Privatizing Same-Sex "Marriage" Through Alternative Dispute Resolution: Community-Enhancing Versus Community-Enabling Mediation

Abstract

Community mediation sounds like a great idea: individuals from some communities may face a lack of understanding or even hostility from courts, so why not turn to members of one's own community to structure agreements and resolve disputes? Such community mediation (and other Alternative Dispute Resolution) has a long history in communities defined both by such characteristics as ethnicity (such as Jewish mediation and arbitration), geography (neighborhood mediation), and commerce (such as garment industry arbitration). Although the Article concentrates on the specific context of same-sex couples who may use lesbian and gay community mediation, it considers the conflicts and possibilities of community mediation in general.

The Article explores the tension between two different appeals of community mediation. The "private ordering" vision of mediation looks to such mediation to help parties tease out their own values and craft resolutions that reflect such values. The "community enhancing" vision of mediation, on the other hand, looks to mediation as a means of encouraging individuals to order their activities and resolve their disputes according to the norms of some relevant community.

The Article argues that both of these understandings of mediation pose problems for individuals. The "private ordering" understanding of mediation assumes that parties may avoid bias by turning to "their community." Unfortunately, they may be disappointed: community mediation defined by one kind of community, such as that based on sexual orientation, may not work well for those who may face other kinds of bias, such as racial, ethnic, or religious bias. In addition, even when such community mediation avoids bias, it may not provide individuals with the kind of information about the norms of other communities that parties might want to use to craft an agreement.

Community-enhancing mediation also poses difficulties. Most importantly, community-enhancing mediation may encourage individuals to look to the values of some existing community when some other set of values might satisfy them more. The Article considers the way that such community-enhancing mediation may creep in through notions like "cultural competence." In practice, cultural competence may encourage mediators to be "sensitive" to one form of culture -- such as national origin - but neglect other kinds of potential communities, such as a community of women.

In light of the limits of the private ordering and community enhancing visions of mediation, the Article sketches out a vision of "community-enabling mediation." Such mediation would expose parties to a variety of communities and potential communities; individuals could then make more of an informed choice about the kind of norms they want to inform their agreements. Finally, however particular attorneys and mediators resolve the tensions between kinds of mediation, the Article suggests they should be more clear about what individual parties expect and what varieties of community mediation they may find.