MENU TITLE: Community Mediation Programs: Developments and Challenges. Series: Issues and Practices NIJ Published: July 1997 185 pages 406,218 bytes U.S. Department of Justice Office of Justice Programs National Institute of Justice Community Mediation Programs: Developments and Challenges by Daniel McGillis July 1997 ------------------------------ U.S. Department of Justice Office of Justice Programs 633 Indiana Avenue N.W. Washington, DC 20531 Janet Reno Attorney General U.S. Department of Justice John C. Dwyer Acting Associate Attorney General Laurie Robinson Assistant Attorney General Jeremy Travis Director, National Institute of Justice ------------------------------ Justice Information Center World Wide Web Site http://www.ncjrs.org ------------------------------ Issues and Practices in Criminal Justice is a publication series of the National Institute of Justice. Each report presents the program options and management issues in a topic area, based on a review of research and evaluation findings, operational experience, and expert opinion on the subject. The intent is to provide information to make informed choices in planning, implementing, and improving programs and practice in criminal justice. ------------------------------ National Institute of Justice Jeremy Travis Director Cheryl Crawford Program Monitor ------------------------------ Prepared for the National Institute of Justice, U.S. Department of Justice, by Abt Associates Inc., under contract #OJP-94-C-007. Points of view or opinions stated in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice. ------------------------------ The National Institute of Justice is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance, the Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. ------------------------------ NCJ 165698 ------------------------------ Table of Contents Attorney General's Foreword Foreword Acknowledgments Preface Endnotes Executive Summary Overview of Developments Diversification of Dispute Resolution Services Resources for Program Design, Support, and Funding The Impact of Programs on the Quality of Justice and Related Measures Major Issues Confronting the Community Mediation Field Observations Regarding the Current Status of the Community Mediation Field Chapter 1: An Overview of Developments in the Community Mediation Field A Brief History of the Evolution of Community Mediation Programs Factors Influencing the Evolution of Community Mediation Programs A Growing Concern with Limits on Access to Justice Arising from Court Case Backlog, Delay, and Costs The Reduced Role of Traditional Informal Dispute Resolvers (Such As Extended Families) Due to Increased Mobility and Urbanization Changing Perceptions Regarding the Appropriateness and Effectiveness of Court Case Processing versus Alternative Dispute Processing Methods An Increased Interest in the Role of Community Members in Resolving Conflicts The Ebb and Flow of Federal and Foundation Funding to Support Innovations and the Transition to Local Funding Support The Role of National, State, and Local Organizations in Fostering or Inhibiting Program Growth Major Types of Community Mediation Programs Government-Sponsored Mediation Programs Community-Based Mediation Programs Dispute Resolution Mechanisms Conciliation Mediation Arbitration Facilitation Program Staffing, Community Mediators, and Program Budgets Program Staffing Community Mediators Program Budgets Major Trends in the Community Mediation Field Diversification Specialization The Replication of Dispute Resolution Mechanisms in Institutional Settings The Use of Community Mediation Programs as Training Resources Expanded Roles in Handling Public Disputes Expanded Roles in Handling Intergroup Conflicts An Increased Concern with Quality Control and Qualifications Institutionalization Key Issues for Community Mediation Programs Conclusion Endnotes Chapter 2: The Diversification of Dispute Resolution Services Criminal Case Processing Civil Case Processing School-Based Dispute Resolution Related Dispute Prevention Initiatives Domestic Relations/Custody Dispute Resolution Intergroup Dispute Resolution Public Policy Disputes Victim-Offender Mediation Efforts Additional Areas of Application Comprehensive Statewide Dispute Resolution System Conclusion Endnotes Chapter 3: Establishing and Refining Community Mediation Programs: Resources for Program Design, Support, and Funding Support From National Organizations for Community Mediation Programs The Role of National Organizations in the Initial Growth of Community Mediation Programs Current Major Sources of National Support National Association for Community Mediation American Bar Association National Institute for Dispute Resolution Society of Professionals in Dispute Resolution American Arbitration Association National Institute of Justice Academy of Family Mediators National Conference on Peacemaking and Conflict Resolution Statewide Program Assistance State Associations of Programs New York State Association of Community Dispute Resolution Centers Massachusetts Association of Mediation Programs and Practitioners Mediation Network of North Carolina Statewide Governmental Programs That Assist Community Mediation Programs Statewide Governmental Programs Designed Specifically to Assist Community Mediation Programs Community Dispute Resolution Centers Program of the Unified Court System of the State of New York Community Dispute Resolution Program of the Michigan Supreme Court Massachusetts District Court Mediation Program Statewide Governmental Programs That Serve a Variety of Forms of Dispute Resolution Programs, Including Community Dispute Resolution Efforts Ohio Commission on Dispute Resolution and Conflict Management Center for Alternative Dispute Resolution of the Supreme Court of Hawaii Local Programs Providing Extensive Technical Assistance and Training Conclusion Endnotes Chapter 4: Assessing the Impact of Programs on the Quality of Justice and Related Measures Assessing the Quality of Justice Major Available Measures of the Quality of Justice Dispute Resolution Rates Disputant Perceptions of the Process and Agreements Satisfaction with the Process and with Community Mediators Perceptions of Fairness of the Process Satisfaction with the Terms of the Agreement Measures of the Stability of Dispute Settlement Over Time Conclusion About Research Assessing Quality- of-Justice Measures Assessing Program Impacts on Case Processing: Efficiency and Costs Case Processing Time Court Caseload Impact Justice System Cost Impact and Program Costs Conclusion Endnotes Chapter 5: Major Issues Confronting the Community Mediation Field Ensuring Quality Control in Dispute Resolution Services The Debate Regarding Qualifications Ethical Standards of Conduct The Challenge of Obtaining and Maintaining Adequate Funding Support Developing Working Relationships with the Local Police Police Referrals to Mediation Programs Assisting in Police/Community Problem-Solving Efforts Delivering Conflict Management Skills Training to Police Personnel Turf Concerns: The Ebb and Flow of Collaboration and Competition for Markets Concerns Regarding the Appropriateness of Certain Types of Cases for Mediation/Arbitration Cross-Cultural and Gender Issues in Mediation Increasing International Dimensions of the Mediation Field Conclusion Endnotes Chapter 6: Observations Regarding the Current Status of the Community Mediation Field The Current State of the Field Areas In Which Initial Expectations Were Exceeded The Field Has Survived and the Number of Programs Has Grown Dramatically Programs Have Markedly Diversified the Range of Their Services Impressive State-Level Support Mechanisms for Programs Have Emerged Nonprofit Community Mediation Programs Are Increasingly Prevalent Comparative Research Findings Regarding Dispute Resolution Processes Are Impressive The Field Has Increasing International Dimensions Areas In Which Expectations Were Not Exceeded Public Awareness of Community Mediation Continues To Be Relatively Low Funding for Individual Programs Continues To Be Low and Precarious Program Caseloads Are Lower Than Initially Expected and Impacts on Justice System Caseloads Are Lower Than Anticipated Programs Tend To Be Concentrated in a Relatively Small Number of States Needs for the Community Mediation Field in the Coming Years The Need for Increased Public Education Regarding Community Mediation The Need for Increased Program Funding The Need for Improving Intake and Referral Mechanisms and Increasing Caseloads The Need for Enhanced Training of Program Directors The Need for Further Research to Improve Understanding of Program Processes and Outcomes The Need for Additional Attention to Underserved States Conclusion Endnotes Exhibits Exhibit 1: Community Mediation Programs: Number of Programs Begun per Year Since 1969 Exhibit 2: Community Mediation Programs: Growth in Numbers of Programs Exhibit 3: Community Mediation Programs: Distribution of Numbers of Staff Exhibit 4: Community Mediation Programs: Distribution of Numbers of Volunteer Mediators Exhibit 5: Community Mediation Programs: Distribution by Size of Annual Budget Exhibit 6: Dispute Resolution Rates for Five Florida Mediation Programs Exhibit 7: Percentages of Defendants Paying Settlements in Maine Small Claims Cases Exhibit 8: Model Standards of Conduct for Mediators Appendixes Appendix A: Sources of Additional Information Regarding Dispute Resolution Mechanisms Appendix B: Selected Resources for Community Mediation Programs Appendix C: Research Questions Requiring Attention ------------------------------ Attorney General's Foreword Some amount of conflict is inevitable in every society. The key question is how that conflict gets resolved. America's community mediation programs provide an important piece of the answer in this country. Through community mediation programs, we can help each other build and strengthen our communities and neighborhoods by working to help individuals and communities solve their own problems and resolve their own disputes. As this report, Community Mediation Programs: Development and Challenges, describes, America's community mediation programs have effectively resolved conflicts of all sorts-ranging from everyday disputes among neighbors, relatives and acquaintances, to potentially violent conflicts between youth gangs, to significant public policy issues within communities. These mediation efforts also continue to bring conflict resolution education into our schools. Community mediation programs can achieve these promising results by involving the community itself. Through trained volunteers giving their time, energy and experience, community mediation works to make communities better places. The Department of Justice has been involved in the community mediation movement since its early days. We are releasing this report to encourage communities across the country to develop new programs and refine existing ones. I hope this can be a useful tool to learn from each others' experiences and to encourage creative thinking about how to meet citizen needs for rapid, accessible and effective dispute resolution. The growth of community mediation programs shows how good things can happen when we combine local initiative, volunteerism, and common sense to deal with pressing national problems. Janet Reno Attorney General ------------------------------ Foreword From modest beginnings, community mediation programs have spread widely across the nation. They have been shaped by the energy of thousands of dedicated program staff members and volunteer mediators. Over the years, programs have greatly diversified the range of services that they provide, and numerous national, State, and local institutions have emerged to help support such programs. The National Institute of Justice has been involved with the community mediation field since its inception in the 1970s. In 1977, the National Institute published Neighborhood Justice Centers: An Analysis of Potential Models and also supported the development and evaluation of experimental community mediation programs in Atlanta, Kansas City, and Los Angeles. Since that time the National Institute has funded a variety of studies dealing with important issues in this field. This report examines developments in the community mediation field over the past two decades and reviews the field's major achievements and ongoing challenges. The evolution of the field, the diversification of services, and major resources available to the field are reviewed. Research findings dealing with community mediation are also examined. Many observers have suggested that the United States faces increasing conflicts in coming years due to growing cultural, linguistic, and ethnic diversity in the nation and associated tensions; stresses induced by rapid economic change; and related factors. Community mediation programs have an important role to play in helping to prevent and resolve the many interpersonal, intergroup, and public policy disputes that confront our society. Such programs have sought to develop sophisticated, pragmatic mechanisms to take on this idealistic task. The National Institute of Justice hopes that this report can contribute to the development and refinement of community mediation programs. Jeremy Travis Director National Institute of Justice ------------------------------ Acknowledgments The draft version of this report was reviewed by an extremely talented group of leaders in the community mediation field, including: o Mr. Scott Bradley, Executive Director of the Mediation Network of North Carolina; o Mr. Thomas F. Christian, Coordinator of the Community Dispute Resolution Program for the New York State Unified Court System; o Ms. Albie Davis, Director of Mediation for the Massachusetts District Courts; o Mr. Thomas Quinn, Visiting Fellow at the National Institute of Justice; and o Ms. Melinda Smith, Executive Director of the New Mexico Center for Dispute Resolution. Mr. Bradley and Ms. Smith are also the cochairs of the National Association for Community Mediation. The comments provided by all of these project advisory board members are deeply appreciated. In addition, the National Institute of Justice monitor for this project, Ms. Carolyn Peake, provided extremely valuable assistance and insights throughout the course of work on this report. Her assistance in all phases of this project is greatly appreciated. Other National Institute of Justice personnel, including Ms. Cheryl Crawford and Ms. Virginia Baldau, have also provided very valuable assistance with this project and with work on my earlier NIJ reports dealing with the community mediation field. Also, special thanks to Melissa Brodrick at the Massachusetts Association of Mediation Programs and Practitioners for providing the cover photograph on such short notice. The contributions of a number of my colleagues at Abt Associates in the final production of the report are also deeply appreciated. I have benefited greatly from the superb and patient support I received from Mary- Ellen Perry and Karen Minich, as well as the extra efforts of Jocelyn Page, Jill Kateman, and Angela Allegro, who helped get this report through its final phase. ----------------------------- Preface Community mediation programs have been developed in hundreds of communities across the United States, and their volunteer community mediators grapple with many of their communities' more troubling conflicts. Thomas Fee, a former senior staff member of the National Institute for Dispute Resolution, has noted: Nothing in dispute resolution has been more daring- -and audacious--than the creation of scores of community justice centers. Daring: It took courage to launch on a shoestring a grass-roots imperfectly understood service housed typically in a storefront or low-rent office building. Audacious: It was indeed audacious to claim expertise in helping to settle conflicts when the accepted wisdom was that the folks at the courthouse had a monopoly on dispute resolution. But the daring and audacity of the pioneers who established community justice centers seems to be paying off.[1] This report reviews the evolution of the community mediation field, examines the contributions of innovative dispute settlement programs to the administration of justice, and explores major issues confronting the field. The report's intended audience is diverse and includes community mediation program administrators, program staff members, volunteer community mediators, program planners, legislators, policymakers in other governmental programs that are relevant to the mission of community mediation, and potential community mediation program funders in foundations and government. Chapter 1 explores the history of community mediation programs, factors influencing their growth, the major types of programs in operation, and major trends in the field. Chapter 2 examines the striking diversification of services provided by programs. In Chapter 3, resources for program design, support, and funding at the national, State, and local levels are reviewed. These resources can provide assistance to policymakers and practitioners who are establishing or refining community dispute resolution programs. Chapter 4 examines the impact of programs on the quality of justice and case processing efficiency. Chapter 5 discusses critical issues confronting the community dispute resolution field, including professionalization, funding problems, turf conflicts, debates regarding the purposes of dispute resolution services, and related issues. Chapter 6 presents summary observations regarding the current status of the community mediation field. Major areas in which initial expectations for the field were exceeded and areas in which they were not are reviewed. The chapter then discusses possible measures that national, State, and local leaders can take to address challenges confronting the field. The report's appendixes provide selected resource materials. Information for this report was obtained from a variety of sources, including: (1) a review of the literature in the field, (2) an examination of materials obtained from programs across the country, (3) discussions with experts in the field, and (4) site visits to innovative programs in California, New York, and North Carolina. All three States have been leaders in the community dispute resolution field, and each has a large array of programs. In addition, this report builds on previous research by the author in the dispute resolution field, including the preparation of two earlier reports for the National Institute of Justice. The first, Neighborhood Justice Centers: An Analysis of Potential Models (with Joan Mullen), was prepared in 1977 when the community dispute resolution field was experiencing a very energetic infancy. The National Institute of Justice subsequently sponsored experimental neighborhood justice centers in Atlanta, Kansas City, and Los Angeles. Community Dispute Resolution Programs and Public Policy was prepared in 1986 and examined roughly a decade of program experience across the nation. This report examines more than two decades of experience with community mediation programs. It seeks to chronicle the many remarkable developments in the field and to examine program accomplishments and continuing problems. Program developments are placed in the context of the ongoing evolution of the larger dispute resolution movement in the United States. Community mediation programs have contributed much to the administration of justice, and, as is shown in the following pages, many programs continue to demonstrate the daring and audacity that characterized the field's inception. Endnotes 1. Thomas Fee, NIDR Forum (December 1988). ------------------------------ Executive Summary Over the past 20 years, hundreds of community mediation programs have emerged across the nation. These programs seek to resolve disputes between individuals and, at times, between groups and organizations, through the use of mediation and related dispute resolution techniques. The programs' community mediators are typically local volunteers who are trained to resolve conflicts. Community Mediation Programs: Developments and Challenges provides a discussion of developments in the community mediation field and examines program achievements and problems. The publication is intended for program directors, their staff members, and mediators; program planners from justice system agencies, government, and private organizations; legislators and foundation personnel who may fund programs; and any others who have an interest in strategies for resolving conflict in society. Overview of Developments Chapter 1 provides a brief history of the evolution of the community mediation field and examines factors influencing the field's growth. The major types of community mediation programs (government versus privately sponsored) are examined, as are the predominant dispute resolution techniques used: conciliation, mediation, arbitration, and facilitation. Information is provided regarding program characteristics such as staffing, mediators, and budgets. Major trends in the community mediation field are reviewed, including diversification, specialization, replication in institutional settings, the expanded role of programs in handling public disputes and intergroup conflicts, increased concerns with quality control and qualifications, and institutionalization. Diversification of Dispute Resolution Services In recent years, community mediation programs have greatly expanded the range of cases they handle. Chapter 2 reviews the broad array of services provided by community mediation programs. Areas of practice examined include criminal case processing, civil case processing, school-based dispute resolution, domestic relations and custody dispute resolution, intergroup conflict resolution, the facilitation of public policy disputes, and victim-offender mediation efforts. Profiles of a number of community mediation programs are provided, and comprehensive statewide dispute resolution system initiatives are noted. Resources for Program Design, Support, and Funding A wide variety of national, State, and local organizations provide valuable support for the development and refinement of community mediation programs. Chapter 3 reviews the resources that have emerged. Major national organizations that are supporting the field include the National Association for Community Mediation, the National Institute for Dispute Resolution, the Society of Professionals in Dispute Resolution, and many others. Numerous State associations of private and government programs have also emerged. Information is provided regarding major State-level efforts in Hawaii, Massachusetts, Michigan, New York, North Carolina, and Ohio. Local programs that provide extensive training and technical assistance nationally are also discussed. The Impact of Programs on the Quality of Justice and Related Measures Many informative studies of the processes and impacts of community mediation programs have been conducted. Chapter 4 reviews major findings regarding the comparative quality of justice delivered by community mediation programs and the courts. Community mediation program case processing is typically viewed by disputants as being more favorable than court case processing for comparable matters. Varying levels of compliance with case agreements versus adjudicated judgments are also discussed; compliance rates for mediated small claims cases are markedly higher than for comparable adjudicated cases. This chapter also examines program impacts on case processing time, court caseloads, and court costs. For the most part, programs do not appear to have had a significant impact on court caseloads or costs. Major Issues Confronting the Community Mediation Field As would be expected in any vital area of endeavor, the community mediation field is confronting an array of important issues that require attention. Topics that are examined in Chapter 5 include techniques for ensuring quality control in dispute resolution services, ethical standards of conduct for mediators, the challenge of obtaining and maintaining adequate program funding support, strategies for developing working relationships with the local police, turf concerns among programs, concerns regarding the appropriateness of certain types of cases for mediation, cross-cultural and gender issues in mediation, and the increasing international dimensions of the field. Observations Regarding the Current Status of the Community Mediation Field This report closes with an effort to extract from the broad array of observations presented a general understanding of the community mediation field's current status--both its major achievements and its problems. Based on this analysis, the report reviews next steps that major participants in the field--including leaders of national and State organizations, mediation program directors, and volunteer mediators--may wish to consider. Areas in which the field exceeded common initial expectations of observers are reviewed, including the degree of program growth, diversification, the emergence of State-level support mechanisms, and other issues. Areas in which the field did not exceed expectations are also explored, including the relatively low public awareness of the field, the relatively low and precarious funding of many programs, the relatively low caseloads of programs, and the concentration of programs in a relatively small number of States. The chapter closes with a discussion of recommended measures to address the various problems confronting the field. ------------------------------ Chapter 1 An Overview of Developments in the Community Mediation Field ------------------------------ Key Points o Community mediation programs have spread widely over the past two decades and serve citizens in hundreds of communities across the nation. o Many factors have influenced the evolution of community mediation programs, including: - growing concern with limits on access to justice arising from court case backlog, delay, and costs; - the reduced role of traditional informal dispute resolvers (such as extended families) due to increased mobility and urbanization; - changing perceptions regarding the appropriateness and effectiveness of court case processing versus alternative dispute processing methods; and - increased interest in the role of community members in resolving conflicts. o Community mediation programs are typically sponsored by nonprofit organizations, although some justice system agencies and city governments also sponsor such programs. o Programs often provide a range of dispute resolution services, including conciliation, mediation, arbitration, and the facilitation of meetings dealing with public policy issues. (Each of these dispute resolution techniques is reviewed in this chapter.) o Major trends in the field include: - the diversification of program caseloads; - the replication of dispute mechanisms in institutional settings; - the use of community mediation programs as training resources; and - an expanded role in handling public disputes and intergroup conflicts. ------------------------------ The Significance of Community Mediation Programs for the Restorative Justice Movement "Restorative justice" is a philosophy for the delivery of justice that seeks to address the harms to victims, the community, and offenders arising from crime (in contrast to traditional "retributive justice," which focuses simply upon adjudicating and punishing offenders). A variety of books and articles have recently appeared on the topic. The restorative justice philosophy has many manifestations in practice, and community dispute resolution efforts represent one prominent approach embodying restorative justice principles. Many additional justice system innovations that have been implemented during the past two decades have restorative justice features. Examples of restorative justice measures include: (1) restitution using a variety of approaches (including community reparations boards; Vermont has a network of 14 such boards); (2) community service; (3) a range of correctional practices focused on restoring the offender to the community, such as the Genesee, New York, "community sponsors" effort; (4) postadjudication victim-offender reconciliation programs; and (5) victim impact statement mechanisms. A number of jurisdictions and agencies are seeking to develop integrated approaches to restorative justice (for example, the Minnesota Department of Corrections, the Vermont Department of Corrections, and the Genesee County, New York, Sheriff's Department). ------------------------------ Neighborhood Justice Centers: Where Are They Now? The three experimental neighborhood justice centers that were developed by the U.S. Department of Justice in 1978 continue in operation after almost two decades. The changes they have experienced over the years closely mirror the evolution of the community mediation field. The Neighborhood Justice Center of Atlanta has changed its name to the Justice Center of Atlanta in order to reflect its increasingly broad mission in Atlanta and nationally. Since its founding, the center has handled more than 40,000 cases and reports a settlement rate of 70 percent for those cases proceeding to mediation hearings. The center originally focused on the mediation of criminal and civil matters. Over the years, the program has added binding and nonbinding arbitration services, group facilitation, the development of school-based peer mediation, conflict resolution training, technical assistance, and related services. The center now has approximately 150 mediators. The Neighborhood Justice Center of Venice/Mar Vista in Los Angeles was sponsored by the L.A. County Bar Association. The program spurred the growth of a number of related bar programs, and in 1987 the County Bar consolidated all of these services into a separate nonprofit organization, Dispute Resolution Services, Inc. The range of services provided reflects the diversification of programs discussed in chapter 2 and includes: (1) community mediation (community mediation programs are based in communities across Los Angeles, including Santa Monica, West Hollywood, Compton, and Pasadena), (2) court programs (settlement conferences are held for major civil cases), (3) school mediation (this component includes the development of peer mediation programs and student, parent, and teacher training in conflict resolution skills), (4) attorney-client services (this program seeks to help resolve attorney-client fee and nonfee disputes), and (5) training and consultant services. The fifth program provides dispute resolution training and consultation to individuals, governments, social service agencies, corporations, and others. The overall Dispute Resolution Services program budget is now $1.3 million. The Kansas City (Missouri) Neighborhood Justice Center was established within the Human Relations Department of the city government in 1978. The program was taken over by the city in January 1981 when Federal funding ended, and it continues in operation as the Human Relations Department's Dispute Resolution Program. The program continues to offer many of the same services it provided when it was first founded, including conciliation, mediation, case referral, and training. Cases are referred to the program by the police, the municipal court, the schools, and government agencies, and the program has liaisons assigned to its various referral sources to encourage referrals. The Kansas City program reports that it has resolved more than 15,000 disputes since its inception. The fact that the three programs continue to exist defies many of the predictions of observers in the late 1970s who considered community mediation a fad; not only have the programs continued to exist, they also have grown and have helped to devise innovative ways for handling an increasingly broad range of conflicts. ------------------------------ NAFCM Summary of Community Mediation Characteristics Community mediation is characterized by or committed to: o using trained community volunteers as the primary providers of mediation services. Volunteers are not required to have academic or professional credentials. o being a private nonprofit or public agency, or program thereof, with a governing/advisory board; o using mediators, staff, and governing/advisory boards who represent the diversity of the community served; o providing direct access to the public through self-referral and striving to reduce barriers to service, including physical, linguistic, cultural, programmatic, and economic barriers; o providing service to clients regardless of their ability to pay; o initiating, facilitating, and educating for collaborative community relationships to effect positive systematic change; o engaging in public awareness campaigns and educational activities about the values and practices of mediation; o providing a forum for dispute resolution at the earliest stage of conflict; and o providing an alternative to the judicial system at any stage of a conflict. ------------------------------ Mediation: A Case Example The mediation hearing described here occurred at the San Francisco Community Board Program, but the type of dispute is representative of those seen at many programs across the country. The case involved two next-door neighbors. The presenting complaint was an assault and battery. The complainant (let's call him Mr. Janaslav) had been in a fight with the respondent (Mr. Valdez), and Mr. Valdez had seized a board from Mr. Janaslav's hands and swung it, breaking Mr. Janaslav's arm. Both men were in their forties. When Mr. Janaslav went to the district attorney's office to swear out a complaint, he told the prosecutor about the dispute's complex history. The prosecutor immediately referred the case to the local mediation program, having found such cases to be inappropriate for adjudication in the past. The program scheduled a hearing a few days later. The hearing was held in the evening at a daycare center, and both extended families attended. Both the complainant and the respondent presented their views to the mediators, and it became clear that the core of the dispute was really over the complainant's driveway being blocked repeatedly. The Valdez family had five cars, and one of them always seemed to be blocking the Janaslav driveway. Mr. Janaslav's mother lived with him and had to be rushed to the hospital often on short notice for a lung condition. A previous fight over the driveway blocking had resulted in Mr. Janaslav's being punched in the nose and retreating to his garage. Since that time, Mr. Janaslav reported, the neighboring Valdez children always gave him the "evil eye" as if he were a coward. The Valdez family retorted that Mr. Janaslav was a belligerent person who was always pointlessly harassing them. The five-person mediation panel guided the discussion of the controversy and attempted to help define the issues at hand. In the early phase of the discussion, the potential for future escalation of the dispute became very clear. Mr. Janaslav (sitting there with his arm in a cast and sling) noted that he had a knife at home, and if he was threatened again, he didn't know what he would do. As the discussion continued, a comment was made that seemed to be a turning point: Mr. Janaslav and Mr. Valdez were both arguing, and Mr. Janaslav said, "Look, I'm afraid of you people. You have more men in your household. I'm scared." The Valdez family members seemed genuinely taken aback that they frightened Mr. Janaslav, since they thought that he was an ogre. The idea that he was actually feeling defensive and that he had the courage to say so changed the discussion. The Valdez family members cautiously began to apologize, and conversation started to turn toward possible solutions to the controversy. Mr. Valdez offered to paint the curb a foot and a half on either side of the driveway. If a Valdez car ever extended over that point, then Mr. Janaslav was to tell Mr. Valdez, and the car would be moved. Mr. Valdez said the communication should be between the two heads of the households because "men understand these things better." The women of the two families agreed to the plan. The mediation panelists swallowed hard- they clearly did not share the views of the two families that "men understand these things better," yet they remained nonjudgmental to make the agreement work. The program reported that the agreement was successful; the families reported that the problem was solved. It is useful to picture what would have happened had the prosecutor accepted this particular case. Either it would have been dismissed (perhaps due to the complainant's frustration with continuances), or it would have reached trial and a verdict. The trial would have dealt with the narrow issue of the assault and battery. The other issues that animated the dispute would have been irrelevant and inadmissible for the most part. Communication would have taken place through professional intermediaries, and the court could either find innocence (angering Janaslav further) or guilt (enraging the Valdez family). The kids would still give Janaslav the "evil eye," making his daily life miserable; the driveway would still be intermittently blocked; the two families would continue to live an uncomfortable existence. And the dispute might escalate. Only a few weeks before this fight occurred, a person was shot by his neighbor in San Francisco over a recurrent dispute about a blocked driveway. A brief look at crime data indicates the magnitude of the problem. A substantial proportion of American homicides are not television's stereotyped stranger-to-stranger offenses. They are husbands killing wives, relatives killing relatives, neighbors shooting neighbors. The issues involved are rarely more glorious than a blocked driveway. The Vera Institute of Justice study of felonies in New York notes that "because our society has not found adequate alternatives to arrest and adjudication for coping with interpersonal anger publicly expressed, we pay a price." The price includes court congestion, high dismissal rates, and ineffective dispute resolution. The Vera researchers recommended experimentation with mediation projects to handle many types of cases.[10] ------------------------------ The Debate Over the Transformative Power of Mediation A provocative debate has emerged in the dispute resolution field about the central purposes of mediation. Varying philosophies regarding mediation have existed for many years, but Bush and Folger have brought the issues into focus and stimulated a lively debate with the publication in 1994 of their influential book entitled The Promise of Mediation. Bush and Folger state that four different understandings of mediation have emerged. They have distinguished four "stories" used to account for the mediation movement; (1) the satisfaction story, (2) the social justice story, (3) the oppression story, and (4) the transformation story. These different approaches lead to different styles of mediation. The satisfaction story explanation of mediation focuses on the ability of mediation to satisfy disputant needs by enabling them to discuss the full dimensions of the conflict. This approach emphasizes that mediation can result in win-win solutions and "can facilitate collaborative, integrative problem solving rather than adversarial, distributive bargaining."[13] In addition, proponents of this approach emphasize that mediation can reduce the economic and social costs of dispute resolution to disputants when compared with court case processing and can reduce related burdens on the courts' caseloads and budgets. The social justice story of mediation focuses on the potential role of mediation in helping to organize and empower communities. According to this story, mediation can reduce individuals' dependency on government institutions, help them to take control of their lives, and ultimately help people to focus on common interests. This approach has been emphasized by some prominent proponents of a community-based emphasis, including Ray Shonholtz, former director of the San Francisco Community Board Program. The oppression story emphasizes that mediation may have the opposite impact hoped for by some community-based mediation advocates and instead disempower people by reducing their recourse to legal rights and opening them up to manipulation by the powerful. According to this interpretation, mediation may undermine the gains arising from the civil rights, women's, and consumers' movements. This viewpoint is examined at length in chapter 5. The transformation story discussed by Bush and Folger emphasizes that mediation can transform the parties to the dispute by enhancing their understanding of the other party and their capacity for compassion and empathy, and also by empowering them as individuals to handle their own conflicts directly. Bush and Folger note that from the transformative perspective, "the goal is a world in which people are not just better off but better: more human and more humane."[14] They argue that the transformation story, in fact, is the goal that motivates many volunteers to serve as mediators in the first place-the notion that mediation has the power to improve people's approach to social interaction. Bush and Folger indicate that the satisfaction story dominates the mediation field, resulting in an emphasis on achieving settlements without particular regard for the transformative potential of mediation. It is clear that advocates of these four different philosophies have different prescriptions for the conduct of mediation. Satisfaction proponents emphasize achieving settlements, social justice proponents emphasize a recognition of the community empowerment dimensions of mediation, transformation advocates focus on the potential of mediation for the personal growth of the disputants, and oppression proponents simply argue against the use of mediation as a dispute resolution mechanism for many types of conflict. The types of hearing officers used, the length of hearings, the types of issues addressed, and related features could all vary as a function of the view of mediation being emphasized. For example, brief hearings focused on the specific interests of the parties could suffice for many instances if satisfaction is the goal. Lengthier or repeated hearings emphasizing the human dimensions of the conflict for both parties would be required in the transformative (more therapeutic) approach. The Promise of Mediation has been reviewed widely in community dispute resolution publications and internal program reports. For example, the 1994-95 Annual Report of the Orange County Dispute Settlement Center begins with the question, "Can Mediation Transform Us?" on its cover. The program director, Frances Wright Henderson, states in her cover article that, Many mediation theorists are now embracing the transformative orientation to conflict based on the book The Promise of Mediation. . . . This theory sees conflict as a potential occasion for growth, in two dimensions: first, through strengthening the self through deliberate reflection, choice, and action; and second, through reaching beyond the self to relate to others.[15] Henderson reports that transformative moments are often observed in hearings at her program. Many additional observers see great potential in the transformative perspective. For example, Robert Sherman, a program officer at the Surdna Foundation, has noted that by "viewing participation in the process of mediation as personally transformative for both clients and professionals [Bush and Folger] help move somewhat tired discussions of 'skills' and 'attitudes toward conflict' toward a more radical and transformative view of best practice outcomes. This new intellectual framework has the potential to redirect and energize theory-building and practice in many sectors of the dispute resolution movement."[16] ------------------------------ Over the past two decades, community mediation programs have spread widely across the United States. These programs seek to resolve disputes between individuals and, at times, between groups and organizations through the use of mediation and related dispute resolution techniques. Programs also typically seek to improve understanding between disputants. The programs' mediators are typically volunteer community members who are trained to resolve conflicts. Community mediation programs provide disputants with the opportunity to state their concerns and then seek to assist them in arriving at a mutually agreeable settlement of the conflict. In recent years, community mediation programs have significantly expanded the range of types of disputes that they address and have also assisted schools, businesses, and other organizations to develop in-house dispute resolution mechanisms. In addition, they have begun to encourage ways to avoid disputes in the first place through the teaching of conflict resolution skills in schools and other settings. Specialized dispute resolution mechanisms have also been developed for the resolution of divorce-related matters, consumer disputes, landlord/tenant conflicts, parent/child disputes, major civil cases, and many other types of controversy. Community mediation programs are playing a significant role in the administration of justice, and interesting new experimental approaches to community justice and related forms of dispute resolution are being developed across the nation. This report chronicles the growth and diversification of this important field, examines strategies being used to implement and institutionalize programs, assesses the impact of programs on disputants and the administration of justice, and examines major issues currently confronting the field. A Brief History of the Evolution of Community Mediation Programs Courts in the United States have long struggled to deal effectively with minor criminal cases involving neighbors, relatives, and acquaintances. Such cases often involve charges of harassment, minor assaults, fraudulent financial dealings, and the like. Prosecutors, court clerks, and judges have typically found such cases to be frustrating, no-win experiences. It is usually difficult to tell who is telling the truth, emotions between parties to the disputes typically run high, and traditional sanctions-fines and incarceration-do not provide much hope of resolving the matters. In fact, such sanctions can simply exacerbate the disputes, resulting in escalation of the conflict and in the court's further involvement in another more serious round of complaints. In short, courts were often viewed as ineffective in dealing with such cases and yet were forced to handle them because alternative forums for resolving them were not readily available. In the late 1960s and early 1970s, a number of experimental programs were developed to deal with such minor criminal cases more effectively. The Philadelphia Municipal Court Arbitration Tribunal was perhaps the first to test alternative ways of handling such disputes. This program was developed in 1969 through the joint efforts of the American Arbitration Association, the Philadelphia District Attorney, and the Municipal Court. Disputants were offered the option of binding arbitration for their cases. The Columbus, Ohio, City Prosecutor's Office developed a similar program during the same period. Unlike the Philadelphia program, the Columbus program provided disputants with the option of having their cases mediated rather than arbitrated. The first mediators used by the project were local law professors, and as the program expanded, law students were trained to serve as mediators. These two initial programs became models for other programs across the nation and stimulated the creation of different experimental approaches. The Institute for Mediation and Conflict Resolution (IMCR) Dispute Center began operation in Manhattan in the early 1970s and provided training for many other programs. George Nicolau of IMCR encouraged programs to have a diverse spectrum of community members to serve as mediators. Other prominent early programs included the Dorchester (Boston) Urban Court Program, the Rochester (New York) Community Dispute Services Project, and the San Francisco Community Board Program. The community mediation field grew rapidly during the late 1970s and early 1980s, spurred on initially by the availability of Federal funding from the Law Enforcement Assistance Administration and subsequently by funding from foundations and State and local governments. Many organizations, including the American Bar Association, the American Arbitration Association, the Institute for Mediation and Conflict Resolution, and the U.S. Department of Justice's Community Relations Service and National Institute of Justice, provided national leadership during this period to encourage the growth of programs. The Justice Department's experimental neighborhood justice centers in Atlanta, Kansas City, and Los Angeles were evaluated in detail and provided further models for replication.