1 Merry and Milner's introduction, for example, suggests that “shift[s] in relations of power” (p. 9) and “contributions to social justice” (p. 23) are important measures of the value of community mediation. Thomson and DuBow's chapter assesses community mediation, in part, in terms of whether or not it is effective in “challeng[ing] hegemony” and “link[ing] mediation… with a political strategy for collective action to address structural inequities” (p. 196). Shook and Milner compare community mediation unfavorably with other responses to conflict that “have been successful in other cultures… for people without much political power” (p. 262). Rothschild uses as her main frame for analysis the question of whether community mediation “transforms” disputes into matters of interpersonal misunderstanding rather than structural inequity (pp. 255–56). She ultimately concludes that it does, and that this limits community mediation's potential for producing “politically progressive social change and justice for those historically denied power in society” (p. 320). Yngvesson's provocative essay on community mediation as a form of organizing criticizes mediation for “plac[ing] the larger issues of social transformation and struggles over economic and social justice at a distance” and for displacing the goal of “empowering a community for the purpose of redistributive social change” (pp. 428–29). It seems clear that, for these and other authors in the volume, achieving justice-popular or otherwise-means changing the distribution of power in society.Google Scholar

2 Sally Merry, for example, considers it important that “popular justice introduces a new ideology of conflict resolution based on nonviolence and opposition to the violence of law” (p. 62), although it is not clear what precise social impacts will flow from this “new consciousness of nonviolent dispute management” (p. 20). Merry and Milner, as well as Thomson and DuBow, also see impact on volunteers' skills and attitudes as a significant social effect of community mediation (pp. 20, 163–64). Again, however, it is not clear whether they foresee this impact spreading to produce wider effects. Ray Shonholtz, the founder of the program studied in this volume, envisions a whole array of social effects flowing from community mediation, including reduction of fear, intolerance and alienation, and increases in citizens' autonomy and sense of relatedness (pp. 225–27).Google Scholar

3 On this point, and the following point about the limitations of ADR processes in generating aggregate effects, see Ad Hoc Panel on Dispute Resolution and Public Policy, Paths to Justice: Major Public Policy Issues of Dispute Resolution (Washington: National Institute for Dispute Resolution, 1983); cited in Leonard L. Riskin & James E. Westbrook, Dispute Resolution and Lawyers 404–21 (St. Paul, Minn.: West Publishing Co., 1987); Baruch Bush, Robert A., “Dispute Resolution Alternatives and the Goals of Civil Justice,” 1984 Wis. L. Rev. 893, 972–94. For general descriptions and discussions of arbitration, mediation, and other ADR processes, see Paths to Justice; Riskin & Westbrook, supra. Google Scholar

4 See, e. g., Richard Hofrichter, Neighborhood Justice in Capitalist Society: The Expansion of the Informal State (New York: Greenwood Press, 1987); Richard, Delgado et al., “Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution,” 1985 Wis. L. Rev. 1359; Fineman, Martha, “Dominant Discourse: Professional Language and Legal Change in Child Custody Decisionmaking,” 101 Harv. L. Rev. 727 (1988); Silbey, Susan S. & Merry, Sally, “Mediator Settlement Strategies,” 8 Law & Pol'y 7 (1986); Laura Nader, No Access to Law: Alternatives to the American Judicial System (New York: Academic Press, 1980).Google Scholar

5 There is some controversy in this volume about the actual character of the CBP's goals and claims. Several authors suggest that the CBP's self-presentation incorporated from the outset goals like “neighborhood building” and “community empowerment,” goals that seem clearly to embody social justice dimensions (Merry, p. 57; Thomson & DuBow, pp. 179–80). On the other hand, Raymond Shonholtz, the founder of the CBP, argues in his chapter that the CBP was “not primarily about the business of building community” and “never took as its mission the direct restructuring of political power, economic relationships, or… social conditions.” CBP's goal, he claims, “was not to build community per se, but to build a capacity within the community” for conflict resolution (pp. 215–16). However, Shonholtz himself, to demonstrate CBP's success, cites an evaluation of “possible effects on the community” of a program like CBP, including impacts such as “provides a forum for transformation of individual grievances into collective problems”; “develops local leadership [and] participation”; and “gives impetus to action for social reforms” (p. 226). Moreover, as DuBow and McEwen suggest, “building neighborhood capacity for… conflict resolution” necessarily implies building capacity “more generally for neighborhood change” (p. 165). Obviously, I cannot resolve this disagreement about whether CBP really claimed that it would produceaggregate social change. This book concludes that, in effect, it did so. For purposes of this review, I will treat that conclusion as valid.Google Scholar

6 Dubow's untimely death in 1987 was the reason that the final report remained unfinished. In a sense, this volume was the vehicle for bringing the findings of the CBP study to the public.Google Scholar

