First published in the Mediation Quarterly, Volume 17, Number 4
Since their inception, community mediation programs in the United States have often been tied to the justice system. This proximity is expressed in a number of ways–courts are the leading source of case referrals for many programs; state or local court systems provide the majority of funding for many programs; and it is partly through these ties that mediation programs have attained legitimacy in the communities they serve. In fact, some programs are even housed within courthouses. While there are benefits that accrue to mediation programs because of the cozy nature of this relationship, it is not without problems for a movement that has also been deeply committed to community-building, citizen empowerment, and the building of alternative institutions. We will highlight and analyze some of these problems in what follows.
This article (1)assesses the relationship between community mediation and the justice system. We begin by tracing the evolution of the community dispute resolution movement, focusing on its close relationship with the court system. Our examination of mediation’s reliance on the court system for case referrals and funding leads to a discussion of the negative effects this relationship may have for community mediation. Regarding mediation centers’ dependence on the courts, our concerns are primarily two-fold: the redefinition of the goals of the community mediation movement, and the compromises in the freedom and integrity of the mediation process.
A History of Community Mediation in the United States
The community mediation movement in the United States can trace its roots to two primary sources: the social and political movements of the 1960’s, and a governmental and nongovernmental movement to reform the justice system. In the former case, community mediation was embraced as an empowerment tool for individuals and communities to take back control over their lives from a governmental institution (the courts) that was seen not only as inefficient, but oppressive and unfair. This vision included equipping citizens to resolve their own disputes and the building of a truly alternative system that would keep many disputants from seeing the inside of a courthouse.
In the latter case the motivation was focused on responding to court system inefficiency. Here the “alternative” in alternative dispute resolution was much more reformist; it did not refer to creating a parallel, citizen-run and community-centered dispute resolution system. In language that was to become popular in the 1980’s, the goal was to build a “multi-door courthouse.” As the mediation field developed, these two movements sometimes surfaced as quite distinct in orientation and emphasis. But it is also true that there has been significant overlap and cooperation, resulting in rich and often spirited discussions about the objectives and values of community mediation. In the historical overview that immediately follows we focus primarily on the reformist approach because we later raise questions about the effects for mediation of working closely with, or within, the court system.
Many scholars trace the origins of the field of community dispute resolution to the Community Relations Service, a federal program established through the Civil Rights Act of 1964 to prevent violence and encourage constructive dialogue in communities (Salem 1985). Formalized developments toward community mediation were initially funded through the federal Law Enforcement Assistance Administration (LEAA). For example, the Philadelphia Municipal Court Arbitration Tribunal began in 1969 as an innovative project involving prosecutors and the courts to assist disputants, while in 1970, the Columbus Night Prosecutor’s Program was initiated to relieve overburdened city courts dockets (Fn’Piere 1991).
The next wave in alternative dispute resolution included the creation of neighborhood justice centers (NJCs). Richard Danzig (1973) envisioned community-based resources to involve citizens in the administration of justice through methods to promote reconciliation. The LEAA later developed his ideas by establishing NJC’s in Atlanta, Kansas City, and Los Angeles in 1978, and in Honolulu and Dallas in 1980 (Adler 1993). These centers were created partly in response to a number of court-related concerns, including those that triggered in 1976 the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (also known as the Pound Conference).
As these federally funded programs were developing, other communities were initiating their own dispute resolution resources with purely local bases of support. Examples include the Institute for Mediation and Conflict Resolution’s Dispute Center in Manhattan, the San Francisco Community Boards Program, the Rochester (New York) Community Dispute Services, and the Dorchester (Massachusetts) Urban Court Program (Fn’Piere 1991). Many of these programs were linked to various courts, while others clearly distanced themselves from the justice system.
The development of the NJCs and the various community dispute services continued into the early 1980s, even after the sunset of federal funding. There were over 100 programs in operation at that time, and the number has ballooned to approximately 650 in 1998 (NAFCM 1998). Theoretically, each of these programs has been designed to respond to the dispute resolution needs and interests of the community it serves, and therefore every program has unique referral and funding mechanisms.(2) For the vast majority of these programs, however, the justice system plays a large role.
Community Mediation and the Justice System
In the late 1970s and into the 1980s, the Department of Justice undertook considerable study of the NJC and community mediation concepts. These reviews were motivated in large part by citizen frustration with the justice system, as well as by more basic questions about the appropriateness of the courts to settle interpersonal conflicts. As one report stated,
The courts have not actively sought to become the central institution for dispute resolution; rather the task has fallen to them by default as the significance and influence of other institutions has waned over the years. Many of the disputes which are presently brought to the courts would have been settled in the past by the family, the church, or the informal community leadership. While the current role of these societal institutions in resolving interpersonal disputes is in doubt, many citizens take their cases to the courts (Cook et al. 1980, p. 2).
A 1983 Justice Department report outlined five goals for the employment of mediation in small claims disputes (DeJong 1983): (1) Increasing the efficiency of case processing; (2) Reducing court system costs; (3) Allowing judges to provide added attention to cases on the regular civil docket; (4) Improving the quality of justice; and (5) Improving collection of judgments.