[1] The community mediation field has continued to grow rapidly during the past decade. A recent report prepared for the Massachusetts Supreme Court regarded alternative dispute resolution mechanisms as follows: "What began as an isolated phenomenon twenty years ago has in recent years become an expectation, and, according to some views, a right."[2] Some States have moved vigorously to meet such expectations. For example, the New York State Court System's Community Dispute Resolution Centers Program now funds programs in all of the State's 62 counties, and these programs served more than 100,000 people in 1995. Exhibit 1 uses data from American Bar Association (ABA) directories of programs and from the recent National Association for Community Mediation (NAFCM) program directory to present a summary of the annual numbers of mediation programs that have been established.[3] Community mediation programs included in this exhibit handle a diverse caseload of minor civil and criminal cases. The exhibit does not provide an exhaustive count of community mediation programs because the directories do not include all programs in the nation. In addition, programs that specialize in the handling of only one type of dispute are not included (for example, family mediation, landlord/tenant mediation, consumer mediation, court-annexed arbitration, labor mediation, and other specialized efforts). Community mediation programs are defined, for the purposes of this study, as mediation services that process diverse caseloads of disputes. The States with the largest numbers of community mediation programs are New York, Michigan, North Carolina, Massachusetts, California, Florida, Ohio, Texas, and New Jersey. Exhibit 2 shows the growth of community mediation programs across the nation by presenting the data from the ABA and NAFCM directories. In recent years, community mediation programs have dramatically increased the range of services that they provide. Chapter 2 examines the diversification of dispute resolution services delivered, including minor criminal case processing, minor civil case processing, school- based dispute resolution, divorce/custody dispute resolution, intergroup dispute resolution, public policy dispute resolution mechanisms, victim- offender mediation efforts, and other specialized services. This diversification has enabled programs to serve a far broader range of disputants than was previously possible and also provides for a more diversified revenue base, which can be critical in sustaining program operations. Interest in the field is widespread, and every State bar association has developed an alternative dispute resolution committee to foster the growth of such programs. In addition to the hundreds of programs serving State courts, more than 75 alternative dispute resolution programs have been implemented in the Federal district courts. Victim-offender mediation projects are an interesting program variant; they use mediation to provide a form of "restorative justice" between crime victims and offenders. In contrast to community mediation programs that primarily deal with conflicts among acquaintances, these programs often mediate between strangers. Among other things, they typically seek to arrange restitution to the victim and also seek to enhance the offender's understanding of the consequences of the offense. Participation in mediation sessions is at the discretion of the victim, and many victims are not only interested in arranging restitution but also in learning why they were selected for victimization, in venting their anger regarding the crime, and in seeing whether the offender appears to feel any remorse. Early developments in such programs were chronicled in the 1986 National Institute of Justice Issues and Practices Report entitled Crime Victim Restitution: An Analysis of Approaches. Mark Umbreit, an expert on such programs, has recently published an evaluation of their impact in California, Minnesota, New Mexico, and Texas.[4] Mediation and arbitration approaches for the handling of major civil cases have also spread rapidly in recent years. A broad panoply of civil justice dispute resolution reforms are being implemented across the nation, including mechanisms for resolving major civil cases (such as minitrials, private judging programs, summary jury trials, consumer mediation mechanisms, tort case evaluation programs, the full range of arbitration efforts, landlord/tenant projects, divorce mediation, and others). Major alternative dispute resolution initiatives arising from recent Federal legislation (such as, the Civil Justice Reform Act, the Administrative Dispute Resolution Act, and the Negotiated Rule-Making Act) are also playing a significant role in the field. The growth of alternative dispute resolution for the handling of major civil cases illustrates a significant irony in the field. Some early observers of alternative dispute resolution labeled such mechanisms as a form of "second-class justice" for the disadvantaged. The strong demand for such forms of dispute resolution by elite groups now suggests that many highly "advantaged" parties view alternative dispute resolution mechanisms (such as private judging programs and summary jury trials) as first-class approaches for handling their conflicts. Fears about "second-class justice" are justified when there are substantial power disparities between disputants. This issue is discussed in more detail in chapter 5, which considers the appropriateness of certain types of cases for mediation/arbitration. The application of alternative dispute resolution mechanisms to address major civil disputes raises some important questions. For example, are private judging systems and related civil justice approaches leading to a two-tier civil justice system in which wealthy litigants can receive rapid, effective private dispute resolution services on a fee basis while the less wealthy are relegated to increasingly overburdened courts? Factors Influencing the Evolution of Community Mediation Programs A variety of factors have contributed to the growth and evolution of community mediation programs. (Major factors discussed here are not presented in rank order of importance.) A Growing Concern With Limits on Access to Justice Arising From Court Case Backlog, Delay, and Costs Numerous major commissions have documented the problems of backlog, delay, and costs confronting the U.S. courts. These problems have been chronic in the courts; the analyses of court problems by the Wickersham Commission in 1923 were remarkably similar in many respects to those of the President's Commission on Law Enforcement and the Administration of Justice in the late 1960s and to more recent academic studies of the problems confronting the courts. The recognition of these problems has spurred the development of innovative approaches for handling court cases. The particularly troublesome problems with the processing of minor criminal matters among acquaintances were noted previously in the discussion of the Philadelphia and Columbus dispute resolution programs. The Reduced Role of Traditional Informal Dispute Resolvers (Such As Extended Families) Due to Increased Mobility and Urbanization A second factor encouraging the development of innovative dispute resolution mechanisms has been the recognition of the reduced role of traditional dispute resolvers in the United States. The high level of mobility, urbanization, and anonymity of citizens in twentieth-century America results in disputants rarely having common "mediating" institutions to help them resolve their disputes. Extended families, churches, neighborhood groups, and other organizations traditionally provided a source of indigenous dispute resolvers who could intervene between disputing members and seek to resolve the conflict. Such dispute resolvers still exist in some settings but are far less common in a society in which relatives often live hundreds of miles apart, longtime neighbors often do not even know each other's names, and the role of many civic groups is waning. Professor Robert Putnam of Harvard University has discussed this phenomenon at length in a recent article and notes that even bowling leagues are on the wane in favor of individual bowling.[5] He notes that families in which both the husband and wife must work in order to make ends meet and in which many people find it necessary to hold more than one job inhibit the level of civic participation of an earlier era. In such a setting, families become more and more isolated, and traditional "mediating" organizations disappear. By contrast, a number of cultures employ informal mediation by citizens at the core of their dispute resolution processes. Chief Justice Robert Yazzie of the Navajo Nation Courts has discussed how Native American tribes have long used mediation to resolve conflicts among members.[6] Manu Meyers (a native Hawaiian) and Albie Davis have provided a very interesting discussion of traditional Hawaiian dispute resolution approaches and have contrasted them with those routinely used elsewhere in the United States. Additional fascinating reviews of Native American practices are presented in the NIDR Forum issue on "Conflict Resolution in Native Justice Traditions" and in the Judicature issue on "Indian Tribal Courts and Justice."[7] Changing Perceptions Regarding the Appropriateness and Effectiveness of Court Case Processing versus Alternative Dispute Processing Methods Many observers have concluded that court case processing is simply not suitable for certain types of disputes. Minor disputes among parties that have an ongoing relationship are often viewed as particularly inappropriate. The process of turning the case over to attorneys (along with restrictive rules of evidence) makes it virtually impossible for the parties to work together to arrive at a common understanding of the problem and potential solutions. Instead, court case handling often polarizes and escalates the conflict. Out-of-court settlements that may be reached are typically coerced through threats of adverse court action rather than sought in a win-win spirit. In addition to shortcomings of the court process, the options available to judges for disposing of cases are often inadequate in cases between parties having an ongoing relationship. In many cases, one of the parties simply desires an apology from the other party and a promise not to repeat the behavior that was offensive. Obviously, the judge does not have the power to compel a sincere apology. Instead, judges are limited in criminal matters to the imposition of fines or incarceration-sanctions that are appropriate for serious offenses but that are relatively blunt instruments for resolving interpersonal conflicts. The recognition of these shortcomings in court processes and potential outcomes has led policymakers to explore the use of innovative dispute resolution approaches, particularly various forms of mediation. Mediation allows parties to confront one another directly without the need for attorneys as intermediaries. The focus of mediation is on understanding the point of view of the other side and then seeking a mutually agreeable resolution to the dispute. Studies reviewed in chapter 4 indicate that disputants are typically more satisfied with mediated outcomes than with court dispositions and that the durability of case resolutions is often superior. An Increased Interest in the Role of Community Members in Resolving Conflicts Another significant stimulus to the mediation movement has been the interest in empowering community members to resolve their own conflicts. The San Francisco Community Board Program was perhaps the first major proponent of this position and initially placed great emphasis on the empowering quality of mediation. Ray Shonholtz, the founder of the Community Board Program, suggested that community-based conflict resolution programs could provide a cadre of leaders who could not only help resolve interpersonal disputes but also address larger problems facing the community (such as racial tensions and inadequate city services). This concept is discussed at length later in this report. The Ebb and Flow of Federal and Foundation Funding to Support Innovations and the Transition to Local Funding Support An additional influence on the growth of community mediation programs across the nation has been the availability of funding from the Federal government, foundations, and, ultimately, State and local sources. Funding from the Federal Law Enforcement Assistance Administration provided seed money for many community mediation programs in the late 1970s. The Ford Foundation and other private institutions helped many programs to get off the ground. Over time, State legislatures began to appropriate funds for community dispute resolution centers and to authorize higher court filing fees to support such programs. Local city and county governments have also provided funding. The variety of approaches to program funding are examined in chapter 5. The Role of National, State, and Local Organizations in Fostering or Inhibiting Program Growth A number of organizations have played a key role in the spread of community mediation programs. The American Bar Association was an early important force in the field. The ABA's Special Committee on Resolution of Minor Disputes was developed in 1979 and served as an early clearinghouse for developments in the dispute resolution field. The Special Committee developed a directory of community mediation programs across the nation, encouraged State and local bar associations to develop local community mediation programs and supporting legislation, sponsored conferences in the topic area, and fostered the delivery of technical assistance from existing programs to program developers in other jurisdictions. The Special Committee evolved to become the Standing Committee on Dispute Resolution and, now, the ABA Section on Dispute Resolution, with 25 separate committees and approximately 6,000 members. The U.S. Department of Justice has also played a significant role in the growth of the dispute resolution field over the years. The Community Relations Service has developed mechanisms to resolve intergroup conflicts and has also provided valuable technical assistance to many community mediation centers. The Justice Department's Community Relations Service has played an important role in encouraging community mediation program development and in training mediators. The National Institute of Justice (NIJ), of the U.S. Justice Department, has had a long-standing interest in assessing community dispute resolution mechanisms and their role in the administration of justice. NIJ designed and funded the neighborhood justice centers demonstration programs in Atlanta, Kansas City, and Los Angeles and commissioned extensive evaluations of these programs. A sidebar discusses the current status of the three neighborhood justice centers that were developed almost 20 years ago; their evolution mirrors major trends in the field. In addition, two previous NIJ documents chronicled developments in this area and examined the accomplishments and problems of community mediation programs. The first report, Neighborhood Justice Centers: An Analysis of Potential Models, was published in 1977 at the outset of the American dispute resolution movement. The second report was published in 1986 and examined the many developments and research findings of the field's first decade. The American Arbitration Association, the National Institute for Dispute Resolution, the National Association for Mediation in Education, the Society of Professionals in Dispute Resolution, and, most recently, the National Association for Community Mediation have also played major roles in the evolution of the field. Their efforts are discussed at various points later in this report. At the State level, associations of community mediation programs and governmental organizations charged with fostering the growth of community mediation have had an important impact on the field. Chapter 3 provides detailed case studies of the work of such State-level organizations in Hawaii, Massachusetts, Michigan, New York, North Carolina, and Ohio. Many local mediation programs have also fostered the growth of the community mediation field. Some programs have pioneered dispute resolution procedures and then have worked to encourage the development of programs elsewhere through training and technical assistance. Chapter 3 includes a discussion of some leading programs and their efforts in this regard. A number of religious groups also played an important role in the growth of community mediation programs. The American Friends Service Committee of the Quakers published a newsletter and provided technical assistance to the field through the efforts of Paul Wahrhaftig. The Mennonite Central Committee was also active in encouraging program development. Ronald Kraybill of the Mennonites provided technical assistance and spoke widely on the topic of community mediation. Feminist groups have also taken an interest in the community mediation movement, and some observers have stressed that feminist values are embodied in the consensual dispute resolution processes used by community mediation programs. Feminist groups have made a major contribution to the field by raising serious questions regarding the appropriateness of mediation for domestic violence cases and related cases in which marked power disparities occur between disputants. These important issues are addressed in detail in chapter 5. Major Types of Community Mediation Programs Community mediation programs vary considerably across locales depending on local conditions, program philosophies, funding opportunities, and related factors. Programs do not lend themselves to ready categorization, but two basic types of project structures and goals exist: government- sponsored programs and community-based programs. The general characteristics of the two approaches are discussed here briefly, and specific examples of programs are provided at various points throughout this report. Government-Sponsored Mediation Programs Government-sponsored mediation programs are publicly funded and typically operated by justice system agencies ranging from police departments to prosecutors' offices to the courts. Some city governments sponsor mediation programs in relevant city departments (for example, the Kansas City Dispute Resolution Program is sponsored by that city's Human Relations Department). Furthermore, some victim-offender mediation programs are operated by correctional agencies. The staff members of justice system-based dispute resolution programs are typically employees of the justice system, but the programs' mediators are usually volunteers drawn from the community and trained in conflict resolution skills. Chapter 5 provides a detailed discussion of procedures used by various types of programs for community mediator selection, training, and supervision. Justice system-based programs usually receive the bulk of their referrals from their sponsoring justice system agency and may send disputants letters on official letterhead urging them to participate in a mediation hearing. Such letters vary in the strength of the language used to encourage program participation, with some suggesting that charges may be brought against the respondent (defendant) for the issue in conflict unless both parties attend a hearing sponsored by the dispute resolution program. Justice system- based programs typically have their offices in public buildings operated by the sponsoring agencies. The aims of justice system-based programs typically include: (1) diverting cases from the court caseload, (2) providing a more appropriate process for selected types of cases, (3) providing more efficient and accessible services to citizens, (4) reducing case processing costs to the justice system, and (5) improving citizen satisfaction with the justice system. Representative examples of justice system-based programs include the Jacksonville, Florida, Citizens' Dispute Settlement Program sponsored by the State Attorney's Office, and the Toledo, Ohio, Citizens' Dispute Settlement Program sponsored by the Toledo Municipal Court. Community-Based Mediation Programs Community-based mediation programs are typically sponsored by nonprofit organizations that are formed to provide dispute resolution services. Some churches also sponsor such programs. In addition to seeking to provide a more appropriate and accessible form of dispute resolution, community- based programs often seek to encourage the decentralization of control of decision making, the development of indigenous community leadership, the reduction of community tensions, and related goals. The weight given to specific goals varies across projects and depends on many factors, including the nature of the sponsoring agency, local needs, the philosophy of the specific project director and governing board, and related issues. Community-based programs often seek to obtain a significant portion of their cases directly through walk-ins, in addition to referrals from justice system agencies and other government organizations. Techniques used to obtain cases include distributing fliers describing the project's services, speaking at local meetings, and advertising project availability through posters, billboards, bumper stickers, and public service announcements on television, radio, and other media. Hearings are often held in informal settings (church basements, day-care centers, and similar locales). The San Francisco Community Board Program has been a prominent community-based program for 20 years. Particularly in its early years of operation, the program maintained a very strong community-based philosophy that emphasized not only dispute resolution but also community development and empowerment. Sally Engle Merry and Neal Milner have published a collection of 14 essays that examine problems confronted by the San Francisco Community Board Program in its effort to foster popular justice and empower communities.[8] A number of church-operated programs, such as the Mennonite Conciliation Service of Akron, Pennsylvania, are strongly community-based in philosophy. A number of States that fund community mediation programs (such as New York and Michigan) provide support specifically for community-based projects, and these initiatives are discussed in detail in chapter 3. The States require that grantees be nonprofit organizations (rather than government agencies) and encourage programs to take case referrals from justice system agencies as well as directly from the community. Typical examples of community- based programs include the Orange County (North Carolina) Dispute Settlement Center; the Albany, New York, Center for Alternative Dispute Resolution, Inc., and the Justice Center of Atlanta, Inc. The National Association for Community Mediation (NAFCM) has developed a thoughtful list of the characteristics of community mediation that encompasses the features of many government-sponsored and community-based programs; this list is summarized on the following page. Dispute Resolution Mechanisms Community mediation programs use a variety of techniques for processing disputes. The four primary approaches are conciliation, mediation, arbitration, and facilitation. Conciliation Conciliation, as defined in this report, is any effort by a neutral third party to assist in the resolution of a dispute short of bringing the parties together face-to-face for a discussion of the conflict. Such efforts can include holding meetings with individual parties to discuss the controversy and its potential solutions, contacting individual parties by telephone or mail, or performing "shuttle diplomacy" between the parties and serving as a conduit for information between them. Many community mediation programs attempt to settle disputes through telephone or letter contact with the respondent (defendant) prior to the scheduling of a formal hearing. Some specialized dispute resolution programs, such as consumer complaint projects, limit themselves to this approach and inform complainants that they may proceed to other forums if conciliation fails. Other programs view conciliation as only the first available project option, with mediation, arbitration, or both as a sequel if parties do not reach an agreement through conciliation.[9] Mediation Mediation is defined, for the purpose of this report, as an effort by a neutral third party to assist disputing parties to resolve the conflict through the conduct of a face-to-face meeting. In such meetings, the third party is not authorized to impose a settlement on the parties, but rather seeks to assist them in fashioning a mutually satisfactory resolution to the conflict. Different styles of mediation have evolved. Some mediation programs have adopted the labor relations model of mediation, which places less emphasis on the development of relationships between the disputants than some other models. Using this model, mediators may meet with the parties in separate sessions referred to as "caucuses" to seek to determine the parties' bottom lines. The Institute for Mediation and Conflict Resolution and the American Bar Association conducted the initial training for many early community mediation programs, and their mediation model was grounded in their extensive labor relations experience. Some other mediation programs place heavy emphasis on building relationships between parties. These programs place less emphasis on caucuses because they want the parties to express their positions fully to one another face-to-face. They also seek to enhance the problem-solving skills of the parties so that they can resolve future disputes through direct negotiations, if possible. Approaches to mediation vary on a number of other dimensions as well. Some programs use only one mediator per session; others use two co-mediators, and still others have panels of up to five mediators. One advantage that is often cited for having more than one mediator at a session is that multiple mediators can be selected to represent the range of gender or ethnic diversity of disputants. In addition, co-mediation can provide a valuable training ground for mediators. New mediators can often learn a great deal from experienced mediators regarding how to conduct a mediation session effectively. Programs that lack sufficient referrals to keep their entire pool of mediators busy doing individual mediations can also benefit by using co-mediation to provide mediators with greater opportunities to conduct sessions. Some programs that primarily rely on staff members rather than a larger pool of community mediators to handle mediation sessions tend to conduct relatively brief mediation sessions (approximately one-half hour in length). This approach contrasts sharply with programs that seek to hold quite long mediation sessions (in the two- hour range) that provide time for a detailed examination of issues at hand. Some types of disputes (for example, those involving onetime interactions between the parties rather than ongoing relationships) may not require lengthy mediation sessions. Other conflicts among parties who will be interacting often (as friends, relatives, or acquaintances) may require extensive airing of concerns and complex terms in their agreements to mend the relationship and provide for safeguards against future conflict. Some observers have labeled brief mediation sessions as "drive-by mediation," or "jet lube mediation," and concerns regarding relatively brief mediation sessions need to be taken seriously. Research is needed on the comparative quality of mediation agreements and the impacts on disputants of relatively brief versus longer mediation sessions. For some types of cases, involving complex disputes and longterm relationships, brief sessions are likely to be inadequate. For some others, in which the issues in conflict are simple and no ongoing relationship is contemplated or desired, they may be sufficient. The use of brief sessions across the board can certainly present significant problems for some portion of a program's caseload. Evaluation findings regarding disputant perceptions of the mediation process and the impact of mediation on disputes are discussed at length in chapter 4. One preliminary observation that should be noted here is that the different approaches used by a wide variety of programs tend to result in roughly similar outcomes in terms of the proportion of mediation sessions resulting in agreements, favorable attitudes toward the process by disputants, and related measures. These findings suggest that community mediation can work quite effectively regardless of the specific style of mediation adopted. The common core of all forms of mediation involves the simple opportunity for opposing parties to sit across from one another in a safe, constructive setting established by the mediation program and the mediator. Under such conditions, parties tend to begin to see each other as three-dimensional human beings rather than as abstract opponents and, as a result, may seek to find some common ground regarding their controversy. This alchemy of mediation obviously does not occur in all mediation sessions; sometimes parties are simply too angry, disputes are too entrenched, or one or both parties may not be acting in good faith. But significant progress is made in the majority of mediation sessions. Programs that have experienced success with a specific approach to mediation understandably have often been committed to the position that their approach is the best for others to replicate. Variations in approaches are likely to be superior in certain circumstances. For example, panels of mediators representing the diversity of ethnic characteristics of disputants are likely to be superior when ethnic or racial tensions are at the core of a specific dispute; such diversity can make the parties more comfortable and more confident about the mediation program's impartiality. Additional systematic research is needed to uncover what works best under what conditions. But, for the most part, the core opportunity to humanize opposing disputants and to work constructively to resolve a conflict is offered by all of the various approaches to mediation; this straightforward core feature is likely to be critical to mediation's effectiveness in settling conflicts. Arbitration Arbitration is a dispute resolution process that empowers a neutral third party to impose a settlement upon disputing parties following a hearing between the parties. Arbitrators often seek to mediate a settlement first and impose an arbitrator's award only as a last resort. Programs in which a mediated settlement is conscientiously sought by an arbitrator prior to deciding the matter are referred to as mediation/arbitration or "med/arb" mechanisms. Community dispute resolution projects including programs in New York City and Rochester (developed by the Institute for Mediation and Conflict Resolution and the American Arbitration Association, respectively) employ arbitration and have the authority to develop binding agreements that are enforceable in the civil courts. These projects typically attempt to mediate the dispute first and resort to arbitration awards only when all attempts at mediation have failed. In such programs, usually only 5 percent of cases processed by the project go on to imposed arbitration; the remaining 95 percent of the cases are mediated, and the mediated agreements are then written up as enforceable consent agreements. As a result, the court becomes a potential key player in such arbitration awards. The procedures used by med/arb programs in New York State were modified in 1991 as a result of a judge's ruling.[11] Programs in New York State using med/arb procedures originally had disputants sign a form consenting to arbitration prior to the beginning of mediation hearings. If a mediation agreement was not reached, the hearing could immediately proceed to arbitration. The judge ruled that a two-step process is required and that parties must sign a separate consent-to-arbitrate form whenever attempts at mediation fail to result in a consensual agreement between the parties. Such a form must "unequivocally state that the parties consent to arbitrate and that they are aware that the arbitrator's decision is final and binding."[12] The vast majority of community mediation programs offer mediation rather than arbitration, and the bulk of this report deals with mediation efforts and their impacts. A major reason for this emphasis is the programs' preference to encourage disputants to settle their case through mutual agreement rather than to impose settlements. Facilitation In addition to using the three traditional dispute resolution techniques, community mediation programs are increasingly becoming involved in the facilitation of meetings dealing with public policy issues. For example, community mediation programs have dealt with such issues as the siting of landfills and the merger of school boards. Specially trained mediation program personnel have conducted public meetings that bring together citizens with representatives of governmental agencies and other relevant organizations to discuss the issues involved in public policy matters affecting the community. Detailed examples of community mediation program efforts at facilitation are presented in chapter 2. Facilitation has numerous features in common with mediation, including the typically neutral role of the third party and the face-to-face discussion of issues between parties. Facilitation meetings are not aimed at the development of written agreements that seek to resolve the conflict between the parties. Instead, facilitations often deal with the design of dispute resolution processes between parties, the development of meeting agendas, and meeting management for large, diverse groups of parties. Program Staffing, Community Mediators, and Program Budgets Program Staffing Community mediation programs vary considerably in the numbers of program staff they have. Exhibit 3 presents a summary of the variations in numbers of program staff reported by the more than 200 programs that are members of the National Association for Community Mediation (NAFCM). These data were collected by NAFCM staff and summarized in brief profiles of NAFCM members.[17] The bulk of community mediation programs have relatively small staff sizes. Fifty-six percent of the 208 programs reporting data on staff sizes indicated that they have three or fewer staff members. Forty-two programs report having three staff members. The typical staff configuration for such programs is a project director, an intake and referral specialist, and an administrative/clerical staff member who is responsible for scheduling hearings, answering the telephones, maintaining case files, and related tasks. This pattern can vary depending on the nature of the program. Forty- four programs report having two staff members, and such programs typically have a director and a person who combines the roles of the intake and administrative staff members. Thirty programs report having only one staff member. In such programs, this person is responsible for all of the functions just mentioned. The many problems that can arise from having very small staff sizes are examined at length in chapter 6. Programs with larger numbers of staff members vary in the staff members' job responsibilities and titles depending on the program's activities and emphases. For example, the Orange County Dispute Settlement Center that serves Chapel Hill and Carrboro, North Carolina, has eight staff members and they have the following positions: one Executive Director (responsible for program administration, fund- raising, and related tasks); one Assistant to the Director (responsible for a broad range of administrative tasks assigned by the director); two Case Coordinators (responsible for the screening, intake, and scheduling of mediation cases and management of the mediation pool); one Training Coordinator (responsible for mediator training and contracted training services for local governments, businesses, and other organizations); one Youth and Education Coordinator (responsible for school-based mediation program assistance and other conflict management programs for youth); one Public Disputes Coordinator (responsible for handling the facilitation of public disputes involving multiple parties-citizens, government agencies, and private organizations); and one HUD Fellow who provides assistance to the program and works particularly on public disputes issues. Regardless of a program's staff configuration, it is essential that highly committed, energetic, and politically sensitive individuals be recruited for staff positions. Community mediation programs deal with stressful situations involving people in conflict; such work requires skilled and competent staff members. In addition, programs must be effective in recruiting talented people to serve as volunteer community mediators, must develop close working relationships with referral agencies and other organizations, and must consistently deliver high- quality services to their various constituencies. Great care is needed to ensure that those selected for staff positions are industrious, resourceful, and able to handle the many challenges that arise daily at community mediation centers. Community Mediators Community mediation programs recruit and train pools of community mediators sufficient to handle their caseload. Exhibit 4 presents a summary of the range of numbers of community mediators reported in the NAFCM survey of programs. The numbers of mediators vary considerably across programs. Sixty-five percent of programs report that they have 50 or fewer volunteer mediators. Programs typically seek to ensure that people recruited for their mediation pool have demographic characteristics representative of the community in which the program is operating. As in the case of staff selection, it is critical to select mediators with the personal skills needed to handle the potentially stressful conditions of mediation hearings. Chapter 5 presents a detailed discussion of community mediator training and qualifications. Programs need to conduct periodic training sessions to maintain a sufficient pool of mediators. Some attrition in a mediation pool is inevitable as some mediators move from the area and others become unavailable due to changed life circumstances and other factors. Some programs have also experienced attrition when mediators completed training and then went into private practice as professional mediators, charging fees to resolve family disputes and related conflicts. Program Budgets Programs receive funding from a variety of sources, including State and local governmental budgets, foundations, fees for service, and fund-raising activities. Exhibit 5 presents a summary of the sizes of program budgets reported in the NAFCM survey of programs. Because of their reliance on volunteer mediators, community mediation program budgets tend to be relatively low. The most common budget range for programs is $50,000 to $150,000, and 49 percent of the programs that included budget information in their survey response fall in this category (87 of 178 programs). The second most common category is less than $50,000, with 29 percent of programs falling in this category. Twelve percent of programs have budgets between $150,000 and $300,000; 7 percent are between $300,000 and $500,000, and only 3 percent of programs reported a budget of more than $500,000. Some of the programs with relatively large budgets include those in Albany, Asheville, Austin, Chicago, Dallas, Houston, Las Vegas, Los Angeles, Portland (Oregon), San Francisco, and San Mateo. Chapter 5 discusses funding issues. Chapter 6 provides strategies for increasing the relatively low budgets of many community mediation programs. Major Trends in the Community Mediation Field A variety of major trends are apparent in the dispute resolution field. These are discussed here briefly and examined more closely in later parts of this report. Diversification One of the most striking trends in the field is the diversification of community mediation programs into new areas of application. Individual programs handle cases ranging from minor criminal matters, to employment disputes, to conflicts between landlords and tenants. The National Association for Community Mediation has identified more than 30 different applications of community mediation. Chapter 2 presents a detailed discussion of many of these diverse dispute resolution services. Specialization A corollary to the diversification of individual programs just mentioned is the specialization of training and mediation activity by selected mediators. Some topical areas that have extensive technical legal and financial features (such as divorce and custody mediation) require extensive training of mediators. Many of the mediators who receive such training go on to specialize in handling primarily the type of dispute in their area of specialization rather than the full range of types of cases referred to individual community mediation programs. The Replication of Dispute Resolution Mechanisms in Institutional Settings Many programs have begun to assist various types of institutions to develop in-house dispute resolution mechanisms. For example, programs have trained school children to serve as conflict managers in hallways and playgrounds. Community mediation programs have also helped businesses and nonprofit entities such as hospitals establish in-house conflict resolution programs. The Clark County (Nevada) Neighborhood Justice Center has provided training to selected employees at Bally's Casino to establish an in-house conflict resolution program. The management of the casino approached the mediation program for such assistance after a murder occurred involving two employees. The New Mexico Center for Dispute Resolution in Albuquerque has been active in establishing conflict resolution mechanisms within juvenile correctional institutions in that State. Community mediation programs provide technical assistance in program establishment and training for relevant staff members. Some programs remain available to take cases on referral from the in- house mechanisms when circumstances require more neutral settings for settlement. The Use of Community Mediation Programs as Training Resources Community mediation programs have increasingly provided training in a wide variety of topic areas dealing with conflict resolution skills and strategies for developing mediation mechanisms. Clients for training include general community members, students and teachers, corporate officials and employees, personnel at government agencies, and others. Programs typically charge fees for training programs based on the nature of the training and the trainees. Expanded Roles in Handling Public Disputes A number of community mediation programs have become very involved in the handling of public disputes such as zoning issues and facility-siting issues. For example, the Orange County program located in Carrboro, North Carolina, has handled important public disputes dealing with the development of a downtown area, land use, and school board decisions. Expanded Roles in Handling Intergroup Conflicts A number of programs have begun to handle intergroup disputes (such as those between gangs and between ethnic groups after racially motivated violence.). One New York State program held a series of community meetings following the inception of the Tawana Brawley case, which involved allegations of attacks on a young African- American woman by white assailants. Two programs in New York City (one in Brooklyn and the other in Washington Heights) had mediators go out on the streets after the Rodney King verdict was announced to encourage local members of the African-American community to demonstrate peacefully. The New Mexico Center for Dispute Resolution mediates disputes between rival gangs. An Increased Concern With Quality Control and Qualifications A recurrent theme in the mediation field in recent years has been an increasing concern for quality control and a growing emphasis on establishing qualifications for mediators. Community mediation centers have long been concerned with ensuring that they provide high-quality services to clients. Programs have sought to select promising people to be mediators, to train them well, to monitor their performance, and to provide them with ongoing training in various aspects of mediation. Community mediators are typically volunteers, some of whom go on to become full-time professional mediators handling family disputes, civil cases, and related matters. The American Bar Association (ABA), the American Arbitration Association (AAA), and the Society of Professionals in Dispute Resolution (SPIDR) have developed model standards for the conduct of mediators. In addition, the SPIDR Commission on Qualifications developed a detailed report entitled Ensuring Competence and Quality in Dispute Resolution Practice. The findings of the report were adopted by the SPIDR Board of Directors in April 1995. The National Institute for Dispute Resolution (NIDR) sponsored the Test Design Project to develop a performance-based methodology for selecting, training, and evaluating mediators. Controversies have emerged in many States regarding the minimal requirements for mediators, and in some locales bar associations are seeking to reserve certain classes of cases solely for lawyer mediators. These issues are explored in chapter 5. Institutionalization A number of States have provided significant funding and infrastructural support for community mediation programs. New York State leads the nation in this regard and provides funding, technical assistance, training, and monitoring for programs serving all of the counties in the State. Key Issues for Community Mediation Programs A wide variety of important issues in the community mediation field need to be addressed, including: o the design of strategies for the statewide implementation and institutionalization of what were previously experimental programs, including mechanisms for funding, technical assistance, training, monitoring, and administration; o the development of adequate and diverse funding mechanisms (such as surcharges on court case filing fees and fees for service from private sources) in addition to support from State and local governmental budgets; o the development of appropriate approaches to the adoption of standards and quality control measures for program operations (including mediator selection, training, and monitoring) that preserve the ability of programs to innovate and recruit a diverse array of community members; o the development of effective working relationships with local police, the courts, and the local bar; o the development of techniques for avoiding excessive bureaucratization, which can ultimately lower program responsiveness and the quality of services rendered; and o the development of methods for enhancing public awareness of community mediation programs and their associated benefits in order to recruit a diverse array of community mediators, obtain referrals of cases, and generate general public support for program funding. These and many additional issues are explored in later chapters of this report. Conclusion Community mediation programs provide an important service to their communities. Community volunteer mediators and program administrators grapple with many of our communities' more troubling disputes. The rewards that they are seeking for this often exhausting and emotionally draining work are clearly not monetary. Instead, they are rewarded by the sense that they have made life in their community just a little bit better. With the right support from communities and from the government, these important programs can expand sufficiently to meet pressing community needs for conflict resolution and conflict prevention services. Endnotes 1. Cook, R., J. Roehl, and D. Sheppard, Neighborhood Justice Centers Field Test: Final Evaluation Report, Washington, DC: National Institute of Justice, 1980. 