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
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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
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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
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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