These goals clearly demonstrate the value mediation was perceived to have for the court system. The same report went on to outline the benefits of having courts house mediation programs:
This approach–where mediation essentially services the court system–led some courts to grant the critical start-up funds for mediation programs, and in other instances, to provide physical housing as well. While the multi-door courthouse offered mediation as one alternative to the court process, it also provided a number of other legal and dispute processes such as arbitration and neutral evaluation.
Regardless of their sponsorship by courts, private nonprofits, or other public entities, most community mediation programs receive a sizable number of their cases through the court system. These referrals happen in at least four ways: (1) claimants seeking to file in civil matters are often encouraged by court staff or various media (posters, brochures) to attempt mediation first, (2) community mediators attend court sessions and work with disputants prior to their case being heard by the judge or upon the recommendation of the clerk or judge, (3) for some criminal matters, the prosecutor and/or judge will postpone a trial and direct the case to mediation, or (4) many states and courts have mandated alternative dispute resolution for larger civil cases and family matters, and often route cases to community mediation programs.
The 1998 membership directory of the National Association for Community Mediation (NAFCM 1998) provides a measure of how sizable the proportion of court referrals is for community programs. Of 250 community mediation programs in the United States registered as members, 185 provided percentage breakdowns of their case referrals. Eighty-six (46.5%) of these centers indicated that at least one-half of their cases are court referrals. In fact, forty-five (24.3%) receive at least three-quarters of their cases from the courts. The mean average of court referrals as a percentage of total caseload is forty-four-percent, (the median average is forty-five-percent). Similarly, McKinney and others (1996) surveyed a broad spectrum of mediation resources nationwide, of which community programs were the majority, and found that nearly thirty-percent identified “court-annexed mediation” as their primary service, and that over seventy-five-percent participated in court-referred cases. And in New York, where each of the sixty-two counties has its own community dispute resolution resource, forty-one-percent of all cases are referred from courts (CDRCP 1998).
Numerous studies continue to document the utility of community mediation in each of these arrangements (McEwen and Maiman 1981, Clarke et al. 1992, Mika 1996, CDRCP 1998). Meanwhile, court systems and mediation centers have expanded their efforts to incorporate mediation into the justice system case handling process, often with little critical reflection on the deleterious effects this may have for mediation. While mediation programs gain both cases and public exposure through court referrals, we believe they may also lose something in the bargain.
Concerns about Community Mediation’s Relation to the Justice System
Many in the justice system have heralded mediation’s potential to alleviate court congestion, reduce costs for the system and its clients, and bring about resolution in a more timely manner (Adler 1993). While these benefits to the justice system are valuable, they are seldom the primary aims of community mediation programs. For many staff and volunteers, the promise of mediation lay in empowerment of communities and individuals to develop their own solutions in informal, convenient meetings with minimal involvement from the justice system. For example, the goal of the influential San Francisco Community Boards was “providing a first-resort conflict-settlement service for local residents outside the perimeters of the formal legal system [emphasis added]” (Shonholtz 1993, p. 205).
In a recent volume on court-based mediation, the editors offer that, “While court-annexed mediation may be co-optive, with negative implications, it is unlikely that the takeover was motivated by malign intentions, conscious or otherwise” (Bergman and Bickerman, 1998, p. vi). They proceed to explicate the interests behind this appropriation of mediation: “The cry for experimentation and the internalization of ADR processes within the traditional system appears to be motivated primarily by efficiency concerns, e.g., the elimination of congested dockets and cost or time savings, rather than quality of process and humanistic goals embraced by the broader alternative dispute resolution movement” (p. vii).
The present state of relations between community mediation and the justice system raises a number of concerns regarding the integrity and viability of mediation. With the high proportion of community mediation programs’ caseloads and funding coming from the court system, many programs may find themselves in tenuous, if not compromising positions. We have identified six areas of special concern: (1) the dependence for funding upon the favor/support of the justice system, (2) the loss of autonomy to turn back inappropriate court referrals, (3) the potential for coerced participation in mediation, (4) the potential to be found at fault is faced by only one party, (5) the misunderstanding of the legal status or basis of mediation processes and outcomes, and (6) the loss of focus on ‘community’ in community mediation.
Dependence for funding upon the favor/support of the justice system
The need for diversified funding sources for community mediation programs has long been recognized in theory, if too seldom achieved in practice. A 1991 National Institute for Dispute Resolution manual that distilled lessons from the first two decades of community mediation work, highlighted the importance of establishing viable fund-raising plans and building diverse funding bases for community centers (NIDR 1991). When mediation programs are funded in large part by any one source, the potential for control or even undue influence that a funding agency has over aspects of the mediation program is likely to increase. When the court system is the primary funding source and the mediation center also works closely with that system on a day-to-day referral basis, that potential is increased further still. Many mediation programs will successfully negotiate these choppy seas; others may have to sacrifice the integrity of their services to accommodate the wishes of the funder, thereby taking on considerable water.
