The protracted crises of authority that characterized the 1960s and 1970s left their imprints on
a number of institutions in Canadian society. The dispute resolution arena, for one, was affected
by the turmoil of this age as more informal, 'empowering' alternatives were sought to replace
the disempowering procedures of courtroom adjudication. The present thesis focuses on one
aspect of an ensuing 'alternative dispute resolution' movement in the Canadian province of
British Columbia; namely, community mediation. In particular, it begins by looking at the
rhetoric and practices through which community mediation has been deployed. Advocates tout
this process as an 'empowering' method of resolving disputes because it encourages individuals
to work conflict out in the 'community', thus - so their reasoning goes - limiting state intrusion
into people's everyday lives. By contrast, critics of the movement argue that the deployment of
informal justice actually expands state control, and contend that it does so rather insidiously
under the guise of 'restricting' state activities.
Close scrutiny of this debate, however, reveals significant weaknesses in both positions, mainly
relating to their unnecessarily narrow definition of the 'problem'; i.e., whether informal justice
expands or reduces state control. This is a highly questionable formulation, for it demands a
simple response from what is a much more complex and ambiguous event. Taking its cue from
more recent developments in the literature, the following analysis reconceptualizes the 'problem'
by asking: what is the logic of control embodied by mediation practices in a given context? It
responds to the question by developing certain Foucauldian precepts into a theory that explicates
the model of power through which mediation regulates action. Its implicit objective is to understand the political rationale of mediation in order to pursue how this might be used to
further social justice.
Various genealogical procedures are employed to formulate such a theory by responding to four
central questions. What are the wider lines of descent that have helped to produce the particular
version of community mediation that now colours British Columbia's landscape? What precise
model of power does the rhetoric and practice of mediation reflect? How does this informal
model of power link up with the formal power of the law/state? What are the implications of this
for engaging politically with community mediation, if one's aim is to achieve social justice?
Responding to each of these in turn supplies the basic thesis of the following text.
In brief, I argue that community mediation has developed in British Columbia in tandem with
a shift from Fordist to Post-Fordist modes of regulation (politics) and production (economics) that
characterized the 1970s. Influenced by legal reforms and experiments with 'alternatives' to courts,
community mediation has assumed an identity which incorporates a 'pastoral' model of power.
This model is articulated to the state's 'law-sovereign' model as a 'complementary,' but
subordinate, alternative. The association between these results in an indirect form of governance -
'government at a distance' - that may expand the state's potential to control people, but which
is also considerably less predictable. This offers both opportunities and barriers to political action
in the informal justice arena. Consequently, while the current deployment of community
mediation in British Columbia tends to support the professionalised justice of the existing legal
system, it may yet be possible to transform its identity through an 'alternative' politics of law
that strives for social justice.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:BVAU.2429/3146 |
| Date | 11 1900 |
| Creators | Pavlich, George Clifford |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Relation | UBC Retrospective Theses Digitization Project [http://www.library.ubc.ca/archives/retro_theses/] |
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