7 In some cases, it also appears that the original data gathered by DuBow's co-researchers was available to and used by the chapter's authors.Google Scholar

8 DuBow and McEwen's “Analytic Profile” in this part (p. 125) presents a very useful overview of the data as it relates to almost all the dimensions mentioned. Of course, the contributions in this part are not simply descriptive; each chapter offers analysis and commentary relating to the piece of the overall picture it addresses. It is especially helpful that the editors include a chapter by Raymond Shonholtz, the founder of the Community Board Program (p. 201), to add an “insider” perspective to the mix of contributors.Google Scholar

9 In fact, Shook notes that there was little follow up evaluation done by the CBP to measure such effects on disputants. She concludes that the main benefit CBP provides to disputants is an opportunity to communicate with each other in a safe, managed environment. Disputants value this, she says, because according to the study's findings, “many complainants… are afraid or reluctant to initiate contact with their neighbors to announce even the most mundane, easily remedied concerns” (p. 319). This may account for the significant level (10%) of repeat users in the client population.Google Scholar

10 The conclusions summarized here are expressed, with different emphasis and in various forms, by most of the book's contributing authors. The “Analytic Profile” of the CBP by DuBow and McEwen (pp. 125–68) provides the clearest report of these conclusions in a single, coherent presentation.Google Scholar

11 Laura Nader argues, for example, that in the 1970s, there was a movement among young lawyers to use law as a tool for social justice: “The response to injustices for these young advocates was legal action-the public interest law firm” (pp. 440–41). In Nader's view, the ADR movement, including community mediation, was a repressive response to this form of social justice advocacy. ADR developed as an “antilaw movement,” in which “the production of harmony was to be achieved by the movement against the contentious, the movement to control the disenfranchised” (p. 441). Christine Harrington argues that, unlike earlier populist undertakings that involved collective action by citizens, such as community patrols or direct action organizing, community mediation-including the CBP-rests on an “ethos of individualism” and is consequently conservative rather than progressive in character. In effect, she suggests that “neopopulist” community mediation has replaced “authentic” populist community organizing, and implies that this is part of a larger attack on “both liberal and radical visions of community” (p. 429).Google Scholar

12 In addition to Nader and Harrington's chapters, a similar suggestion can be found in Shook and Milner's study of CBP training (pp. 259–61) and in Thomson and DuBow's examination of CBP's community organizing “legacy” (pp. 196–97). This same notion, although in this volume offered as part of a critique of community mediation, has been voiced positively in recent years within the dispute resolution field itself. Thus, some practitioners and scholars have argued that “conflict intervention” should be seen as including not only “third-party” work like that done by mediators but also “first-party” work like the efforts of organizers, advisors, and coaches who help the different sides to “conduct conflict constructively.” See note 17 infra and accompanying text. See also Heidi Burgess & Guy Burgess, “Constructive Confrontation: A Transformative Approach to Intractable Conflicts,”Mediation Q. (forthcoming 1996).Google Scholar

13 As Merry and Milner put it in their introduction, the demonstrated impact on volunteers “suggests that [CBP] and other community-mediation programs are developing a new consciousness of nonviolent dispute management in the United States” (p. 20). DuBow and McEwen, Rothschild, and Merry (in her separate chapter) all echo this suggestion to some degree.Google Scholar

14 With regard to my use of the findings for discussion purposes, I should emphasize what is already clear from the earlier description of the study: The account of CBP mediation presented in this book is based on data collected nearly 15 years ago. The mediation process used in the CBP today may or may not bear close resemblance to that described in the book and analyzed here. In short, the points made in the text below should not be read as a critique of current CBP mediation-unless it corresponds to the mediation process described in this book.Google Scholar

15 The actual CBP mediation process utilized a multiperson mediation panel to do mediations, rather than a sole mediator or paired co-mediators. DuBow and McEwen's profile chapter gives a description of the panel structure.Google Scholar

16 DuBow and McEwen's analysis acknowledges that, in cases where the parties were themselves couples or groups, CBP “permitted and even encouraged” sessions involving multiple parties (p. 167). They include summaries of such cases in their profile (pp. 141–42). But they add that “at the same time, the program chose not to… encourag[e] linkages between complainants” -in landlord tenant cases, for example (p. 167); and the profile includes summaries of several cases where larger “structural” dimensions are left unaddressed (pp. 152–54). Similarly, Shook and Milner argue that “mediators are not taught pragmatic ways to link the individual to social transformation” (p. 258) and that CBP “deemphasizes the link between the individual and the larger political world” (p. 260).Google Scholar

