otherwise, our normative theory describes the normative end state without helping us to understand the pragmatics of the conversations that lead to this outcome. And without a process-based description of ethics, our normative theory must rely on the process of mediation itself -- on the presumption that the structure of the process will lead inevitably to respect and recognition.
This paper attempts to provide a normative basis for mediation that will hopefully complicate our ethical understanding of this practice. Specifically, I will elaborate a critique of "recognition," following Oliver (2000), which will allow me to build on the "relational transformation" ethic at the base of the transformative model of mediation, advanced by Bush and Folger. Drawing on Oliver, I will argue that recognition is a concept, anchored in the Enlightenment, that paradoxically reduces rather than enables us to be present to Others, by requiring their strangeness/difference in order to constitute ourselves as whole.
In place of this concept, I will offer the process of "witnessing" as a discursive process whereby we constitute the subjectivity of the other and ourselves in the process. Further, drawing on Foucault (1980) and Jabri (1998), I will argue that the ethics of witnessing is not pragmatic in nature, but rather aesthetic, for it is the aesthetic that allows for the creation of a normative model for assessing narrative practice. Finally, drawing on Appreciative Inquiry and the literature on circular questions, I will provide a description of this aesthetic ethics in terms of practice in discourse, suggesting that the mode of inquiry fostered by the mediator is ethical if/when it destabilizes existing narrative and opens up uncertainty, while, at the same time, inviting elaboration of reversals in narrative trajectories. Ultimately, my aim is to elaborate a normative theory for mediation that is anchored in the practice of witnessing and suggestive of an aesthetic of narrative. While this will not dispel the spectre of the critique that Fiss invoked, it may provide some incantations that can be used to shift the grounds on which the discussion takes place, contributing both to our collective reflection and to our ethics of practice.