2. Reinventing Justice 2022: Report of the Chief Justice's Commission on the Future of the Courts, Supreme Judicial Court Commonwealth of Massachusetts, 1992. 3. See American Bar Association, 1993 Dispute Resolution Program Directory, Washington, DC: American Bar Association, 1993; National Association for Community Mediation, Directory of Community Mediation Programs, Washington DC: NAFCM, 1996. 4. Umbreit, M., Victim Meets Offender: The Impact of Restorative Justice and Mediation, Monsey, NY: Criminal Justice Press, 1994. 5. Putnam, Robert, "Bowling Alone: America's Declining Social Capital," Journal of Democracy (January 1995). 6. See National Institute of Justice, Restorative Justice Symposium: Summary of the Proceedings, Washington, DC: National Institute of Justice, 1996. 7. See National Institute for Dispute Resolution, "Conflict Resolution in Native Justice Traditions," NIDR Forum (Spring 1995); American Judicature Society, "Indian Tribal Courts and Justice," Judicature (November-December 1995). 8. Merry, S.E. and N. Milner, The Possibility of Popular Justice: A Case Study of Community Mediation in the United States, Ann Arbor: University of Michigan Press, 1993. 9. Definitional material is drawn from McGillis, D., Community Dispute Resolution Programs and Public Policy, Washington, DC: National Institute of Justice, 1986. 10. Mediation case example is excerpted from McGillis, Community Dispute Resolution Programs and Public Policy. 11. See ruling by Judge Lewis R. Friedman in Russell Wright and Helen Wright v. Emma Brockett, "John Doe" and "Jane Doe";Supreme Court of the State of New York, County of Bronx: Part IA6; Index No. 16904/89 (May 9, 1991). 12. Ibid, p.29. 13. Bush, R. and J. Folger, The Promise of Mediation, San Francisco: Jossey-Bass Publishers, 1994: 16. 14. Ibid. 15. Henderson, F.W., "Can Mediation Transform Us?," 1994-95 Annual Report of the Orange County Dispute Settlement Center: 1. 16. Sherman, R., "Four Trendlines in Conflict Resolution," NIDR News (January/February 1996). 17. Copies of the directory are available from the National Association for Community Mediation, 1726 M Street, N.W., Suite 500, Washington, DC 20036. The NAFCM telephone number is (202) 467-6226. ------------------------------ Chapter 2 The Diversification of Dispute Resolution Services ------------------------------ Key Points o Community mediation programs have greatly diversified their dispute resolution services. Such diversification has occurred for a number of reasons, including: - requests by justice system agencies and governments for additional types of services (such as the mediation of child-custody matters); - efforts by programs to provide a broader range of services while also diversifying their funding sources. o The range of types of cases processed by community mediation programs includes: - criminal case processing; - civil case processing; - school-based dispute resolution; - domestic relations/custody dispute resolution; - intergroup dispute resolution; - public policy disputes; - victim/offender mediation efforts. o This chapter provides profiles of three community mediation centers that provide highly diversified dispute resolution services: the Rochester, New York, Center for Dispute Settlement; the Orange County, North Carolina, Dispute Settlement Center; and the Albuquerque-based New Mexico Center for Dispute Resolution. ------------------------------ Program Profile: Rochester (New York) Center for Dispute Settlement The Rochester Center for Dispute Settlement was established in 1973 by the American Arbitration Association (AAA) in collaboration with the local city and county government. The program was developed as a result of the AAA's successful mediation of the Rochester City School District's school integration crisis. Local leaders urged the development of the Center for Dispute Settlement in order to address major community disputes of this sort as well as to address the increasing backlog of court cases involving interpersonal disputes. The program provides conciliation, mediation, and arbitration services. The program became an independent nonprofit corporation in 1979. Since 1990, the Center has developed a comprehensive training department. The Center trains mediators, arbitrators, police review panelists, participants in peer mediation programs, and trainers. The program has more than 150 trained volunteer mediators. Over time the Center has thrived and greatly increased the range of matters it handles. The Center for Dispute Settlement mediates neighborhood disputes, juvenile cases, small claims cases, and many other types of conflict. Because of its high level of credibility, the Center has also been asked to conduct fact-finding for citizen complaints against police officers, victim/offender reconciliation, and divorce mediations, including custody and visitation agreements. In addition, the Center mediates human rights complaints for the New York State Division of Human Rights, arbitrates housing disputes for the Rochester Housing Authority, processes grievances under the Comprehensive Employment Training Act, and monitors elections and lotteries. The Center has also expanded geographically and now provides services to a six-county region in western New York. ------------------------------ Program Profile: Orange County (North Carolina) Dispute Settlement Center The Orange County Dispute Settlement Center was established in 1978. The center was the first such program in North Carolina and it played a major role in stimulating the growth of similar centers across the state. There are now 24 community mediation programs in North Carolina. The Orange County Center handles a very diverse caseload and mediates interpersonal disputes, divorce and other couples-related conflicts, and public policy disputes. In addition, the center holds victim/offender reconciliation hearings. Public policy disputes handled by the center are discussed in this chapter's main text and include land use, social service, environmental health, and other matters. The center is also very active in training students and teachers in conflict resolution skills and in establishing peer mediation programs. The center provides training for its own mediators and also organizes specialized conflict resolution training for government agencies, businesses, human service providers, churches, and others. The center has 50 trained volunteer mediators and 7 staff members. In light of the center's accomplishments, the North Carolina Governor's Crime Commission presented the program with the North Carolina Crime and Justice Award for Outstanding Criminal Justice Program. The Dispute Settlement Center's budget during the 1995-96 fiscal year totaled $230,000. The program receives funding from a wide array of sources: government (39 percent), program service fees (27 percent), contributions (17 percent), the United Way (14 percent), and other sources, such as foundations (3 percent). Such diversification of funding can enhance the sustainability of community mediation programs. This issue is discussed in chapter 5. ------------------------------ Program Profile: New Mexico Center for Dispute Resolution The New Mexico Center for Dispute Resolution was established in 1987. The center provides a wide range of dispute resolution services and also is very active in training and technical assistance nationally and internationally. The program provides mediation services for interpersonal conflicts, divorce cases, workplace disputes, parent/child disputes, youth gang conflicts, and many other types of cases. The center's 120 trained volunteer mediators handle this diverse caseload. Once the center had developed expertise in resolving a broad array of types of cases, it established the National Resource Center for Youth Mediation in 1995. The Resource Center sponsors technical assistance and training for other jurisdictions seeking to develop and refine mediation programs. The National Resource Center has provided technical assistance to mediation programs across the nation and has delivered conflict resolution skills training in schools, correctional institutions, and other settings. Extensive written and video training materials have been developed by the center to support its technical assistance and training efforts. The center's written materials include a violence intervention curriculum for juveniles, course materials for conflict resolution training in elementary and secondary schools, program evaluation guides, and materials on conflict resolution in corrections. The Center sponsors periodic national training institutes on a number of topics, including parent/teen mediation, school mediation, and violence prevention/conflict resolution. The center's clients for training and technical assistance services have included various school districts, the U.S. Department of Health and Human Services, the U.S. Postal Service, the YMCA of the USA, and many others. The center has also been active in providing assistance to programs overseas in such diverse settings as Turkey, Uzbekistan, and South Africa. ------------------------------ During the past decade, community mediation programs have dramatically expanded the range of types of cases that they handle. This diversification has occurred for a number of reasons. In some instances, programs have been asked to move into new topic areas by local courts, prosecutors, bar associations, city governments, and others. For example, family courts have asked for help with custody cases, city governments have sought assistance for the resolution of disputes between youth gangs, and so forth. Programs have also actively sought to diversify because they felt that they could provide valuable services to disputants in a broader range of topic areas, while also possibly diversifying the funding base for the program. For example, many programs provide technical assistance and training to local businesses and nonprofits that are interested in developing in-house dispute resolution mechanisms for employees. The diversification of the work of community mediation programs has led program leaders to be concerned not only with the resolution of conflicts that could result in court cases, but also in the prevention of offenses in the first place. Conflict resolution skills training, the enhancement of citizen participation in governmental and community decision making through the facilitation of intergroup public disputes meetings, and the establishment of ongoing, in-house dispute resolution mechanisms in a diverse array of institutions (businesses, government, nonprofit organizations, schools, correctional facilities) are examples of this growing prevention focus. This chapter provides information about many of these important efforts by community mediation programs to diversify their services. Examples are provided below of some of the most prominent and promising areas of application, ranging from the traditional to the highly innovative. Brief profiles of a number of specific programs are presented to illustrate how individual programs handle a wide range of types of disputes. Efforts to develop comprehensive statewide dispute resolution systems encompassing the broad range of applications are described. Appendix A presents a summary of useful resources that provide additional information about the diverse applications of dispute resolution, including national surveys of relevant State statutes and court rules that can assist a program in diversifying its caseload. Criminal Case Processing The first community mediation programs focused solely on criminal case processing. The Philadelphia Municipal Court Arbitration Tribunal and the Columbus, Ohio, Night Prosecutor's Program originated in justice system agencies. They received referrals of misdemeanor cases entering the local court systems. Many of the programs that emerged in the following decade continued to place an emphasis on criminal case processing. Today, a number of types of criminal offenses predominate in community mediation program caseloads, including harassment, minor assaults, trespassing, and property damage. Criminal matters are referred to community mediation programs at many points in the criminal justice system, including: (1) police referrals at the scene of an offense, (2) police referrals of walk-in complaints at the police station, (3) court clerk and prosecutor referrals when a complainant first brings a case to the system, and (4) referrals from judges on the bench during initial appearances of offenders charged with criminal offenses involving friends, relatives, or acquaintances. The bulk of referrals from the justice system have typically come from the police, prosecutors, and the courts. The growth of community policing provides the opportunity for sharply increased collaboration between police departments and community mediation programs and consequent increased referrals from the police. Many observers feel that community policing is emerging as the dominant law enforcement philosophy in the United States. It promotes crime prevention through police problem- solving in collaboration with communities. Community policing also strongly emphasizes customer and client services. Community police officers in many communities see dispute resolution programs as helpful mechanisms for resolving long-standing disputes in neighborhoods and for avoiding the escalation of misdemeanor offenses to felonies. Recent research has demonstrated that calls for service diminish from parties involved in mediation hearings, which frees up police resources.[1] Three community mediation programs in the San Francisco Bay area (in San Francisco, Oakland, and Berkeley) are developing innovative relationships with local community policing programs to enhance case referrals and form a partnership to resolve conflicts. Civil Case Processing Some community mediation programs diversified into small claims case processing during the first decade of the movement. Other programs were developed (for example, in San Jose, California, and Portland, Maine) that specialized in minor civil case processing. Such cases typically involve complaints of shoddy workmanship, defective merchandise, bad debts, and the like. Some programs locate mediators at the small claims court and process cases on referral by the judge immediately; others schedule hearings at the program's offices either before or after the parties' initial appearance in the small claims court. Chapter 4 provides a detailed discussion of the findings of research on small claims mediation. The research demonstrates that disputants involved in the mediation of small claims cases tend to be more satisfied with both the process and the outcome of case handling than disputants whose cases were processed by the courts. Defendants are also more likely to comply with the resulting agreement following mediation than are clients involved in court case processing of small claims matters.[2] School-Based Dispute Resolution Violence in American schools has increased in recent years and has been a topic of great concern. Many community mediation programs have worked with local schools to provide conflict resolution skills training and also to develop student peer mediation programs for the resolution of conflicts within the schools. Such efforts have spread rapidly across the nation. According to the American Bar Association, more than 4,000 schools now offer conflict resolution skills training to students or have internal dispute resolution programs, or both. The Conflict Resolution Education Network of the National Institute on Dispute Resolution (formerly the NAME) has been a leader in promoting school-based conflict resolution mechanisms. The Network has developed a comprehensive catalog of conflict resolution materials for the schools. The catalog has been distributed to more than 55,000 schools in the United States and offers school-based conflict resolution training and program development materials that have been prepared by programs across the country. Topics addressed by the documents offered in the Network catalog include: (1) strategies for teaching conflict resolution; (2) curriculum materials for such courses; (3) specialized documents on such topics as implementing parent/child mediation in youth corrections settings, mediation and conflict resolution for gang-involved youth, and conflict management for juvenile treatment facilities; (4) evaluation studies of school-based mediation programs and kits for self-evaluation; and (5) various bibliographies and resource materials. In addition, the Network has developed draft standards for the conduct of school-based conflict resolution programs. The Federal government has been a strong supporter of school-based conflict resolution efforts. The Safe and Drug-Free Schools Program (which had $482 million in funding in FY95) encourages the use of its funds for peer mediation and conflict resolution programs. These funds have been valuable to community mediation programs across the country. Some school systems have processed very large caseloads of disputes. For example, more than 1,100 mediation hearings were held over a one-and- one-half-year period at the middle schools and high schools of Buncombe County, North Carolina. The Mediation Center of Asheville, North Carolina, provided the training and technical assistance to establish the county's school-based mediation effort, and more than 330 student mediators were involved in handling disputes. The program reports that the schools experienced a reduction in violence and that mediation sessions resulted in the elimination of 742 days of in-school suspension and 1,220 days of out-of-school suspension. This total equals more than 10 years of classroom time. Related Dispute Prevention Initiatives Robert Sherman, a program officer at the Surdna Foundation, has noted that many community mediation programs are increasingly "testing their roles as places where community conflicts are analyzed with an eye toward dispute prevention rather than intervention. Using collaborative processes, communities come together to craft agreements and prescribe responses aimed at reducing known sources of community tensions."[3] Such proactive involvement in dispute prevention is an interesting counterpoint to the traditional reactive approach of dispute resolution organizations. The Surdna Foundation has recently funded a experiment in this arena in collaboration with the Community Board Program of San Francisco, the Rochester (New York) Center for Dispute Settlement, and the National Institute for Dispute Resolution. The project will test the ability of the two community mediation centers to intervene and effectively prevent emerging conflicts. The community tensions that will be addressed will be identified by youth in each city. The community mediation centers will work in collaboration with neighborhood police officers in this conflict prevention effort. Domestic Relations/Custody Dispute Resolution Many community mediation programs across the nation have become involved in domestic relations, visitation, and custody dispute resolution. Mediators typically receive 40 to 60 hours of specialized training to handle these cases since mediators need to have some familiarity with legal and financial issues involved in divorce and custody and also to have an appreciation for child development issues and related matters. New mediators are often apprenticed to more experienced ones to obtain further exposure to divorce/custody mediation before handling sessions on their own. The number of mediation sessions needed to handle cases varies depending on the issues being addressed. A single mediation session may be all that is required to deal with visitation issues. If mediators are handling the full range of issues involved in a divorce, then six to eight mediation sessions may be required. The mediation of domestic relations matters is challenging. The fact that some couples have a history of domestic violence and abuse adds an additional dimension of complexity to practice in this area. Many observers feel strongly that mediation is simply not appropriate in cases involving violence or abuse because the parties are manifestly not equal in power, and mediation hearings may simply lead to perpetuation of the abuses. This important issue is discussed in chapter 5. The Academy of Family Mediators, the Association of Family and Conciliation Courts, and many local organizations composed of family mediators provide workshops that can offer further training in the handling of divorce/custody dispute resolution. The Academy of Family Mediators is the leading national organization in this area. It has developed competency standards for family and divorce mediators and has also established ethical guidelines and standards of practice. The Academy has approximately 3,000 members who provide family mediation. Family mediators who handle divorce and custody matters work in various settings, including community mediation programs, family courts, and private practice. Intergroup Dispute Resolution A number of community mediation programs have been very active in mediating disputes among youth groups and gangs. Such mediation sessions often bring together the groups with parents, school officials, and others to resolve conflicts and prevent violence. The Washington Heights Beacons Community Center in New York City has been active in intervening in gang disputes that have been the source of extensive violence in the community. The New Mexico Center for Dispute Resolution has developed training materials to help other programs deal with the complexities of gang-related dispute resolution. Programs have also sought to deal with conflicts between various ethnic and racial groups in their locales. Chapter 1 provided brief examples of such intergroup dispute resolution efforts involved in the Tawana Brawley case and the Rodney King case. Public Policy Disputes A number of community mediation programs have become very active in the handling of public policy disputes in their jurisdictions. These programs hold mediation sessions or facilitate meetings for a diverse array of organizations: governmental agencies, community organizations and advocacy groups, business groups, school boards, governmental commissions, and others. The Orange County (North Carolina) Dispute Settlement Center, discussed in a program profile in this chapter, has one staff member who works full-time on public disputes. In addition to providing mediation services, this staff member, along with trained program volunteers, also provides meeting facilitation services. Some of the public dispute efforts involve many parties. For example, in one western North Carolina county, local governmental officials, realtors, home builders, owners of large tracts of land, development and mortgage lenders, an electric utility, an environmental group, and a community action agency were brought together to develop a plan to address a housing shortage in the county. The Orange County staff member facilitated the meetings and helped to mediate among the diverse interests at the table. The Orange County Dispute Settlement Center also recently handled a dispute involving a local landfill. Four "facilitated work sessions" were held in which citizen representatives from local neighborhoods met with officials from three local governments. The sessions, held in the presence of community observers and the news media, addressed 22 areas of the citizens' concerns, including water quality protection, noise abatement, and related issues. An agreement was reached and adopted by the elected governing boards of the three governmental jurisdictions. Victim/Offender Mediation Efforts Victim/offender mediation efforts differ from the traditional mediation of criminal matters because the parties are typically strangers, rather than friends, relatives, or acquaintances. The Center for Restorative Justice and Mediation of the University of Minnesota describes victim/offender mediation programs as efforts in which "trained mediators facilitate face-to-face meetings between victims and offenders to express feelings, discuss the harm done by the crime, and negotiate a restitution agreement."[4] The mediators are usually community volunteers working with community nonprofit agencies. Offenders are typically required to fully admit guilt prior to the conduct of such mediation sessions. More than 120 victim/offender mediation services are available across the country. Some are affiliated with community mediation programs, and others are freestanding programs or are affiliated with justice system agencies. Community mediation programs that offer victim/offender mediation services usually first meet separately with the victim and the offender to obtain their consent to meet together and discuss the offense and its impact. During the victim/offender mediation session, victims have the opportunity to explain the harm done by the offender and to ask the offender questions regarding why the offense was committed and why they were selected as the victim. Such meetings provide victims with the opportunity to confront the offender and present offenders with the opportunity, if they choose, to offer an apology and discuss possibilities for restitution to the victim. Victim/offender mediation programs seek to contribute to the rehabilitation of offenders by making them aware of the impact of their offenses. They also seek to underscore the accountability of the offender. The meetings are based on a theory of restorative justice of the sort discussed in chapter 1. Additional Areas of Application Community mediation programs are involved in a wide variety of additional innovative areas of application. Examples include landlord/tenant dispute resolution initiatives, employment case processing, juvenile court case mediation, parent/child mediation, truancy mediation, Americans with Disabilities Act case processing, crisis intervention teams, bad debt and worthless check mediation, Equal Employment Opportunity case processing, farm debt case processing, real estate and earnest-money case processing, and mobile home dispute processing. Comprehensive Statewide Dispute Resolution Systems The diversification of individual program caseloads is occurring across the nation. A number of States have decided to systematize the delivery of the full range of dispute resolution services and are seeking to develop comprehensive Statewide dispute resolution systems.[5] New Jersey provides the most dramatic example of a State effort to develop such a comprehensive approach. The New Jersey Supreme Court established a Standing Committee on Complementary Dispute Resolution (CDR) in 1990 to foster the development of a Statewide system. The Committee developed a Statewide master plan for dispute resolution in 1991 and also recommended rules and guidelines for CDR program operation. The guidelines included the specification of qualifications and training for mediators. As a result of this effort, New Jersey has more than 200 dispute resolution programs in operation; 37 different types of programs exist in 21 counties of the State. Seven types of programs account for approximately 140 of the State's dispute resolution programs. These types are: (1) community mediation programs associated with the municipal courts, (2) custody and visitation programs, (3) matrimonial early settlement panels, (4) juvenile conference committees associated with the family courts, (5) small claims mediation programs, (6) automobile arbitration efforts, and (7) personal injury arbitration programs in the civil courts. Professor Paul Tractenberg of Rutgers Law School- Newark has described the New Jersey system in his book, New Jersey Dispute Resolution: A Lawyer's Guide to State and Federal Court Programs.[6] Professor Tractenberg notes that the New Jersey system is still a work in progress. He has stated that "the grand design has not been fully realized yet. The vision of a comprehensive, integrated justice center has been achieved in only a few vicinages [court districts]. The quality of individual CDR programs varies considerably from vicinage to vicinage, and even within vicinages from one court division to another. . . . Improvements in public outreach and user friendliness are needed."[7] Professor Frank Sander of Harvard Law School has been an effective proponent of comprehensive dispute resolution systems. He proposed the development of "multi-door" courts in 1976, with different types of dispute resolution services matched to the varying nature of the disputes. Experimental multi-door court programs which have been developed in Houston, Tulsa (Oklahoma), Cambridge (Massachusetts), and elsewhere seek to screen incoming cases and assign them to appropriate dispute resolution processes.[8] Conclusion Community mediation programs have handled an increasingly broad array of types of conflicts. The major types of disputes that are being processed by community mediation programs have been reviewed briefly in this chapter. In light of the growing scope of program activities, Margaret Hermann, a researcher at the Vinson Institute of Government of the University of Georgia and a long-term observer of the community mediation field, has recently asked, "What is our sphere of anticipated influence (a particular conflict; the people directly or indirectly involved in a conflict; the institutional setting in which conflicts arise, for example, schools, workplaces and universities; or the communal settings that provide the context for the conflict, for example, families, neighborhoods, cities, and American society)?"[9] Different observers have different answers to these questions. The scope and accomplishments of the community mediation field will eventually be determined by the ambitions of policymakers and practitioners and by how these ambitions play out in the often rough-and-tumble arena of American society. The impact of the diversification of dispute resolution services on program priorities is examined in chapter 6. Current incentives to diversify services in the direction of various contract and fee-bearing services can potentially lead programs to reduce their emphasis on obtaining referrals from justice system agencies (the police, prosecutors, and courts). The implications of such shifts are examined in chapter 6. Endnotes 1. Schuller, P., "Benefiting From Mediation Services," Pennsylvania Commission on Crime and Delinquency Quarterly (Spring 1995). 2. McEwen, C., and R. Maiman, "Mediation in the Maine District Courts: An Empirical Study," Maine Law Journal (1981). 3. Sherman, R., "Four Trendlines in Conflict Resolution," NIDR News (January/February 1996). 4. Center for Restorative Justice and Mediation, Restorative Justice: For Victims, Communities, and Offenders, Center for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 1996. 5. See Tevelin, D., "The Future of Alternative Dispute Resolution," NIDR Forum (Winter 1992). 6. Tractenberg, P., New Jersey Dispute Resolution: A Lawyer's Guide to State and Federal Court Programs, Newark, NJ: New Jersey Law Journal Books, 1994. 7. Tractenberg, P., "Dispute Resolution in New Jersey," NIDR News. 8. See Sander, F., "Varieties of Dispute Processing," Federal Rules Decisions, no. 70 (1976) for his original conceptualization of the multi- door courts concept. 9. Hermann, M., "Reflections on Transformation a FRDR Research on Community and Neighborhood Justice Centers," NIDR Forum (Summer 1994). ------------------------------ Chapter 3 Establishing and Refining Community Mediation Programs: Resources for Program Design, Support, and Funding ------------------------------ Key Points o Many national organizations have played a critical role in the growth of the community mediation field, including: - the National Association for Community Mediation; - the American Bar Association; - the National Institute for Dispute Resolution; - the Society of Professionals in Dispute Resolution; - the American Arbitration Association; and - the Academy of Family Mediators. o As the community mediation field has evolved, statewide organizations have played an increasingly important role in supporting program design, implementation, and operations. Two major types of statewide organizations assist programs: 1) state associations of programs and (2) state governmental organizations (some of which target specifically community mediation while others provide services to a broad array of dispute resolution mechanisms). o This chapter provides detailed examples of statewide programs that provide assistance to community mediation centers in Hawaii, Massachusetts, Michigan, New York, North Carolina, and Ohio. o Many local community mediation programs also provide extensive technical assistance and training to other centers across the country. Examples of such programs are provided in this chapter. ------------------------------ National Association for Community Mediation Program Directory The National Association for Community Mediation published a directory of its member organizations in 1996. Information for the directory was drawn from a questionnaire survey of programs. The directory provides profiles of each organization and includes the following information: (1) Basic Descriptive Information (program name, address, telephone number, fax number, name of program director); (2) Year That Program Was Established; (3) Geographic Area Served; (4) Number of Staff and Number of Volunteer Mediators; (5) Type of Organization (such as private, nonprofit); (6) Budget Range; (7) Types of Mediation Offered (17 categories-for example, interpersonal, divorce/custody, public policy were provided on the questionnaire, along with the option to add others); (8) Languages Services Offered in Addition to English; (9) Services Offered in Addition to Mediation; and (10) Services Available to Other Programs (such as technical assistance or training). The NAFCM questionnaire sought additional data that are not included in the directory's program profiles. For example, detailed information was sought regarding mediation and mediation training (for example, the certification or credentialing process [if any], eligibility criteria for mediators, home State's legislative rules for mediation [if any], use of co-mediation versus solo mediation, times when mediation hearings are held, interpretation services, number of hours of training, specialized training, provision of conflict resolution training for the public). Programs were also asked what services they would like to receive from NAFCM, whether they are willing to provide assistance to other centers, and related questions. They were also asked to provide NAFCM with their mission statements, training agendas, evaluations, newsletters, publications list (if any), and related materials. ------------------------------ The Current Activities of the ABA Section of Dispute Resolution The Section of Dispute Resolution now has approximately 6,000 members and is one of the fastest-growing sections of the ABA. The Section has 25 committees addressing topics across the spectrum of the dispute resolution field. The Committee on Community-Based Programs is one of the 25 committees and it supports the planning and implementation of such programs. Other committees deal with such topics as "Federal Court annexed/ connected programs," "private judging," "legislation," and "arbitration." The Section continues to publish a useful dispute resolution program directory as well as a newsletter, a magazine, summaries of symposia, and audio tapes on various topics, such as employment arbitration, land use, and environmental mediation. The ABA also collaborated with the American Arbitration Association (AAA) and the Society of Professionals in Dispute Resolution (SPIDR) in the development of "Model Standards of Conduct for Mediators" (these standards are discussed in detail in chapter 5). The 1995 Chair of the Section of Dispute Resolution, Judge Resa Harris, has a strong interest in mediation in the schools and is likely to support a variety of activities in this topic area of interest to many community mediation programs. ------------------------------ Targeted Assistance for School-Based Mediation The National Association for Mediation in Education (NAME) was established in 1984 by a group of educators and community mediators to support the spread of conflict resolution training in the schools. The Massachusetts District Court Department and the University of Massachusetts at Amherst cosponsored the first meeting that led to the development of NAME. NAME has served as a valuable clearinghouse in its topic area. It has developed many useful materials, including a catalog of resources available in this field from programs across the nation, Fourth R: Conflict Resolution in Schools Catalog for Teens.[3] The catalog was developed in collaboration with NIDR, and NAME catalogs have been distributed to more than 55,000 schools. NAME has sought to support mediation in education through information dissemination, technical assistance, conferences, and promotion of relevant Federal legislation such as the Safe and Drug-Free Schools Program (which has funded many peer mediation and conflict resolution programs in schools across the country). In November 1995 the NIDR and NAME boards of directors approved the merger of NAME into NIDR. The NAME offices have moved from Amherst, Massachusetts, to the NIDR headquarters in Washington, D.C. This merger will enable NAME to benefit from the national networking capacities of NIDR. The combined effort will continue to seek to institutionalize conflict resolution skills training in the schools. NAME is now called the Conflict Resolution Education Network of NIDR. ------------------------------ The Mediation Network of North Carolina's Role in Funding and Standard Setting The Mediation Network of North Carolina has vigorously sought funding support for programs from the North Carolina legislature. The network prepares detailed briefing books for legislators reviewing the accomplishments of programs across the State and meets with relevant legislators. The network has achieved strong bipartisan support for program funding, and more than $800,000 was appropriated for community mediation programs in the State's 1995-97 budget. Centers seeking State funds certify that at least 50 percent of their total funding is obtained from nonstate sources. The board of directors of the Network adopted its "Qualifications and Standards for Certification of Member Centers' Mediators" in 1994 and has sponsored a voluntary certification process. Certification is not required for individuals to serve as mediators; it represents a level of achievement beyond the standard initial 20-to-30-hour training program. To be certified mediators must complete a basic mediation training course, observe mediation sessions and co-mediate a minimum of 10 mediation sessions, complete 10 hours of approved certification training beyond the basic mediation course, be approved by a program director as proficient at the mediation of interpersonal disputes, agree to abide by the terms of the Standards and Qualifications for Certification as well as by ethical guidelines, agree not to discriminate in the provision of services, and agree to attend regular in-service training programs approved by the Mediation Network. Certification must be renewed every two years. ------------------------------ Data Collection and Program Monitoring Activities of the Community Dispute Resolution Centers Program The New York Community Dispute Resolution Centers Program (CDRCP) collects case information from centers across the State regarding all of their cases, analyzes the data, and provides the centers with feedback regarding their caseloads and accomplishments. At the time of case disposition, centers submit a numbered case profile form to the CDRCP for all cases judged appropriate for dispute resolution. The form includes information regarding both the complainant and the respondent. The centers are provided with monthly caseload information bulletins and quarterly management reports . The latter reports compare current case processing statistics to the prior three months' activities and year-to-date totals. The CDRCP staff monitors all programs through a variety of means, including reviewing these monthly information bulletins and quarterly management reports, assessing the programs' adherence to the state program procedures manual and performance guidelines, and conducting fiscal audits. Staff members visit programs periodically and also sponsor regional meetings and directors' meetings to discuss issues confronting programs. Centers that are experiencing problems are provided with technical assistance. ------------------------------ Data Collection and Evaluation Efforts of the Michigan Community Dispute Resolution Program The Michigan Community Dispute Resolution Program (CDRP) collects case statistics from community mediation programs across the State and reports detailed statistics on case dispositions, outcomes if no mediation hearing was held, and the results of 60-day follow-ups on the cases. The CDRP reports that between 1990 and 1994 more than 24,000 citizens resolved their disputes through community mediation programs. Approximately one-half of program case referrals are received from the courts. Settlements arrived at by disputants totaled slightly less than $5 million. The program reports that 81 percent of people who agreed to use the services of a mediation center reached a satisfactory settlement and that, based on follow-up data collected 60 days after case disposition, 91 percent of agreements were kept. The CDRP has also funded an innovative evaluation of the activities of Michigan mediation programs in order to obtain a more detailed view of program accomplishments and problems than can be revealed by case statistics alone. The evaluation has a variety of components, including: (1) the conduct of extensive interviews with mediation center staff, mediators, clients, referral sources, judges, and court staff, (2) observations of program activities during two- day site visits to 30 programs, (3) a review of case statistics collected since 1990 on approximately 40 case-specific variables, and (4) assessment of follow-up survey data and surveys of community members. The State Justice Institute and the Hudson-Webber Foundation are providing funding for the evaluation, which is being conducted by Central Michigan University. ------------------------------ Evaluation Research Commissioned by the Hawaii Center for Alternative Dispute Resolution The Hawaii Center for Alternative Dispute Resolution has commissioned evaluation research. For example, it funded the University of Hawaii's Program on Conflict Resolution to evaluate the Maui Domestic Mediation Program. The researchers found that 85 percent of the contested custody and visitation disputes referred to the program were suitable for mediation and that 70 percent of those cases reached agreements through mediation. The center also has commissioned evaluations of the mandatory small-claims mediation program, and the court-annexed arbitration program. The center conducts an active public education outreach program through the media and various groups to promote innovative dispute resolution mechanisms. ------------------------------ A wide variety of resources exist to help community mediation program planners and administrators develop new programs and improve existing ones. Many national, state, and local organizations offer technical assistance and training, sponsor conferences, and provide other forms of guidance to programs in this field. This chapter presents an overview of the major types of assistance available. Appendix B provides addresses, telephone and fax numbers, and contact names for the organizations discussed in this chapter. Support From National Organizations for Community Mediation Programs This section discusses the role of national organizations in assisting dispute resolution programs. It is followed by sections on state and local sources of assistance. For the purposes of this report, national organizations are considered to include national associations (such as the American Bar Association and the Society of Professionals in Dispute Resolution), Federal agencies (such as the Justice Department), or other organizations with national memberships and/or mandates (such as the National Institute for Dispute Resolution). It is important to note that while some State and locally based organizations primarily provide technical assistance within their specific jurisdictions or regions, others provide highly valued technical assistance nationwide and internationally. Examples of local programs that provide such national and international assistance include the Justice Center of Atlanta, the San Francisco Community Board Program, the New Mexico Center for Dispute Resolution, and the Durham Dispute Settlement Center. The Role of National Organizations in the Initial Growth of Community Mediation Programs National organizations played a critical role in stimulating the initial growth of community mediation programs across the nation in the late 1970s and early 1980s. The American Bar Association (ABA) played an important role through its sponsorship of the Pound Conference on justice reform in 1976. This conference called for experimentation with community mediation mechanisms and strongly influenced Judge Griffin Bell's efforts to develop neighborhood justice centers when he was appointed Attorney General in 1977. The ABA's Special Committee on Resolution of Minor Disputes (the precursor to the ABA's current Section of Dispute Resolution) was very active in supporting community dispute resolution efforts in the early days of the field. As was mentioned earlier, the Special Committee sponsored a national directory of programs, held conferences to encourage program development, coordinated the delivery of technical assistance to many emerging programs, networked with local bar associations to encourage their participation, and helped to reduce resistance to community mediation by members of the bar. The American Arbitration Association (AAA) and the Institute for Mediation and Conflict Resolution (IMCR) were also very important early national forces in the community mediation field. Both organizations sought to apply insights gained from work in labor mediation to the community mediation setting, and both sponsored experimental programs. The AAA was the initial sponsor of the Rochester Center for Dispute Settlement, which was profiled in the preceding chapter. IMCR sponsors dispute resolution centers in New York and Bronx Counties, New York. The Federal government also played a key role and provided seed grants for many early programs through the Law Enforcement Assistance Administration. The National Institute of Justice of the U.S. Justice Department developed a variety of reports to encourage experimentation with community mediation programs; funded three very visible programs in Atlanta, Kansas City, and Los Angeles; and supported early evaluations of programs in the field. The Justice Department's Community Relations Service (CRS) also made important contributions to the development of community mediation programs. Personnel from the CRS provided technical assistance and mediation training to a number of the early community mediation programs. A number of foundations, including the Ford Foundation and the Mott Foundation, were early supporters of the field as well. Their interest in the field eventually led them to fund the establishment of the National Institute for Dispute Resolution. Current Major Sources of National Support A number of national organizations currently provide valuable support for the community mediation field. Some provide a broad range of types of assistance; others are more specialized. Some are increasing their roles in the field, while others are cutting back their efforts and essentially passing the torch to newer organizations. The major organizations are reviewed briefly below. National Association for Community Mediation In the spring of 1993, 23 community mediation centers joined together to form the National Association for Community Mediation (NAFCM). The aim of the organization "is to support the maintenance and growth of community-based mediation programs and processes and encourage the development and sharing of resources."