17 See Thomas Gerschick, Barbara A. Israel, & Barry Checkoway, “Means of Empowerment in Individuals, Organizations and Communities: A Report on a Retrieval Conference” (Ann Arbor, Mich.: Program on Conflict Management Alternatives (PCMA), undated); Amy Schulz, Barbara A. Israel, Marc A. Zimmerman, & Barry Checkoway, “Empowerment as a Multi-level Construct: Perceived Control at the Individual, Organizational and Community Levels” (Ann Arbor, Mich.: PCMA, 1993); Mark Chesler, “Alternative Dispute Resolution/ Conflict Intervention and Social Justice” (Ann Arbor, Mich.: PCMA, 1989) (“Chesler, ‘Alternative Dispute Resolution”’).Google Scholar

18 This point is discussed in Thomson and DuBow's chapter, “Organizing for Community Mediation” (pp. 169–75).Google Scholar

19 In Nader's chapter, she uses a consumer activist group, San Francisco Consumer Action, as an example of how organizing and collective action can be a much more effective instrument for social change than community mediation programs like CBP (pp. 436–40). Obviously, Nader does not see a “cultural barrier” to collective action like that practiced by Consumer Action. Similarly, both the Thomson and DuBow study and Christine Harrington's analysis look at the CBP in relation to “traditional” community organizing projects, both in San Francisco and in other communities. The authors clearly consider such collective efforts viable even within an “individualistic” American cultural context.Google Scholar

20 The quote here is actually from DuBow's draft of the CBP Study findings, as cited by Kem Lowry in his chapter on evaluation (p. 116). The same view is expressed in DuBow and McEwen's profile chapter (pp. 149–50, 159).Google Scholar

21 For an extended discussion of this form of mediation, and an analysis of its limitations, see Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation: Responding to Conflict through Empowerment and Recognition 55–77 (San Francisco: Jossey-Bass Publishers, 1994) (“Bush & Folger, Promise”).Google Scholar

22 According to DuBow and McEwen, “For mediators, success was not supposed to be measured by agreements but rather by the degree to which communication was established and feelings were expressed. Nonetheless, mediators tended to be acutely disappointed in the rare cases… where no agreement was reached in mediation” (p. 150).Google Scholar

23 The irony of this is that according to Shook and Milner's chapter on training and DuBow and McEwen's profile, CBP mediator training and the structured format of the sessions are supposed to encourage communication and expression of feelings by the parties. However, two problems undermine the fulfillment of this intent, First, the methods taught and used to “encourage communication” include conducting all sessions jointly, without private caucuses; having parties face one another and “express their feelings about one another and the problem”; and doing role reversal exercises (pp. 149–51). Techniques such as these may simply be too direct and heavy-handed to achieve “enhanced communication” with parties in high conflict. Indeed, Rothschild's report of the “Promised Land” mediation shows that parties resent and balk at these techniques (e. g., pp. 306–7), as do the shorter case summaries in DuBow and McEwen's chapter (e. g., pp. 152–53). In short, the intent to focus on communication may be genuine, but the methods are ineffective. For some discussion of methods that might be more effective, see Bush & Folger, Promise at 139–208; see also Joseph P. Folger & Robert A. Baruch Bush, “Transformative Mediation and Third Party Intervention: Ten Hallmarks of a Transformative Approach to Practice,”Mediation Q. (forthcoming 1996) (“Folger & Bush, ‘Transformative Mediation”’). The second problem is that the intent to encourage communication may itself not be serious. As shown in the text, the real “prize” for CBP staff and mediators is “reaching agreement.” As long as this is true, there will be a tendency to force rather than foster communication, with the result that little real communication occurs.Google Scholar

24 DuBow and McEwen describe a case in which the mediators' focus on having the parties tell each other how they feel not only fails to foster real communication but almost prevents discussion of specific issues and solutions (p. 151). Kem Lowry cites an example described in the originai draft of the CBP study, in which DuEbw recounts how the mediators found “the means of building a resolution,”“came to obvious but effective conclusions” about the issues, and “suggested… and encouraged pragmatic solutions” (p. 103). Though DuBow's account is approving in tone, the process it displays is clearly more oriented to producing agreement than encouraging communication. Rothschild includes in her study an appendix with short descriptions of several cases, all ending in agreement-but in all of which the parties had minimal or no further communication after the mediation ended (pp. 321–26). Finally, the book‘s various references to mediator training and to mediator attitudes about reaching agreement, discussed earlier, reinforce the inference that the approach displayed in the “Promised Land” case was probably not atypical of CBP mediation.Google Scholar

25 Both the approach and some of the studies that document it are discussed in Bush & Folger, Promise. Google Scholar

26 Id. The account given in the following paragraphs of the effects and methods of this approach to mediation is drawn from this source. See also Folger & Bush, “Transformative Mediation,” at 23; Robert A. Baruch Bush, “‘What Do We Need a Mediator for?’ Mediation's Value-Added for Negotiators,” - Ohio St. J. Dispute Resolution (forthcoming 1997).Google Scholar

