Mediating Procedure and Substance: On the Privatization of the
Justice System and Workplace Equity
Faina Milman-Sivan, Orna Rabinovich-Eini
The article focuses on the authority of the recently established Israeli Equal
Employment Commission to refer discrimination complaints to mediation.
Specifically, it offers a new framework for understanding the role mediation can play
in assisting the Commission to fulfill its dual mandate: addressing individual
discrimination complaints and preventing future instances of discrimination. The
article centers on the tension between two contradictory ways of understanding the
role of mediation in the context of workplace discrimination. Mediation is commonly
seen as a tool for the resolution of individual disputes, an understanding that coincides
with the critique of mediation as part of the movement against the privatization of
justice system. This line of critique questions the ability of a system that is neither
public nor transparent to properly address disputes that raise questions of equality.
The alternative understanding of mediation, promoted in the article, is of mediation as
a tool for learning about discrimination and for preventing future instances of bias.
Such view of mediation builds on a nuanced understanding of the role private arenas
can play in the generation and enforcement of equality norms at the workplace
through proper institutional design. The broader theoretical framework is shaped by
recent developments in the regulation of workplace equity issues. These
developments are a product of the understanding that the elimination of workplace
discrimination sometimes requires a shift to a new regulatory regime premised on
cooperation between private and public actors so as to generate ongoing learning on
the causes of discrimination and effective means for addressing it. However, these
new theories of regulation have devoted little attention to the focus of this paper: the
role alternative dispute resolution processes can play in this learning process.