The mechanisms through which mediation programs receive their funding are varied, but many states have formalized means to provide state support to community mediation. Whether the funding comes from court filing fees (as in California and Michigan) or a legislative appropriation administered through the state court (as in Minnesota and New York), many state governments place the responsibility for oversight of community mediation funds, and often of community mediation operations, in the purview of the courts.
Albie Davis’ evaluative report on community mediation in Massachusetts bears out our concerns regarding mediation’s dependence on the courts for funding. She found that funding agencies have a profound impact on the shape and approach of individual programs, or in her phrase, “form often follows funding.” (Davis 1986, p.35) Many courts that are funding mediation programs “are still focusing inappropriately on managing the vast majority of cases as if they were going to trial ” (Phillips 1997, p. 676).
One area where this is especially problematic is in written agreements. Among mediation’s numerous advantages is its ability to constructively address conflicts, respect each party’s perspective, empower individuals to take personal responsibility for conflicted relations, establish mutually beneficial dialogue, and reduce violence. Written settlements are often a by-product of these dynamics, but they are not in themselves a sufficient goal of community mediation.
In court-related cases, however, agreements often become the goal. It is not uncommon to hear practitioners and administrators in court-annexed programs speak of mediations without written agreements as “unsuccessful.” Moreover, if mediation programs and their mediators are subject to bureaucratic pressures to keep cases moving through the docket via a written agreement, they will likely pass that pressure on to the parties seated around the mediation table: “Mediators remind recalcitrant disputants that if they don’t come to agreement, the court may hold it against them.” (Beer, p. 212) Such a predisposition toward a written outcome contradicts a core value of mediation: party self-determination. (3)
When mediators push disputants to arrive at a written agreement of any sort–much less one that addresses specific issues of concern to an outside agent like the courts–the notion that disputants know best how to resolve their conflicts is sacrificed.
Another area where court system concerns may not be in the interest of community mediation is the turnaround time for case processing. One reason why courts initially embraced mediation was to help relieve their vastly overloaded dockets. Thus, Drake and Lewis (1988) noted that one of the things that court systems find attractive about mediation is the potential for a large number of cases to be processed in a relatively short amount of time. Unfortunately, we now know that in those states with the most experience in institutionalizing the mediation alternative within the court system (i.e., New York, Ohio, Michigan, Maine) mediation has largely failed to alleviate court congestion. (4)
Despite this poor track record, it is still common today to hear mediation advocates claim that mediation can, in fact, relieve the scheduling pressures faced by courts.
Whether mediation has been able to deliver on the promises made on its behalf or not, the pressures to do so remain and they negatively impact the quality of the mediation services provided. For example, the need to handle a large caseload has resulted in some court-annexed programs delivering services in what we would call a compromised manner:
“There are reported instances of 20-minute mediations in one city Too-rapid mediation erodes the underlying premise of mediation which is to permit disputants to sort out reasons for their conflict and fashion a mutually agreeable solution. They also raise the specter of assembly-line justice.” (Drake and Lewis 1988, p. 4)
Justice system funding of mediation is not necessarily to the detriment of community mediation. What must be realized, however, is the tremendous influence of court funding, for “whatever courts do with respect to extra-judicial dispute resolution resources impacts heavily on the growth of the [mediation] field” (Phillips 1997, p. 677). In some situations reliance upon court funding can have significant drawbacks, while in still others there is a likelihood that problems could easily develop. One of the more salient issues facing the field today is how to mitigate both the realized and the potential deleterious effects that reliance upon court referrals and funding may have on the mediation process itself, and on the larger mediation movement. Some of the national foundations that financially supported early or pilot community mediation initiatives have refocused their funding priorities in recent years. There is therefore some constricting of funding sources, meaning that even more centers are turning toward the courts, who may be either “saviors or saboteurs” (Press 1997).
The powerful influence of the courts can make or break players in the Alternative Dispute Resolution field. Contrast the explosive growth of private judging in California with the withering and dying of community dispute resolution programs ignored by the court in Florida (Phillips 1997, p. 677, n. 124).
Given today’s broad-based effort to institutionalize ADR in the courts and in the broader public sector on both the federal and state levels, there is no more appropriate time than now for mediation programs to develop institutional safeguards to reduce undue influence. This approach is predicated on our belief that the future development and directions of community mediation belongs not first to the funders, but to the larger communities that mediation centers serve.
Loss of autonomy to turn back inappropriate referrals
Many mediation programs associated with a court system receive cases that have been ‘mandated’ to mediation. Unfortunately, not all of these cases are appropriate for mediation (Coy and Hedeen, 1998). Many cases are referred to mediation not because it is the most appropriate service, but because it is less inappropriate than the court process. An increasingly familiar dilemma emerges: A justice system representing the strongest source of referrals and of funding for a mediation program refers cases that are inappropriate for mediation. Programs are torn between heeding the adage, “Never bite the hand that feeds you,” and staying true to their understandings of the nature and purposes of mediation. Where mediation relies heavily on court referrals, and is thus somewhat dependent on the courts for program viability, the dilemma facing mediation programs is particularly intense.
