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Cardozo Journal of Conflict Resolution

Abstract

What must be remembered and acknowledged before we can move forward to create a future together, whether individually or collectively? Or, as Avishai Margalit has recently put it, is there an ethics of memory - must some things be remembered; what can be forgiven or forgotten in a moral sense? I have long been worried about the emphasis in mediation to focus on the future, to seek ''solutions" to problems in which the parties are guided to "move forward," even while "reorienting the parties to each other," in crafting a more productive relationship. With the growing use and adaptation of meditative-like processes in collective, political, and nation-state conflicts, as well as individualized conflicts in divorce, commercial, employment and criminal matters, this worry has grown into a larger concern about the role of the past in achieving justice in such settings. In this Article I seek to explore, not resolve, some of the issues and tensions in the role of temporality in achieving justice through mediative processes and to suggest some correctives at the practice level, as well as encourage some deeper thinking at the theoretical level. I focus here on issues of expression of temporality ("the past") in the "justice and mediation" question, not on issues of how the past should be judged - by the rule of law, culture, or universal human rights principles, or even how it can be "managed" when understandings of the past conflict or cannot be "resolved." I leave those bigger questions for another day or another writer.

Disciplines

Dispute Resolution and Arbitration | Law | Law and Gender | Legal Education | Legal Ethics and Professional Responsibility

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