[1] The Hewlett Foundation, the Surdna Foundation, and others provided grant support to enable NAFCM to begin its work. As of spring 1996, NAFCM's membership included more than 200 programs, representing approximately 10,000 volunteer mediators. Members represent more than 40 states. NAFCM publishes a newsletter, the NAFCM News, that reports on the work of the organization. The Association has received funding from AmeriCorps so that local community mediation programs can train AmeriCorps members in conflict resolution skills. NAFCM seeks to encourage a range of values associated with community mediation, including the use of well-trained community volunteer mediators who represent the diversity of the community and who are not restricted based on academic or professional credentials; the encouragement of the transformative, relational dimension of mediation; and the use of conflict resolution skills of community mediation programs for the facilitation "of community dialogue and decision making around issues of resource use and social and community needs."[2] NAFCM plans to play a variety of roles, including: (1) serving as a national clearinghouse for the community mediation field, (2) maintaining a national directory and database, (3) developing financial resources and educating funding sources regarding the benefits of community mediation, (4) increasing public awareness of community mediation, and (5) promoting the interests and values of programs in the field. In carrying out these tasks, NAFCM can play a critical role in providing a voice for the community mediation movement across the nation. American Bar Association The American Bar Association's Section of Dispute Resolution was established in 1993 and had its origins in the Special Committee on Resolution of Minor Disputes, which was developed in the mid-1970s. The original Special Committee focused exclusively on mechanisms for the resolution of minor civil and criminal matters and placed attention on the full range of programs dealing with such disputes, including justice system-based, community-based, and composite programs. As the committee's work evolved (and its name dropped the terms "Special and Minor"), the breadth of its topic coverage began to mirror the growing range of applications of dispute resolution (shifting, for example to major civil cases, negotiated rulemaking in Federal agencies, etc.). Community-based mediation began to receive reduced attention by the ABA over time in competition with the numerous other topics of interest to many in the bar. The evolution in topic emphasis by the ABA over time is not surprising. First, the community mediation field had matured by the 1990's and could continue to grow without intensive ABA attention. Second, since many of the newer areas of application involved the predominant use of lawyers rather than volunteer community members as community mediators, these areas naturally drew the interests of many ABA members. National Institute for Dispute Resolution The National Institute for Dispute Resolution (NIDR) was established by a consortium of foundations (Ford, Hewlett, MacArthur, and others) in 1981 in order to foster dispute resolution experimentation across the nation. NIDR has made many contributions to the community mediation field and continues to be a useful source of information. NIDR's role has evolved over the years from funding dispute-resolution innovations to its current role of supporting the field through information and convening groups to review major emerging issues of concern. NIDR published its Community Dispute Resolution Manual: Insights and Guidance from Two Decades of Practice in 1991. This report was the product of the NIDR Community Justice Task Force composed of leaders in the field. The report provides very useful information about program structure, funding, types of services, management, and related topics, and it is strongly recommended for program planners and administrators. NIDR continues to publish an informative newsletter, NIDR News, and the NIDR Forum, which includes lengthier articles on important issues in the dispute resolution field. These publications are available for an annual fee. NIDR has also sponsored special projects of interest to community mediation programs. For example, the Test Design Project sought to develop a practical and effective methodology for selecting, training, and evaluating mediators. The product of this effort, Performance-Based Assessment, is discussed further in chapter 5. NIDR focuses on the full range of topics in the dispute resolution field, akin to the American Bar Association Section of Dispute Resolution, and community dispute resolution is only one of many NIDR interests. NIDR remains a useful source of information for those in the community mediation field. Society of Professionals in Dispute Resolution Members of the Society of Professionals in Dispute Resolution (SPIDR) represent the broad range of dispute resolution practice. The society performs a variety of functions, such as representing the interests of members in public forums, sponsoring annual meetings, and the like. SPIDR has focused considerable attention on the question of qualifications for dispute resolution practitioners. In 1995 the SPIDR Commission on Qualifications published a report entitled Ensuring Competence and Quality in Dispute Resolution Practice. The report is the product of two years of effort by the commission and is examined at length in the discussion of standards in chapter 5. American Arbitration Association The American Arbitration Association (AAA) has been an important force in the dispute resolution field. The primary focus of the AAA is on business-related disputes and commercial arbitration. As community mediation programs become increasingly involved in such topic areas, AAA training and resource materials can be very helpful. The AAA developed pioneering community mediation programs in Philadelphia and in Rochester, New York; these programs were briefly described earlier. National Institute of Justice The National Institute of Justice (NIJ) of the U.S. Department of Justice has supported the community mediation field in a number of ways. NIJ has provided bibliographies of materials on community mediation through its National Criminal Justice Reference Service. It has supported research studies and evaluations of community mediation efforts provides extensive materials in related topic areas. For example, NIJ funds the Partnerships Against Violence Network, an interagency Internet database with valuable information on programs to combat violence, including community mediation and school mediation efforts. Academy of Family Mediators The Academy of Family Mediators (AFM) has approximately 3,000 members who are practitioners or who are otherwise interested in the family mediation field. Family mediators deal with many types of family issues, including separation, divorce, custody and visitation issues, adoption, parent/child conflicts, and related matters. The AFM has been active in developing ethical guidelines and standards for mediator competency and practice, providing training to practitioners, and serving as a valuable clearinghouse and broker of technical assistance for the family mediation field. National Conference on Peacemaking and Conflict Resolution For more than a decade, the National Conference on Peacemaking and Conflict Resolution (NCPCR) has sponsored biennial conferences that have provided a forum for discussion of issues regarding community dispute resolution. NCPCR was founded in 1982 to sponsor periodic conferences that stimulate discussions among the diverse group of individuals in the peacemaking and conflict resolution fields in the United States and abroad. The current secretariat for NCPCR is at the Institute for Conflict Analysis and Resolution of George Mason University (Fairfax, Virginia). The board of directors is made up of individuals representing many facets of the dispute resolution field. NAFCM has sponsored community mediation sessions and held important planning meetings of its leadership at NCPCR meetings. Statewide Program Assistance As the community mediation field has matured, a number of statewide organizations have played an increasingly important role in program support. Two primary types of organizations provide such statewide assistance: (1) state associations of programs and (2) state governmental agencies, including those that are designed specifically to assist community mediation programs and those that provide services to such programs as part of more general services to a broad array of dispute resolution mechanisms. Statewide programs provide a wide variety of valuable services to local community mediation programs, including: (1) encouraging jurisdictions that do not have programs to consider developing them and assisting these jurisdictions with strategies for program development, (2) directly providing funding or assisting local programs in obtaining funding, (3) delivering technical assistance and training to local programs, (4) sponsoring conferences and other meetings in which programs can explore major issues confronting them and solutions to problems, and (5) providing forums for the discussion of standards and qualifications. Examples of such programs are presented in the following sections, and a number of states that have more than one type of program are discussed to illustrate how the various programs can play complementary roles. For example, Massachusetts has a statewide association, a statewide court-based community mediation program, and a statewide office of mediation; New York has both a statewide association and a statewide court-based mediation program. Substantial variations occur across states in the mechanisms available for assisting community mediation programs. State Associations of Programs Associations of community mediation programs have emerged in a number of states to support the interests, growth, and consolidation of programs. The range of services provided by such associations vary from holding periodic conferences and representing the programs' interests in the state's legislature and other forums to performing these functions plus a broad range of training, technical assistance, clearinghouse, and related functions. A number of examples of the work of state associations are provided here to illustrate the types of services provided by state associations and to encourage programs to consider developing such associations if they do not already exist in their state. New York State Association of Community Dispute Resolution Centers The New York State Association of Community Dispute Resolution Centers, Inc., provides an interesting example of a state association. This association was established in 1985 to promote the use and public awareness of community mediation programs in New York State. In addition to the routine functions of a membership association, the New York State Association also sponsors a number of programs under contract to state agencies and others. For example, since 1989 the association has had a contract with the New York State Division of Housing and Community Renewal to conduct a Mobile Homes Mediation Program. The community dispute settlement centers that are members of the association are assigned cases in their jurisdictions involving disputes between tenants and owners of mobile-home parks. Programs mediate or conciliate approximately 500 such cases across the state each year. Similarly, beginning in 1985 the Department of Special Education contracted with the association to fund the Special Education Mediation Program. Local community dispute resolution centers mediate disputes between parents and school districts over the delivery of educational services to children with disabilities. In 1993 the New York State Commission on the Quality of Care for the Mentally Disabled began a pilot program with the association to facilitate the work of the commission's "Surrogate Decision-Making Panels." These panels decide whether mentally disabled individuals in state facilities can decide for themselves regarding needs for nonemergency medical procedures or whether a surrogate or the panel must make such decisions. The association is also exploring opportunities for community dispute resolution center personnel to provide training to state agency staff in conflict resolution skills. Massachusetts Association of Mediation Programs and Practitioners The Massachusetts Association of Mediation Programs and Practitioners (MAMPP) was founded in 1983 and is a not-for-profit organization that supports the growth of mediation in Massachusetts. MAMPP is funded by membership dues, foundations, training revenues, and individual donors. MAMPP provides various kinds of assistance to its 29 member programs in Massachusetts. The association serves as an information clearinghouse for programs throughout the State. The association also sponsors professional development workshops dealing with emerging issues such as the role of diversity in conflict management. MAMPP sponsors a periodic seminar dealing with training, internship, and other opportunities in the mediation field. In addition, MAMPP holds statewide conferences to provide a forum for program administrators, staff, and mediators to discuss topics of concern. The MAMPP newsletter is published quarterly and presents articles on topics of interest to community mediation programs, a forum section for debates on controversial issues, and a detailed calendar of upcoming events and announcements. The association's annual conference includes workshops addressing the broad range of topics of interest to the field (such as school-based mediation, environmental mediation, family mediation, ethical issues in dispute resolution, and qualifications and standards). Mediation Network of North Carolina The Mediation Network of North Carolina serves the 24 community dispute settlement centers in the State. The network is funded from a number of sources, including individual and program membership dues, grants from the North Carolina bar plan for Interest on Lawyers' Trust Accounts (IOLTA), and foundations. The Mediation Network provides a wide range of services to North Carolina programs, including advocacy for funding from the legislature, technical assistance, training, conferences, and publications. Mediation programs in the State are very active. Approximately 16,000 interpersonal disputes are referred to the programs annually (roughly one-half from the State district courts). In addition, programs are active in working on victim/offender mediation, school mediation, family mediation, public disputes resolution, group facilitation, and related topics. The network provides technical assistance to existing centers and to planners of new programs. It also offers training courses and also links interested parties to training programs offered by individual programs. The topics of training seminars range widely and include mediation, group facilitation, school conflict resolution, family mediation, conflict resolution in the workplace, and other topics. Some of the training courses offered by the network are quite intensive. For example, in 1996 the network sponsored two institutes on developing and implementing school-based conflict resolution and peer mediation programs. The institutes involved 30 hours of training for school personnel over five-day periods. The network sponsors the biennial Southeastern Mediation Conference, which addresses a very broad array of issues. Workshops were conducted in each of the following general topic areas at the Network's most recent conference: community mediation, family mediation, public disputes, schools, youth and violence prevention, business and commercial disputes, statutorily-based conflict resolution programs (such as mediated settlement conferences, and State district court child custody mediation programs), and general issues such as ethics, certification, mediation models, and measuring success. Workshops address relatively fine-grained issues in each topic area. For example, in the family mediation topic area eight separate workshops are being planned to address such specific issues as "getting past impasse in family mediation," "the role of the attorney when representing clients in divorce mediation," and so on. The level of sophistication of topic coverage at the network's conferences provides a useful measure of the growing maturity of the community mediation field. The network publishes a 16-page newsletter, The North Carolina Mediator, twice each year. The newsletter includes articles on topics of interest to North Carolina programs, updates on individual State programs and legislation, reprinted articles from other statewide associations and similar groups, book reviews, and a calendar of forthcoming activities. The Mediation Network has also developed a series of conflict resolution curricular publications addressing various age groups (kindergarten through grade three; grades four and five; middle school; and high school). The Mediation Network encourages collaboration among programs on topics of interest. For example, the network assisted in the formation of the Victim-Offender Mediation Resource Group. Numerous programs attend the monthly meetings of the resource group along with representatives of the Administrative Office of the Courts and other agencies. Statewide Governmental Programs That Assist Community Mediation Programs A number of States have developed statewide mechanisms for the support of community mediation programs. Some of these statewide efforts are targeted specifically on community mediation programs; others provide services for a broad range of dispute resolution programs (commercial arbitration, major civil litigation case evaluation, and so on) in addition to community dispute resolution efforts. Some of the statewide governmental programs are able to provide at least limited funding support for mediation programs in addition to other services; others provide technical assistance, training, and related services but have no funding available for programs. This section provides examples of these various types of statewide governmental support mechanisms. Statewide Governmental Programs Designed Specifically to Assist Community Mediation Programs Community Dispute Resolution Centers Program of the Unified Court System of the State of New York The New York State Community Dispute Resolution Centers Program (CDRCP) was established by the New York State Legislature in 1981. The program is part of the Unified Court System of New York State and is under the supervision of the Chief Administrative Judge of the Courts. The CDRCP provides partial funding support to programs serving all 62 counties in the State. Programs are required to be operated by private not-for-profit organizations. In FY 1994-95 more than 100,000 people were involved in the more than 44,000 cases screened as appropriate for referral to the New York State community dispute resolution centers. These cases resulted in more than 24,000 conciliations, mediations, and arbitrations in that year. Over the 15-year life of the CDRCP program, more than 1 million New Yorkers have benefited from program services. The program's mediation sessions result in restitution agreements totaling more than $3 million per year. The Community Dispute Resolution Centers Program is based in Albany and provides many services to other programs, including coordination of training and technical assistance, provision of monthly and quarterly caseload management reports, the conduct of periodic monitoring and assessment, the sponsorship of conferences, and the conduct of public information efforts. With regard to training, the CDRCP has established standards for mediators and certifies trainers to train mediators in programs across the state. The minimum amount of classroom training required for new mediators is 25 hours, followed by observation of one mediation session, apprenticeship involving the conduct of a minimum of two mediation sessions under the supervision of the local program director, and assessment by the local mediation program. In addition, mediators are required to complete six hours of continuing education annually to maintain certification. Furthermore, mediators must conduct as the lead mediator or as co-mediator a minimum of three mediation sessions per year. The CDRCP has sponsored advanced training on a variety of specialized topics such as visitation and custody issues for family mediation. The CDRCP sponsors periodic statewide conferences and has published the proceedings of such conferences. These meetings are sometimes conducted in collaboration with the New York State Association of Community Dispute Resolution Centers (which was discussed earlier), the State bar, and universities in the State. Relevant national organizations have also been active collaborators in these conferences. The CDRCP also produces a very useful newsletter, with articles on topics of relevance to community mediation and updates on developments in the various programs across the State. Public education efforts by the CDRCP have sought to increase awareness of community mediation programs. The program works with the media to increase knowledge regarding conflict resolution programs, and personnel of the program also present speeches in a wide variety of settings. The program has produced a videotape on the benefits of mediation that is available at all centers and also has produced posters for display in courts and other locations to increase awareness of dispute resolution services. Community Dispute Resolution Program of the Michigan Supreme Court The Community Dispute Resolution Program (CDRP) of the Michigan Supreme Court was established in 1988 and provides support for 29 community mediation centers across the State. As is the case in New York State, all of the programs are sponsored by nonprofit community-based organizations. In contrast to New York, Massachusetts, North Carolina, and other States having relatively large numbers of local programs, Michigan has no statewide association of programs to provide independent representation of the interests of community mediation programs. Plans to develop such an association have been under consideration since 1989 but have not resulted in the development of an association. The director of the Community Dispute Resolution Program is based in the State Court Administrator's Office. The program office provides a variety of services to programs in the state. The CDRP legislation requires that mediators have a minimum of 40 hours of training in conflict resolution techniques, and training must be approved by the State Court Administrator's Office. The CDRP offers training for local mediator trainers to familiarize them with the CDRP training manual and conducts training summits with trainers from across the State to review training design and delivery. Workshops are also sponsored by CDRP for new program directors to provide them with the skills to manage centers and carry out strategic planning, public relations, and related tasks. The CDRP also provides training on specialized topics such as case intake, the Americans with Disabilities Act, and guardianship training. As in the case of other statewide offices, the Michigan CDRP provides technical assistance to programs to assist in program development, implementation, and diversification of services. The CDRP annual report for 1994 notes that some of the new areas that programs are moving into include youth violence prevention, community meeting facilitation, mediation of guardianship petitions, will disputes, zoning and property line disputes, and real estate transactions. The CDRP has encouraged community mediation centers in the State to link up to the ConflictNet on the Internet to provide a forum for discussion of common issues and for e- mail linkages among centers. Twenty centers in Michigan are now linked to this service. Massachusetts District Court Mediation Program The Massachusetts District Court Mediation Program was established in 1984. The program provides clearinghouse services and technical assistance for mediation programs in Massachusetts that use volunteer community mediators for cases that come before the Massachusetts district courts. The program has also provided technical assistance to the general public. Services provided by the District Court Mediation Program include helping local communities to establish mediation programs; sponsoring periodic meetings of program directors from across the state to discuss emerging issues in the field; developing and implementing training programs; training trainers, assisting in drafting legislation relevant to community mediation, including efforts to raise funds for programs; extensively working on standards for mediation programs; participating on relevant local, state, and national committees (such as the Massachusetts Trial Court's Standing Committee on Dispute Resolution) to represent the interests of community mediation programs; and related activities. The District Court Mediation Program has published a number of very useful reports. Community Mediation in Massachusetts: A Decade of Development, provides an overview of program activities in the State as well as discussions of emerging legal, ethical, and operational issues. A monograph entitled Mediation: An Alternative That Works, offers detailed information on the nature of mediation, an overview of mediation programs in Massachusetts, a summary of resources available to mediation programs in the State, and a bibliography of literature in the field.[3] In 1984 the District Court Mediation Program, in cooperation with the University of Massachusetts Mediation Project, cofounded the National Association for Mediation in Education (NAME). The program's director has provided mediation training throughout the United States and also in Canada, England, Australia, and South Africa. The Massachusetts District Court Mediation Program works closely with the Massachusetts Association of Mediation Programs and Practitioners (MAMPP) in its many activities. The two organizations have jointly conducted conferences of local program personnel to assist programs. The director of the Massachusetts District Court Mediation Program routinely contributes articles about district court program activities to the MAMPP newsletter. The two organizations also collaborate in seeking to influence the development of State governmental and bar policies that are favorable to community mediation programs. Statewide Governmental Programs That Serve a Variety of Forms of Dispute Resolution Programs, Including Community Dispute Resolution Efforts Ohio Commission on Dispute Resolution and Conflict Management The Ohio Commission on Dispute Resolution and Conflict Management was established in 1990 to support the development of innovative conflict resolution mechanisms in the State. The commission provides services to all three branches of government, in contrast to the governmental programs discussed in the preceding section, which are located within the judicial branch. The commission has 12 volunteer members, selected by the Governor, the chief justice of the Ohio Supreme Court, the senate president, and the speaker of the Ohio House of Representatives. The commission has focused on four primary target areas--schools, courts, communities, and government--and has been active in supporting community mediation programs, school-based conflict resolution, dispute resolution mechanisms within State and local government agencies, and related applications of conflict resolution techniques. The types of conflict resolution techniques promoted by the commission include conciliation, mediation, arbitration, facilitation, collaborative problem solving and consensus building, and interest-based negotiations. The commission seeks to encourage the development of community mediation programs in every county and major city in Ohio. As part of this work, the commission is encourages partnerships among community organizations, local government, the courts, and schools, and it also promotes networking among community mediation programs in the State. The commission maintains a directory of community mediation programs and has also developed a six-step strategy for implementing new mediation centers. The commission sponsors training and informational seminars and has also developed a training videotape indicating techniques for conducting mediation sessions. In addition, the commission has worked closely with the Ohio Supreme Court to foster the development of mediation programs within the courts. The commission has cosponsored the work of a trainer who has traveled to small and medium- sized courts across the State and trained approximately 100 volunteers to handle selected civil and criminal matters through mediation. The commission has also worked on the development of mediation mechanisms for juvenile assault cases in one urban court. The Ohio Commission has been very active in encouraging conflict resolution training in the schools of Ohio. It has prepared documents on how to establish such programs, has conducted and evaluated a peer mediation demonstration project in 20 schools, and has prepared Publication lists on curricular materials and a directory of Ohio schools with conflict management programs. The commission has also developed materials instructing State and local governmental officials regarding options for dealing with conflicts that affect their agencies. In addition, the commission provides mediation and facilitation services for local and State officials confronting conflicts regarding policy development and implementation. The Ohio Commission publishes a newsletter entitled Resolution, a wide variety of other reports and documents. Center for Alternative Dispute Resolution of the Supreme Court of Hawaii The chief justice of the Supreme Court of Hawaii established the Program for Alternative Dispute Resolution in 1985, and in 1989 the legislature institutionalized this program and renamed it the Center for Alternative Dispute Resolution. The original program was funded by the National Institute for Dispute Resolution (along with three other "State offices of mediation" in Massachusetts, New Jersey, and Minnesota). Twenty such State offices are now in operation across the nation, and they have broad mandates encourage development of dispute resolution mechanisms as well as provide dispute resolution services for critical disputes within their states. The Hawaii Center has four primary missions: (1) to assist in the design of dispute resolution mechanisms for all three branches of government at the State and local level, (2) to assist the government in the mediation or facilitation of complex litigation and public policy disputes, (3) to promote alternative dispute resolution innovations through training and public education, and (4) to manage the State's funding program for community mediation centers. The center supports a wide range of dispute resolution programs for the judicial branch of government, including statewide court-annexed (mandatory but nonbinding) arbitration, family court mediation and settlement conferences, landlord/tenant mediation, mandatory small-claims mediation, and an appellate case conference program. The center has also been working with Dr. Mark Umbreit, an expert on victim/offender mediation, and with the Honolulu Police Department to design a program to divert defendants charged in the district court with misdemeanor theft or property damage offenses to mediation (with the consent of the complainant). A working group has developed a set of restrictions on the types of defendants eligible for diversion (including having not more than one prior misdemeanor conviction and no felony convictions, no evidence of current extensive substance abuse, and related factors). The Hawaii Center manages the State's funding program for the six Hawaiian community mediation centers. Mediation Centers of Hawaii (MCH) serves as the umbrella organization for the State's community mediation centers, and the Center for Alternative Dispute Resolution provides MCH with a purchase-of-services contract. MCH in turn funds individual centers using a performance-based formula. The state provided MCH with a $499,588 contract in FY 1994. This contract represented more than two-thirds of the total Center for Alternative Dispute Resolution budget of $705,252. The center has also worked extensively with executive branch agencies on such efforts as the State Water Commission Mediation Program and planning for dispute resolution mechanisms for the Department of Land and Natural Resources. The center also provides dispute resolution services for cases referred to it by judges, State and county elected officials, and State and county department heads. Center staff or members of the center's panel of neutral third parties provide dispute resolution services. The Center has provided services for a broad array of lawsuits and public policy disputes, including helicopter noise and safety regulations disputes; Hurricane Iniki insurance cases; tropical forestry controversies; natural resource, environmental, and siting issues; and public utilities infrastructure issues. Local Programs Providing Extensive Technical Assistance and Training Many community mediation programs provide extensive technical assistance and training services to program planners and administrators in the United States and abroad. Each issue of the NIDR News includes a guide that lists training and technical assistance resources in the field. The programs are categorized by region of the country and include selected community mediation programs as well as organizations devoted solely or primarily to training and technical assistance. NIDR does not screen programs listed on the basis of the quality of their services, and each organization pays for the publication of a description of its services. Nearly 50 resources were listed in the January/February 1996 issue of NIDR News. The types of services provided by local programs vary. For example, the Community Board Program of San Francisco provides training and technical assistance in the following topic areas: (1) basic and advanced mediation and conflict resolution training, (2) the development of school-based conflict resolution and peer mediation programs, (3) conflict management in the workplace, (4) the development of conflict resolution and peer mediation programs in juvenile facilities, (5) planning and development services for new community mediation programs, and (6) training for neighborhood leaders in communication and problem solving. The Community Board Program also publishes Dispute Resolution Access, a periodic guide to research and information in the community mediation field. The guide provides brief reviews of documents in a variety of categories (such as qualifications, criminal justice, domestic mediation, mediation theory, and mediation training) as well as interviews with leaders in the field. The New Mexico Center for Dispute Resolution (NMCDR) is also a prominent provider of national technical assistance and training services and has prepared numerous documents for community mediation programs. In 1995 the New Mexico Center sponsored training seminars on the following topics: (1) school mediation (the center has developed a widely used model for implementing school mediation at elementary and secondary schools), (2) parent/child mediation, (3) mediating multiparty youth disputes (this institute deals with intergroup and gang-related disputes), (4) conflict resolution and prejudice reduction for at-risk youth, and (5) advanced school mediation. In addition, NMCDR provides custom-designed technical assistance and training for nonprofit organizations, governmental agencies, schools, businesses, and others. Some of the publications prepared by the New Mexico Center include: (1) National Resource Directory for Youth Mediation, (2) Implementation and Training Guide for Student Mediation in Elementary Schools (an additional document addresses secondary schools), (3) Mediation and Conflict Resolution for Gang-Involved Youth, and (4) Implementing Mediation in Youth Corrections Facilities. Urban Community Mediators (UCM) in Dorchester, Massachusetts, whose roots can be traced to the Urban Court Program, one of the original neighborhood justice centers in the United States, places a priority on preparing its volunteer mediators to become mediation trainers. UCM has created a "career" track for trainers that includes apprentice assistant, coleader, and lead trainer roles. More than 30 mediators are involved in training activities, which are seen as a way to build and spread much-needed peacemaking skills in this diverse urban neighborhood and to raise revenue for an organization that still must struggle for every operational dollar it can obtain. Conclusion The community mediation field has benefited from the training and technical assistance services and funding programs of many national, State, and local organizations. The work of these organizations is reviewed in this chapter. The recently developed National Association for Community Mediation was working to ensure that programs across the nation have necessary support available to them. Endnotes 1. NAFCM press release dated November 11, 1994. 2. Bradley, S., and M. Smith, "NAFCM: Looking Toward the Next Century," NIDR News (November/December 1995). The meaning of the term "transformative" in the context of mediation is discussed at length in chapter 1. 3. Davis, A., Community Mediation in Massachusetts: A Decade of Development, Massachusetts District Court. Davis, A., Mediation : An Alternative That Works, Massachusetts District Court. ------------------------------ Chapter 4 Assessing the Impact of Programs on the Quality of Justice and Related Measures ------------------------------ Key Points o Community mediation programs seek to achieve a variety of aims. One of the central goals sought by programs is the delivery of high-quality justice to disputants. Quality of justice can be assessed in a number of ways, and the complexities involved in defining and measuring the quality of justice are reviewed in this chapter. o Research studies have measured the quality of justice delivered by community mediation centers in various ways, including assessments of: - disputants' satisfaction with the process and with community mediators; - disputants' perceptions about the fairness of the process; -disputants' satisfaction with the terms of the agreement; and -the stability of dispute settlement over time. o A number of studies have compared court case processing and community mediation program case processing. These studies are reviewed in this chapter. Such studies often report that community mediation programs achieve superior outcomes when compared with adjudication for the types of matters handled by the programs. This is particularly true for measures of disputant perceptions of the process and agreements, perceived fairness, and related perceptions. Data regarding the stability of settlements over time favor mediation but are more equivocal. o Community mediation centers have had very limited impacts on overall court caseloads and associated costs. A University of North Carolina Institute of Government study reported that one program studied by the institute appears to have significantly reduced the number of court trials in its jurisdiction based upon a comparison with a matched county that lacked a mediation program. The researchers noted that in order to achieve such impacts, programs must have highly effective court case referral mechanisms and must process a significant proportion of cases that are technically eligible for mediation. o Much remains to be learned about the advantages and disadvantages of various dispute resolution mechanisms. Additional rigorous studies comparing community mediation programs with court case processing are needed to further understand their comparative effectiveness in addressing disputant needs and resolving conflict. Many studies have dealt with newly developed programs, but it is particularly important to assess the processes and outcomes of mature, institutionalized community mediation programs. Such programs may demonstrate outcomes that are even more favorable than those in many existing studies, but it is also possible that bureaucratization, large caseloads, and related factors may lead to a reduction in the quality of case processing over time. o Community mediation centers typically process cases more rapidly than the courts. This is not surprising since the court system is burdened with the vast bulk of the caseload, while mediation centers handle only a small, select portion of the total. ------------------------------ Complexities Involved in Assessing the Quality of Justice A wide variety of procedures have evolved to settle disputes, and earlier sections of this report have discussed the primary features of common dispute settlement procedures such as conciliation, mediation, and arbitration. The task of assessing the relative "quality of justice" of differing dispute-processing mechanisms is obviously a difficult one and, at a minimum, requires some agreement on the major components of "quality." One simple approach to the problem would be to argue that high-quality justice is possible only when a particular process is made available to disputants. In the United States, for example, one could argue that high-quality justice requires at a minimum the provision of "due process" to disputants (including such features as speedy, public hearings before impartial dispute resolvers, the opportunity to be informed of the nature and cause of the accusation and to confront witnesses, and to have professional legal assistance). A person highly committed to the Anglo-American adversarial system of justice presumably could assert that high-quality justice is not possible without these provisions. Such an approach would put an end to the search for ways of defining the " quality of justice" by suggesting at the outset that only one set of processes can yield high-quality justice. Such an assumption is highly dubious, and this approach is clearly inappropriate if one wants to compare without bias two different types of dispute processing in terms of the quality of justice rendered. Instead, it is necessary to examine the common aims sought by both community mediation programs and adjudication as systems of dispute settlement, and then to compare their achievements based on these dimensions. Four major elements of "quality of justice" are commonly sought regardless of the type of procedure used: (1) Precision in bringing out relevant facts. Thibaut and Walker have explored this dimension in comparisons of the adversarial system of justice and the inquisitorial system common in Western Europe.[2] (2) Consistency so that relatively similar outcomes occur for similar cases. This concern is greater for adjudication, in which decisions are made, than for mediation, in which disputants fashion their own agreements. Mediators have limited options for constraining variability in outcomes, and they only intervene when gross injustices appear likely to take place. (3) Disputant satisfaction with the process and outcomes, and beliefs that they are fair.[3] (4) Compliance by disputants with the judgments or settlements produced by the dispute-processing approach.[4] Numerous secondary qualitative elements of justice exist, including the understandability of the process, the adequacy of opportunities for participation by parties in the case, and the potential impacts of dispute processing on social justice. One particularly interesting additional dimension of the "quality of justice" is discussed by Bush and Folger in their 1994 book The Promise of Mediation. Bush and Folger examine the "transformative" potential of mediation; this concept is discussed at length in chapter 5.[5] Jean Sternlight, Director of Education and Research for the Florida Dispute Resolution Center, briefly described the concept in a review of Bush and Folger's book: "Transformation," as defined by the authors, is a process of moral development by which individuals move toward both greater "empowerment" and greater "recognition" of others' situations. "Empowerment" is a type of self-advancement or growth, by which the individual achieves a better understanding of their ability to control their own destiny. "Recognition" means acknowledgment of the interests, needs, wants, and perhaps, rights of others. A number of the studies reported in this chapter provide clues about the transformative power of mediation: these studies provide information regarding changes in reported understanding of the other party, changes in fear and anger at the other party, and related empirical measures. Further intensive research on transformative measures will be needed over time. Frances Wright Henderson, Director of the Orange County, North Carolina, Dispute Settlement Center, has demonstrated the subtlety of such transformative qualities of mediation by noting, "What our mediators often observe during a mediation . . . is a transformative moment. Maybe it is simply a still second when one side has heard the other for the first time. Maybe it is the relief of moving away from what seemed to be an impasse. Maybe it is a time of growth." The measurement of such outcomes is obviously challenging, but research on these issues is important and will be likely to increase in coming years. Many observers feel that it is the potentially transformative qualities of mediation that draw volunteer mediators to participate in programs, and similarly, these qualities may be of great interest to disputants who elect to have their dispute mediated. The first two elements listed, precision and consistency, are also quite difficult to measure, and relatively little research has been conducted on them. Little is known about the degree to which different dispute- processing procedures uncover the relevant facts. The Thibaut and Walker studies, and related research in that tradition, have documented the difficulties of assessing the precision of different processes.[6] Similar problems occur for the assessment of consistency, and increased concern for consistency in adjudication has surfaced in recent years with the development of various sentencing guideline schemes designed to constrain and structure discretion to improve the consistency of case outcomes. In contrast, the elements of disputant satisfaction and compliance with agreements and judgments have been repeatedly assessed in research studies, and a number of studies have compared mediation and adjudication case processing using these dimensions. This chapter focuses on these measures as the primary indicators of quality of justice. Finally, especially when assessing mediation, dispute resolution rates (that is, the proportion of mediation cases reaching agreement either before or after hearings) must be considered in addition to measuring satisfaction or compliance. Court cases that proceed to trial inevitably result in some sort of decision by the judge. In contrast, the voluntary nature of mediation results in only a portion of cases reaching any disposition. Before considering the quality of justice rendered by mediation agreements, it is necessary to determine what proportion of cases in fact reach any agreement at all. ------------------------------ Additional Data Regarding Dispute Resolution Rates Data similar to the Florida program statistics on overall caseload performance are available for the Atlanta, Kansas City, and Los Angeles neighborhood justice centers.