As McGillis and Mullen (1977) noted early on, “Decisions within the criminal justice agencies can have a profound impact on the vitality of the project. The Boston project’s dependence upon the court for referrals makes the project vulnerable…” (p. 48) Ten years later, Drake and Lewis (1988) echoed these same concerns: “In recent years, courts have come to play larger roles as sponsors and funders of what initially were often community-based programs. Older centers, seeking funding and formal case referral arrangements with the courts, have been giving up some autonomy.” (p. 3) More recently, in an evaluation of Michigan’s Court-sponsored mediation program, Mika (1996) recommended caution and ongoing vigilance to protect the autonomy of Michigan’s community mediation centers:
Conduct site-specific assessments of [community mediation] centers operating under the auspices of sponsoring or umbrella organizations, for the purpose of evaluating the relative autonomy of program development and decision-making, and the role of the umbrella. (p. 31)
Even for those mediation centers that have maintained an independent organizational locus or a broad base of funding support, such as the Community Dispute Settlement Program in Philadelphia, questions of autonomy remain critical:
Given the dependence of CDS on court referrals, how independent is it? We have slowly come to understand that CDS in fact lies within the boundary of the legal system, extending the borders of criminal justice so it can be more consensual and less adversarial. (Beer, p. 205-206)
Potential for coerced participation in mediation
While mediation is most often heralded as a voluntary process for all parties at all stages—that is, parties to a dispute may elect whether to use the service at all, and then may discontinue at any point—close ties to the court system complicate this mediation hallmark significantly. In their attempts to bring disputants to the mediation table, many centers affiliated with courts have employed coercive tactics that are hardly subtle. A 1976 study conducted for the Department of Justice found that,
[A number of programs] use very threatening letters to compel respondents to appear for mediation with the complainant. The typical closing line in the letter is, “Failure to appear may result in the filing of criminal charges based on the above complaint.” Official stationery is used and the district attorney or a similar official signs the letter. (McGillis and Mullen 1977, p. 63)
In the 1970’s, community mediation was a fledgling field whose viability was far from assured. Consequently, the application of such pressure was seen as necessary to ensure sizable caseloads (Sheppard et al. 1979), which would in turn demonstrate that mediation was here to stay. While anecdotal evidence suggests that many centers have toned down such language in an effort to provide disputants with a more balanced choice of whether to participate, many centers maintain this practice. A 1998 profile of a North Carolina program provides a good example:
The level of pressure applied to disputants to attend mediation sessions varies depending on the nature of the referral agency… Referral letters from the district attorney’s office have a stronger tone and are sent by the Center on official stationery from the district attorney’s office.” (McGillis 1998, p. 8) The letters close, “If you choose not to appear at the Dispute Settlement Center or if mediation is not successful, you must be in Criminal Court at [specific time and place].” (McGillis 1998, p. 9)
The number of programs using such threatening letters appears to have diminished (Buckner 1998), but coercion is delivered in other forms, too. In her reflections on the Philadelphia Community Dispute Settlement Program, Beer (1986) relates that “most who call the program have been given two choices: try dispute settlement or appear in court” (p. 211). Some would argue that this method of referral—which sometimes takes the form of a judge’s recommendation—upholds the tenet of voluntary participation, yet it seems clear to us that it relies more on the punitive ‘stick’ of adjudication than on the enticing ‘carrot’ of mediation. Indeed, for those disputants who might dismiss such a “recommendation” from a judge, it is not uncommon for court officials and mediation center staff to caution reluctant disputants that failure to participate in mediation will be taken into account if the case returns to court.
Mediation centers have relied on criminal justice system coercion not least because it brings results. Harrington (1985, p.121) found, for example, that “a mediation hearing was held in 86 percent of the cases referred by the criminal justice system where an arrest charge was involved. In those cases referred by criminal justice agents without charges pending … only 38 percent participated in a hearing.”
There is one final area relative to coercion and proximity to the courts that bears mentioning: victim-offender mediation (VOM). In the past few years, many community mediation programs have expanded the services they offer; some centers are now providing “restorative justice” services, including VOM. The potential for coercion is exacerbated in victim-offender mediation, with the worst potential for abuse occurring in cases involving youthful offenders. In some instances and jurisdictions, VOM may be offered to youths accused of criminal activity in lieu of prosecution and the establishment of a criminal record. The potential for coercion and abuse is further heightened by the fact that there tend to be fewer due process protections for youthful offenders. The voluntariness of participation in mediation is obviously compromised for the offender in such situations, and there may also be coercive pressure exerted upon the victim, too: “…[T]he fact that the state or its surrogate initiates the discussion may create pressure to take part” (Brown, 1994, p. 1266). Moreover, the rhetorical appeal of some victim-offender programs–especially those which focus on “reconciliation”—potentially add another layer of coercion over the victim, who may feel guilty if they were to refuse to participate (Brown, 1994).
