It has been suggested that litigation is a substitute for violence. Stated another way, but for the availability of an adversarial forum in which to address grievances, injured parties, damaged parties, aggrieved parties might otherwise resort to violence. As such, it is certainly plausible that citizens may perceive our adversarial legal system as the only means of expressing those feelings, those complaints and those very urgent demands that might otherwise have no "lawful" means of expression except violence.

In some ways this idea at least prompts us to re-think or redefine our views of the meaning of "violence." This question is not limited to "gun" violence. Nor is this inquiry necessarily limited to any commonly-held view of "violence." Indeed, according to certain well-established theories of "violence," like Marshall Rosenberg’s theory of "Non Violent Communication" (NVC), most of the practices and processes that occur during a typical adversarial litigation or trial are clearly "violent."

For example, lawyers use questions in cross-examination to "attack" and "destroy" the credibility of a witness. Litigants invoke the awesome power of the state and fight in court to cause the court to remove money, assets, valuable rights or property from the opposing party. Whether a litigant is seeking some form of "punitive" judgment or any other form of compulsory resolution after adversarial litigation, according to theories like NVC, such a process resembles "violence" regardless of the fact that it is "lawful."

Maybe this is what it means when we revert to the age-old notion that parties who will not (or cannot) settle a case simply "need their day in court." But when we say this, aren’t we actually saying that such a party "needs" to express his or her grievances…to tell their story…and to be "heard" by some powerful agent of the state toward the ultimate goal of obtaining some form of redress for those grievances? And as suggested above, aren’t we also suggesting that the injured/aggrieved party wishes some form of "remedy" including the forcible (or "violent") removal of money, assets, valuable rights or property from the opposing party?

These questions were prompted by a story that recently arose in Arizona where a disgruntled party after participating in a mediation shot and killed people associated with that dispute. Reflecting upon that incident could cause one to wonder: What if that aggrieved party had his "day in court?" Alternatively, we could ask: Was there something about that mediation that failed to allow the full expression of the underlying grievances? Did that party feel that those underlying grievances were being ignored or suppressed in the interest of "getting to yes?" Or, perhaps this incident raises the larger question: If litigation is a substitute for violence, is it important that an "alternative" process like mediation serve as a meaningful substitute for litigation?

Raising these questions should not be misunderstood as an attempt to excuse, justify, or in any way "minimize" that individual’s outrageous and inexcusable decision to resort to such a horrific act of violence. Nor is there any intent to overlook the potential likelihood that an individual like that would have committed the crime regardless of whether he had his day in court. Nevertheless, there is something ironic at the very least in the stark contrast between that act of violence and certain commonly-held notions and assumptions about mediation.

Perhaps the irony relates to the assumption that mediation is a non-adversarial process that emphasizes party self-determination. Or, maybe it arises from the notion that a mediator’s role is to facilitate the resolution of disputes; to create a safe environment for the parties to express their interests, explain their needs and grievances; and to explore options toward the ultimate goal of reaching some form of consensus or agreement. Based on these assumptions, it would follow that the individuals who have participated in mediation at least have experienced the opportunity to express themselves regardless of whether an agreement was reached. Therefore, it would also follow that such an opportunity for self-expression if unhindered by the compulsion to settle would at least allow the individual to feel "heard" and, presumably, to be less likely to feel compelled to resort to the ultimate and most heinous act of murder.

Maybe these assumptions are incorrect altogether. Perhaps this entire discussion rests upon the misplaced assumption that mediation is a form of "therapy." Maybe we expect too much of mediation if we think it should have such a positive impact upon the disputants.

Interestingly, if we were to put this question to mediators who practice "Transformative Mediation," they would disagree wholeheartedly. According to those practitioners, mediation should be about changing the way people experience conflict and interact with others amidst that conflict. Mediation, to them, is not as much about "settlement" as it is about "empowering" each of the individuals in conflict. They avoid any attempt to compel a settlement. In so doing, the mediator completely suspends judgment throughout the entire process. Because the goal of this type of mediation is to help lift the disputants from the often-paralyzing feelings of crisis to the point where they might be able to "recognize" the feelings, interests and very urgent demands of the others in that conflict, any suggestion that the mediator is "judging" the parties or compelling them to settle, by definition, is disempowering.

Assuming that litigation is a substitute for violence and some parties perceive their proverbial "day in court" as a necessary substitute for violence, in the context of the Arizona incident, we might ask which type or form of mediation is better suited for a particular case? On one hand, perhaps a more "therapeutic" form of mediation is better suited to an intensely emotional, high-conflict situation with overtones of aggression and potential for violence. That brand of mediation resembles a type of therapy where the force of "judgment" is minimized and the process is designed to help the parties to experience conflict differently. In this instance, if the mediator assists the parties in conflict to experience and manage the conflict differently, it would seem that such a party would be less likely to leave that mediation and kill someone even if the mediation does not "settle" the case.

Alternatively, we might find that such a situation requires a more forceful or directive approach in which the parties are compelled to "play by the rules" as a means of controlling the conflict. In this instance, if the mediator acts more like a judge presiding over and controlling a highly adversarial process, it would seem important to allow that process to serve as a meaningful substitute for litigation.

In other words, if litigation is, in fact a substitute for violence, and if we place hostile parties in an adversarial mediation environment where the mediator acts as a "pseudo judge" who will render a settlement recommendation, a party might perceive that process as a substitute for litigation. Under those circumstances logic dictates that such a "substitute" process should, at least, resemble a "day in court." Thus, even if the mediation gets a bit hostile and the disputants become angry or unruly, it seems necessary to allow that process to resemble that party’s "day in court." After all, what’s the alternative? •