[8] These three programs held hearings in only 35 percent of all cases as compared with 55 percent of cases in the five Florida programs. The 82 percent rate of agreements reached at hearings is almost identical to the 81 percent achieved in Florida's programs. The evaluators found that 17 percent of the programs' total caseloads were resolved before a hearing occurred, perhaps due to the neighborhood justice centers' efforts to contact disputants by telephone to attempt to arrange a settlement. Overall, the combination of cases resolved at hearings (29 percent of the programs' overall case intake) with cases resolved prior to hearings (17 percent of overall cases) results in an estimate that the three neighborhood justice centers achieved case resolution in approximately 45 percent of the cases reaching them. The single largest source of case attrition for these programs is caused by respondents' refusals to participate in hearings or the inability of the programs to locate respondents (1,297 cases fell in these two categories). Persons advancing the argument that mediation centers extend the reach of social control of the State may be interested in these data. Respondents appear to exercise their right to refuse participation quite readily; an additional group of disputants agree to participate in hearings and then become no-shows or cancel the hearing (623 cases in the sample). Such data are, of course, less heartening to persons who seek efficiency in case resolution or to persons who believe that program services are beneficial but can only help people if they participate. Some proportion of no-show cases may be due to the disputants resolving their conflict on their own prior to conduct of the hearing; the act of scheduling the hearing may serve as an important catalyst for such settlements. ------------------------------ Studies of Disputant Perceptions of Divorce/Custody Mediation Pearson's 1982 study of divorce mediation in Denver provides a favorable view of mediation when compared with court case processing in terms of participant satisfaction.[22] Though the Denver Custody Mediation Project specializes in divorce matters involving custody and differs significantly from general dispute mediation centers in its type of caseload, the process of mediation used to serve clients is very similar to that in community mediation programs. Pearson conducted follow-up interviews shortly after mediation sessions and 6 to 12 months following the sessions and found that satisfaction with mediation was considerably higher than satisfaction with court case processing at both points in time. Ninety-eight percent of disputants having successful mediations (resulting in agreements) and 57 percent having unsuccessful mediations indicated that they were satisfied with the mediation process when questioned in the second follow-up period. In comparison, only 36 percent of disputants in the control group reported satisfaction with the court process. Since divorce mediation disputants also must have contacts with the court to complete divorce processing, data were also collected regarding their views of the court. Only 38 percent of persons having successful mediations and 36 percent of those with unsuccessful mediations were satisfied with the court process. These findings mirror those of the Brooklyn study of criminal case processing. Susan Keilitz, Henry Daley, and Roger Hanson of the National Center for State Courts conducted a study of divorce mediation programs and court case processing in four States (Florida, Nevada, New Mexico, and North Carolina). The study was funded by the State Justice Institute and was published in 1992. Keilitz, Daley, and Hanson reported that, "while litigants in the NCSC study view the dispute resolution process in which they participated as basically fair and satisfactory, on most of the individual measures of the quality of the process, mediation is rated more favorably than is traditional court litigation."[23] ------------------------------- Perceptions of Fairness in Small Claims Case Processing In their study of small claims mediation in Maine, McEwen and Maiman also collected data regarding perceptions of fairness and found that mediation participants viewed their settlements as fair somewhat more often than did court case clients (67 percent versus 59 percent).[29] They further analyzed the data on perceptions of fairness for various categories of cases, defined by the percentage of the original claim awarded in the settlement or judgment. As might be expected, few of those plaintiffs or defendants who lost at trial perceived the judgment to be fair while almost all of those who won viewed the judgment as fair. In contrast, 54 percent of plaintiffs receiving no money after mediation considered the settlement to be fair, and 67 percent of defendants who agreed to pay nearly the full amount of the claim considered the outcome to be fair. McEwen and Maiman also found that "in mediation it was almost twice as likely as in adjudication that both parties viewed the outcome as fair." In 44 percent of the cases, both parties viewed the outcome as fair following mediation; by comparison, 24 percent of the adjudicated cases resulted in both parties viewing the case outcome as fair. ------------------------------ Brooklyn Mediation Program Data Regarding the Stability of Case Settlements The Davis, Tichane, and Grayson study of the Brooklyn mediation program collected comparable data from a control group of court cases using an experimental design. The researchers found that 19 percent of mediation complainants reported problems with the defendant compared with 28 percent of court case complainants. This difference favors mediation but is not statistically significant. The authors found, however, that 62 percent of complainants perceived that defendant behavior improved following mediation, while only 40 percent of court complainants perceived an improvement in defendant behavior. The defendants reported that complainants' behavior improved in 63 percent of mediation cases and 61 percent of court cases. The frequency of criminal justice system intervention with the disputants during the follow- up period was virtually identical for both mediation and court case disputants. The police were called in 12 percent of mediation cases and 13 percent of court cases, and one of the parties was arrested for a crime against the other in 4 percent of both mediation and court cases disputants. This lack of a difference may in part reflect a floor effect among the sample of cases. The percentages are quite low for both the court and mediation and may represent a virtually irreducible level of conflict likely to emerge, particularly in the serious crime cases handled by the Brooklyn program. The Brooklyn study also included a number of attitudinal measures that suggest benefits to complainants deriving from mediation. The researchers asked mediation and court complainants how much they feared revenge from the defendant and how angry they were with the defendant. They found that, in each case, roughly twice as many court case complainants feared revenge or felt anger than did the mediation complainants. The mediation hearings were also found to result in increased understanding of the defendants' motives by the complainants. Such outcomes are significant; reduced fear and anger can presumably greatly affect the quality of life of disputants and may provide clues about the transformative nature of mediation discussed by Bush and Folger. ------------------------------ Comparing Compliance: Small Claims Mediation Settlements versus Court Judgments The Maine small claims court mediation study provides striking findings of improved compliance following mediation for the minor monetary matters handled by the program. The relevant data are presented in Exhibit 7. They report that 71 percent of successfully mediated cases resulted in payment in full by defendants, compared with only 34 percent of court judgments. Interestingly, 53 percent of defendants whose cases were mediated but did not result in agreement paid their court judgments in full. This finding suggests the possibility of a latent positive effect of mediation in small claims cases even when the mediation session does not successfully result in an agreement. (Twenty-one percent of court defendants made partial payments, compared with 16.5 percent of mediation defendants who reached agreement; 45 percent of court defendants failed to pay anything, compared with 13 percent of mediation defendants.) One possible explanation for these findings is the great differences among mediation and adjudication defendants' views of their obligation to pay. While more than two-thirds of mediation defendants reported some or a strong legal (and moral) obligation to pay, fewer than one-third of court defendants felt the same way. The researchers argue that the act of entering into an agreement fashioned by the parties themselves leads to this greater sense of obligation. Source: McEwen and Maiman, "Small Claims Mediation in Maine: An Empirical Assessment," Maine Law Journal (1981). The finding is a fascinating one; in theory, a robed judge making a court judgment is the high-water mark of legal obligations in American society, and yet only a minority of defendants in the Maine sample felt that such a judgment incurred in them a legal obligation. The defendants in the cases often did not feel that the judgment was fair and reflective of a full airing of their case, and hence did not accord the judgments with the legal legitimacy expected of them by society. A number of additional factors may contribute in part to the greater likelihood of compliance following mediation, including the fact that mediation led to dollar settlements that were somewhat lower than court judgments. In addition, some level of self-selection by parties into mediation was possible. Both issues are discussed by McEwen and Maiman and are unlikely to account for more than a portion of the difference between the outcomes of mediation and adjudication in Maine. An interesting aspect of the Maine findings is that the Maine researchers found greater differences in compliance following mediation than they did in the attitudes of the parties; most of the preceding studies found substantial differences in the perceptions of mediation and court disputants but smaller differences in compliance. One factor influencing this difference is that the Maine study dealt with minor civil matters that could be settled with a single act, payment of money, rather than by complex behavioral changes among disputants. The payment of money is a highly unambiguous task compared to stopping harassment of another party, and the obligation may be more strongly felt to meet this "easier" responsibility. ------------------------------ Additional Studies Dealing With the Costs of Mediation A 1978 study by University of Southern California researchers attempted to estimate the costs of court case processing in the Dorchester, Massachusetts, District Court and arrived at an estimate of $148 per disposed case.[42] In comparison, the 1980 evaluation of three neighborhood justice centers estimated costs per case in the Atlanta project at $142 per resolved case and $62 per case referral.[43] Individual case costs were considerably higher in the Kansas City and Los Angeles projects, since they have smaller caseloads but fixed overall costs comparable with the Atlanta project's ($172 and $202 per referral and $309 and $589 per case resolved, respectively, for Kansas City and Los Angeles). A 1977 study by McGillis and Mullen noted that the range of project costs per case referral in a six-project sample of dispute resolution programs varied from approximately $20 to $300 per referral.[44] The reasons for such per case cost variation are uncertain, but some major factors likely to influence costs include variations in program sponsorship (public versus private), case volume, staffing, and hearing length. In addition, costs are likely to vary substantially depending on the types of cases handled (with costs likely to increase as cases become more complex). ------------------------------ Community mediation programs seek to achieve a variety of aims, including delivering high-quality justice to disputants and providing services efficiently. This chapter provides a discussion of the complex issues that arise in assessing programs' achievement of these aims and presents research findings regarding program accomplishments and problems.[1] In some topic areas, a number of very informative research studies are available; in other topic areas, useful research is sparse. The Fund for Research on Dispute Resolution supported many useful studies during its operation from 1987 to 1991, and a number of those studies are discussed in this and the following chapter. The National Institute of Justice and the State Justice Institute have also funded informative evaluations dealing with dispute resolution mechanisms. The State Justice Institute provided the National Center for State Courts with a grant in 1994 to develop a model evaluation guide for dispute resolution programs, and the availability of the guide may encourage increased research in this field. Assessing the Quality of Justice The concept of the "quality of justice" is an elusive one, and yet the goal of improving the quality of justice provided to disputants is a central stated aim of virtually all community mediation programs. In the case of mediation, the predominantly voluntary nature of the process and the specific processes used are assumed to encourage a broad-ranging discussion of the issues underlying the conflict. In contrast, a number of features of adjudication, such as rules of evidence, the use of attorneys as intermediaries, and the severe time limitations typical of lower- court hearings serve to inhibit any discussions of underlying issues severely. Proponents of mediation predict that agreements fashioned by the disputants themselves reflecting the full range of issues in dispute will result in more durable case settlements and greater satisfaction with the process by parties to the dispute. To the extent that individual programs find it difficult to reduce court caseloads or court costs (an issue discussed later in this chapter), they will be increasingly assessed in light of their capacity to offer an improved quality of justice. Funding decisions may turn on a program's ability to argue persuasively that, for the types of cases it handles, the outcomes for disputants are superior to those arising from court processing. The specific questions explored in this section include: o What are the varying conceptions of the "quality of justice"? o How can "quality" be measured? o What empirical evidence currently exists regarding the "quality of justice" provided by dispute resolution programs? Where possible, the relative quality of outcomes of community mediation programs and the courts is compared. The findings reported in this section are relevant to mediation and arbitration in general and to their relationship with formal adjudication. The bulk of studies of community mediation programs have focused on programs offering mediation, and the research findings in this section reflect this emphasis. Major Available Measures of the Quality of Justice Three major types of data that are available from research studies will be reviewed to assess the comparative quality of justice of mediation programs versus the courts: (1) dispute resolution rates, (2) disputant satisfaction with the process and outcomes and perceptions of their fairness, and (3) disputants' compliance with settlements. Relevant measures and available data sources for each type of information are discussed here in turn. Dispute Resolution Rates Dispute resolution rates are simply measures of the proportion of mediation program cases that reach agreement either before or after hearings. While most mediation programs take steps to gather such information, the available data are typically not detailed concerning the types of conflicts involved, the types of agreements reached, the disputants' views of the adequacy of the agreements, and similar issues. Considerable variations exist in the probable reliability of such data, especially in regard to case settlements prior to hearing. Complainants who have decided not to pursue their grievance to the point of a hearing for any number of reasons may inform the project that the matter is settled simply to stop the repeated contacts from project personnel. Project intake workers may also perceive that a problem is solved by "selectively hearing" the reasons given by the complainant for discontinuing the claim. In short, while project data on dispute resolution rates are the most commonly available measures, they are somewhat limited in value because of the probable disparity in definitions of terms and the complexities of interpreting the data. The simple achievement of an agreement at a hearing, while significant, can represent anything from a highly comprehensive and sensitive settlement reflecting an effort to solve the entire range of problems embedded in the dispute to an agreement by the parties regarding a marginal issue that may have some limited importance but leaves the vast bulk of the conflict unresolved. Some programs strongly advise their community mediators not to settle at all costs and discourage the development of agreements about highly marginal issues solely for the sake of an agreement. Other mediation programs may subtly (and probably unintentionally) convey the message to community mediators that one's agreement "batting average" is important and may be a determinant of whether the community mediators can continue to work with the project. Such pressures are inevitable in a world in which "successful" case statistics are a factor considered by program funders. Virtually all programs point with pride to their accomplishments in settling a high proportion of cases at hearings. A number of evaluation studies have calculated the proportion of mediation hearings that result in agreements. Program rates of reaching agreements are quite similar and averaged 88 percent per program for 12 programs that have been evaluated.[7] The projects that provide arbitration in cases that do not reach a settlement have the highest dispute resolution rates because they impose settlements in virtually all cases in which disputants cannot agree. These data do not provide any information on the quality of the agreements but only indicate if some agreement was reached (and typically written up and signed by the parties) prior to the end of the hearing. Many projects tend to focus on the proportion of cases resolved at hearings as a prime indicator of success and quality in case processing. The figures reported in evaluations and independently by the projects are impressive. But it is critical that these achievements be viewed in the context of the projects' overall caseloads, rather than simply in isolation. Considerable case attrition occurs in all projects before hearings are scheduled, and typically only a fraction of cases proceed to hearings. For example, Exhibit 6 presents a summary of the total caseloads of five Florida dispute- processing programs. As can be seen from the exhibit, 93 percent of the Florida cases were scheduled for hearings, but only 59 percent of those cases actually proceeded to hearings. Factors causing this attrition included no-shows at hearings by complainants, respondents, or both; withdrawals of cases by complainants; and related causes. While 81 percent of the cases having hearings resulted in agreements, cases reaching agreement made up only 43.8 percent of the total number of cases received because of the attrition in cases prior to the time of hearings. The Florida researchers conducted a follow-up survey 6 to 12 months after the hearings in order to assess the degree to which conflicts were resolved. Complainants in Florida reported that total resolution of the dispute occurred in 52 percent of the cases having hearings, and either total or partial resolution occurred in 75 percent of cases having hearings. Adjusting estimates of overall levels of dispute resolution in light of these figures shows that 23 percent of the total number of cases received were fully resolved and 40 percent were either partially or fully resolved following processing by the program. The evaluators did not gather any data on those cases not proceeding to hearings to determine what percentage were resolved prior to hearings. Court and dispute resolution program case processing differ greatly and make it difficult to compare resolution rates between the two. Both the courts and mediation projects experience considerable attrition between case filing and disposition. The justice system screens cases at a variety of levels. Court clerks and prosecutors routinely refuse the filing of court petitions in a wide variety of matters because they do not feel that the cases meet technical charging standards, the offenses are too minor to warrant court attention, the office has a policy of not handling the specific type of matter, and so forth. Additional attrition occurs at initial court hearings due to dismissals by judges or withdrawal of complaints by the complainant. Only a small proportion of initially filed cases proceed to trial in America's courts. During the screening process the justice system at times takes steps to settle the conflict by arranging for restitution by one party to the other, or by advising the parties to stay apart. These conciliatory or dispute settlement activities tend to be quite invisible; they are typically not formally recorded in the case file and simply occur informally and then result in the cases being marked "dismissed," "nolle pros," "adjourned contemplating dismissal," and similar designations. Judges at hearings often take steps to negotiate a settlement to both criminal and civil matters, [9] and additional case dismissals following hearings may result from some mediation efforts. In short, the majority of cases in the typical urban court never reach a hearing. Once they do, the judge is empowered to impose a judgment of the matter, resulting in 100 percent of cases that are adjudicated having dispositions, by definition. Community mediation programs also experience a high rate of attrition. These programs cannot impose a settlement, and this has resulted in the development of resolution rate statistics as a means of assessing program achievements at hearings. The "apples and oranges" character of the comparison between mediation and courts on the global issues of case attrition, proportion of cases going to hearings, and power to impose a judgment at hearings makes it difficult to compare the statistics on case resolution rates with any precision. More information is needed regarding the proportion of cases arriving at the courts that result in a settlement satisfactory to the disputants at whatever stage of processing. Disputant Perceptions of the Process and Agreements The second major class of data related to the quality of justice is data on disputant satisfaction with the fairness of the mediation process and outcomes. These data are typically collected in evaluations of dispute mediation programs and, unlike dispute resolution rates, are not generally available directly from most programs. Major measures of this type include disputant satisfaction with the overall program, with the resolution process, with the mediator, and with the terms of the agreement, and disputant views of mediator and mediation process fairness. Some studies also provide information regarding the content of agreements. Additional perceptual measures collected in some studies include assessments of the understandability of the mediation process, the degree of opportunity provided to disputants to tell their story, and the like. A number of researchers of dispute mediation have gathered data on disputant perceptions of community mediation programs.[10] In addition, some studies include data about perceptions of programs that handle relatively specialized caseloads, including small claims mediation, [11] divorce mediation, [12] and child/parent dispute mediation.[13] The Law Foundation of New South Wales conducted detailed evaluations of the perceptions of disputants in three Australian community justice centers.[14] Ideally, the perceptions of dispute resolution program disputants would be compared to those of persons whose cases are handled by the courts, in order to carefully assess the differences between the two forms of case processing, and the most rigorous approach to form such a comparison would be to have disputants randomly assigned to the two types of forums. Two studies have used this approach: the Vera Institute of Justice study of mediation in Brooklyn, New York, and Pearson's 1982 study of divorce mediation.[15] An alternative, and less rigorous, approach would be to form a comparison court sample by matching existing cases on dimensions similar to those predominant in the mediation case sample. The Maine small claims study [16] and some others have used a less rigorous quasi-experimental design and compared mediation cases with cases in which mediation was not available.[17] A number of studies have sought to measure the views of disputants regarding mediation case processing, and some of these studies have compared these perceptions to those of persons whose cases were handled by the courts. The following subsections provide a summary of such data and focus on measures of satisfaction with the process and with community mediators, perceptions of the fairness of the process, and satisfaction with the terms of the agreements or settlements reached. Satisfaction with the Process and with Community Mediators A number of researchers have conducted surveys to measure disputant satisfaction with the mediation process and with community mediators. For example, Stevens Clarke, Ernest Valence, and Robyn Mace of the University of North Carolina's Institute of Government conducted an extensive evaluation of three mediation programs in North Carolina (the programs in Durham, Henderson, and Iredell). Their study was funded by the State Justice Institute, and their findings were published in 1992.[18] The researchers reported that 96 percent of complainants and 90 percent of respondents in the disputes reported satisfaction with the mediation process. Ninety-eight percent of complainants and 100 percent of respondents reported satisfaction with the performance of community mediators. The study of the Atlanta, Kansas City, and Los Angeles neighborhood justice centers found that 88 percent of complainants and respondents reported satisfaction with their overall experience at the justice center.[19] Eighty-four percent of complainants and 89 percent of respondents stated that they were satisfied with the mediation process; 88 percent of both groups stated that they were satisfied with their mediator. Similar rates of satisfaction were also observed by other projects. For example, Merry and Rocheleau, in their study of the Children's Hearing Project in Cambridge, Massachusetts, a service that mediates between parents and their children, report that 90 percent of disputants indicated that they felt the mediation process was good.[20] Cook, Roehl, and Sheppard also collected data on a sample of 66 court cases in Atlanta and Kansas City in order to assess the satisfaction of persons whose disputes were handled in court. The cases were selected to be similar to those processed by the mediation centers in those cities. Conclusions based on a comparison of the two studies should be qualified, however, as questions posed to the court case participants differed significantly from those asked of mediation participants. But the data do seem to suggest greater satisfaction on the part of mediation disputants. While more than 80 percent of disputants indicated that they were satisfied with the mediation process and overall experience at the mediation centers, only 33 percent of court case participants in the Kansas City sample stated that their case was handled well by the court (10 percent reported average handling, and 57 percent said that case handling was poor). In Atlanta, 42 percent rated their court case as having been handled well, 28 percent average, and 30 percent poor. Similarly, while 88 percent of mediation disputants said they were satisfied with their mediator, only 64 percent of Kansas City and Atlanta court case disputants said that they were satisfied with their judge. While these data suggest that disputants may favor mediation, conclusions must be qualified by the limits of the study: the court case sample was small, the study involved matching cases rather than random assignment, and the studies used different survey instruments. Two studies have used random assignment of cases to compare disputant perceptions of mediation and adjudication.[21] Davis, Tichane, and Grayson's study of a mediation program in Brooklyn compared a sample of 160 mediated criminal cases with 119 control cases. Seventy-three percent of complainants in mediated cases stated that they were satisfied with their case outcome compared with 54 percent of complainants whose case was handled in court, a difference that is statistically significant. The comparable comparison for defendants was 79 percent for mediation versus 59 percent for court cases. The study also investigated perceptions of the process by asking disputants if they felt that their story "was heard" by the judge or mediator. Ninety percent of defendants stated that their story was heard in mediation, compared to only 44 percent in court cases; 94 percent of mediation complainants said that their story was heard compared to 65 percent of control group court complainants. McEwen and Maiman's study of small claims mediation in Maine compared findings regarding mediation case processing with data from a comparison sample of court cases that were processed in courts not offering mediation services.[24] Fifty-seven percent of mediation participants stated that they had the opportunity to explore other issues than the immediate complaint compared with 18 percent of disputants whose cases were processed through the courts. Eighty-one percent of mediation clients felt that the mediator completely or mostly understood what the dispute was all about compared with 71 percent of adjudication participants. (This finding is reminiscent of the Brooklyn data regarding whether disputants' stories were heard.) Seventy- nine percent of mediation participants indicated that they understood everything that was going on compared with 65 per-cent of persons whose cases were processed by the courts. Sixty-seven percent of mediation participants stated that they were completely or mostly satisfied with their overall experience compared with 54 percent of court case participants. These differences are not as striking as some of the preceding findings but are similar in direction. McEwen and Maiman reported that when one focuses on those cases most likely to benefit from mediation, such as those arising out of continuing commercial or personal relationships, other differences between mediation and adjudication become larger. While 80 percent of mediation participants in ongoing relationships said that they were mostly or completely satisfied with the overall experience, 65 percent of those mediation parties who had a one-time interaction or who terminated their relationship around the time of the dispute were completely or mostly satisfied. While the typical dispute mediation center discussed in this report tends to handle primarily matters among persons with ongoing relationships, the Maine study demonstrates a more favorable attitude toward mediation than court case processing even among persons who do not have ongoing relationships. This finding was not anticipated by some observers who feel that the only reasonable area of application for mediation is in disputes involving persons in continuing relationships. The satisfaction levels reported in the above studies are similar to those in numerous studies of mediation that do not include court-processing comparison groups.[25] Overall, empirical studies of mediation programs have consistently shown high levels of disputant satisfaction with the hearing process and community mediators. The findings emerge from programs that differ considerably, and the pattern of results seems robust. When compared with court case processing, disputants consistently appear to view mediations more favorably than adjudication. Disputant satisfaction with mediation seems to be caused by a number of features of mediation hearings. Factors that have surfaced in studies include: (1) mediation was perceived to have helped solve the problem and improve the relationship between the complainant and the respondent; (2) mediation brought out the real issues in the case; (3) disputants had a say in how mediation came out; and (4) disputants understood what went on in mediation. Perceptions of Fairness of the Process The quality of justice can be measured in a wide variety of ways. One approach is to define quality in terms of the provision of minimal "due process" procedural elements thought to lead to just decision making. Another approach is to consider the justice of the outcomes of a process. These outcomes can presumably be viewed from a variety of perspectives, including those of the parties of the dispute, people who deal directly with the parties, and the society at large. Needless to say, it can be very difficult to develop a metric to assess the quality of justice of specific outcomes, especially when considerations of collective justice are entered into the equation of measurement. In any event, it seems quite clear that if any process claims to render a high quality of justice, the disputants whose cases are handled by the process should view the process as fair. Presumably, esoteric examples could be generated in which disputants consistently view a process as unfair and yet certain outside observers are moved to label the process as rendering a high quality of justice. Outside of the scope of such examples, however, it seems safe to stipulate that there is something seriously wrong with a justice system process that is not viewed as fair by parties processed through it. It is also likely that when such processes lack legitimacy in the eyes of disputants, compliance with their decisions will be marginal at best. A number of studies have sought to assess disputants' perceptions of the fairness of mediation hearings and mediators; some of these studies have compared mediation to the courts. Davis, Tichane, and Grayson's study of the Brooklyn mediation center surveyed both complainants and defendants to inquire whether they perceived the judges or mediators to be fair and whether they perceived their case outcome to be fair. While both groups generally felt that the judge or mediator was fair, differences in perceptions of the fairness of case outcomes are quite striking when mediation and court clients are compared. Seventy-seven percent of complainants and 79 percent of defendants in the mediation sample perceived the case outcome as fair compared with 56 percent of complainants and 59 percent of defendants in the court sample. Overall, the portion of dispute resolution program participants who found the outcomes fair was significantly greater than the portion of court participants who were asked the same question. If a central goal of the justice system is to deliver "justice" (as perceived by its clients), then these findings are important. A number of additional studies have assessed disputant perceptions of fairness of mediation but have not compared the data to a court sample of cases. These studies consistently find high rates of perceptions of fairness. For example, Merry and Rocheleau's study of the Children's Hearing Project in Cambridge, Massachusetts, found that 95 percent of parents and 84 percent of children studied in the research viewed the agreements as fair.[26] In summary, disputants are consistently found in research studies to view the mediation process as fair. Research by Davis, Tichane, and Grayson comparing mediation and court case processing shows significant differences between the perceived fairness of mediation and court case outcomes for disputants in the program studied. As in the case of the research on disputant satisfaction with the mediation process, the research on perceived fairness is very favorable to mediation programs. Satisfaction with the Terms of the Agreement A number of the research studies dealing with mediation have collected information on the satisfaction of disputants with the terms of the agreement reached. The Institute for Social Analysis study of Neighborhood Justice Center programs in Atlanta, Kansas City, and Los Angeles reported that 80 percent of complainants and 83 percent of respondents indicated that they were satisfied with the terms of their agreement. The Davis, Tichane, and Grayson study did not ask disputants directly about the terms of their agreement; however, when asked about their satisfaction with the case outcome, 73 percent of complainants and 79 percent of defendants in the mediation sample indicated satisfaction with the outcome compared with 54 percent of complainants and 67 percent of defendants in the court sample.[27] The Australian study of three community dispute centers reported that 65 percent of disputants at centers indicated that they were very satisfied and 23 percent indicated that they were partly satisfied with the terms of the agreement.[28] Davis, Tichane, and Grayson have studied the provisions included in mediation agreements at the Brooklyn program. Knowledge of the content of agreements does not present evidence about the quality of those agreements and the degree to which they meet the needs of disputants. It is informative, however, to review the primary provisions of agreements to be aware of the types of obligations being incurred by the disputants. The most common provision was the ending of harassment, and 95 percent of the agreements included such a provision. Thirty-six percent of agreements placed behavioral restrictions on one or both of the parties to the dispute. Thirty-five percent of agreements stated that parties would use structured methods for handling future problems, such as calm discussion or taking the matter to court. Twenty-four percent of agreements included limitations on interactions between the parties, including provisions that the defendant or complainant stay away from the other party's place of residence or work. The Brooklyn program dealt with serious criminal offenses between acquaintances, and the pattern of agreement provisions reflects the primarily criminal nature of the program's caseload.[30] The Florida programs studied by Bridenback handle mixed caseloads of criminal and civil matters, and the provisions of the mediation agreements reflect this greater diversity. Provisions of agreements that dealt with respondents included disengagement of contacts between the parties (26 percent), alteration of past behavior (24 percent), payment or return of money or property (18 percent), control of animals (6 percent), development of a cooperative relationship (5 percent), repair or service of property (4 percent), domestic arrangements or child welfare (3 percent), maintenance of property (3 percent), attendance at a designated program (2 percent), no obligation designated (2 percent), and other (8 percent).[31] Overall, although only limited data are available, the available research suggests that disputants are quite satisfied with the terms of mediated agreements. Measures of the Stability of Dispute Settlement Over Time All community mediation programs seek to develop case resolutions that will be durable over time and that will result in settlement of the matter. A number of studies have sought to determine the longevity of dispute resolution agreements. Relevant measures have included data from official records on recontacts by disputants with justice system agencies [32] and interviews with disputants to determine whether the dispute continued to be settled. Typical interview questions include whether or not the disputing parties have abided by all the terms of the agreement and whether or not there have been any additional problems with the other party. Many programs also inquire where disputants would go if a problem similar to the one that was mediated arose in the future. Such a measure provides some indication of the overall satisfaction of the disputants with the mediation program. As in the case of measures of disputant satisfaction, the available studies vary considerably in their use of rigorous comparison groups. The previously cited Vera Institute of Justice and Pearson studies provide random assignment experimental data comparing the stability of settlements. The other studies provide lesser degrees of rigor, and some studies present data only on the durability of mediation settlements with no comparable court data to provide a baseline. Research studies have assessed the stability of dispute settlement in a variety of ways, including searches of official records to determine recontacts of disputants with the justice system and surveys of disputants to find out whether the dispute is settled. The varying measures of long- term settlement over time each have strengths and shortcomings. For example, the use of official arrest records uncovers only those incidents that come to the attention of the police. Obviously, an agreement could break down and serious conflicts could occur between disputants without an arrest being made. Similarly, self-report data can have short-comings stemming from hesitancy on the part of disputants to be candid. Major research findings regarding the stability of dispute settlement are presented here. The Cook, Roehl, and Sheppard study of neighborhood justice centers in three cities used follow-up interviews of disputants six months after case hearings to determine whether cases were settled. The majority of both complainants and respondents stated that they had complied with all the terms of the agreement, with a smaller number indicating that they had abided by the terms partially. When disputants were asked whether the other party had kept all of the terms of the agreement, more than two-thirds of both complainants and respondents indicated that the other party had kept all of the terms of the agreement. Only 28 percent of complainants and 2 percent of respondents indicated that they had experienced subsequent problems with the other party. Pearson's 1982 study of divorce mediation provides information about the compliance of spouses with the terms of agreements relating to children and to financial matters. The research found that only 6 percent of parties who experienced successful mediations reported serious disagreements arising over their settlement compared with 34 percent of parties in court cases. In general, relationships following successful mediation were found to be far better than those following court processing. It is unclear however, whether this is a result of the existing predispositions of the parties, since long-term follow-up shows that perceptions of relationships following unsuccessful mediation are as bad or worse than following court handling of cases. Kelley studied both the short- and long-term impact of divorce mediation and found that positive short- term impacts tend to dissipate over time.[33] Kelley collected data from more than 200 divorcing couples from the inception of the divorce process to two years following the divorce. She compared divorces that were mediated to those proceeding through the courts. She found that mediation agreements contained more comprehensive provisions dealing with child support, custody, and related matters. Six months before the divorce, parents who had their cases mediated reported fewer conflicts compared with the sample of parents who had cases handled by the courts. At the time of the divorce, mediation clients reported that they were more satisfied with the process and the outcome of the case compared with the court sample, were more in compliance with their agreements, and had a higher level of cooperation with their former spouses. These benefits did not continue over the long term, however, and Kelley found that two years following the divorce, the mediation and court samples were not significantly different in levels of cooperation, amounts of conflict, compliance rates, and related measures. This research provides valuable information about the potential limits of durability of mediated settlements. Janet Walker's research comparing mediated versus court-processed divorces in England and Wales supports Kelley's findings: four years after the divorce, couples who had their cases mediated were as likely as those with court- processed cases to take divorce-related conflicts to court.[34] Despite the lack of differences in many long-term outcomes, the short-term benefits of divorce mediation, of course, could still have been very valuable to parents and children, since these benefits occurred during the most traumatic and stressful period of the marital breakup. In any event, Kelley's and Walker's research studies make it clear that both practitioners and policymakers must be cautious and avoid overpromising the potential long-term benefits of mediation. A number of additional studies have collected data on the long-term stability of mediation agreements but have not provided court comparison data. Merry and Rocheleau's findings regarding the long-term impact of mediation hearings at the Cambridge Children's Hearing Project are particularly intriguing.[35] The study found that more than one-half of family members (54 percent) felt that they had changed the way they handle conflict following participation in the mediation session. When initially contacted by the researchers, 70 percent of family members reported less arguing and fighting after mediation, and nine months after the hearing, two-thirds still reported that arguing and fighting had diminished. Only about 20 percent of disputants could attribute the improved conditions to a specific agreement term. These findings suggest a striking impact of the mediation session on the subsequent behavior of the disputants. One possible factor leading to improved relations is the finding that 59 percent of the disputants reported that they better understood the other person's point of view following mediation-further evidence of the transformative powers of mediation. Evidence regarding the long-term impact of mediation tends to be very favorable. Disputants often appear to improve their understanding of one another, experience reduced anger, and improve relationships following mediation. It is risky to be excessively glib about the long-term impact of dispute resolution programs, however, given the limited amount of research that has been conducted on the topic and the cautionary findings reported earlier in two divorce mediation studies. The dispute resolution field could greatly benefit from efforts to replicate the types of studies reported in this section on the stability of dispute settlement over time. Conclusion About Research Assessing Quality-of- Justice Measures Review of the growing body of research findings leads to the conclusion that dispute resolution programs are often superior to adjudication for the types of matters handled by these programs. This is particularly true if one measures superiority in terms of disputant perceptions of the process and agreements, perceived fairness, and related perceptions. Data regarding the stability of settlements over time favors mediation but is more equivocal. Detailed information is not available regarding the relative precision of mediation and adjudication in ascertaining the facts of a case, the relative consistency of outcomes across cases (both of these measures may have limited relevance to mediation), or the full implications of the processes for collective justice. Much more research of the sort reviewed in this chapter is needed before we can confidently assess the advantages and disadvantages of various dispute resolution mechanisms. Many studies have dealt with newly developed programs, and it is particularly important to assess the processes and outcomes of mature, institutionalized dispute resolution programs. Such programs may demonstrate outcomes that are even more favorable than those presented here due to their greater experience, but it is also possible that bureaucratization, large caseloads, and related factors may lead to a reduction in the quality of case processing over time. The favorable views disputants hold of mediation are not particularly surprising. Judy Filner of the National Institute for Dispute Resolution (NIDR), formerly Director of Training for the San Diego Mediation Project, stated in 1992: "All too often, disputes arise because of misunderstanding, miscommunications, unintended slights, culturally- based ways of acting. The courts are not designed to identify or deal with the `essence of these disputes. Rather, they determine facts and apply the rules of law to them."