At the same time, however, many other benefits may accrue to victims, offenders, and to the community as the result of VOM despite its potential for coercion. In the end, community centers will have to continue to struggle with how certain manifestations of VOM complement or contradict their particular mandate.
Potential to be found “at fault” is perceived to be faced by primarily one party
When a mediation program contacts the respondent in a court-related case, that party is likely to consider mediation as an extension of the court or the prosecutor’s office. Consequently, respondents frequently view mediation as being favorably oriented toward the complainant/victim, while being predisposed toward finding fault with the respondent. This is problematic for two, interrelated reasons.
For most community mediation centers in North America, neutrality is a fundamental element of mediation practice. Whether or not one subscribes to the notion of mediator neutrality, most would agree that community mediators must win the trust of both parties and mediation programs must be perceived to be even-handed in order to carry out a successful mediation. Yet first impressions run deep, and respondents are naturally defensive and on guard when first called to mediation. Consequently, respondent trust is hard to win and easy to lose whenever a mediation program initially appears to the respondent to be doing the work of the court system. Many mediation programs try to mitigate this perception of bias, but they also routinely find that they must assure respondents of mediator neutrality before they will agree to participate in mediation.
Second, a hallmark of good mediation practice is steering the disputants away from a simple search for the guilty party in order to find fault with that party. Mediators rewrite this age-old script by helping both parties see that they face a joint, or shared problem, and that they will each have to take some initiative toward resolving it.
Many cases are referred to mediation with the contingency that if no agreement is reached, the case may proceed immediately to court (DeJong 1983). When mediation becomes so tightly connected to the court structure, the presumption of favor toward the complainant may become explicit. The following example, drawn from a 1992 informational pamphlet on the mediation of criminal matters, outlines how mediators might convince defendants to participate:
Explaining that the case is a minor one which may nevertheless require a full trial, that the Defendant, if found guilty, would have a permanent public record of conviction, and that the Judge hopes that this can be resolved at this hearing serves to impress the Defendant with the more serious options of refusing mediation. [sic] (“Municipal Court Mediation”, p. 7)
Other elements of coercion generally reserved for the courts have been brought to bear in mediation, including the use of ink colors normally reserved for “official” warnings. For example, in New York City in the early 1980s, respondents received yellow “Request to Appear” notices with warnings in red ink about the possibility of criminal charges. Program staff referred to this notice as a “summons”, and these were provided to complainants with instructions to deliver them to respondents; complainants could request that a police officer accompany them to deliver the notice, and officers were mandated to oblige (Tarail 1998).
Intended or not, such attempts at powerful persuasion by the courts toward the respondent also tend to validate a complainant’s concerns and demonstrate that they are receiving appropriate attention and service from the court system. Thus intimate ties to the courts are problematic in the maintenance of programs’ perceived, if not actual, neutrality.
Misunderstanding of the legal status of mediation processes and outcomes
As a relatively young field operating mostly out of the public eye, community mediation is still too little understood by the general public. Where mediation has emerged and maintained its collective identity as a stand-alone nonprofit that happens to work with the courts, community members’ views of mediation are likely to reflect the multiple strands of the mediation movement’s history. On the other hand, in communities where mediation is housed within or very closely connected to the courts, it is common for the populace to closely associate mediation with the legal process. In fact, in our experience, disputants often inquire of mediation center staff whether the services may be accessed outside of court, with the presumption that they may not. Since some courts now require that cases be handled through ADR (or mediation specifically) before going to trial, this perception of mediation as a component of the justice system is not likely to disappear any time soon.
Even those centers that have maintained offices and funding outside the courts are not immune from being seen as an adjunct to the court system due to the high proportion of court referrals in their caseloads. In light of the prevalence of judges’ referrals in the caseload of Philadelphia’s CDS, founder Eileen Stief makes an insightful distinction that likely applies to many programs across the country, “We haven’t created an alternative to the courts. We’ve become an alternative to the courtroom.” (in Beer 1986, p. 206)
Given the close working association with the court system, many disputants fail to distinguish between mediated agreements and court decisions, especially with regard to courts of limited jurisdiction (i.e., small claims courts and conciliation courts) and housing courts. Confusion over the legal status and enforceability of mediated settlements is especially prevalent and is therefore of great concern both within and outside the justice system. This problem is exacerbated in those cities where mediation sessions are actually held in courthouses; in those cases, the lines between judicial processes and mediative processes are blurred further still, especially for disputants who are relatively new to mediation. Even though no mediators wear black robes, the following report indicates that they are nevertheless routinely mistaken for judges.
Disputing parties sometimes agree to mediation in the hope that it will impress the judge, or because they feel that this is a required part of the court process. Some of the disputants I interviewed in various mediation programmes [sic] even thought that they had been to court and seen the judge” (Merry 1989, p. 245).
