Vol. 4 No. 5 (May, 1994) pp. 67-70

THE POSSIBILITY OF POPULAR JUSTICE: A CASE STUDY OF COMMUNITY MEDIATION IN THE UNITED STATES by Sally Engle Merry and Neal Milner (Editors). Ann Arbor: The University of Michigan Press, 1993. 388 pp.

Reviewed by Marvin Zalman, Criminal Justice Program, Wayne State University .

When Mrs. Hibbens, in 1640 Puritan Boston, submitted a carpenter's fee dispute to arbitration she followed a church injunction to avoid that "defect of brotherly love," litigation. But her obdurate and public rejection of the arbitration award moved the dispute into the First Church of Boston and became a contest between community solidarity and a prickly individual sense of right. Although Mrs. Hibbens' excommunication was probably no death sentence, it was surely a severe social, psychic and possibly a commercial shock to the Hibbens family. Her expulsion "reasserted consensual authority and thereby preserved the community against those whose self-assertedness would subvert it" (Auerbach 1983, 25).

When Alfred and Gladys Sands, 40 year residents of a San Francisco neighborhood, noticed commercial supplies in a new neighbor's garage in 1984, they turned to the San Francisco Community Boards (SFCB), the subject of THE POSSIBILITY OF POPULAR JUSTICE, for mediation. The Sands and their new neighbors, Ann and Paul Sorenson, had never met prior to the mediation. They did not attend the same church, and shared no experiences, commitments, aspirations or ideologies that define community. The couples were separated by age, race, and attachment to place. They could agree only on a desire for a quiet neighborhood, which, Mr. Sands insisted, could only be achieved by Paul Sorenson totally abandoning all commercial activity. When the mediation failed Sorenson turned to the state, in the guise of the San Francisco Planning Board, and discovered that officially sanctioned, preexisting law allowed him to store 25 percent of his electrical contractor supplies at home and to maintain a "paperwork office." With this, "as far as he was concerned, the dispute was resolved" (Judy Rothchild, "Dispute Transformation," in POSSIBILITY, p. 313).

THE POSSIBILITY OF POPULAR JUSTICE is a multifaceted examination of one of the best known community dispute resolution programs in the Unites States, the San Francisco Community Boards. Its fifteen chapters are organized into three parts authored by seventeen contributors. The volume is based on a research project sponsored by the Hewlett and Ford Foundations, which was carried out between 1981 and 1983 under the leadership of the late Frederic L. DuBow, who prepared a monograph-length report. Several chapters draw on his material and three are coauthored with him. The data for the project include records of 1,576 cases handled between 1977 and 1982, in-depth interviews of staff members, observational studies of 40 cases, a community survey, interviews with volunteers before and after training, and several other interviews and ethnographic investigations.

The four essays in Part 1, by Sally Merry, Neal Milner, Peter Adler and Kem Lowry, all combining interpretive depth and richness of detail, provide a superb overview of the concept and the practice of popular justice. Merry's stand-alone essay places the SFCB and other American community mediation programs in a worldwide perspective; Adler explores the social transformation goal of some community mediation programs; and Lowry reviews the evaluation literature. These reviews sensitively probe the aspirations and shortcomings of community mediation. A reader new to dispute resolution can read these chapter as a definitive overview of community mediation; more experienced readers should not skip over this part for they will benefit both from the authors' insights and from their encyclopedic review of existing work.

Part 2, the heart of POSSIBILITY, can in a sense be seen as an argument between Raymond Shonholtz -- founder and guru of SFCB -- and the evaluators over its contested meaning. I am not sure this was intended because Shonholtz' chapter on the SFCB'S ideology and history does not come at the end of this part and does not appear to have

Page 68 follows:

been designed to respond to critics. Nevertheless, their differences are apparent to this reviewer.

Judy Rothchild's chapter on dispute transformation, the longest in the book, provides a detailed and fascinating examination of one case from the Intensive Case Study that went to a hearing and failed. It is a reminder that every process, no matter how beneficent or benign, has iatrogenic effects. More importantly, Rothchild raises a disturbing question about the reach (if not the validity in some cases) of the emphasis that the SFCB places on viewing all disputes as problems in interpersonal communication rather than as social or legal disputes. This in turn leads to the rather startling conclusion that the SFCB takes an apolitical view of community "despite the rhetoric of empowerment associated with community mediation."

This view is partly corroborated by DuBow and Craig McEwen's exhaustive review of the project's data. On the one hand the SFCB has "been unusually successful in following through on its vision by drawing in a wide array of neighborhood conflicts involving people of varied socioeconomic status and ethnicity" (p. 166). Simultaneously, the SFCB has resisted transforming disputes in ways that might have politicized them.

Even more contentious is the chapter by Douglas Thompson and DuBow, which drew on an apparently controversial field report by Oscar Goodman and Nancy Hanawi. The chapter's ironic conclusion is that although SFCB was committed to democratic empowerment, its authority remained hierarchical and policy making was centralized. The image of SFCB identified strongly with the persona, opinions, and commitments of Shonholtz. Thus, the SFCB never did transform neighborhoods; instead the goals of the SFCB were transformed from community empowerment to service providing of a fairly traditional sort.

Shook and Milner rightly note that training goes beyond technology transfer and involves a program's ideology. Their illuminating but brief comparative review of training in SFCB, the Mennonite Conciliation Service and the Honolulu Neighborhood Justice Center, in contrast to a traditional Hawaiian family oriented mode of dispute resolution, challenges notions that training is essential to dispute resolution. They recognize the incredible power of American individualism and conclude that the "SFCB ideology not only critiques, but also shares, much of the dominant U.S. political ideology" (p. 261). Because of this, its training modes "may actually take away power from other cultures or subcultures within the United States, by slighting indigenous expertise and resources or by stopping more spontaneous, collective, possibly less orderly responses to a problem" (p. 262).