27 My earlier analysis of the “Promised Land” case showed how the mediators consistently ignored both the “organizing” potential of the case and what the transformative model would call the recognition opportunities that arose in the session. From Rothschild's account, it is also clear that the mediators did little in the realm of empowerment, as defined here. For example, from early in the session, the mediators concentrated on which details of R s activities bothered the Cs (the black homeowners)-in order to identify an arrangement that would solve the problem. The Cs' stubborn insistence that R shut down entirely, and their refusal even to discuss the details, left the mediators stymied. However, this very posture of the Cs created possibilities for empowerment that went untapped. What broader concern of the Cs prompted this “stonewalling” posture? Had the mediators spent more time exploring this point, asking more general questions, and doing more active, reflective listening, it might have helped the Cs to more clearly articulate their concerns about the character of their neighborhood and their sense of pride and dignity. These larger goals seem implicit in many of the Cs' comments, but instead of permitting and helping them to be expressed clearly-which might itself be empowering for the Cs-the mediators shunted them aside to focus on narrower issues, in order to pursue agreement. Then, when the Cs refused to budge and R made no clear offer to close down, some important questions and choices arose for the Cs: What would they do if R in fact went on with his business? Was it clear that zoning regulations really prohibited Rs activities? If so, what would be involved in enforcing them? If not, what else could the Cs do to address their concerns? Helping the Cs to think through and answer these questions-whatever the answers-would help them to analyze their situation and make informed decisions on how to proceed. This is the meaning of empowerment. In fact, while the mediators pursued similar questions with R to some degree, they did almost nothing of this nature with the Cs. The result of this inattention to empowerment in the case was ironic, and some what disturbing: The Cs left the mediation feeling like they'd “stuck to their guns” and come out on top. But afterwards, R called the planning department and found out that home business usage was allowed, with some restrictions. The Cs' legal “trump card” proved illusory, and R s continued business usage went well beyond the limited level that he himself had offered-and the Cs rejected-in the mediation. Thus the Cs, in this mediation, unknowingly put themselves in a worse position than before. Reading the case, some might be tempted to see this as an inevitable result of their own intransigence. I would argue that a good deal of the responsibility for this lay with the mediators. In trying to solve the problem for the parties, the mediators failed to help the parties–especially the Cs-think through the Situation and make clear and informed choices. More attention to empowerment might or might not have changed the outcome; it certainly would have helped the parties make more deliberate choices. And that choice-making experience itself, like the perspective-taking experience involved in recognition, could have strengthened the parties' ongoing capacities for self-determination and responsiveness.Google Scholar

28 James E. Crowfoot & Julia M. Wondolleck, Environmental Disputes: Community Involvement in Conjht Resolution 254–59 (Washington, D. C.: Island Press, 1990) (“Crowfoot & Wondolleck, Environmental Disputes”).Google Scholar

29 Buckle, Leonard G. & Thomas-Buckle, Suzanne, “Placing Environmental Mediation in Context: Lessons from ‘Failed’ Mediations,” 6 End. Impact Assessment Rev. 55 (1986).Google Scholar

30 On the theory of prejudice reduction, see Delgado et al., 1985 Wis. L. Rev. at 1380–87 (cited in note 4). The discussion there is based on the work of several social psychologists, particularly Gordon Allport. See Gordon Allport, The Nature of Prejudice 261–81 (25th Anniv. Ed. 1979). On the theory of social networking as applied to conflict interaction, see G. Labianca, Daniel Brass, & Barbara Gray, “Social Networks and Perceptions of Intergroup Conflict” (State College, Pa.: Center for Research in Conflict & Negotiation, 1995 (Working Paper)). The work described there is based on a general theory of network analysis. See J. Scott, Social Network Analysis: A Handbook (London: Sage Publications, 1991).Google Scholar

31 Crowfoot & Wondolleck, Environmental Disputes 254.Google Scholar

32 Id. at 30.Google Scholar

33 For some discussion of this issue, see Bush & Folger, Promise 229–59 (cited in note 21); Bush, - Ohio St. J. Dispute Resolution (cited in note 26).Google Scholar

34 In fact, it should be pointed out here that whichever of these models of mediation is employed-or any other that is copable of leading to social change-it is unrealistic to expect to see evidence of aggregate social impacts within a short period. However, the fact that such effects will probably emerge over decades, rather than years, should not be surprising, given the nature of the goal being sought. Indeed, this point applies equally to the kinds of effects that the CBP itself might still, eventually, produce-not through its mediation work per se but through its training, its volunteer network, and its public education impacts. The CBP study's findings, based on a six-year period of study, are thus an incomplete basis for a conclusion that the CBP itself has “failed” to produce social change.Google Scholar

35 See, e. g., Chesler, “Alternative Dispute Resolution” (cited in note 17).Google Scholar