One lesson that should be drawn from this discussion is the important educational role of the community center mediator, especially in courthouse settings. If mediators fail to help the disputants distinguish mediation from the courthouse setting at the outset, substantive misunderstandings about the nature of the mediation process will probably result. These misunderstandings are likely, in turn, to unduly influence the character, direction, tone, and outcome of the mediation itself. Moreover, we ought not assume that these problems will occur only when mediations are done inside a courthouse; other settings also require that mediators explain the unique role of mediation. In a culture heavily influenced by television, the reach of Judge Wapner and the “People’s Court” is no doubt longer than we might hope.
Loss of ‘community’ focus
As we stated at the beginning of this article, one of the primary strands in the knot that held the community mediation movement together during its first two decades was the desire to provide local citizenry with a neighborhood-based, grassroots alternative to the justice system. The building of not just parallel, but truly alternative approaches to the government-controlled and court-focused criminal justice system was a motivating factor for many. Community-building and empowerment were central to mediation’s mission in this approach (Davis 1991). These were inspirational and heady times. The successes and the shortcomings of the civil rights movement, the peace movement, and the environmental movement combined in a unique way to instill in those involved in the nascent conflict resolution movement a grounded hope that local citizens and their neighborhoods could reclaim control over the conflicts that affected their daily lives, mediate them in constructive ways, and eventually bring about social change in the process. Complementing this stance was a deep-seated commitment by some of the founders of the field to using mediation and other forms of conflict intervention to redress power differentials in social and political conflicts (Laue 1982).
Many people involved in community mediation continue to be motivated by this vision, even if their expectations have been scaled down, in many instances, significantly. In some quarters, disillusionment has set in due to community mediation’s inability to consistently deliver on its triple promises of self-determination, community empowerment and the democratization of justice. But it is not just this failure to create relatively independent, community-based alternatives that spawns disillusionment; more troublesome for many is the perceived co-optation of community mediation by the government in general, and the court system in particular.
As more and more programs affiliate closely with the courts and the government relative to both funding and case referrals, they gradually if inevitably lose some of their focus on community building and empowerment for political change. We agree with Albie Davis’ (1991) delineation of three distinguishing features of community mediation: 1) their use of volunteers, 2) who come from many kinds of backgrounds, and 3) who begin mediating after a relatively short amount of training. This is therefore a populist movement, one that relies on “living social change” (Boggs 1986, p. 139), where cultural transformations about conflict management are brought to fruition within neighborhoods and alternative institutions that depend upon lay involvement.
Nevertheless, in the late 1990s it is clear that both the length and the quality of mediation trainings received by community mediators should be increased. The trick is to do this without abandoning the field’s historic reliance upon ordinary citizens from all walks of life who volunteer their time and services and who lay claim to no extraordinary training or academic degrees. These volunteers are the heart and the soul of this movement for alternative, community-based approaches to conflict, a movement that deserves continued nurturing. This egalitarian tradition appears at greatest risk wherever mediation programs have put most of their eggs in the court system basket (Amsler 1998a). The courts are understandably an administrative system that is deeply committed to credentialing. But this credentialing, which often takes the form of advanced academic degrees, may too easily disenfranchise a community’s volunteer mediators. To cite but one example, the state of Florida requires both advanced academic degrees and extensive trial court experience for certain cases. The state’s Supreme Court requires that mediators in cases involving more than $5,000 must be former trial court judges or members of the Florida Bar with five years of experience (McGillis 1997, p. 69).
Community mediation is not alone in facing these dangers of co-optation. Although the co-optation pressures do not always emanate from the same governmental sources, other sectors of the ADR field face quite similar pressures. The environmental and public policy dispute resolution field has struggled since its beginning over the “proper” role and functions that multi-party public policy mediation should play in society. Is it, and the mediators who facilitate it, an agent for social and political change that helps low-power social groups get to the policy mediation table and influence the outcome (Susskind and Cruikshank 1987)? Or is it simply another one of many administrative mechanisms that ultimately dilutes the influence and power of community groups in policy making (Modavi 1996)?
Without a patchwork of funding sources, a broad network of referral agents, and a concerted effort to nurture the movement’s historic goals of empowerment, community mediation may actually lose the mantle of community altogether. This is already happening in various places around the country, where long-standing mediation programs are simply, but tellingly, removing the word ‘community’ from their names and titles (Amsler 1998b). Naming is not, in the final analysis, as important as the actual character of the mediation services provided and the manner in which they are provided. At the same time, we ought not dismiss the considerable power—both real and symbolic—that names and labels convey, especially on matters that are relatively unfamiliar to the general public (Said 1978). To name is to suggest conceptual limits and boundaries which may solidify over time and come to define that which is so named. Considered in this interpretive light, the renaming trend is cause for concern as it likely reflects an emergent redefinition of the boundaries of the field of community mediation, a redefinition we find unpromising and problematic.
Conclusion and Recommendations
The field of community mediation has developed rapidly, and its ties to the justice system bring both benefits and challenges to a field still experiencing its adolescent growing pains. While the courts helped provide the nourishment and shelter for many fledgling community programs, the same court systems may also unduly influence the field’s further development and in some instances even compromise its integrity. To meet their communities’ needs and expectations for conflict resolution services, mediation programs must safeguard their neutrality, ensure freedom from coercion, and gently yet firmly turn back attempts at judicial control and oversight. Even where coercion and partiality do not result from close ties to the courts, the mere appearance of court control may damage a program’s credibility and viability.