[36] Assessing Program Impacts on Case Processing: Efficiency and Costs Many community mediation programs have been developed, in part, to provide relief to what is perceived as an overburdened court system. Numerous justice system-based programs and some composite programs have argued that community dispute resolution efforts have the potential to remove those cases from the court docket that are inappropriate and assign them to a more appropriate forum for processing. In contrast, community-based programs generally do not assert that they will have a marked impact on justice system efficiency. Three separate justice system-related goals have often been asserted by program planners: (1)increased speed of case processing when compared with the court handling of cases; (2) reduced justice system caseloads due to the referral of substantial numbers of cases to alternative forums; and (3) associated reduced costs arising from the reduced caseloads. Substantial difficulties have been encountered in reducing either court caseloads or costs, and many recent program developers have downplayed or totally dropped these goals. This section addresses the following questions: o What have been the accomplishments of community mediation programs with regard to case processing time? o What has been the impact of programs on court caseloads? o How have programs affected justice system costs? Case Processing Time A number of studies indicate that community mediation programs do process cases rapidly. For example, the Florida Supreme Court- sponsored evaluation of five projects indicated that for a sample of 1,320 cases that proceeded to a hearing, the average time required from case referral to disposition was 11 days, with a median of 8 days. Hearings were held in 56 percent of all cases.[37] Similarly, data from the study of the three neighborhood justice centers funded by the Justice Department found that the average time for case processing from referral to a hearing at these centers was 10 days; disposition of cases resolved without a hearing required 11 days, and cases that failed to achieve a resolution required 14 days. Court case processing of similar cases typically required far more time to reach disposition. For example, the study reported an average time from filing to trial of 98 days in Atlanta and 63 days in Kansas City for cases similar to justice center cases.[38] Similar findings are reported in many other studies and project annual reports. For example, the Michigan Community Dispute Resolution Program's Annual Report for 1994 indicates that, on the average, cases took 17 days from initial case referral to resolution by mediation or conciliation for the 25 programs studied.[39] In New York State, the Annual Report for the Community Dispute Resolution Centers Program for FY1995 indicates that the average time required from case intake to disposition for single-hearing cases was 13 days, and the average time for multiple-hearing cases was 44 days (12,804 cases involved single hearings, and 595 involved multiple hearings).[40] Significant differences between the court and community dispute resolution program case processing time are, of course, not surprising, given the fact that the court system is burdened with the vast bulk of the caseload while mediation centers handle only a small, select portion of the total caseload. But the case processing achievements of the community mediation programs still are noteworthy and indicate a relatively high level of internal efficiency in scheduling and case disposition, even with the built-in advantages available to the centers. Court Caseload Impact A central difficulty in estimating the impact, if any, of dispute mediation centers on court caseloads is the problem of determining what proportion of dispute resolution program cases would have proceeded into the courts and how far they would have gone in the process. It is very difficult to determine the amount of court attention that mediation cases would receive without the use of an experimental research design. The University of North Carolina Institute of Government's 1992 evaluation of North Carolina community mediation programs sought to determine "utilization rates" for mediation-that is, the proportion of court cases that are appropriate for mediation and are actually handled by the court. The researchers studied case processing in three North Carolina mediation centers, court case processing in the mediation programs' counties, and court case processing in three counties that lacked mediation programs.[41] A sample of 1,421 clusters of cases filed in 1990 that met eligibility criteria for mediation were examined. (The term "clusters" refers to the fact that cases were examined together if a single offense generated a number of separate court cases.) The researchers found that only 22.8 percent of cases that were technically eligible for mediation were actually sent to mediation. This is a relatively low utilization rate, and the researchers indicated that programs need to engage in more vigorous outreach with the courts and disputants in order to receive a higher proportion of cases that are appropriate for mediation. The mediation program that had the highest utilization rate (handling 34.2 percent of eligible cases) also appears to have significantly reduced the number of court trials in its jurisdiction based on a comparison with the matched county lacking a mediation program. The researchers concluded that relatively high utilization rates are essential for mediation programs to have a substantial effect on the court's workload. Nearly 59 percent of the cases referred to mediation resulted in mediation hearings (complainants failed to participate in the bulk of the cases that did not reach hearings), and 92 percent of the hearings resulted in written agreements. Additional research of this sort is needed that looks carefully at the outcomes of cases that are technically eligible for mediation. Spontaneous changes in overall court caseloads due to a variety of economic and social factors make estimates of the impact of dispute resolution programs on court caseloads particularly hazardous. For example, the Columbus (Ohio) City Prosecutor's Office reported that in the two years following implementation of the Night Prosecutor Program, the City Prosecutor's Office experienced a 6,000 case decrease in misdemeanor case filings. This decrease was attributed by the City Attorney to the operation of the mediation program, but the project's impact cannot be determined with any precision. Data on the size of dispute resolution program caseloads cast considerable doubt on assertions that programs currently have a major impact on court caseloads. It appears that mediation centers in virtually all cities handle only a relatively small fraction of the court cases that would be potentially amenable to mediation. For example, the Florida evaluation indicated that the mediation centers handle only 2 to 3 percent of the combined civil and criminal caseloads in their jurisdictions. A total of 136 dispute mediation centers provided information about numbers of case referrals for the American Bar Association's directory. Of these, only 4 percent indicated that they received more than 5,000 referrals annually, and 60 percent of the programs received fewer than 500 referrals per year. While the total mediation caseloads are often small, the figures still may be impressive given the resistance to participate in mediation in many jurisdictions, difficulties in developing adequate referral linkages with local agencies, and similar problems. When programs are studied individually, receiving 300 or 500 referrals may prove to be a striking achievement in a difficult environment. Nevertheless, these caseloads are relatively low when compared with those of the courts, even when hypothetically correcting to consider only those court cases likely to benefit from mediation. This suggests in itself that the mediation programs as they currently operate are not having a considerable impact on court caseloads. While a few programs that have very large caseloads may have some impact on local court caseloads, the precise level of this impact is very difficult to measure. Justice System Cost Impact and Program Costs A number of researchers have sought to estimate the costs of processing mediation cases, and some studies have sought to compare mediation costs to court costs. The State of New York's Community Dispute Resolution Centers Program estimates that the cost to the State per case conciliated, mediated, or arbitrated by programs in the State was $126. Since cases involve a number of persons, the program also estimated the cost per person served; this figure was $49 in 1995. The program did not compare dispute resolution program costs per case to court costs per case. Professor Blair Sheppard of Duke University conducted an evaluation of the Durham Dispute Settlement Center and sought to compare court costs per case with dispute resolution program costs per case. He reported that the average cost to the city, county, and State to process cases of the type handled by the Dispute Settlement Center to disposition was $186. In comparison, cases handled by the Dispute Settlement Center cost $72 per case, and this cost would decrease further with an increase in case referrals due to economies of scale. Given the program's caseload at the time of the evaluation, Sheppard estimated that it "represents a potential savings of $71,726 to the Durham justice system."[45] This estimate is based on the assumption that the cases handled by the program would have proceeded through the court to disposition. Obtaining an actual, versus potential, savings in court costs requires that the courts reduce expenses in the face of reduced caseloads. Such an outcome is not automatic, and this issue is discussed further here. A number of programs calculate potential cost savings based on the untested and unlikely assumption that all of the project cases would have been processed by the court. Attempts to estimate cost impacts suffer from the same problems as the attempts to estimate court caseload reductions. Researchers simply do not have reliable information on how far mediation cases would otherwise penetrate into the justice system. Even if the amount of court processing that would be taken over by mediation cases were known, relevant court costs per case are clearly very difficult to calculate. Court costs involve such factors as personnel costs for the judge, clerk, stenographer, bailiff, clerical assistants, and other staff, plus costs of retaining lawyers, losses due to missed time from work, and nonmonetary costs such as loss of goodwill with the other disputing party. Fixed case costs such as personnel and facilities could perhaps be calculated in terms of the time required to process the case, but collecting accurate data on the time consumed by the various phases of processing a single case is extremely difficult. In addition, savings resulting from reduced caseloads are difficult to estimate. Many court staff members and facilities are needed, even following substantial reductions in court caseloads, and inertia in the system would also mitigate against any rapid reductions in court system costs in response to reduced court caseloads. The fact that many mediation programs have relatively low caseloads when compared with the courts exacerbates the problem of inertia in court cost reduction. Presumably, most dispute resolution programs would need to have considerably larger caseloads, representing a substantial proportion of the court budget, before any substantial changes would be realized in the existing court expenditures. Policymakers have often noted that court personnel will be very hesitant to refer a sufficient number of cases to result in court savings, since those savings would be purchased at the cost of their own jobs--a potential catch-22 situation. Conclusion In short, some community mediation programs appear to have been successful in processing cases more rapidly than the courts. This outcome is not surprising, given that community mediation programs have much smaller caseloads and fewer logistical problems. Most dispute resolution programs do not seem to have significantly lowered court caseloads or court costs based on presently available evidence. In recent years, these goals have been asserted less frequently, and the goals of faster and higher-quality dispute resolution have been stressed more heavily. Pearson has noted that court caseload and cost reductions are unlikely as long as dispute mediation services are voluntary, due to court personnel's hesitancy to make referrals and citizens' reluctance to avail themselves of a nontraditional service. To remedy these problems, she suggested that mediation services be made mandatory and a precondition for litigation.[46] This has already happened for certain types of disputes (such as divorce proceedings) in some States. Under such conditions, both court caseloads and costs would presumably be affected by the presence of mediation programs. Making mediation mandatory raises a wide variety of other policy issues, however. Some claim that "mandatory" mediation is a contradiction in terms and violates a central premise of mediation: that parties voluntarily seek to fashion a settlement to their conflict. Others argue, however, that while intake may be mandatory in mandatory mediation, decisions within the actual mediation sessions can still be voluntary. Pearson's proposal is thought- provoking and deserves attention. Endnotes 1. Portions of this chapter are drawn from chapters 5 and 6 of McGillis, D., Community Dispute Resolution Programs and Public Policy. Washington, DC: National Institute of Justice, 1986. 2. Thibaut, J., and R. Walker, Procedural Justice, New York: Wiley, 1975. 3. Thomas Tyler's research on disputant perceptions indicates that a process is considered to be "fair" if disputants feel: (l) that they were listened to; (2) that they were respected; (3) that they understood the process; and (4) that they received equal treatment. 4. Lon Fuller has explored the basic elements of justice in detail in a number of articles. For example, see: Fuller, L., "Mediation-Its Forms and Functions," 44 Southern California Law Review 305 (1971); and Fuller, L., "The Forms and Limits of Adjudication," 92 Harvard Law Review 353 (1979). 5. Bush, R. and J. Folger, The Promise of Mediation, San Francisco: Jossey-Bass Publishers, 1994. 6. Thibaut and Walker, Procedural Justice. 7. Cook, R., J. Roehl, and D. Sheppard, Neighborhood Justice Centers Field Test: Final Evaluation Report, Washington, DC: U.S. Government Printing Office, 1980, for Atlanta, Kansas City, and Venice/Mar Vista (Los Angeles); Bridenback, M., The Citizen Dispute Settlement Process in Florida: A Study of Five Programs, Tallahassee: Florida Supreme Court, Office of the State Courts Administrator, 1979, for Broward, Dade, Duval, Orange, and Pinellas Counties; Felstiner, W., and L. Williams, "Mediation as an Alternative to Criminal Prosecution," 2 Law and Human Behavior 223 (1978), for Dorchester (Massachusetts); Davis, R., M. Tichane, and D. Grayson, Mediation and Arbitration as Alternatives to Criminal Prosecution in Felony Arrest Cases: An Evaluation of the Brooklyn Dispute Resolution Center (First Year), New York: Vera Institute of Justice, 1980, for Brooklyn. 8. Cook, Roehl, and Sheppard, Neighborhood Justice Centers Field Test, reports the following findings: Dispute Resolution Rates for Programs in Atlanta, Kansas City, and Los Angeles 9. Buckle, S., and L. Buckle, Bargaining for Justice, New York: Praeger, 1977. 10. For example, a Florida Supreme Court-sponsored study of five dispute settlement centers; a National Institute of Justice study of Neighborhood Justice Center programs in Atlanta, Kansas City, and Los Angeles; a Vera Institute of Justice study of mediation in Brooklyn, New York; a study of the Dorchester (Massachusetts) mediation program by researchers at the University of Southern California; and a study of a Minneapolis mediation center by a local evaluation organization. 11. McEwen, C., and R. Maiman, "Mediation in the Maine District Courts: An Empirical Assessment," Maine Law Journal (1981). 12. Pearson, J., "Evaluation of Alternatives to Court Adjudication," Justice System Journal (1982). 13. Merry, S., and A. Rocheleau, Mediation in Families: A Study of the Children's Hearing Project, Cambridge, MA: Children Hearing Project, 1985. 14. Schwartzkoff, R., and T. Morgan, Final Report of the Evaluation of Three Experimental Community Justice Centres, Sydney: Law Foundation of New South Wales, 1982. 15. Davis, Tichane, and Grayson, Mediation and Arbitration as Alternatives to Criminal Prosecution in Felony Arrest Cases. Pearson, "Evaluation of Alternatives to Court Adjudication." 16. McEwen and Maiman, "Mediation in the Maine District Courts." 17. Cook, Roehl, and Sheppard, Neighborhood Justice Centers Field Test. The study of the Atlanta, Kansas City, and Los Angeles programs provides limited information comparing mediation with court case processing in Atlanta and Kansas City, but the questions used in surveying the two samples differed, making comparisons difficult. Other studies have measured perceptions of program clients but have not collected data from a comparison sample of court cases (for example, Felstiner and Williams, "Mediation as an Alternative to Criminal Prosecution," 1978; Merry and Rocheleau, Mediation in Families: A Study of the Children's Hearing Project, 1985; and Schwartzkoff and Morgan, Final Report of the Evaluation of Three Experimental Community Justice Centres, 1982). 18. Clarke, S., E. Valente, and R. Mace, Mediation of Interpersonal Disputes: An Evaluation of North Carolina's Programs, Chapel Hill: University of North Carolina, 1992. 19. Cook, Roehl, and Sheppard, Neighborhood Justice Centers Field Test. 20. Merry, S., and A. Rocheleau, Mediation in Families: A Study of the Children's Hearing Project, Cambridge, MA: Children's Hearing Project, 1985. 21. Davis, Tichane, and Grayson's 1980 study of the Brooklyn mediation program and Pearson's 1982 study of divorce mediation in Denver. 22. Pearson, "Evaluation of Alternatives to Court Adjudication." 23. Keilitz, S., H. Daley, and R. Hanson, Multi- State Assessment of Divorce Mediation and Traditional Court Processing, (September 1992) 24. McEwen and Maiman, "Mediation in the Maine District Courts." 25. For example, Felstiner and William's (1978) study of the Dorchester mediation center indicates that 78 percent of disputants whose cases were mediated stated that they were glad that they had tried mediation, and 70 percent stated that they felt they had had an opportunity to air their complaints. 26. Merry and Rocheleau, Mediation in Families. 27. Davis, Tichane, and Grayson, Mediation and Arbitration as Alternatives to Criminal Prosecution in Felony Arrest Cases. 28. Schwartzkoff and Morgan, Final Report of the Evaluation of Three Experimental Community Justice Centres. 29. McEwen and Maiman, "Mediation in the Maine District Courts." 30. Davis, Tichane, and Grayson, Mediation and Arbitration as Alternatives to Criminal Prosecution in Felony Arrest Cases. 31. Bridenback, The Citizen Dispute Settlement Process in Florida. 32. Davis, Tichane, and Grayson, Meditation and Arbitration as Alternatives to Criminal Prosecution in Felony Arrest Cases; and Felstiner and Williams,"Mediation as an Alternative to Criminal Prosecution." 33. Kelley, J., "Divorce Mediation in California," report prepared for the Fund for Research on Dispute Resolution, 1994. 34. Walker, J., "Divorce Mediation Compared to Adjudication in England and Wales," report prepared for the Fund for Research on Dispute Resolution, 1994. 35. Merry and Rocheleau, Mediation in Families. 36. Filner, B., "Community Mediation in the Courts of Justice," NIDR Forum (Winter 1992). 37. Bridenback, The Citizen Dispute Settlement Process in Florida. 38. Cook, Roehl, and Sheppard, Neighborhood Justice Centers Field Test. 39. Michigan Community Dispute Resolution Program, Annual Report, 1994. 40. New York Community Dispute Resolution Centers Program, Annual Report for April 1, 1994 to March 31, 1995. 41. Clarke, Valente, and Mace, Mediation of Interpersonal Disputes: An Evaluation of North Carolina's Programs. 42. Felstiner and Williams, "Mediation as an Alternative to Criminal Prosecution." 43. Cook, Roehl, and Sheppard, Neighborhood Justice Centers Field Test. 44. McGillis, D., and J. Mullen, Neighborhood Justice Centers: An Analysis of Potential Models, Washington, DC: U.S. Government Printing Office, 1977. 45. Sheppard, B., Report to the Durham Dispute Settlement Center on the Comparative Costs of Going to Court vs. Mediation, Durham, NC: Duke University, 1985. 46. Pearson, "Evaluation of Alternatives to Court Adjudication." ------------------------------ Chapter 5 Major Issues Confronting the Community Mediation Field ------------------------------- Disputes Involving Domestic Violence Concerns regarding the appropriateness of mediation are particularly acute in cases involving a history of, or potential for, domestic violence. Many observers strongly oppose the use of mediation for domestic disputes involving a history of domestic violence or abuse or in which one party has considerably less power than the other (for example, due to psychological or economic dependencies).[27] The recognition that mediation could serve simply to perpetuate patterns of violence and abuse has led many programs to develop screening procedures to ensure that such cases are not mediated. For example, the Mecklenburg County (North Carolina) mediation program screens out domestic violence cases from incoming domestic and custody/visitation cases by having the mediator meet individually with each party immediately prior to the conduct of a mediation hearing. Mediators explore any issues that are troubling the parties and seek to determine if the couple has a history of domestic violence. Cases are not mediated if they evidence a history of domestic violence, and cases are also excluded if drug or alcohol abuse is a factor in the couple's relationship, if child abuse is alleged by one party, or if one of the parties has a severe psychological impairment. ------------------------------ Key Points o Community mediation programs have accomplished a great deal but also confront a variety of important challenges as the field moves into its third decade. o Ensuring quality control in dispute resolution services is a central concern of all community mediation programs. A lively debate has arisen over what qualifications should be required for mediators. The Society of Professionals in Dispute Resolution (SPIDR) has been very active in addressing this issue. A SPIDR commission has stressed that the greater degree of choice the parties have over the dispute resolution process, the less mandatory the qualification requirement should be, and qualification criteria should be based on performance rather than on paper credentials. This chapter reviews the debate regarding qualifications in detail o Professional organizations in the dispute resolution field have also focused extensively on ethical standards for mediator conduct. The American Bar Association, the American Arbitration Association, and the Society of Professionals in Dispute Resolution have jointly approved "Model Standards of Conduct for Mediators," and they are discussed in this chapter. o Community mediation programs have found it a challenge to obtain and maintain adequate funding support for their operations. A variety of approaches to obtaining necessary funding support are reviewed in this chapter. o Community mediation programs can make critical contributions to policing and can gain much from improved working relationships with the police. Promising forms of collaboration include: (1) obtaining referrals from the police and then directly resolving the individual and intergroup conflicts that are referred; (2) assisting in police/community problem-solving efforts; and (3) delivering conflict management skills training to police personnel. o Not all cases are appropriate for mediation, and community mediation programs need to be sensitive to the potential for the misuse of mediation. Guidelines regarding which types of cases should be routinely rejected and referred to court are valuable (such cases typically include ones involving violence, alcohol or other drug abuse, and serious mental impairment of one of the parties). Programs also need to be aware of cross- cultural and gender issues in mediation. Such issues are reviewed in this chapter. ------------------------------ SPIDR Commission Recommendations Regarding Standards of Competence and Qualifications The commission's seven basic recommendations for dispute resolution programs are broad-ranging and carefully drafted.[7] They state: (1) The formulation of standards of competence and qualifications should be undertaken through a process of consultation with all stakeholders and should provide for ongoing review and revision. (2) Programs should clearly state their qualifications and ethical standards and their goals and values in a manner that can be understood by practitioners, parties, and the public. (3) In a pluralistic society, the development of qualifications standards must reflect an understanding of the context, the diversity of stakeholders, and respect for the variety of values and goals of all parties. (4) The context of the dispute resolution service must be examined and understood because it determines what should be considered competent practice in that context. (5) The multiple paths to becoming a competent practitioner ought to be recognized, maintained, and expanded. Some combination of natural aptitude, skills, knowledge, and attributes acquired through an appropriate combination of dispute resolution training, education, and experience is the best route to ensuring practitioner competence. (6) No one method of assessment should be relied on because it may lead to emphasis on one measure of competence at the expense of other valuable measures. Use of a combination of measures of competence also will reduce the likelihood of inadvertent discrimination. (7) Assessing competence is key to ensuring quality service delivery and is a shared responsibility of practitioners, programs, dispute resolution associations, and parties. ------------------------------ Hopes and Fears of Dispute Practitioners Regarding the Development of Standards for Qualifications The process of developing standards for qualifications has been a controversial one, and many dispute resolution practitioners are considerably ambivalent about the process because of the complex pattern of risks and benefits associated with it. Albie Davis, the director of the Massachusetts District Court Mediation Program, captured the complex countervailing attitudes in a presentation on the topic of standards for qualifications. She summarized the hopes and fears of dispute resolution practitioners as follows: HOPES (1) The public will know what they are getting. (2) Incompetent people won't be allowed to practice. (3) We will finally agree on what constitutes good practice. (4) We'll get to set the standards instead of having someone do it for us. (5) We'll be taken more seriously as a profession. (6) It's long overdue. (7) It will bring order out of chaos. FEARS (1) The public will lose access to services. (2) Incompetent people will hide behind the standards. (3) We'll never be able to agree on what constitutes good practice. (4) The people who make the standards won't really understand mediation. (5) Innovation will be stifled and we'll become exclusionary. (6) It's too soon. (7) It will kill the spirit and foster bureaucracy. The community mediation field will be likely to wrestle with these conflicting factors for years to come. More than a decade ago, Ronald Pipkin and Janet Rifkin forewarned observers of some of the likely problems in this area.[10] Albie Davis has adapted their material to develop a list of "the rise of a profession in five easy stages," with the stages being characterized by the following concepts: Stage 1: "People do the thing that needs doing." Stage 2: "Let's join together and train people to do this better." Stage 3: "Hey! What are we doing? And who should be doing what?" Stage 4: "Let's make this government-sanctioned." Stage 5: "Sorry! No room at the inn!" ------------------------------ Exhibit 8 Model Standards of Conduct for Mediators I. Self-Determination: A mediator shall recognize that mediation is based on the principle of self- determination by the parties. II. Impartiality: A mediator shall conduct the mediation in an impartial manner. III. Conflicts of Interest: A mediator shall disclose all actual and potential conflicts of interest reasonably known to the mediator. After disclosure, the mediator shall decline to mediate unless all parties choose to retain the mediator. The need to protect against conflicts of interest also governs conduct that occurs during and after the mediation. IV. Competence: A mediator shall mediate only when the mediator has the necessary qualifications to satisfy the reasonable expectations of the parties. V. Confidentiality: A mediator shall maintain the reasonable expectations of the parties with regard to confidentiality. VI. Quality of the Process: A mediator shall conduct the mediation fairly, diligently, and in a manner consistent with the principle of self-determination of the parties. VII. Advertising and Solicitation: A mediator shall be truthful in advertising and solicitation for mediation. VIII. Fees: A mediator shall fully disclose and explain the basis of compensation, fees, and charges to the parties. IX. Obligations to the Mediation Process: Mediators have a duty to improve the practice of mediation. Note: These model standards were approved by the American Arbitration Association, the Litigation Section and the Dispute Resolution Section of the American Bar Association, and the Society of Professionals in Dispute Resolution in 1995. ------------------------------ An Example of an Innovative Strategy for Fund-Raising A number of California programs have become quite innovative in raising funds. The Peninsula Conflict Resolution Center, which serves San Mateo County, California, derives the largest single portion of its revenues from contracts with 13 of the 20 cities in the county and offers three levels of services for contracts. Cities seeking "full membership" in the program pay 40 cents per resident per year. Such members are provided with the following services: (1) information and referral services, (2) one-party assistance to clarify the issues of a conflict and options, (3) conciliation, (4) mediation, (5) administration of a community mediation program, (6) promotion of use of conflict resolution services, (7) recruitment and training of community volunteers, (8) ongoing skill development of volunteers, (9) training of local community members, and (10) discounted conflict resolution services. Cities interested in "associate membership" pay 30 cents per resident per year and receive a smaller array of services (for example, they receive 20 hours of mediation services free of charge, rather than an unlimited amount, with fees charged beyond 20 hours). "Affiliate membership" costs 20 cents per resident per year and involves a further reduced array of services. Cities that develop a contract with the program pay only half the regular fee for their first year of services as a "loss leader" incentive offered by the program. Residents in cities that do not have contracts with the program are charged $25 per mediation session. The Peninsula Conflict Resolution Center also receives funding from the Dispute Resolution Trust Fund administered by San Mateo County under the authorization of the Dispute Resolution Programs Act. The program raises additional funds by charging fees for a number of types of services, including school-based conflict resolution training programs, special training services, facilitation and complex dispute management services, and the like. In addition, the Peninsula Conflict Resolution Center has developed arrangements with a number of real estate boards and associations in San Mateo County to mediate homebuyer/ homeseller disputes. The board refers cases to the program if both parties agree to try mediation; the program is paid $100 per case by the board of realtors. The Peninsula program has also received funding from foundations, corporations, and the United Way. The program budget for the year ending June 30, 1995, was $348,721. ------------------------------ Community mediation programs have accomplished much during the past quarter-century. Programs have proliferated across the nation, recruited and trained a diverse and talented array of citizens as volunteer mediators, and sought to respond to many of their communities' most troubling disputes. They have diversified their areas of application and now provide services to courts, schools, businesses, and other institutions. They have also become increasingly involved in the resolution of large-scale, multiparty public policy disputes. Community mediation programs have confounded the expectations of many observers. As Madeleine Crohn, the former president of the National Institute for Dispute Resolution, noted, "In the 1970's, the resolution of disputes at the community level was labeled a fad." The growth and institutionalization of programs over the past two decades suggests that this characterization of the field was mistaken. Despite the many achievements noted in this report, community mediation programs face critical challenges in the coming years. Lively debates are occurring nationwide regarding who should be authorized to mediate conflicts and what sort of credentials and standards are appropriate for practitioners. Sharon Press, the director of the Dispute Resolution Center of Florida, and Judy Filner of NIDR noted that "we are now beyond the initial inquiries of program set-up and into what we call 'the second generation' of issues--namely mediator competence and ethics."[1] The outcomes of the debates regarding mediator qualifications and standards are of critical importance to community mediation programs. Funding difficulties are also a chronic problem for many programs. Numerous nonprofit agencies that sponsor community mediation services are struggling. In an era of tight governmental budgets and downsizing, community mediation programs will need to exercise considerable ingenuity and have an entrepreneurial approach to raising funds. Acting on such advice is not easy for the many programs that are currently severely underfunded and swamped with work. Turf battles among programs arising from competition for relatively scarce funding resources are a related growing problem that can divert program energies and ultimately harm the field. The risks of excessive bureaucratization also needs attention as the field moves into its third decade. These important issues for the growth and consolidation of the community mediation field are examined in this chapter. Ensuring Quality Control in Dispute Resolution Services Any program that provides conflict resolution services to disputants needs to be deeply concerned about the quality of the services delivered. Third-party neutrals with inadequate skills or improper ethical standards can make a mediation hearing a waste of time for disputants or can even contribute to the escalation of a conflict. From the inception of the community mediation field, program administrators have been concerned with the skills of their community mediators and have provided varying levels of training and supervision to seek to ensure a high quality of service. As the dispute resolution field has matured, as programs have expanded, and as competition for the opportunity to handle certain classes of cases has increased, many dispute resolution programs and related organizations have turned their attention to what sorts of qualifications and standards of conduct are necessary for third-party neutrals. Legislatures, professional associations, and others have sponsored a variety of commissions to develop suitable standards for the field. A number of approaches are available to influence the quality of dispute resolution services.[2] The least intrusive approaches include: (1) relying on the free market to weed out inadequate service providers (a solution that may work when clients shop for mediation services-as in the case of labor-management arbitration-but is far less effective if people are strongly encouraged or compelled to use a specific service), (2) encouraging public education of the consumer on how to choose mediation services (the Alaska Judicial Council has, in fact, developed a consumer guide, which is discussed below), (3) creating simple disclosure requirements for community mediators to highlight their experience and track records, and (4) establishing controls following hearings, such as options for malpractice suits. More intrusive approaches to influence the quality of dispute resolution services include: (1) intensive training requirements for community mediators, (2) codes of professional ethics, (3) mandatory qualifications for community mediators, and (4) mandatory standards for programs. Some of the most lively debates in the field involve controversies about how to establish qualifications for dispute resolution practitioners and what standards of conduct are appropriate. These issues are examined in the next section. The Debate Regarding Qualifications A variety of factors have driven the effort to develop qualification requirements. Some observers argue that ensuring appropriate qualifications is essential to protect the public. In contrast to some other traditional dispute resolution forums (such as labor-management mediation and arbitration) in which the parties choose the third-party neutral, disputants at community mediation programs typically do not have such an option. In 1989 George Nicolau, the former president of the Institute for Mediation and Conflict Resolution, which established one of the nation's first community mediation programs, noted at an ABA conference the critical importance of quality control of dispute resolution services. He stated that the quality of service delivery in community mediation programs surely depends on the integrity, judgment, and competence of those running them. If the selection process is flawed, if the training is inadequate, if the program heads are more concerned with numbers than quality, the parties can do little or nothing about it. They remain at the mercy of persons masquerading as mediators.[3] Furthermore, some governmental officials have expressed a concern that as programs become institutionalized with public funding, close attention must be paid to the uniform application of standards for mediators in order to ensure accountability and the most effective and efficient expenditure of these funds. This concern has led legislatures, courts, and government agencies to specify qualifications for third-party neutrals in certain programs (such as by limiting the handling of certain types of dispute to lawyers). Some observers have noted that legislators and other government officials tend to focus quickly on readily measured "inputs" (for instance, academic credentials) as a basis for credentializing mediators. "Outputs"-the actual ability to deliver high-quality conflict resolution services- are more difficult to measure but are likely far more important. For example, the Florida Supreme Court developed rules requiring that all mediators handling cases involving more than $5,000 must be former trial court judges or members of the Florida Bar with five years of experience. In reaction to steps being taken by legislatures, courts, and governmental agencies to specify qualifications for mediators, professional organizations in the dispute resolution field (such as SPIDR, AAA, and others) have moved vigorously to seek to develop a consensus among practitioners in the field and avoid the imposition of governmental requirements that might be inappropriate, inflexible, and developed without input from knowledgeable practitioners. In 1989 the SPIDR Commission on Qualifications (which had received funding support from NIDR) released its first report on qualifications.[4] The commission adopted three central principles: (1) that no single entity (rather, a variety of organizations) should establish qualifications for neutrals; (2) that the greater the degree of choice the parties have over the dispute resolution process, program, or neutral, the less mandatory the qualification requirements should be; and (3) that qualification criteria should be based on performance rather than paper credentials. In 1995 the SPIDR Commission on Qualifications released its second report, Ensuring Competence and Quality in Dispute Resolution Practice. The report does not set out a specific set of standards of practice. The members of the commission felt that the diversity of the field and its early state of development made the specification of explicit standards inappropriate. Instead, the commission developed a set of recommendations that were intended to provide a framework for dialogue regarding qualifications and competency. Mary Kay C. LeFevour, Executive Director of SPIDR, explained that the SPIDR report is noteworthy in not seeking to tightly restrict who can serve as a dispute resolution practitioner: "In a field that is feeling competitive, where it sometimes seems as if there are more training programs than paid opportunities to practice, the commission's report is rather astounding; instead of shrinking the field, it acknowledges the fact that the members of our community who achieved their expertise though life experience may be just as competent and effective at resolving conflict as their colleagues who have earned a graduate degree in a related field."[5] The SPIDR commission's report also presents a seven-step framework for understanding and ensuring appropriate development of qualifications and standards that draws on the seven recommendations listed in the sidebar on the following page. SPIDR has received a grant from the State Justice Institute to advance its work further in this topic area. SPIDR will work in collaboration with the National Center for State Courts and, using the SPIDR competency framework, will develop specific guidelines for courts regarding dispute resolution practitioner selection, training, qualification, and evaluation. The product of this study is expected to be available at the end of 1997. The NIDR Test Design Project's work supplements that of the SPIDR commission. NIDR released a report entitled Performance-Based Assessment: A Methodology for Use in Selecting, Training, and Evaluating Mediators in 1995.[6] It provides useful guidance to help implement the SPIDR principle that mediator standards should be performance based rather than determined by paper credentials. An earlier document prepared by the Test Design Project entitled Interim Guidelines for Selecting Mediators was released in 1993 and was critiqued by a variety of experts in a special section of the October 1994 issue of the Negotiation Journal. In 1992 the San Diego Mediation Center implemented a performance-based system for mediator selection and training. Mediators earn credentials based on an assessment of three factors: training, experience, and performance. Performance is assessed through the observation of the handling of a simulated mediation session by trainees. The Alaska Judicial Council has published A Consumer Guide to Selecting a Mediator to assist citizens in selecting an appropriate mediator. The report draws on the SPIDR Commission on Qualifications documents, the NIDR Test Design Project materials, and related sources.[8] A number of books elaborate on the complexities involved in establishing qualifications and standards in this field. Catherine Morris and Andrew Pirie's 1994 collection of papers by Canadian authors, Qualifications for Dispute Resolution: Perspectives on the Debate, is particularly useful.[9] The community mediation field is at different stages in different States, and the NIDR Compendium discussed in Appendix A provides a useful guide to which States are stipulating qualifications by statute and court rule. To the extent that qualifications are based on extensive paper credentials, community mediators are being excluded from some types of cases. The use of performance-based qualifications of the sort recommended by SPIDR and others can mitigate against this problem for talented mediators who lack specific graduate degrees. To the extent that paper credentials drive mediator qualifications, considerable social stratification of the pools of practitioners on the basis of gender, race, class, and education will be likely to occur. Restricting qualifications (for example, so that only lawyers or clinical psychologists can handle certain classes of cases) would make it more difficult to develop pools of mediators who reflect the diversity of a local community. Minorities, people of moderate to low income, young people, and, in some cases, women, would be underrepresented. Additional problems arise if certain types of cases can only be handled by retired judges. Chief Justice Samuel Zoll of the Massachusetts District Court has noted that "former judges are entering the ADR marketplace in increasing numbers. I remain concerned that the collegial relationships among them and their former colleagues, as well as the dynamics of the bench and bar in general, leave the door open to charges of favoritism and `sweetheart' arrangements. I would like to see the judges, both sitting and retired, better protected in this area."[11] Ethical Standards of Conduct A number of organizations have developed ethical standards for mediator conduct. In 1995 the American Arbitration Association, the American Bar Association, and the Society of Professionals in Dispute Resolution released their jointly approved "Model Standards of Conduct for Mediators." They provide brief statements of nine specific standards of conduct followed by commentary on each one. The nine standards are presented in exhibit 8. Considerable cross-fertilization has occurred in the development of standards of conduct because numerous groups at the national, State, and local levels have been preparing draft standards. A number of States have released standards. The NIDR Compendium discussed in Appendix A provides information on legislation in this area. The Florida Supreme Court has developed a grievance procedure along with its code of conduct to provide a means to enforce provisions of the code. Robert Baruch Bush has provided an interesting assessment of the ethical dilemmas that arise in the field of mediation. He studied the work of 80 mediators in Florida who handled a variety of types of cases (community disputes, family conflicts, civil cases). In a paper prepared for NIDR in 1992, The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications, Bush demonstrates how ethical dilemmas occur when two or more basic values held by mediators appear to be in conflict. He addresses the following nine values: competence, impartiality, confidentiality, informed consent, self-determination, role limitation, harm avoidance, good faith performance, and conflict of interest.