Mediation and other forms of Alternative Dispute Resolution as conflict resolution mechanisms are being embraced widely by legal regimes in criminal law, family law, labour law, administrative law, and civil law areas. In this way, frustration with inadequacies of the legal system and an incipient crisis in legitimacy due to delay, expense and impersonality are contained, and control over dispute resolution is reasserted by the legal system. But in the process, these community-based practices also undergo an institutionalising transformation or “rationalisation” which removes them from their social framework and makes them into technical forms of conflict dispute resolution. This article uses an Habermasian analysis to contend that policymakers, legislators, professional and quasi-professional practitioners are thus systemically colonizing potentially liberatory social practices and transforming them into a “technique” where practices are formalised and strategies are imposed on conflict to produce determinable outcomes.

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