To maintain independence and stature community mediation programs must raise their visibility in the communities they serve. Many programs undertake sophisticated marketing plans to build awareness of their services, while others broaden their operations to include training and consulting in order to reach more individuals. For programs still in the planning stages it may be useful to delay the start-up of operations until broad community participation and ownership are established. Regardless of the specific efforts, initiatives like these are integral to the growth and success of community mediation.
As awareness and understanding of mediation increases, programs must take their place alongside other social and legal services as an option of first resort, not an afterthought. With this increased visibility and greater understanding of what mediation can and can not do, four things may follow: 1) more referrals at earlier stages of conflicts by police on the beat, religious leaders, counselors and therapists, community organizers, probation officers, and social workers; 2) decreased dependence on the court system for cases; 3) increased respect for mediation; and 4) greater and more reliable funding sources. All of this will serve to solidify the community’s base of support for mediation programs, just as the work of community organizations and volunteers has been critical to the survival of the over six-hundred centers operating today.
References
Adler, Peter. 1993. “The future of alternative dispute resolution” in Merry, Sally and Milner, Neal, eds., The Possibility of Popular Justice. Ann Arbor: University of Michigan.
Amsler, Terry. 1998a. “Trends and Challenges in Community Mediation,” NIDR News, 5 (2).
Amsler, Terry. 1998b. Director, Oregon Dispute Resolution Commission. Telephone interview with Timothy Hedeen, November 10, 1998.
Auerbach, Jerold S. 1983. Justice Without Law? Resolving Disputes Without Lawyers. New York: Oxford University Press.
Beer, Jennifer E. 1986. Peacemaking in Your Neighborhood: Reflections on an Experiment in Community Mediation. Philadelphia: New Society Publishers.
Bergman, Edward J. and Bickerman, John G., eds. 1998. Court-Annexed Mediation: Critical Perspectives on Selected State and Federal Programs. Bethesda, Maryland: Pike and Fischer/American Bar Association.
Boggs, Carl. 1986. Social Movements and Political Power. Philadelphia: Temple University Press.
Brown, Jennifer Gerarda. 1994. “The Use of Mediation in Criminal Cases: A Procedural Critique,” Emory Law Journal, 43.
Buckner, Thomas. 1998. Principal Court Analyst, New York State Community Dispute Resolution Centers Program. Telephone interview with Timothy Hedeen, November 9, 1998.
Clarke, Stevens H., Valente, Jr., Ernest, and Mace, Robyn R. 1992. Mediation of Interpersonal Disputes: An Evaluation of North Carolina’s Programs. Chapel Hill, N.C.: Institute of Government, The University of North Carolina.
Community Dispute Resolution Centers Program Annual Report, 1997-1998. 1998. Albany, New York: State of New York Unified Court System.
Cook, Royer F., Roehl, Janice A., and Sheppard, David I. 1980. Neighborhood Justice Centers Field Test: Final Evaluation Report. Washington, DC: Department of Justice.
Coy, Patrick G. and Hedeen, Timothy. 1998. “Disabilities and Mediation Readiness in Court-Referred Cases: Developing Screening Criteria and Service Networks,” Mediation Quarterly, 16 (2).
Danzig, Richard. 1973. “Toward the Creation of a Complementary, Decentralized System of Criminal Justice,” Stanford Law Review, 26: 1-54.
Davis, Albie. 1986. Community Mediation in Massachusetts: A Decade of Development, 1975-1986. Salem, Massachusetts: Administrative Office of the District Court.
Davis, Albie. 1991. “How to Ensure High-Quality Mediation Services: The Issue of Credentialing” in Community Mediation: A Handbook for Practitioners and Researchers, Duffy, Karen Grover, et. al. eds., New York: Guilford.
DeJong, William. 1983. The Use of Mediation and Arbitration in Small Claims Disputes. Washington, DC: Department of Justice.
Drake, William R. and Lewis, Michael K. 1988. “Community Justice Centers—A Lasting Innovation,” Dispute Resolution Forum: The Status of Community Justice. December.
Fn’Piere, Patrick, ed. 1991. Community Dispute Resolution Manual: Insights and Guidance from Two Decades of Practice. Washington, DC: National Institute for Dispute Resolution.
Harrington, Christine. 1985. Shadow Justice: The Ideology and Institutionalization of Alternatives to Court. Westport, Connecticut: Greenwood Press.
Laue, James H. 1982. “Ethical Considerations in Choosing Intervention Roles.” Peace and Change 8 (2/3): 29-42.
McEwen, Craig A. and Maiman, Richard A. 1981. “Small Claims Mediation in Maine: An Empirical Assessment,” Maine Law Review, 33: 237-267.
McGillis, Daniel. 1998. Resolving Community Conflict: The Dispute Settlement Center of Durham, North Carolina. Washington, DC: National Institute of Justice.