[12] For example, the value of impartiality can come into conflict with the value of harm avoidance if a community mediator feels that one party is being unjustly bullied by another more powerful party. The appropriate level of technical detail of ethical standards for court-connected dispute resolution services is currently being debated in Massachusetts. The Standing Committee on Dispute Resolution of the Massachusetts Trial Court released its interim report in November 1995. The report includes a 10-page section setting out ethical standards. The chief justice of the district courts is concerned that such detailed (and technically worded) ethical standards may serve to confuse community mediators. He stated in a letter to the standing committee that in his opinion, "The ethical standards should be reduced to one page of basic principles that can be understood by people of common sense. More explicit requirements should await the maturity of the field. I believe that many who mediate in the District Court will find the present draft of ethical standards far, far too complex." As an alternative, the chief justice recommended the one- page "Standards of Mediation Practice" developed by the Massachusetts Association of Mediation Programs and Practitioners as a preferable approach. The Challenge of Obtaining and Maintaining Adequate Funding Support Community mediation programs have experienced chronic problems in obtaining and then maintaining adequate funding support to meet the wide range of local needs for dispute resolution services. Programs typically have too few staff members given their actual (not to mention potential) workloads, and staff members are often paid salaries that are far too meager given the challenging nature of the work. The low salaries in the field ensure a relatively high turnover level of personnel, and many of those who have stayed in the field for long periods of time are highly committed and talented reformers who certainly work despite, not because of, their salaries. This situation is troubling, but not surprising. Governments at all levels have been tightening their budgets during the past two decades. Dispute resolution programs find themselves competing with many other social service and related organizations for a share of shrinking public resources. Furthermore, in those states that have earmarked funds for community dispute resolution (for example, with funds being raised from surcharges on civil case filing fees), community programs are increasingly competing with local bar associations and the courts for use of the funds. Roger Fisher once characterized the field as one in which the objective needs for services were very high but demand was relatively low, resulting in inadequate public funding.[13] Peter Szanton echoing this sentiment in his evaluation for NIDR of four state offices of dispute resolution stated: In many realms--interpersonal, labor-management, international--confrontational styles seem to be slowly giving way to norms of joint problem-solving and mutual accommodation. It is natural to see the last decade's interest in ADR in light of this tidal shift in values. But it is striking that, even so, American society does not value ADR enough to be willing to pay much for it.[14] A decade after Szanton conducted his evaluation, the relatively small budgets of the various State offices of dispute resolution and related programs strongly support his assertion.[15] As was noted in chapter 3, some States provide funding from the general State budget for community mediation programs. For example, the State of New York annually appropriates more than $3 million for this purpose. The Community Dispute Resolution Center Program of the Unified Court System of New York distributes these funds to individual nonprofit agencies that operate programs. Programs can cover up to 50 percent of their annual budgets through such State grant funds (after an initial match-free grant per county of $20,000). Programs generate the remaining portion of their budgets from sources which, include Federal, State, county, and local governmental agencies, training fees and other fees for service; foundations; the United Way, and fundraising events. In contrast with New York, programs in a number of other States are funded by a statutorily authorized assessment on civil court filing fees. For example, in Michigan courts collect a $2 surcharge on civil case filing fees. Programs in each county can receive funds from the assessments collected in their county. In 1994 more than $l.6 million dollars was raised for program operations in Michigan through such assessments; 4 percent of this total was expended on the administrative costs of coordinating the overall program, 1 percent was expended on training and program development, and the remaining 95 percent was distributed in direct support to local community dispute resolution centers. The level of State funding of local programs varies widely in Michigan. Seven programs received $10,000 or less in 1994 while five received more than $90,000, with the largest allotment being $171,780 to the Settlement Center of Oakland. State funds typically account for 50 to 60 percent of total individual program budgets, with the remaining funds obtained from local government appropriations, foundations, fees, and other sources. California has a similar mechanism for collecting surcharges on civil case filing fees. Community mediation programs in California are confronting difficulties in funding, in part because the competition for local California Dispute Resolution Program Act funds has increased. Such funds are increasingly being sought directly by the courts, bar associations, and others at the local level. California programs are responding by seeking to develop new sources of funding from training fees and new types of services. In jurisdictions in which funding is very limited for community mediation, mediation program leaders should consider linking their program with other local social service programs or related entities and sharing space and other overhead costs. Many communities are developing school-based community centers following the model of the New York City Beacon Community Centers Program, which operates 36 centers. Such programs provide a wide variety of services in school buildings after school, on weekends, and during the summer. A mediation program could become incorporated in such a center and have excellent space in which to operate and hold hearings. Volunteer community mediators could provide their services in a safe setting that is accessible to disputants. The Queens County, New York, mediation program has adopted this approach and operates out of its local Beacon school. A number of documents provide very useful guidance on strategies for obtaining funding. For example, the NIDR Community Dispute Resolution Manual: Insights and Guidance from Two Decades of Practice, published in 1991, carefully examines the subject of funding. Topics addressed include establishing a program budget, launching a fundraising plan, building a diverse funding base, planning an effective marketing campaign, and evaluating fee-for-service options.[16] The 1995 NIDR Conflict Resolution Institute for Courts Conference Notebook also provides useful guidance on funding issues, including an examination of various ways to design fee structures for community mediators (flat rates, hourly rates, per session rates, or nominal stipends).[17] Christopher Honeyman has prepared a report for the Hewlett Foundation entitled Financing Dispute Resolution that also examines issues in this topic area.[18] Programs seeking Federal or foundation funding can use a number of computerized databases to assist in their funding efforts. The Catalog of Federal Domestic Assistance is available on the Internet, and the Federal Partnerships Against Violence Network, mentioned earlier, provides access to components of the catalog that are relevant to conflict resolution and violence prevention programs.[19] The Foundation Directory is also available in hard copy at libraries and on the Internet and can be searched to locate foundations that have specific types of program funding interests.[20] Developing Working Relationships With the Local Police Community mediation programs can make critical contributions to policing and can gain much from improved working relationships with the police. Three major promising forms of collaboration between community mediation and policing include: (1) obtaining referrals from the police and then directly resolving the individual and intergroup conflicts that are referred, (2) assisting in police/community problem-solving efforts, and (3) delivering conflict management skills training to police personnel. Community mediation programs and community policing share many aims in common, and some mediation programs are already making key contributions to policing in their local communities. For the most part, however, community mediation programs have not developed close working relationships with their local police departments. Such relationships can benefit the local community, the mediation program, and the police. Police Referrals to Mediation Programs A substantial proportion of calls for service involving disputes among neighbors, relatives, and acquaintances are suitable for referral to mediation. Local police departments benefit greatly when such disputes are resolved. According to a 1995 study by Shepherd, [21] calls for service have been shown to diminish sharply from neighbors whose disputes have been mediated. In many cases, a few homes in a neighborhood generate a greatly disproportionate share of calls for service to the police because of festering, ongoing disputes. Such "neighbors" disrupt life in an entire neighborhood. Community mediation programs can often resolve such neighborhood conflicts and can intercept and settle minor disputes before they escalate into serious crimes. The successful resolution of such disputes improves the quality of life in a community and can free police resources to deal with other critical matters. Despite these many potential benefits, community mediation has been greatly under used by many police departments. A number of techniques have been used by programs to encourage police referrals, including: o Briefing police recruits at the police academy and briefing line officers at roll calls about the availability of mediation services. Police officers can be a difficult audience to persuade of the benefits of new services because they have seen many innovations come and go. Community mediation program directors have reported that the most effective presentations to police personnel include descriptions of specific cases that were satisfactorily resolved and that resulted in reduced calls for service and reduced problems for the police. In addition, it is very helpful to have a police officer who has had positive experiences with mediation participate in the presentation. Officers are understandably more readily persuaded by colleagues who share their experiences and viewpoints. Careful attention needs to be given to proper screening criteria for cases. Police officers need clear information regarding what types of cases are and are not suitable for mediation. o Developing referral forms and cards to expedite case referrals. The San Francisco Community Board Program has provided local police officers with referral cards in a number of languages that can be given to disputants when a case seems appropriate for mediation. The Harrisburg, Pennsylvania, Bureau of Police has developed a neighborhood dispute referral form that is used to refer appropriate cases to the local neighborhood dispute settlement program. The form provides information to both the complainant and the respondent regarding the referral and the procedures used by the mediation program to handle cases. Police officers complete the referral forms for mediation as an alternative to providing a citation when cases appear appropriate for mediation and complainants agree that mediation is desired (they also recommend mediation in instances in which no formal citation is possible but mediation seems advisable). Citations for relevant offenses are issued if respondents decide not to pursue mediation. If both parties attend a mediation session, mediators seek to assist them in arriving at a mutually agreeable settlement. Mediation sessions are held in local churches and municipal buildings that are convenient to disputants. The Harrisburg chief of police has been very impressed with the work of the Neighborhood Dispute Settlement Center (NDSC) and in testimony before the Pennsylvania House of Representatives Judiciary Committee in September 1994 stated: Through the NDSC referral network, dealing with interpersonal and neighborhood problems has benefited the Harrisburg Police Bureau by fewer calls to the same persons; fewer prosecutions at the district justice courts; more available patrol time for emergencies; and an increased rapport between the police and the community for the utilization of this new, community-oriented solution to an old problem. o Providing feedback on case outcomes. A number of departments have routinely sent notes to officers who have made referrals informing them of whether a mediation hearing was held and whether an agreement was reached. Such feedback is likely to be valuable in encouraging officers to make future referrals to the program. If such notes are also sent to the officers' supervisor, they can be helpful in providing officers with credit for the referral. At present, officers primarily receive credit for arrests. Community policing efforts are seeking to broaden the range of activities for which officers are rewarded and should make arrangements to provide meaningful credit and recognition to officers who make appropriate referrals to mediation. Assisting in Police/Community Problem-Solving Efforts Community mediation programs can be a powerful ally to the police in seeking to identify and remedy local problems that underpin crime and disorder-a key mission of the many departments implementing community policing. Many community mediation programs have become deeply involved in facilitating community meetings to resolve local problems. The issues addressed have ranged from local crime problems, such as the existence of crack houses, to deficiencies in city services that contribute to neighborhood deterioration, to major public policy issues, such as the merger of school districts or the siting of hazardous waste. The police can benefit from the involvement of community mediation programs in virtually all major community problem-solving efforts. Police officers are often diligent in holding community meetings but are typically not trained to conduct such meetings and are often not viewed as sufficiently impartial by all parties to a dispute to be effective. For example, police officers in Seattle convened a meeting between officials, students, and parents from two high schools following a violent incident between groups of students from the two schools. The incident evoked strong concern that the violence would escalate. Once the meeting began, however, the officers simply stated that everyone needed to talk about this and then opened the floor to discussion. An awkward silence ensued, and the officers found it very difficult to move the conversation forward. The principals of the two schools were reluctant to take a leadership role in the discussion out of fear that they would look like partisans for their own group of students involved in the conflict. A number of parents eventually seized control of the meeting and were effective in leading the discussion and moving toward a settlement between the opposing groups. The officers noted after the meeting that they felt at a loss as to how to move the discussion forward and were relieved that parents helped. Community mediation programs have systematic skills to facilitate such meetings and keep them moving toward a clear definition of issues and a settlement. They also diligently seek to maintain a neutral position in order to enhance their capacity to facilitate meetings among people with widely divergent opinions. Delivering Conflict Management Skills Training to Police Personnel A significant portion of police work involves confronting and managing conflicts among community residents. Some community mediation programs have begun to train local police personnel in conflict management skills. Such skills can help officers resolve conflicts where possible, can enable them to identify disputes that are ripe for community mediation, and can even help to protect officers from injury since many assaults on officers occur in the context of responding to routine domestic and neighborhood disputes. Glensor and Stern have discussed the need for collaboration between the police and mediation programs. In a 1995 paper for the Police Executive Research Forum, they stated: The police, unlike other professionals (for example, medical), do not have established protocols or training to handle the various ills they are expected to prevent (Goldstein, 1990). Research indicates that a majority of calls for service, such as landlord/tenant disputes, loud parties, rowdy teens, neighborhood disagreements, and traffic and parking complaints, do not require a law enforcement intervention. Yet police have traditionally relied on law enforcement strategies such as rapid response, random patrol and retrospective investigation to address these problems. Such incident-driven policing only addresses the symptoms of the problems, not the causes. As a result, these calls for service are often repeated and increasingly involve violence, posing a threat to the parties directly involved in the conflict as well as to the responding police officers.[22] Community mediation programs have been designed and implemented precisely with the goal of addressing the causes of problems rather than only the symptoms and have sophisticated tools to help solve such underlying problems. Mediation programs can help to train officers in essential conflict management and referral skills. The American Bar Association has provided extensive training to officers in a number of police departments to enhance officers' abilities to diagnose a conflict situation quickly and intervene in a fashion that serves to de-escalate the conflict. Officers are also taught to identify disputes that are suitable for referral to a local mediation program and to recognize when other types of referrals to social services are also advisable. Despite the many benefits that could arise from increased collaboration between community mediation programs and community policing initiatives, such cooperative efforts are quite rare across the nation. A number of factors contribute to this situation. Perhaps the most important is simply the traditional law enforcement orientation of many police personnel. Many officers view problem-solving/dispute resolution tasks as outside the realm of traditional policing and also feel uncomfortable with the tasks because of a lack of training in these skills. These views have made the implementation of community policing strategies challenging in many localities and certainly inhibit close cooperation with community mediation. These traditional perceptions of the role of the police are often reinforced by the incentive systems within police departments that primarily reward officers for arrests rather than for other types of services such as community problem solving. Police departments and community mediation programs that are interested in collaborating need to consciously recognize the quite different perspectives of traditional police officers and mediation personnel and to work to overcome attitudinal and institutional barriers to communication and cooperation. Turf Concerns: The Ebb and Flow of Collaboration and Competition for Markets Many observers feel that those community mediation programs that thrive financially will need to exercise considerable ingenuity. Steve Toben, a program officer at the William and Flora Hewlett Foundation, has noted that "in the community area, great potential lies in strategic alliances between mediation programs and enterprises like community development corporations and youth-serving agencies. The survivors in the nonprofit world will be those populated by business-savvy social entrepreneurs--individuals who do not flinch from concepts such as marketing, downsizing, and merger."[23] This observation seems plausible. But, as competition has increased for scarce resources, many programs have experienced increasing concerns about protecting their turf. The late James Laue noted the potential harm to the field that could arise from excessive competition. He stated that he once heard a dispute resolution workshop leader say to workshop participants, "Your job is to take market shares away from the other organizations. " Laue stated: "I was insulted and angry. Is this the value that will drive this field of cooperative problem-solving? Beating your competition?"[24] In some jurisdictions, under certain circumstances, the answer seems to be "yes." Program directors have a responsibility to maintain their program's fiscal health and seek to reach program objectives. Program advisory boards often urge programs to be assertive in maintaining and expanding services. The line between assertive program-growth strategies and overly aggressive competition with other programs is difficult to define, but many observers feel that they know it when they see it. For example, in the State of New York, some programs have marketed school-based conflict resolution services actively in the jurisdictions of other community mediation programs, which has caused strains with the programs upon whose turf they are treading. The leaders of the Statewide Community Dispute Resolution Centers Program (CDRCP) have mediated such disputes between programs effectively. In States that lack an overarching authority such as the CDRCP, it is not clear who should or can mediate such disputes. This has resulted in some fairly heated competitions between programs which some observers have characterized as "peacemakers at war." Statewide associations can play a useful role in developing guidelines for program competition that may avert the worst manifestations of such conflict or can mediate between programs when acute conflicts occur. In a free market, some measure of competition is, of course, healthy and to be encouraged. Competition can spur programs to develop high- quality services. Beyond a certain point, however, excessive, aggressive competition among dispute resolution organizations can become debilitating to the organizations themselves. Such sharp-edged competition can drain program resources and strain program credibility in marketing conflict resolution services to clients while the program itself is involved in cutthroat competition with related organizations. Concerns Regarding the Appropriateness of Certain Types of Cases for Mediation/Arbitration Community mediation programs are not appropriate forums for the resolution of all types of interpersonal conflicts. Observers of the field have noted from its inception that cases involving substantial power disparities among parties are particularly worrisome. In such cases, the courts have ways to at least help equalize such power disparities (through procedural safeguards, legal representation and so on) and judges can also impose sanctions on offenders. Private mediation sessions lack such protections. Sara Cobb and Janet Rifkin, who have studied how mediators deal with power disparities, have observed significant problems.[25] The researchers analyzed transcripts of a sample of mediation hearings that were held at five Massachusetts community mediation programs and interviewed mediators regarding their understanding of the role of neutrality in mediation. They found that mediators tend to use two different approaches to the concept of neutrality. One approach defines neutrality as "impartiality"-treating the parties the same. An alternative approach to neutrality involves mediators seeking to achieve "equidistance" between parties, particularly with regard to levels of power. In the second approach, mediators seek to balance the power of the parties. Achieving such a balance is often much easier said than done. It is not clear that cases involving substantial power disparities are suitable for mediation. By staying neutral in the sense of being impartial, mediators can reinforce injustices arising from such power disparities. Beth Roy, a psychologist and community mediator, has stressed that, at a minimum, research in this area must prompt practitioners to "know that disputants bring unequal resources into the room by virtue of their places in society. Women, people of color, lower-class people, and disabled people are likely to be disadvantaged in specific ways that affect negotiations over every issue."[26] Hermann and West compared the outcomes of a sample of 603 small claims cases in Albuquerque, New Mexico, which were either mediated or arbitrated. The study reinforces concerns regarding the role of power in both mediation and court. The researchers found that in both mediated and adjudicated cases minority respondents paid more and minority claimants received less than white respondents and claimants, but that the differences in settlement amounts were greater in mediated than in adjudicated cases. The pattern did not occur when lawyers represented parties in adjudicated collection cases and also did not appear when mediation was conducted with two minority comediators. Minority disputants were more satisfied with mediation than adjudication despite this pattern of findings, a fact that demonstrates that interpreting satisfaction measures can be complex. In addition to concerns about the adverse impact of individual power disparities and patterns of violence and abuse on the appropriateness of cases for mediation, some observers have stressed that dispute resolution programs can intentionally or unintentionally serve as vehicles for dispute suppression and pacification of less powerful segments of society. For example, Laura Nader has stated that the dispute resolution movement reduces the power of groups promoting civil rights, consumer rights, environmental rights, women's rights, and other causes. Hearings are private, and, in contrast to court cases, do not establish legal precedents. Disputes are settled one by one without the option for collective action through class action mechanisms. The values of harmony and consensus are championed, and the "focus on assistance to individuals distracts attention from economic forces, power differentials, and inequality in distribution of remedies in the United States."[28] This critique certainly has merit for certain classes of disputes involving abuses of power. For example, mediating cases involving code violations by an unethical landlord and essentially co-opting and pacifying the one or two vocal tenants in a building while leaving the others to suffer with substandard housing conditions is no substitute for more aggressive action in court to compel remedies for all of the tenants facing similar conditions. Dispute resolution programs need to be sensitive to the potential for the abuse of mediation, and guidelines indicating which types of cases should be routinely rejected and referred to court are valuable (such cases typically include ones that involve violence, alcohol or other drug abuse, or serious mental impairment of one of the parties). In this regard, most programs already have policies to refuse to mediate cases involving domestic violence. It is not clear how the Nader critique applies to the many community dispute resolution cases involving interpersonal conflicts among relatives, neighbors, and acquaintances of roughly equal power. Such cases often dominate program caseloads. Cross-Cultural and Gender Issues in Mediation Mediation sessions involve communication between parties in conflict. Marked differences between parties in their styles of communication, their assumptions about social relations and social norms, and related factors can inhibit effective communication and the eventual settlement of conflicts. Some measure of differences based on these dimensions can occur between members of the same society and can inhibit communications. Even greater differences can, of course, occur between members of different cultures, and these can make the conduct of mediation hearings between individuals from different groups quite challenging. Such challenges for community mediation programs are inevitably going to increase as the population of the United States becomes increasingly diverse ethnically and racially. It is clearly important for mediation staff members and volunteer mediators both to develop an understanding of how cross-cultural differences can affect communication in mediation sessions and to develop skills to deal with and facilitate discussions among disputants from different cultures. This topic has received increasing attention in recent years, and the State of New York mediation program discussed earlier sponsored a national conference in 1991 entitled "The Twenty-First Century Mosaic: Resolving Disputes in a Culturally Diverse Society" to address such issues systematically.[29] The papers in the resulting volume are a very useful resource. They provide both theoretical discussions and practical tips (for example, to hold individual caucuses with parties to clarify issues of cultural difference that arise, so as not to embarrass either party in front of the other). The need for mediators to deal with their own prejudices and biases is also addressed by many of the contributors, and ways of heightening personal awareness of one's own biases are examined to keep such biases from adversely affecting mediator performance. Gender differences in communication style can also potentially play a major role in the process and outcome of mediation sessions. Books dealing with gender differences in communication style have become best-sellers in recent years.[30] One of the major themes in this literature involves many females' preference to seek consensus in contrast to many males tendency to seek confrontation. Some observers have suggested that these different tendencies are reflected in the fact that the majority of mediators are female.[31] A variety of empirical studies have been conducted to examine the impact of gender differences on mediation.[32] While gender can affect communication style, empirical studies dealing with the impact of gender on mediation have typically shown that the gender of the parties, or of the mediators, or both has not played a significant role in mediation outcomes. The researchers who have conducted these studies have noted the methodological limitations of the existing studies, however, and further research in this area is needed to examine the role of gender differences in the mediation of disputes. Variations in communication style and gender biases by either disputants or mediators seem likely to play an important role in at least some mediation hearings, and mediators certainly need to be aware of this potential and to address problems as they arise. Increasing International Dimensions of the Mediation Field The community mediation field has looked to foreign models for dispute resolution since its inception. Richard Danzig's paper in 1973 in the Stanford Law Review, "Toward the Creation of a Complementary, Decentralized System of Criminal Justice," reviewed the implications of African tribal moots for American dispute resolution and was influential in the thinking of many early proponents of community mediation programs.[33] Similarly, numerous observers pointed to the widespread use of people's mediation committees in neighborhoods and workplaces in the People's Republic of China and considered their applicability, if any, to the United States setting. A variety of observers were quick to point out difficulties in transferring such foreign models to the United States.[34] Conference panels on international and cross- cultural issues in dispute resolution have provided opportunities for discussions of the transferability of dispute resolution practices across societies. For example, sessions were held at the 1995 National Conference on Peacemaking and Conflict Resolution on such topics as "The North American Model: Critiques and Adaptations," a session that brought together speakers from diverse settings such as Bulgaria, Northern Ireland, and Jamaica; "Cultural Dimensions of Peacemaking and Conflict Resolution in Southeast Asia"; "South African Community Justice Centres"; and numerous others. In addition, sessions were held on Native American conflict resolution mechanisms. Such sessions are useful to share information about dispute processing mechanisms and to sensitize dispute resolution practitioners regarding cross-cultural issues that may arise in their caseloads given the great diversity of the American population. Community dispute resolution centers in the United States often host delegations from foreign countries interested in American innovations, and American trainers have been very active in providing dispute resolution training in such diverse settings as Colombia, Guatemala, South Africa, Northern Ireland, Jordan, Russia, and Turkey. Conclusion This chapter reviewed major issues confronting the community mediation field. The development and implementation of appropriate qualifications and standards continues to require careful attention and has significant implications for programs development. Obtaining adequate funding for program operations is a constant struggle, and turf battles that accompany scarcity of resources have the potential to harm individual programs and the overall field. Additional topics that were addressed in this chapter include strategies for developing effective working relationships with the police to obtain referrals, the appropriateness of certain types of cases for mediation, and cross-cultural and gender issues in mediation. Endnotes 1. Press, S., and J. Filner, "Getting to Excellence in Court System ADR," NIDR News: 3 (March/April 1996). 2. See the comments of E. Neumeier, and D. Joyce "Qualifications: Two Voices from the Debate," in Dispute Resolution Access: A Guide to Current Research and Information: 3 (Fall 1995). See also SPIDR, Qualifying Neutrals: The Basic Principles, Washington, DC: Society of Professionals in Dispute Resolution, 1989. 3. See Nicolau, G., "The Qualifications Dilemma: The Pros and Cons of Setting Mediator Qualifications," Expanding Horizons: Theory and Research in Dispute Resolution: Conference Proceedings, (Syracuse, NY) Washington, DC: American Bar Association, 1989. 4. See SPIDR, Qualifying Neutrals: The Basic Principles. 5. LeFevour, M.K.C., SPIDR essay in NIDR Forum. 6. NIDR, Performance-Based Assessment: A Methodology for Use in Selecting, Training, and Evaluating Mediators, Washington, DC: NIDR, 1995. 7. Ensuring Competence and Quality in Dispute Resolution Practice: Report No. 2 of the SPIDR Commission on Qualifications, Washington, DC: Society of Professionals in Dispute Resolution, 1995. 8. A Consumer Guide to Selecting a Mediator, Alaska Judicial Council, July 1995 [www.ajc.state.ak.us/MEDIATORFRAME.htm]. 9. Morris, C., and A. Pirie, Qualifications for Dispute Resolution: Perspectives on the Debate, Victoria, British Columbia: University of Victoria Institute for Dispute Resolution, 1994. 10. Pipkin, R., and J. Rifkin, "The Social Organization in ADR: Implications for Professionalization of Mediation," Justice System Journal, Vol. 9/2 (Summer 1984). 11. Justice Samuel Zoll, letter of December 22, 1995. 12. Bush, The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications, Washington, DC: NIDR, 1992. 13. Fisher, R. personal communication, April 1980. 14. Szanton, P., Four State Offices of Dispute Resolution: A Report to the National Institute for Dispute Resolution, Washington, DC: Szanton Associates, March 1988. 15. Ibid. 16. NIDR, Community Dispute Resolution Manual: Insights and Guidance from Two Decades of Practice, Washington, DC: NIDR, 1991. 17. Bethel, C., and M. Ostermeyer, Conflict Resolution Institute for Courts Conference Notebook, Washington, DC: National Institute of Justice, 1995. 18. Honeyman, C., Financing Dispute Resolution, Hewlett Foundation. 19. The Partnerships Against Violence Network (PAVNET) is cosponsored by the U.S. Departments of Justice, Health and Human Services, Education, Labor, and Agriculture. PAVNET and related useful resources can be reached through the National Criminal Justice Reference Service Web Site at http://www.ncjrs.org. 20. Foundation Directory, New York: Foundation Center, March 1997. 21. See Shepherd, R., Neighborhood Dispute Settlement: An Evaluation of Neighborhood Dispute Settlement Center's Program with the City of Harrisburg Bureau of Police, Unpublished paper, Shippensburg: Shippensburg State University, 1995. 22. Glensor, R., and A. Stern, "Dispute Resolution and Policing: A Collaborative Approach Toward Effective Problem Solving," in Fresh Perspectives: A Police Executive Research Forum Publication, January 1995. Also see Goldstein, H., Problem-Oriented Policing, New York: McGraw-Hill, 1990; Schaffer, R., Testimony Before the Pennsylvania House of Representatives Judiciary Committee, September 29, 1994; and Shepherd, Neighborhood Dispute Settlement. 23. Toben, S., "The Future of the Conflict Resolution Field," NIDR News (January/February 1996). 24. Laue, J., "The Conflict Resolution Movement: History, Problems, and Prospects," in Expanding Horizons: Theory and Research in Dispute Resolution: Conference Proceedings (Syracuse, New York) Washington, DC, August 1989. 25. Cobb, S., and J. Rifkin, "Neutrality as a Discursive Practice: The Construction and Transformation of Narratives in Community Mediation," report to the Fund for Research on Dispute Resolution, 1990. 26. Roy, B., "From Community Mayhem to Effective Mediation: The Usefulness of Research," NIDR Forum (Summer 1994). 27. See Mediation in Cases of Domestic Abuse: Helpful Option or Unacceptable Risk? The Final Report of the Domestic Abuse and Mediation Project, Maine Court Mediation Service, January 1992, for a thorough discussion of the issues in this area. 28. Nader, L., "Trading Justice for Harmony," NIDR Forum (Winter 1992). 29. See McGlynn, E., and T. Christian, The Twenty- First Century Mosaic, Resolving Disputes in a Culturally Diverse Society, Proceedings of the Seventh New York State National Conference on Dispute Resolution (Kiamesha Lake, New York), Loudonville, NY: Siena College Peace Studies Program, 1993. 30. See Deborah Tannen's analyses of gender differences in communications. 31. For example, see Rogers, S., "Understanding Our Community Mediators: Factors That Affect Volunteers." Proceedings of the Peace Bridge Conference-Dispute Resolution Into the 90's. Buffalo, NY, printed by the New York State Community Dispute Resolution Centers Program, September 1989. 32. For example, see Pruitt, D., P. Carnevale, B. Forcey, and M. Van Slyke, "Gender Effects in Negotiation: Constituent Surveillance and Contentious Behavior," Journal of Experimental Social Psychology 22 (1986): 264-275; Carnevale, P., "Research on Mediator Behavior," New York Mediator 6 (1988); Hall, K., and M. Tucker, "Disputant Characteristics and Favorability of Mediated Settlements," Journal of Psychology and the Behavioral Sciences 4 (1989): 39-42. 33. Danzig, R., "Toward the Creation of a Complementary, Decentralized System of Criminal Justice," Stanford Law Review, 1973. 34. For example, see Felstiner, W., "Influence of Social Organization on Dispute Processing," 9 Law and Society Review 63 (1974). ------------------------------ Chapter 6 Observations Regarding the Current Status of the Community Mediation Field ------------------------------ Key Points o This chapter provides a rough balance sheet of the accomplishments and problems of the community mediation field. It draws from the broad array of material in the preceding five chapters. Different observers will, no doubt, perceive the field's achievements and challenges differently depending on their vision of what the field should accomplish, has accomplished, and can accomplish in the future. o The community mediation field generated a great deal of commentary from public officials, scholars, bar association leaders, practitioners, and others during its early years. The field has apparently exceeded the initial expectations of such observers in at least six areas: - The field has survived and the number of programs has grown dramatically. - Programs have markedly diversified the range of their services. - Impressive State level support mechanisms for programs have emerged. - Nonprofit community mediation programs are increasingly prevalent. - Comparative research findings regarding dispute resolution processes are impressive. - The field has increasing international dimensions. o The community mediation field also failed to exceed some expectations that were quite widespread at the field's inception: - Public awareness of community mediation continues to be relatively low. - Funding for individual programs continues to be low and precarious. - Program caseloads are lower than initially expected and impacts on justice system caseloads are lower than anticipated. - Programs tend to be concentrated in a relatively small number of States. o This chapter identifies six needs confronting the field and examines ways they might be addressed by various participants at the national, State, and local levels: - the need for increased public education regarding community mediation. - the need for increased program funding; - the need for improving intake and referral mechanisms and increasing caseloads; - the need for enhanced training of program directors; - the need for further research to improve understanding of program processes and outcomes; and - the need for additional attention to underserved States. ------------------------------ Experimentation with community mediation programs has proceeded for more than two decades, and programs have been implemented in many jurisdictions across the nation. The earlier chapters of this report have described the evolution of the field; the diversity of cases handled; the infrastructure of national, State, and local organizations supporting program development and refinement; research findings regarding program accomplishments; and major issues confronting the field. The aim of this chapter is to extract from the broad array of observations presented earlier in this report a general understanding of the community mediation field's current status-both its major achievements and its problems. Based on this analysis, next steps that major participants in the field (including leaders of national and State organizations, mediation program directors, and volunteer mediators) may wish to consider are discussed. Needless to say, different observers of this field would inevitably arrive at varying assessments of the field's current status and prospects if they carried out the same exercise. One of the most invigorating features of the community mediation field has been the lively spirit of debate that has prevailed since its inception. It is important, however, to seek to gain a general view of where the field is now in order to foster discussion regarding where it may be, and should be, headed in the future. The Current State of the Field One useful approach to help understand the current status of the community mediation field is to compare systematically the field's experiences over the past two decades to initial expectations that were repeatedly asserted at the field's inception. Such an approach can help reveal what has apparently worked well and what has not and can also highlight major unanticipated and unintended outcomes that have arisen. This section summarizes those areas in which the field appears to have exceeded initial expectations and those areas in which it fell short. Areas In Which Initial Expectations Were Exceeded The community mediation field generated a great deal of commentary from public officials, scholars, bar association leaders, practitioners, and others during its early years.[1] This section presents a sampling of initial expectations of such observers that were apparently exceeded by subsequent developments in the community mediation field. The Field Has Survived and the Number of Programs Has Grown Dramatically Some observers labeled the community mediation field a fad in its early days and often asserted that programs were simply a by-product of the availability of Federal Law Enforcement Assistance Administration funding.[2] Such observers predicted that once the Federal funding dried up, so would community mediation programs. The exhibits presented in chapter 1, demonstrating the growth of programs across the nation, flatly refute this prediction for the field. As was discussed in previous chapters, State and local governments, the United Way, foundations, and other funders have actively supported community mediation programs and picked up the torch from the Federal government. (The Law Enforcement Assistance Administration itself turned out to be mortal, however, and was terminated in the early 1980s.) This funding support has been generated because many policymakers and funders perceive mediation programs to be effective forums for resolving conflict. In addition, it is clear that mediation program directors and leaders of Statewide associations of programs have been energetic, creative, and sophisticated in their fundraising efforts. The accomplishments of the Mediation Network of North Carolina in lobbying the North Carolina State legislature (discussed in chapter 3) illustrate the potential effectiveness of State associations. The fundraising work of the Peninsula Conflict Resolution Center of San Mateo County, California (reviewed in chapter 5) demonstrates how individual programs can raise necessary funding in creative ways. Programs Have Markedly Diversified the Range of Their Services Early proponents of the community mediation field anticipated that community mediation programs would diversify and broaden the types of cases that they handle.