The Domestication of Violence in Mediation
Cobb, Sara, Law & Society Review
This article, based on an analysis of 30 community mediation sessions, provides a theoretical frame for tracking the emergence and domestication of violence stories in the sessions themselves. Challenging the Cartesian distinction between mental and physical violence, I use Scarry's 1985 work to identify the presence of violence stories as stories in which speakers (1) objectify pain through the discursive production of weapons and wounds, (2) describe the loss of voice itself, and (3) describe attempts to reappear as agents in the elimination of pain itself. Drawing on Minow's 1987 analysis of rights discourse, I offer a definition of the "domestication" of violence as a movement from "rights" to "needs" in the discourse of the session. With this framework. and consistent with Silbey and Sarat's 1989 research, I found that violence stories were domesticated in 80% of the sessions in which such stories emerged. Finally, drawing on Foucault (1979), I describe this domestication process as a function of the "microphysics of power" and track the rules of transformation through which violence is subducted into the discourse of mediation itself. I argue that the mediation process contributes to erase any morality that competes with the morality of mediation and, in the process, disappears violence.
Critics of mediation have long argued that mediation operates as a site for the deregulation and decriminalization of violence, particularly violence against women (Lerman 1984; Rifkin 1989). However, advocates of mediation argue that cases where violence is an issue will, in fact, be referred to criminal legal settings; their presumption that mediation does not contribute to the decriminalization of violence reflects the assumption that the legal system will "fit the forum to the fuss" (Sander 1976), appropriately designating the process to address the complaint. The "multidoor courthouse" has, indeed, provided a model for articulating informal to formal processes, designating the informal settings as sites to address "minor" disputes where the alleged violence does not cross over into felonious criminal categories (McGillis 1986),1 preserving the formal (criminal) system for "serious" cases.
Outside criminal legal codes, denied (and resisting) any substantive code for defining and redressing violence, mediation cannot intrude into the arena where bodies are injured and pain is materialized. Yet, critical legal scholars,2 as well as feminist legal scholars,3 have collectively decried the dangers of mediation for the "violated," arguing that mediation favors the continued oppression of women and the domination of state's interests (Harrington 1985; Abel 1982).4 Lerman (1989) and others (Rifkin & Harrington 1987; Rifkin 1989; Fineman 1988) have argued that informal processes reconstitute gender inequalities (Lerman 1989), decriminalizing violence against women (Stallone 1984) and reducing women's access to formal arenas where claims of injustice have the potential for social reform (Germane, Johnson, & Lemon 1985; Lerman 1984).
Among this group, there is condemnation of the use of mediation for disputes that explicitly involve violence; some further claim that the diversion of violence to informal settings continues the historical practice of delegalizing family conflict and perpetuating women's inequality (Lefcourt 1984). These critics argue that mediation undermines the legal rights and literal safety of women and other less advantaged parties (Lerman 1984) precisely because mediation evaporates claims of rights; a discourse of rights is central to redressing violence because such a discourse names the victim, the victimizer, and the harm done to the victim (Bumiller 1988).5
One might draw an analogy to political repression by pointing out that whenever violence is "disappeared,"6 the victimizers go free, the victims are left socially isolated to manage the consequences of the violence, the harm goes unaddressed. …