McGillis, Daniel. 1997. Community Mediation Programs: Developments and Challenges. Washington, DC: National Institute of Justice.
McGillis, Daniel and Mullen, Joan. 1977. Neighborhood Justice Centers: An Analysis of Potential Models. Washington, DC: Department of Justice.
McKinney, Bruce C., Kimsey, William D., and Fuller, Rex M. 1996. “A Nationwide Survey of Mediation Centers,” Mediation Quarterly. 14 (2): 155-166.
Merry, Sally. 1989. “Myth and practice in the mediation process” in Wright, Martin and Galaway, Burt, eds. Mediation and Criminal Justice: Victim, Offenders, and Community. Newbury Park, California: Sage Press.
Mika, Harry. 1996. An Evaluation of Michigan’s Community Dispute Resolution Program. Lansing, Michigan: Michigan Supreme Court State Court Administrative Office.
Modavi, Neghin. 1996. “Mediation of Environmental Conflicts in Hawaii: Win-Win or Cooptation?” Sociological Perspectives, 39 (2).
“Municipal Court Mediation” pamphlet, Affiliate Outreach
National Association for Community Mediation 1998 Membership Directory. 1998. Washington, DC: NAFCM.
NIDR, 1991. Community Dispute Resolution Manual: Insights and Guidance from Two Decades of Practice. Washington, D.C: National Institute of Dispute Resolution.
Phillips, Barbara A. 1997. “Mediation: Did We Get It Wrong?” Willamette Law Review. 33:605: 649-702.
Pipkin, R. M., and Rifkin, J. 1984. “The Social Organization in Alternative Dispute Resolution: Implications for Professionalization of Mediation,” Justice Systems Journal, 2, 204-227.
Press, Sharon. 1997. “Institutionalization: Savior or Saboteur of Mediation?” Florida State University Law Review 24.
Said, Edward. 1979. Orientalism. New York: Vintage Books.
Salem, Richard. 1985. “The alternative dispute resolution movement: An overview,” Arbitration Journal, 40 (3): 3-11.
Sheppard, David I., Roehl, Janice A., and Cook, Royer F. 1979. National Evaluation of the Neighborhood Justice Centers Field Test—Interim Report. Washington, DC: Department of Justice.
Shonholtz, Raymond. 1993. “Justice from another perspective: The ideology and developmental history of the Community Boards Program” in Merry, Sally and Milner, Neal, eds. The Possibility of Popular Justice. Ann Arbor: University of Michigan.
Susskind, Lawrence, and Jeffrey Cruikshank. 1987. Breaking the Impasse: Consensual Approaches to Resolving Community Disputes. New York: Basic Books.
Tarail, Michael. 1998. Director, Court Dispute Referral Center, New York City. Telephone interview with Timothy Hedeen, November 13, 1998.
End Notes
1. The authors contributed equally to the research and writing of this article, and extend their gratitude to Terry Amsler, Tom Buckner, and Michael Tarail for sharing their insights and reflections. We also thank Albie Davis, Eileen Pruett, and two anonymous referees for their helpful reviews and comments.
2. It is an unfortunate fact that some program directors function as gatekeepers in terms of which members of a community are welcomed as volunteer mediators. Put bluntly, research has shown that some directors let in people who look quite a lot like them, turning others away. In these instances, the mediation program is clearly not responding to the dispute resolution needs of its community, despite its original programmatic design. For more on this phenomenon, see Pipken and Rifkin (1984).
3. The fundamental importance of self-determination in mediation can be neither overstated nor overlooked. In the Model Standards of Conduct for Mediators, the very first standard reads: “A mediator shall recognize that mediation is based on the principle of self-determination by the parties.” These standards were promulgated and adopted by a broad group of mediation organizations, including the American Arbitration Association, the American Bar Association, and the Society of Professionals in Dispute Resolution.
4. For illustration, consider the experience of New York, where over 42,000 cases were handled in a recent year by the statewide network of community mediation centers. While this may initially appear impressive, by some estimates even this sizable caseload represents only one-and-a-quarter-percent of the state court system’s docket.
5. While we are primarily concerned about the deleterious effects these misunderstandings may have on the community mediation process, it should be noted that this problem cuts more than one way. For example, many parties come to court expecting protection of their legal rights and are then pressured or forced into mediation. If their case is then mediated by a community mediator whose training and orientation is not focused on preserving legal rights, their sense of justice may be easily compromised.
6. Most community mediation center training programs require between 24-40 hours of training, followed by limited amounts of mentoring by experienced mediators. It is difficult to add very many more hours to the training programs themselves and still attract a diversified field of trainees who are broadly representative of a community. But a more substantial mentoring process, where trainees observe mediations and analyze mediator tactics with experienced mediators, leading to co-mediations with mentors before finally mediating on one’s own would likely not be too onerous. The scheduling of such sessions is more flexible for the trainees and the “live laboratory” experience tends to motivate trainees to want to stick with the mentoring program.
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