[3] The actual expansion of the breadth of the field has certainly surpassed the expectations of all but the most optimistic community mediation proponents in the 1970s. In addition to handling diverse caseloads of minor interpersonal criminal and civil matters, mediation programs have branched out into a remarkable number of new areas. As was reviewed in chapter 2, mediation programs now facilitate the handling of major public policy issues in many jurisdictions, such as school district mergers and facility siting issues. As was discussed earlier in this report, the Orange County Dispute Settlement Center has a full-time staff member devoted to such public policy dispute processing. Programs have also increasingly begun to handle intergroup conflicts, including such extremely important matters as emerging disputes among youth gangs. The work of the New Mexico Center for Dispute Resolution illustrates this new emphasis, and such interventions can be critical in forestalling violent confrontations. The key role of community mediation programs in fostering school-based conflict resolution and student peer mediation programs is one of the field's most striking accomplishments. Such programs are now in operation in more than 5,000 elementary and secondary schools nationwide. In many communities, the local community mediation center was the catalyst for school-based program development; these programs often provided the technical assistance and training to make programs a reality. The National Association for Mediation in Education (NAME) (now the Conflict Resolution Education Network of NIDR) has also made critical contributions to the field, and this organization was founded by community mediation leaders. Community mediation programs have also played an important role in the mediation of domestic relations and custody disputes. Private family mediators play a critical role in this component of the mediation field as well, and the Academy of Family Mediators provides valuable support to this area of practice. Impressive State-Level Support Mechanisms for Programs Have Emerged When the community mediation field began, the field's leadership came primarily from local program developers (government officials, including judges and prosecutors, and private individuals) and from national organizations (the American Bar Association, the U.S. Department of Justice, and others). The role of such program developers has been discussed earlier. As the field has matured, State associations of programs and State governmental agencies charged with encouraging community mediation have played an increasingly important role in the field. Detailed examples of such endeavors are provided in chapter 3. This growth of State-level organizations has been critical to the institutionalization of community mediation in a number of States. The State associations and governmental agencies provide programs with technical assistance and training, sponsor conferences for participants in the field, and work to obtain State legislative funding for program operations. The role of such organizations in Hawaii, Massachusetts, Michigan, New York, North Carolina, and Ohio are reviewed in detail in chapter 3. Nonprofit Community Mediation Programs Are Increasingly Prevalent At the inception of the community mediation field, many observers anticipated that two basic types of community mediation program sponsorship would predominate: programs would either be sponsored by government agencies (primarily the courts, prosecutors' offices, and city governments) or they would be sponsored by nonprofit community organizations. Both variants still exist, and either certainly can provide high-quality services to disputants if properly administered. Over time, the nonprofit model has grown to be more prevalent than government sponsorship of community mediation programs. A number of factors have supported this evolution. First, States providing funding for community mediation have often stipulated that programs must be sponsored by nonprofit agencies with community advisory boards (for instance, New York and Michigan). These States decided that such sponsorship would make projects closer to the community and more flexible in operations and in raising additional funds. Second, the trend toward diversification of services in this field has virtually required that programs seeking diversification be sponsored by nonprofits that are able to work on a wide variety of types of cases. A program sponsored by one component of the justice system (for example, the prosecutor's office) is not well positioned to diversify into public policy disputes and other areas far afield from the immediate interests of the agency. State associations of programs and the National Association for Community Mediation have also fostered the spread of nonprofit- sponsored programs that can be structured to be highly responsive to community concerns through the input of community advisory boards. While less likely to sponsor a community mediation center that processes a diverse array of conflicts, government agencies are sponsoring many specialized dispute resolution mechanisms (for example, custody and visitation mediation in family courts, landlord/tenant mediation in housing courts, and arbitration, settlement conferences, and related dispute resolution processes for civil cases). Comparative Research Findings Regarding Dispute Resolution Processes Are Impressive At the outset of the community mediation field, expectations regarding likely program accomplishments ranged from extremely optimistic to comparably pessimistic. As chapter 4 indicates, research findings regarding disputant perceptions of mediation processes, satisfaction with mediated agreements, and related measures tend to be very favorable. Much additional research is needed, of course, but existing findings comparing mediation to court case processing typically tend to favor mediation. For the most part, studies suggest that mediation programs are perceived by disputants to deliver a high quality of justice and to facilitate understanding of the conflict and the opposing party. Research findings regarding community mediation program impacts on court caseloads and costs are far less impressive, as noted in chapter 4. This topic is examined in the discussion of areas in which expectations for community mediation programs were not exceeded. The Field Has Increasing International Dimensions Early articles dealing with community mediation often noted the prevalence of informal dispute resolution mechanisms in certain foreign settings (such as African tribal moots, Chinese people's mediation committees, and the like).[4] For the most part, however, the community mediation movement evolved in its early years as a purely domestic American enterprise. As noted in chapter 5, international interest in American community mediation experiments has increased. American community mediation leaders have begun to provide technical assistance and training in such diverse foreign locales as Nicaragua, Russia, South Africa, Australia, and Turkey. The U.S. Agency for International Development has begun to encourage the development of alternative dispute resolution programs in nations implementing justice system reforms. The flow of information back from other nations to the United States has also increased. Many international conferences have begun to include panels regarding community mediation, which allows for a sharing of perspectives between American and foreign practitioners in this field. The New Zealand experiments with restorative justice mechanisms (such as family group conferencing, a process with some marked similarities to mediation) are also receiving considerable attention within the United States, and a number of jurisdictions are seeking to replicate such programs. Areas In Which Expectations Were Not Exceeded The community mediation field has also failed to exceed some expectations that were quite widespread at the field's inception. Public Awareness of Community Mediation Continues To Be Relatively Low Some early proponents of the field anticipated that gradually, over time, community mediation programs would become highly visible to the public and become part of everyday experience and knowledge.[5] This simply has not happened. Some components of the overall alternative dispute resolution field have become increasingly visible--for example, divorce mediation and school-based conflict resolution programs--but community mediation programs, for the most part, have not become widely known. Survey data would be helpful to rigorously support the observation that programs have low visibility, but the low level of visibility of programs does not make them a high- profile candidate for inclusion in national surveys. There are a number of apparent reasons for the low level of community mediation program visibility outside of the circle of people directly exposed to them (disputants, court personnel, and so on). First, despite the fact that programs deal with a compelling topic, conflict, the print and broadcast media have paid minimal attention to them. Second, program caseloads are still relatively small, which limits the proportion of citizens in any locale with direct exposure to programs. Third, extensive public information campaigns at the national, State, or local level are very rare. The experience of some of the early community mediation programs with such campaigns may have had a chilling effect on their use. For example, the Los Angeles Venice/Mar Vista Neighborhood Justice Center engaged in an aggressive campaign of public service ads on local radio stations. They also set up booths at shopping centers and on the beach from which mediation program brochures were distributed. The publicity resulted in an avalanche of telephone and walk-in inquiries, most of them for legal assistance with filing divorce papers, combating evictions, and other legal matters more suitable for a legal services office. The relatively low visibility of community mediation programs can have a number of adverse consequences for programs. Citizens who are unaware of programs will not know to turn to them for assistance when disputes arise and may resist referrals to mediation from the police, courts, and social services. In addition, legislators and other potential funders are less likely to provide support for programs if they are not aware of their accomplishments and do not feel that programs are well known and have widespread support from the community. The discussion of next steps later in this chapter reviews potential strategies for increasing public awareness of community mediation programs. Funding for Individual Programs Continues To Be Low and Precarious Many proponents of community mediation programs anticipated that individual centers would typically have sufficient funding to support administrative, intake, outreach, and clerical staff, and would have staff capacity to handle quite large caseloads and mount substantial new initiatives. Federally funded experimental programs 20 years ago had annual budgets of approximately $200,000 (a figure that, of course, would be far higher today after adjusting for two decades of inflation). As was discussed in chapter 1, present-day programs typically do not approach such levels of funding. The most common current budget range for programs, based on the findings of the National Association for Community Mediation survey, was $50,000 to $150,000, with 49% of programs falling in this category. The next most common range was less than $50,000, with 29 percent of programs represented. Only 10 percent of programs had budgets of more than $300,000-a level roughly comparable to the level of common early expectations in the field. Interpreting the meaning of budget levels is not simple. Clearly, budget levels will vary as a function of the size of communities and local available caseloads. Every program does not need to be big. It is also important to stress that low levels of program funding in this field do not necessarily lead to disputants' receiving low- quality services. In fact, since mediators are typically volunteer community members, programs can maintain large pools of highly trained, highly qualified mediators with limited budgets. Limited program budgets do have a number of important adverse consequences, however. First, staff members tend to be grossly underpaid for the amount, importance, and quality of work they perform. Community mediation personnel deal with many interpersonal and intergroup conflicts that could easily escalate into violence. Their work is stressful and important to the life of their community. Their jobs are arguably far more important, by virtually any measure of value to society, than those of employees making four to five times their salaries. Low salaries inevitably lead to higher levels of turnover at programs than would occur if salaries were more commensurate with staff responsibilities. Such turnover can cripple programs while new directors and staff are being recruited and trained. Second, low budgets limit the ability of programs to conduct aggressive outreach to obtain case referrals and hamper efforts to thoroughly screen cases prior to hearings for any features that would make them unsuitable for mediation. As was noted in chapter 1, 56 percent of programs have three or fewer staff members. A typical staff configuration for programs is a director, a case intake and referral specialist, and an administrative staff person responsible for clerical functions, scheduling hearings, and related tasks. Programs with two employees typically have a director and a person who combines the roles of intake and administrative staff member. Such staff configurations do not provide the capacity to conduct extensive outreach. Needless to say, when one staff member is sick or on vacation, the program is even more limited in its capacities to perform any more than routine daily functions. In addition to being too low, program funding also tends to be precarious. Programs have demonstrated remarkable energy and creativity in raising funds to maintain existing operations. Such fundraising activity is inevitably stressful, however, and takes away from staff time that could be devoted to services to mediators and disputants and to efforts to expand the program. Mechanisms to provide programs with more stable as well as larger budgets would be very helpful. Strategies for improving program funding are discussed later in this chapter. It should be noted that an alternative perspective regarding program staff sizes and budgets is possible. Some observers would, no doubt, argue that comparison of current program budgets with the initial expectations of program developers at the outset of the field is misguided. Instead of finding that current budgets are too low, this perspective would suggest that initial expectations and model program funding levels were simply too high, resulting in Cadillac budgets for programs that in reality only could, and should, live on subcompact-level budgets. The argument at the core of this approach is that current program budgets reflect what the market for services will honestly sustain, and that the 10 percent of programs with far higher budgets either are more effective entrepreneurially or have special local conditions. Furthermore, the argument can be made that when low budgets limit the number of paid staff members, it is possible to place further responsibility and control in the hands of local volunteer community mediators--an outcome that may be desired. Proponents of community mediation programs are likely to reject the alternative perspective presented above. The major by-products of current low budgets--overworked staff, limited capacity for outreach and increased referrals, and high staff turnover--would seem to ensure that budgets will stay low at many programs because staff members will not have the time or energy to seek changes. Current staff resources seem remarkably low to many observers, particularly in a nation in which conflict itself is a growth industry. Recommendations about how to break this cycle of low budgets leading to more low budgets are provided in the final section of this chapter. Program Caseloads Are Lower Than Initially Expected and Impacts on Justice System Caseloads Are Lower Than Anticipated Many initial program planners in this field anticipated that community mediation programs would eventually handle very large caseloads of interpersonal disputes-a significant portion of relevant court cases, as well as, many important conflicts that never reached the courts but nonetheless have the potential to harm disputants and others. For the most part, this expectation has not been confirmed. Perhaps the most rigorous study addressing this question, the University of North Carolina Institute of Government's evaluation study discussed in chapter 4, found that in three North Carolina counties with community mediation programs, only 22.8 percent of cases that were technically eligible for mediation were actually sent to mediation.[6] The researchers who conducted this evaluation noted that programs needed to be far more aggressive in outreach efforts with the courts and other referral agencies. The relatively low caseloads of programs have resulted in limited impacts on court caseloads and costs, as was discussed in chapter 4. Chapter 5 noted similar low levels of referrals from the police and examined factors affecting such referrals. A number of factors have contributed to the relatively low levels of referrals to community mediation programs. First, as was noted in the preceding section, low project budgets make it difficult for many programs to develop close, ongoing referral ties with the local police and the courts. In the absence of such outreach and referral work, case referrals are likely to remain low. Second, the diversification of the activities of community mediation programs has further drawn programs away from developing extensive referral linkages with justice system agencies. Some diversification activities involve training (for example, for school-based mediation), technical assistance (such as for local companies wishing to establish grievance mechanisms), and meeting facilitation (for instance, processing public disputes). These activities may provide programs with significant fees that are essential to program survival given the typically low budgets discussed previously. In light of the limited resources available to programs, it is not surprising that staff often focus their energy on those activities that can generate contracts and fees to keep the program afloat. This incentive system can virtually guarantee, however, that programs will not place the additional emphasis on justice system referral mechanisms called for by the Institute of Government evaluators until government or private funders encourage increased attention to obtaining referrals from the police, prosecutors, and courts, where a significant portion of societal disputes surface. The problems that programs have obtaining referrals lead to something of a self-fulfilling prophecy. To the extent that program activities do not lead to significant reductions in court caseloads or costs, the government is hesitant to pour considerable resources into programs. But without significant resources, programs will find it difficult to focus on generating high levels of referrals from the courts and will continue to invest energies in those fee-bearing activities that enhance program survival. The Institute of Government researchers reported that the community mediation program in their sample that processed the highest proportion of technically eligible cases from the local courts (34.2 percent) was the only one that appeared to have significantly reduced the number of court trials in its jurisdiction (based on a comparison with a matched county that lacked a mediation program). This finding suggests that aggressive outreach to obtain referrals can have an impact on the courts. The degree to which individuals in the community mediation field lack optimism regarding such impacts is reflected in the often heard statement, "It doesn't matter if programs affect justice system caseloads; the important thing is that they deliver a higher quality of justice and are justified due to that achievement regardless of other impacts." The data in chapter 4 strongly suggest that mediation can lead to improvements in the quality of justice when compared with court processing of similar cases. The question of whether or not community mediation programs can ultimately affect court caseloads still seems to be open in light of the Institute of Government research findings. One additional adverse consequence of low caseloads should be noted. In some programs, mediation caseloads are sufficiently low and the pool of mediators is sufficiently large that volunteer mediators rarely have the opportunity to mediate cases. This is harmful for a number of reasons. Mediators' skills diminish if they do not have the opportunity to handle cases. Material taught in mediation training is forgotten. Perhaps even more important, mediators can become very dissatisfied if they do not have the opportunity to mediate cases and may drop out of the mediation pool altogether to find a volunteer activity that is more fulfilling. The most important adverse consequence of low caseloads is straightforward. If the studies reviewed in chapter 4, are correct in suggesting that mediation programs deliver a higher quality of justice than the courts do for many types of interpersonal disputes, then inadequate referral mechanisms are depriving citizens of access to a superior process for dealing with their conflicts. The understandable internal incentives that programs confront to maintain their operations inhibit their ability to serve the many citizens who could apparently benefit greatly from their services. Programs Tend To Be Concentrated in a Relatively Small Number of States Proponents of community mediation programs have long argued that such programs are suitable for conflicts in any setting, urban or rural, regardless of locale. Community mediation programs have been developed in every region of the nation, but programs tend to be concentrated in a relatively small number of States. Two-thirds of the community mediation programs that are included in the National Association for Community Mediation Directory (146 of the 222 programs) are located in only 12 States. In rank order these States are California, New York, North Carolina, Michigan, Massachusetts, Texas, Washington, Oregon, Virginia, Minnesota, Nebraska, and Pennsylvania. Many of these States have large populations, and their combined population constitutes 47 percent of the total population of the United States. The disproportionate representation of programs across States is not surprising. The presence of particularly active and effective mediation proponents in some States, combined, in some instances, with the emergence of Statewide associations, Statewide funding programs, and related support mechanisms, makes it inevitable that some States will develop programs more rapidly than others. Nevertheless, many community mediation leaders would like, over time, to foster the development of programs in those States that have few or no programs. (Six States have no programs listed in the NAFCM directory and another 15 States have only one program.) Recommendations are provided later in this chapter for strategies to enhance the spread of mediation programs to areas where few or no programs are available. Needs for the Community Mediation Field in the Coming Years In light of the above analysis of the apparent achievements and problems of the community mediation field, a number of major needs of the field require attention. The Need for Increased Public Education Regarding Community Mediation As was discussed, public awareness of community mediation mechanisms is low, and this is likely to bring with it an array of problems for programs, including reduced caseloads and a reduced probability of receiving funding support. Public information campaigns at the national, State, and local levels may help remedy these problems. The National Association for Community Mediation (NAFCM) is well positioned to work in this area. With its broad representation of programs, it can serve as a voice for programs nationally. NAFCM and others can develop public information materials, perhaps with the support of Federal or foundation funding, and can develop strategies for dissemination of the material through public service announcements, television programs, the print media, and elsewhere. In addition to a formal public information campaign, measures of the sort carried out by the National Crime Prevention Council (NCPC) to publicize crime prevention initiatives may be helpful to the community mediation field. The NCPC encourages media coverage of crime prevention innovations and also briefs legislators and other policymakers regarding developments in that area. The National Association for Community Mediation can play a similar proactive role in the community mediation field. High-visibility recognition of the accomplishments of community mediation programs would be very helpful to the stature of the field. A community mediators' awards ceremony conducted by the President, the U.S. Attorney General, or State Governors or State Attorneys General could bring useful attention to the role of such programs in resolving conflict. Dramatic examples of mediation hearings that intervened in and halted escalating interpersonal or intergroup disputes would be likely to attract media coverage. The Need for Increased Program Funding The many problems associated with relatively low levels of program funding were discussed previously. Chapter 5 presents a number of suggestions for ways to increase program funding. Community mediation program directors have extensive experience in this area, and the topic is a perennial favorite at most mediation conferences. In a time of governmental economic austerity, the very thought of relying on increased public resources for funding seems daunting. But it must be stressed that the overall annual level of funding for community mediation nationwide is remarkably low-approximately $50 million per year. This level is lower than the funding level originally contemplated by Congress for the Dispute Resolution Act in 1979-a bill that would have provided $60 million to the U.S. Department of Justice to fund innovative community mediation programs. Another useful benchmark against which current annual expenditures on community mediation can be measured is the more than $1 billion being granted annually to localities across the nation to support community policing. The annual budget for community mediation programs from all sources is less than 5 percent of the total Federal budget for community policing grants. Despite the obvious barriers, the National Association for Community Mediation and others may wish to consider seeking Federal or State funds, or both, for community mediation programs to help address the problem of low and precarious program funding. Such funding would need to pay only a portion of program expenses. Mediation programs have a long history of leveraging governmental funds to obtain additional funding from foundations, the United Way, and fees for service. For example, the total amount of State funding awarded to the State of New York's community mediation programs, which serve all of the State's counties, was $3.3 million in 1996-97. As was discussed in chapter 5, by statute, programs are limited to receiving no more than 50 percent of their annual budget from the State's Community Dispute Resolution Centers Program; the remainder of the funds must be raised from local sources. State associations of programs can engage in legislative fundraising activities following the successful approach used by the Mediation Network of North Carolina, which was discussed in chapter 3. The Mediation Network informed legislators in detail regarding the contributions community mediation programs made to their districts. The network also provided concrete proposals for funding and has worked closely with the State's Administrative Office of the Courts to ensure that data regarding the accomplishments arising from the State appropriations are clearly documented for each program receiving such funds. The Need for Improved Intake and Referral Mechanisms and Increased Caseloads The problems contributing to low caseloads and then subsequently arising from them were discussed previously. The directors and advisory boards of local programs need to give serious consideration to ways of improving case referral mechanisms involving local social service and justice system agencies. Current funding patterns appear to play an important role in focusing the resources of many community mediation programs on diversification initiatives that can generate contract or fee revenue. Increased funding, perhaps from public sources, could enable programs to be much more aggressive in seeking referrals from justice system agencies such as the police, prosecutors, and the courts. Such increased mediation referrals could benefit the justice system agencies and the community at large and would appear to be a proper public investment of funds. Intensive research should be conducted along the line of the Institute of Government evaluation discussed earlier, to determine if programs that receive and mediate a high proportion of technically eligible cases from referral sources also cause reduced workloads for those governmental agencies. The Need for Enhanced Training of Program Directors The combined challenges posed by the need to increase public awareness, funding levels, and caseloads strongly suggest the need for enhanced training of community mediation program directors. National groups, State associations, and other organizations can take the lead in designing training curricula for program directors. Some of the current types of training available were discussed in chapter 3. The Need for Further Research To Improve Understanding of Program Processes and Outcomes The review of existing research in chapter 4 indicates the many gaps in our knowledge of the critical processes and outcomes of community mediation programs. A number of relatively rigorous studies of programs were commissioned early in the life of the community mediation movement. The Ford Foundation Fund for Research on Dispute Resolution and the State Justice Institute provided an additional commitment of research funds over the years, although studies supported by both organizations have dealt with the full array of dispute resolution mechanisms, with community mediation being only one variety among many. The Ford Foundation Fund is no longer in operation. Additional research on community mediation could enhance understanding of how such programs should be shaped to best serve their communities and might also generate findings that could lead to additional operational funding support of programs from policymakers. Appendix C reviews research questions that need to be addressed. The Need for Additional Attention to Underserved States As was discussed earlier, community mediation programs tend to be concentrated in roughly one- fourth of the States. National organizations in the field may wish to consider ways to foster the development of programs in States that have few or no community mediation programs. A variety of strategies can be used, including: (1) jointly sponsored conferences in such States with relevant nonprofit groups, city and State justice system agencies and bar associations, and local governments; (2) the development of technical assistance and training teams that can help local jurisdictions in such States begin programs at low cost; and (3) public funding of relatively inexpensive experimental programs by State and city governments. Conclusion This chapter provided a rough balance sheet reflecting the accomplishments and problems of the community mediation field. As was noted at the outset, different observers of the field will, no doubt, perceive its achievements and challenges differently, depending on their vision of what the field should, has, and can accomplish. Based on the analysis presented in this chapter, six needs confronting the field and ways they might be addressed by various participants at the national, State, and local levels were examined. As was noted earlier, the effort to seek an overview of the field's achievements and problems can foster discussion about how and why the field has evolved the way it has and where it may be, and should be, headed. Community mediation programs represent, in tangible form, the embodiment of many of the core principles favored by many citizens, including local initiative, volunteerism, combating violence, private/public partnerships, cooperation among people representative of the full diversity of the community, problem-solving of the type embodied in community policing, and national collaboration so that communities can learn from one another. The field also has many paradoxical features. Long ago, Professor Roger Fisher of Harvard Law School captured one of these paradoxes by characterizing the community mediation field as one in which the need for services by the society was very great but for which public demand was relatively low.[7] As the society becomes ever more complex and diverse, the need for community mediation can only grow. One of the great challenges for the community mediation field is to ensure that the great societal need is converted into a commensurate, legitimate level of demand through enhanced public awareness of the availability of mediation services and, furthermore, that sufficient societal resources are allocated to meet the demand for community conflict resolution in the coming century. Endnotes 1. See Sander, F., Alternative Methods of Dispute Settlement: A Selected Bibliography, Washington, DC: American Bar Association. This bibliography has been periodically updated and presents a broad array of books and articles from the dispute resolution field. 2. For example, see essays in Feeley, M., and R. Tomasic, eds., Neighborhood Justice: Assessment of an Emerging Idea, New York: Longman Press, 1981. 3. See Cook, R., J. Roehl, and D. Sheppard, Neighborhood Justice Centers Field Test: Final Evaluation Report, Washington, DC: U.S. Government Printing Office, 1980. 4. For example, see Felstiner, W., and L. Williams, "Mediation as an Alternative to Criminal Prosecution," 2 Law and Human Behavior 223 (1978). 5. See essays in Merry, S.E., and N. Milner, The Possibility of Popular Justice: A Case Study of Community Mediation in the United States, Ann Arbor: University of Michigan Press, 1993. See also observations by Fuller, L., "Mediation-Its Forms and Functions," 44 Southern California Law Review 305 (1971); and Fuller, L., "The Forms and Limits of Adjudication," 92 Harvard Law Review 353 (1979). 6. Clarke, S., E. Valence, and R. Mace, Mediation of Interpersonal Disputes: An Evaluation of North Carolina's Programs, Chapel Hill: Institute of Government, 1992. 7. Fisher, R., personal communication, April 1980. ------------------------------ Appendix A Sources of Additional Information Regarding Dispute Resolution Mechanisms The National Institute for Dispute Resolution (NIDR) has produced a useful Compendium of State Court Resource Materials that includes the results of a number of national surveys of dispute resolution practices, statutes, court rules, and related information.[1] This information can be helpful for community dispute resolution centers that are interested in diversifying the types of disputes they handle. The Compendium is a companion volume to NIDR's Conflict Resolution Institute for Courts Conference Notebook.[2] The Conference Notebook was distributed to 1995 conference participants and provides informative discussions on such topics as: strategies for case management; the selection, training, and evaluation of community mediators and staff; confidentiality and related issues; program management approaches; and planning strategies. The authors of the Conference Notebook are Charles Bethel and Melinda Ostermeyer. They provide useful, practical guidance for programs that are operated directly by the courts, as well as for private community mediation programs, bar associations, private practitioners, and others who receive referrals from the courts. The Compendium includes findings from an NIDR survey of the 50 States regarding dispute resolution programs, services, policies, legislation, and rules. For example, the survey indicates whether justice systems in each State routinely or on a case-by-case basis refer the following types of cases to dispute resolution processes: neighborhood (precourt filing), criminal, small claims, landlord/tenant, juvenile, divorce, general civil, complex civil, and probate. In addition, the Compendium presents a summary of selected confidentiality legislation by scope and jurisdiction for the 50 States, excerpted from Nancy Rogers and Craig McEwen's book Mediation, Law, Policy, and Practice.[3] The summary cites specific statutes and indicates the information covered, how mediation is defined, who may assert or waive confidentiality provisions, limitations on use of disclosure, and the types of evidence to which the statutory provisions apply. The Compendium also presents a detailed summary of significant mediation legislation by topic and jurisdiction. Bruce Brodigan of the American Bar Association's Section on Dispute Resolution provided some of the material for this summary to supplement the work of the NIDR researchers. The summary presents references to statutes dealing with the mediation of a wide variety of types of cases, including labor, family, environment, and others. In addition, references are provided to statutes that deal with confidentiality, mediator liability, mandatory use of mediation, the enforcement of mediated agreements, qualifications of mediators, and administration of program funding. NIDR has also included a summary of mediation activities in the States, excerpted from Mediation U.S.A-1994 by Peter Chantilis, a private dispute resolution practitioner in Dallas, Texas.[4] This summary indicates the types of mediation being conducted in the States surveyed. The Compendium includes a listing of the names, addresses, and telephone numbers of contact people from the National Council of State Dispute Resolution Programs and a similar listing of contacts for State court dispute resolution programs. The National Center for State Courts is developing a database of dispute resolution-related State legislation, court rules, policies, and procedures used by court systems and individual courts. The data collection is being funded by a grant from the State Justice Institute. This information should be particularly useful to justice system-based community mediation programs and may also be helpful to programs sponsored by nonprofit agencies. The National Association for Community Mediation (NAFCM) has recently published a membership directory with useful profiles of more than 200 community mediation programs. NAFCM also publishes an informative newsletter regarding developments in the field, and plans to publish additional technical assistance materials. Endnotes 1. Filner, J., M. Ostermeyer, and C. Bethel, Compendium of State Court Resource Materials, Washington, DC: National Institute for Dispute Resolution, 1995. 2. Bethel, C., and M. Ostermeyer, Conflict Resolution Institute for Courts Conference Notebook, Washington, DC: National Institute of Justice, 1995. 3. Rogers, N. and C. McEwen, Mediation, Law, Policy, and Practice, 2d edition, Deerfield, IL: Clark Boardman Callaghan, 1994. 4. Chantilis, P., "Mediation U.S.A.-1994," in Filner, Ostermeyer, and Bethel, Compendium of State Court Resource Materials. ------------------------------ Appendix B Selected Resources for Community Mediation Programs National Organizations American Arbitration Association 140 West 51st Street New York, NY 10020 Phone: (212) 484-4000 Fax: (212) 765-4878 President: William K. Slate II American Bar Association Section of Dispute Resolution 740 15th Street, NW Washington, DC 20005 Phone: (202) 662-1720 Fax: (202) 662-1755 Executive Director: Howard Davidson National Association for Community Mediation 1726 M Street NW, Suite 500 Washington, DC 20036 Phone: (202) 467-6226 Fax: (202) 466-4769 Executive Director: Larry Ray National Conference on Peacemaking and Conflict Resolution Institute for Conflict Analysis and Resolution George Mason University 4260 Chain Bridge Road Fairfax, VA 22030 Phone: (703) 993-1300 Fax: (703) 993-1302 Executive Director N.C.P.C.R.: Linda Baron Executive Director I.C.A.R.: Keven Clements National Institute for Dispute Resolution 1726 M Street NW, Suite 500 Washington, DC 20036-4502 Phone: (202) 466-4764 Fax: (202) 466-4769 President: Margery Baker Society of Professionals in Dispute Resolution 815 15th Street NW, Suite 530 Washington, DC 20005 Phone: (202) 783-7277 Fax: (202) 783-7281 Acting Executive Director: Paco Martinez Federal Agencies Community Relations Service U.S. Department of Justice 600 E Street NW, Suite 2000 Washington, DC 20530 Phone: (202) 305-2950 Fax: (202) 305-3009 Program Director: Jonathan Chace National Criminal Justice Reference Service PO Box 6000 Rockville, MD 20849-6000 Phone: (800) 851-3420 National Institute of Justice U.S. Department of Justice 633 Indiana Avenue NW Washington, DC 20531 Phone: (202) 616-3234 Fax: (202) 307-6394 Program Manager: Carolyn Peake Selected State Organizations Cited in This Report Connecticut Community Mediation Network c/o Community Mediation, Inc. 134 Grand Avenue New Haven, CT 06513 Phone: (203) 782-3500 Fax: (203) 782-3503 Executive Director: Charles A. Pillsbury Mediation Centers of Hawaii c/o Neighborhood Justice Center of Honolulu, Inc. 200 North Vineyard Boulevard, Suite 320 Honolulu, HI 96817 Phone: (808) 521-6767 Fax: (808) 538-1454 Administrator: Benjamin L. Carroll Massachusetts Association of Mediation Programs and Practitioners 133 Federal Street, 5th Floor Boston, MA 02110 Phone: (617) 451-2093 Fax: (617) 451-0763 Contact: Melissa Brodrick Mediation Program Administrative Office District Court Department of the Trial Court of Massachusetts Holyoke Square Salem, MA 01970 Phone: (508) 745-9010 Fax: (508) 745-9019 Director: Albie Davis Community Dispute Resolution Program State Court Administrative Office Michigan Supreme Court 309 North Washington Square Lansing, MI 48909 Phone: (517) 373-0130 Fax: (517) 373-8922 Director: Douglas A. Van Epps New Mexico Mediation Association P.O. Box 82384 Albuquerque, NM 87198 Phone: (505) 881-1141 Contact: Lynn Billings Community Dispute Resolution Centers Program New York State Unified Court System PO Box 7039 Alfred E. Smith Office Building Albany, NY 12225 Phone: (518) 473-4160 Fax: (518) 473-6861 Acting Coordinator: Mark Collins New York State Dispute Resolution Association 244 Hudson Avenue Albany, NY 12210 Phone: (518) 465-2500 Fax: (518) 465-0840 Executive Director: Lisa Hicks New York State Mediation Association c/o Westchester Mediation Center P.O. Box 1248 Yonkers, NY 10702 Phone: (914) 963-6440 Fax: (914) 963-4566 Executive Director: Douglas Brian Mediation Network of North Carolina P.O. Box 241 Chapel Hill, NC 27514-0241 Phone: (919) 929-6333 Fax: (919) 933-4465 Executive Director: Scott Bradley Ohio Commission on Dispute Resolution and Conflict Management 77 South High Street, 24th Floor Columbus, OH 43266 Phone: (614) 752-9595 Fax: (614) 752-9682 Executive Director: Chris Carlson Local Programs Cited in This Report Berkeley Dispute Resolution Service 1769 Alcatraz Avenue Berkeley, CA 94703 Phone: (510) 428-1811 Fax: (510) 428-1943 Executive Director: Laura Bresler Los Angeles County Bar Association Dispute Resolution Service, Inc. 617 South Olive Street, Suite 610 Los Angeles, CA 90014 Phone: (213) 896-6533 Fax: (213) 627-1426 Executive Director: Lauren Burton Conciliation Forums of Oakland 663 13th Street, Suite 100 Oakland, CA 94612 Phone: (510) 763-2117 Fax: (510) 763-7098 Executive Director: Ruth Baxley San Diego Mediation Center 625 Broadway, #1221 San Diego, CA 92101 Phone: (619) 238-2400 Fax: (619) 238-8041 Executive Director: Barbara Filner Community Board Program 1540 Market Street, #490 San Francisco, CA 94102 Phone: (415) 552-1250 Fax: (415) 626-0595 Executive Director: Terry Amsler Peninsula Conflict Resolution Center 520 South El Camino Real, #640 San Mateo, CA 94402 Phone: (415) 373-3490 Fax: (415) 343-3495 Executive Director: Patricia A. Brown Community Mediation, Inc. 134 Grand Avenue New Haven, CT 06513 Phone: (203) 782-3500 Fax: (203) 782-3503 Executive Director: Charles A. Pillsbury Center for Dispute Settlement 1666 Connecticut Avenue NW, Suite 500 Washington, DC 20009 Phone: (202) 265-9572 Fax: (202) 328-9162 Executive Director: Linda R. Singer Justice Center of Atlanta 976 Edgewood Avenue NE Atlanta, GA 30307 Phone: (404) 523-8236 Fax: (404) 523-3936 Executive Director: Randall F. Dobbs Neighborhood Justice Center of Honolulu, Inc. 200 North Vineyard Boulevard, Suite 320 Honolulu, HI 96817 Phone: (808) 521-6767 Fax: (808) 538-1454 Executive Director: Benjamin L. Carroll III Cambridge Dispute Settlement Center, Inc. 872 Massachusetts Avenue, Suite 2-9 Cambridge, MA 02139 Phone: (617) 876-5376 Fax: (617) 876-6663 Executive Director: Gail S. Packer Neighborhood Reconciliation Center 17321 Telegraph Street, Suite 308 Detroit, MI 48219-3143 Phone: (313) 592-1900 Fax: (313) 592-1919 Executive Director: Sharon S. Miller Dispute Resolution Center 265 Oneida Street St. Paul, MN 55102 Phone: (612) 292-7791 Executive Director: Tim Hedeen Clark County Social Service Neighborhood Justice Center 1600 Pinto Lane Las Vegas, NV 89106 Phone: (702) 455-5722 Fax: (702) 455-5950 Director: Verlia G. David Community Justice Institute 1201 Bacharach Boulevard Atlantic City, NJ 08401 Phone: (609) 345-7267 Fax: (609) 343-2238 Executive Director: John White, Ph.D. New Mexico Center for Dispute Resolution 800 Park Avenue, SW Albuquerque, NM 87102 Phone: (505) 247-0571 Fax: (505) 242-5966 Executive Director: Melinda Smith The Center for Alternative Dispute Resolution 130 Ontario Street Albany, NY 12206 Phone: (518) 463-3686 Fax: (518) 463-3680 Executive Director: Sheri L. Dwyer Institute for Mediation and Conflict Resolution 505 Eighth Avenue, 2nd Floor New York, NY 10018 Phone: (212) 643-0711 Fax: (212) 643-0405 President: R. David Addams Washington Heights Inwood Coalition Mediation Program 652 West 187th Street New York, NY 10033 Phone: (212) 781-6722 Fax: (212) 740-8504 Executive Director: John Swaguer Center for Dispute Settlement, Inc. 242 Andrews Street, Suite 400 Rochester, NY 14604 Phone: (716) 546-5110 Fax: (716) 546-4391 Executive Director: Andrew Thomas The Mediation Center 189 College Street Asheville, NC 28801-3030 Phone: (704) 251-6089 Fax: (704) 232-5140 Executive Director: Barry L. Master Orange County Dispute Settlement Center 302 Weaver Street Carrboro, NC 27510 Phone: (919) 929-8800 Fax: (919) 942-6931 Executive Director: Frances Henderson Dispute Settlement Center of Durham, Inc. P.O. Box 2321 Durham, NC 27702 Phone: (919) 490-6777 Fax: (919) 490-6463 Executive Director: Mike Wendt Chatham County Dispute Settlement Center P.O. Box 1151 Pittsboro, NC 27312 Phone: (919) 542-4075 Fax: (919) 542-6414 Executive Director: Paula E. Browder Cleveland Mediation Center 3000 Bridge Avenue Cleveland, OH 44113 Phone: (216) 771-7297 Fax: (216) 771-0620 Executive Director: Daniel P. Joyce Pittsburgh Mediation Center 2205 East Carson Street, 2nd Floor Pittsburgh, PA 15203-2107 Phone: (412) 381-4443 Fax: (412) 381-5334 Executive Director: Gale McGloin Dispute Mediation Service, Inc. 3400 Carlisle Street, Suite 240 LB9 Dallas, TX 75204-1261 Phone: (214) 754-0022 Fax: (214) 754-0378 Executive Director: Herbert V. Cooke, Jr. Harris County Dispute Resolution Center 1302 Preston Street, Suite 100 Houston, TX 77002-2013 Phone: (713) 755-8274 Fax: (713) 755-8885 Executive Director: Gretchen Gemeinhardt Northern Virginia Mediation Service 4103 Chain Bridge Road, Suite 205 Fairfax, VA 22030 Phone: (703) 993-3656 Fax: (703) 934-5142 Executive Director: Robert Scott King County Dispute Resolution Center P.O. Box 21148 Seattle, WA 98111 Phone: (206) 443-9603 Fax: (206) 443-9737 Executive Director: James L. Metz ------------------------------ Appendix C Research Questions Requiring Attention Many research questions need to be addressed in greater detail to enhance our understanding of community mediation centers and dispute resolution in general. Some research questions deal with operational issues of programs including: o the influence of public versus private sponsorship on perceptions of neutrality of the dispute processing project, on the degree of stigmatization of clients, and on the differential willingness of community members to participate in project development and functioning; o the influence of case criteria policies upon the public's perception of programs; o mechanisms for structuring incentives to encourage police officers to make referrals to community mediation programs, such as by providing of the equivalent of "collar credit" for mediation referrals; o the causes of case attrition from initial referral to appearance at hearings; o the influence of the use of public agency stationery and threats of prosecution upon rates of appearance of respondents; o the degree to which strong threats of possible criminal court action result in disputants perceiving their mediated case resolutions to be as enforceable as arbitrated resolutions with civil remedies; o the relative merits of conciliation, mediation, arbitration, and combinations of these techniques in resolving disputes; o the relative merits of various hearing procedures, such as written versus oral resolutions, single versus multiple mediators, long versus short hearings, and so forth, on dispute resolution; and o The relative merits of variations in types of mediation staff-including trained citizens, lawyers, and professional mediators-in resolving cases. In addition, data on citizen perceptions of the adequacy of each type of mediator would be valuable. o The appropriateness of mediation in certain types of disputes. o The impact of attorneys in the process; and whether their use in per se disputes should be encouraged or not. Larger-scale, more basic research questions that might be usefully explored with substantial research programs include: o the current availability of dispute resolution mechanisms in communities, and differences in their availability as a function of community size, demographic characteristics, and so on; o an analysis of trends in the development of nonadjudicatory remedies to problems and the apparent causes for these trends; o additional cross-cultural research on the varieties of dispute-processing mechanisms; o variations in individual definitions of "communities" and the degree to which individuals are interested in having their problems solved within the context of these perceived communities; o the causes for individual differences in readiness to complain about problems, and the sociological and psychological consequences of dispute avoidance; o institutional and organizational barriers to the development of alternative dispute-processing mechanisms, the reasons for these barriers, and possible responses to the problem; and o differences in the public's perception of the civil and criminal justice systems and the impact of these perceptions upon readiness to employ specific forms of alternative mechanisms for dispute resolution.