DuBow and Elliot Currie's chapter on mediation and intimate violence adds little because the SFCB handled few such cases. It describes the police response to domestic violence in one neighborhood, recites the strong feminist criticism of mediation in cases where violence has been used, and goes on to speculate that mediation can have a place in the context of a comprehensive strategy to deal more effectively with domestic violence. Idealistic speculation may provide a blueprint for a better age but does little to illuminate more immediate possibilities.

Raymond Shonholtz' review of the history and ideology of SFCB is revealing in several senses. It displays, for example, motivating obsession with the formal legal system; the SFCB was created in opposition to the formal law (pp. 202-3) and "formal justice has systematically sought to limit the capacity of informal community-justice processes and to restrict and screen their caseloads" (p. 234). His essay is a polemical defense of SFCB against the actual and perceived criticism of several authors. Thus, he argues that "SFCB never took as its mission the direct restructuring of political power, economic relationships, or issues of social conditions...." (p. 216). Perhaps so, but the social transformation goal of SFCB, at least INDIRECTLY, has been its hallmark and the various authors have not created this mission out of whole cloth. The statements in his essay tend to be

Page 69 follows:

positive, promotive, broad, and conclusory. He perhaps inadvertently belittles the analyses he disagrees with as "a form of intellectual mining, where things are broken apart for study and for the purpose of learning patterns and making comparative critique (p. 201). He instead provides a synthesis, a "comprehensive working picture" that will enhance "the reader's appreciation of the enterprise of the SFCB program, its vision and accomplishments." (p. 201). This essay reveals not only the pride and protectiveness of a parent but also the necessary mind set of a founder and sustainer.

The final set of essays in part 3 move beyond a specific analysis of the SFCB in attempts to answer the question posed by the volume's title. Is popular justice possible? Most of the answers are disheartening not for proponents of local mediation programs but for those who would seek in such programming a transformation of the law or of society. Barbara Yngvesson offers a rich and disturbing analysis of mediation in the context of the ideology of community by observing that mediator training in the SFCB created (whatever was intended) insiders who constitute an elite community that "undermin[es] the potential for collective activity among the parties." (p. 387). Christine Harrington adds an interesting perspective by placing conflict resolution in the context of other community organizing efforts such as community policing, governance and direct action, although Shonholtz's caveat about the formal goals of SFCB should be kept in mind. Harrington concludes that SFCB is a conservative form of neopopulism and community action, fitting its era, because by emphasizing neutrality and individualism "it fails to advocate group interests" (p. 429) and therefore blocks community mobilization for redistributive political goals. This may be an accurate perception; whether it is a fair criticism or a criticism at all depends solely on the politics of the observer. Laura Nader's feisty critique overlaps with Harrington's; she contrasts the SFCB to a "genuine," short-lived, grass roots, local lobbying effort, San Francisco Community Action. In the SFCB "ideology of harmony," Nader sees a blunting of adversarial and collective means by which those in lower social strata may attain justice. Finally, Peter Fitzpatrick, in a turgid essay unmistakably entitled "the impossibility of popular justice," debunks the "natural" community and community justice as a form of myth and suggests that the law can be all things and can (mythically?) encompass the stated goals of community justice. Since his essay is, to this reviewer, a frustrating mixture of insightful and incoherent statements, I cannot be sure I have it right.

My favorite essay in this book of strong essays is "The Paradox of Popular Justice" by John Paul Lederach and Ron Kraybill, both actively involved in the creation and running of the Mennonite Conciliation Service. Several observers and critics note that mediation can be seen as a form of law. But Lederach and Kraybill's penetrating analysis of the Mennonite dispute resolution process display this point in detail. First, by stressing that mediation is often possible only by holding the substantive issues in abeyance while promoting process, they offer a view of mediation as DUE PROCESS rather than as an alternative. Mediation is far from a spontaneous process. This is acceptable to the practice of dispute resolution, but their next step is very much like the heart of legal reasoning. Where an issue seems cut-and-dried to one side (e.g., women cannot be ordained as minsters according to the Mennonite interpretation of the Bible), the only way to move beyond a no-mediation outcome (and thus to split the disputing congregation) is to "reframe that issue as a procedural one that renders it negotiable and up for discussion through a process based on dialogue." Such "facilitated procedures of dialogue produces new insight into biblical principle and into past misunderstandings and interactions" (p. 368). This is more or less the core of how legal doctrine develops in the judicial process and is the standard interpretation of the appellate process, with legal fundamentalists and originalists occupying a marginal position.

This insight into community mediation provided by Lederach and Kraybill thus leads to a further paradox. To the extent that mediation is genuinely a product of the community and of

Page 70 follows:

community norms (to the extent that this is possible in the United States), it must be a conservative process in that it can only reify and not transform those norms. A dialogue that can facilitate new understandings opens up the unnerving prospect to a traditionalist that established norms can be undermined by that same process (rather than overturned or crushed by external forces). If mediation is seen to have this capacity, then it becomes a form of lawmaking with the capacity to upset established values.

THE POSSIBILITY OF POPULAR JUSTICE is essential reading for scholars and practitioners of community mediation and should be very high on the list of anyone seriously concerned with dispute resolution in general. The book offers many rewards for the advanced student of law and society studies.

REFERENCE

Auerbach, Jerold S. 1983. JUSTICE WITHOUT LAW? RESOLVING DISPUTES WITHOUT LAWYERS. Oxford: Oxford University Press.


Copyright 1994