The Possibility of Popular Justice: A Case Study of Community Mediation in the United States

Dispute Transformation, the Influence of a Communication Paradigm of Disputing, and the San Francisco Community Boards Program

Dispute Tranformation, the Influence of a Communication Paradigm of Disputing, and the San Francisco Community Boards Program Judy H. Rothschild A transformational perspective on disputing starts with an awareness of disputes as socially constructed phenomena (Mather and Ygnvesson 1980-81). Disputes are considered "fluid" (Merry and Silbey 1982), "subjective, unstable, reactive, complicated and incomplete" (Felstiner, Abel, and Satrat 1980-81). Language, participants, and audience are key features in shaping disputes (Mather and Ygnvesson 1980-81). The "naming" of issues serves to define their meaning (Felstiner, Abel, and Sarat 1980-81), and power differences between participants in the disputing process influence how the definitional process occurs and who assumes the dominant role (Nader and Todd 1978; Mather and Ygnvesson 1980-81). Mather and Ygnvesson argue that [tlransformations occur because participants in the disputing process have different interests in and perspectives on the dispute; participants assert these interests and perspectives in the very process of defining and shaping the object of the dispute. (198081 :776) This chapter examines the process of rephrasing disputes by describing the way disputes are transformed through the interactions of 266 THE POSSIBILITY OF POPULAR JUSTICE disputants and the representatives of a neighborhood-based conflictresolution program, the San Francisco Community Boards (SFCB). Discussed are different stages of dispute transformation that occur in the course of SFCB's response to disputes; how the interests of disputants and program representatives affect the rephrasing of disputes; and the consequence of SFCB's intervention with regard to dispute transformation. The primary purpose of this chapter is to show how the SFCB approach to conflict resolution involves a highly interactive process that rests on what I refer to as a communication paradigm of disputing , whereby conflicts and disagreements, including fights over interests, are rephrased as interpersonal problems of communication (Rothschild 1986a). This orientation towards disputing is based on assumptions about the interpersonal value of conflict. Conflicts which come to the attention of the program are seen as arising from misunderstandings or miscommunications (Rothschild 1986a; Merry and Silbey 1982). I argue that a communication paradigm of disputing leads program staff and volunteers to direct attention (theirs and disputants') to the relational and emotional aspects of conflicts. Consequently , social, legal, and economic dimensions of disputes, while often perceived by the SFCB staff and volunteers, are rarely if ever addressed during case intake or mediation sessions. A second and related purpose of this chapter is to highlight the critical relationship between the intake and hearing phases of dispute processing. This topic has received little attention in the study of American alternative dispute-resolution programs, despite evidence suggesting that only about 30 percent of disputes progress from intake to mediation in voluntary mediation programs such as SFCB, or in court-affiliated programs where mediation is voluntary (Harrington 1985; Beer 1986; DuBow and McEwen in this volume). Concluding comments address the tension between SFCB's vision of "community empowerment through conflict resolution" and the observable effects of the SFCB approach to disputing. The Data This chapter draws from the data and findings of the Intensive Case Study component of the San Francisco Community Boards Evaluation Project, one of the data sets discussed by McEwen and DuBow (in DISPUTE TRANSFORMATION this volume). A deep appreciation of the transformational nature of disputing informed this component of the research, as well as the overall research concerns and multistudy design of the San Francisco Community Boards evaluation. I discuss the findings of the Intensive Case Study from the vantage point of one of the primary researchers involved with this study. The aim of the Intensive Case Study was to acquire an in-depth understanding of how conflicts came to the attention of the SFCB, and the program's role in the transformational process whereby conflicts came to be defined as disputes and SFCB cases. Forty disputes were monitored from the point of case intake to two months after the program closed the case. Research methodologies included ethnographic fieldwork, nonparticipant observation of case intake (case development) and hearing sessions, and intereviews with disputants, program staff, and program volunteers.1 A third of the cases (n = 13) included in the Intensive Case Study progressed beyond the intake phase to include a SFCB hearing. As 1. The Intensive Case Study was a panel study of forty disputes that came to the attention of SFCB in 1984. Sampling was inclusive rather than exclusive. Any inquiry for assistance that met the program's criteria for...