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

Community Organizing through Conflict Resolution

Community Organizing through Conflict Resolution Christine B. Harrington In this chapter I examine the politics of community conflict resolution projects, such as the San Francisco Community Boards, by locating their activities in the larger historical context of community and neighborhood organizing. Where does the use of dispute resolution as a means for developing community fit into the array of American community organizing strategies? How is "community" understood in relation to "law" by organizers who adopt conflict resolution strategies and by organizers who do not turn to dispute resolution as a means of organizing communities? By asking these questions I argue that we can break away from the paradigm and language of dispute processing, which has been a dominant framework for analyzing mediation, to explore variations in community organizing strategies and locate community conflict resolution services within the larger context of community and neighborhood organizing. In the mid-1970S, newly emerging mediation programs were categorized as "court-based" or "community-based" by practitioners who created them (McGillis and Mullen 1977) and by scholars who studied dispute processing reform (Hofrichter 1977). This classification distinguished programs that were dependent on courts for their clients from programs that only accepted noncourt referrals. It was used to indicate that under certain circumstances different kinds of coercion I would like to thank Peter Fitzpatrick, Bill Lyons, Neal Milner, Ray Shonholtz, Douglas Thomson, and Barbara Yngvesson for their helpful comments on an earlier version of this paper. I am particularly grateful to Sally Merry for her editorial ideas. I am also grateful to Kelley Bevans for her research assistance. Portions of this paper appeared in Social and Legal Studies: An International Journal 1:177-99. 401 402 THE POSSIBILITY OF POPULAR JUSTICE (Harrington 1980) and different levels of compliance (McEwen and Maiman 1984) correspond to institutional design. The terms courtbased and community-based were also surrogates for describing caseload volume (high and low respectively). By the mid-w80s the court-based / community-based distinction, while less prominent in the literature, continued to organize debates in the field. The central debate then focused on whether community mediation was becoming an "entrepreneurial industry" and moving away from its social-reform roots (Nader 1988). Many practitioners in community-based programs echoed this criticism and forcefully argued that the push towards professionalization (e.g., training of lawyers, certification of mediators) undercut goals of community organizing, such as extending participation in decision making to lay citizens, community groups, and other underrepresented people (National Association for Community Justice 1986). Court-based programs were the targets of this attack as they were leaders for the "multidoor" courthouse reform (Goldberg, Green, and Sander 1985; Roehl 1986), the late-twentieth-century model of courts as all-purpose department stores.1 Criticism of this model appeared to overshadow earlier concerns with insuring that alternative dispute processes were voluntarily agreed to by the parties (Harrington and Merry 1988). Practitioners added a new dimension or layer to the debate by articulating an antiprofessional stance toward mediation. Within their discourse a shift away from the earlier concern-whether referrals from courts and mediation programs coerce parties to participate in an ostensibility voluntary dispute-resolution process-was evident. New concerns over the consequences of professionalizing and institutionalizing alternative dispute resolution (ADR) appeared (Harrington and Merry 1988). However, when this discourse is examined more closely, it is evident that these new issues are in fact modern remnants of the old debate. As concerns about state coercion to participate in mediation 1. The department store conception of lower courts was first implemented with the creation of the municipal court movement in 1905 and the development of the branch courts (small claims, domestic relations, etc.) in the 1910S and 1920S. The multidoor concept is a more highly rationalized adaptation of this approach to organization and management. For a discussion of the application of business management concepts to court reform and dispute-processing reform during the Progressive period and in contemporary times, see Harrington (1985), chap. 2, "Judicial Management and Delegalization." COMMUNITY ORGANIZING THROUGH CONFLICT RESOLUTION 403 questioned the institutional autonomy of ADR in the late 1970s, so too do current debates about training, certification, and regulation of mediators. The new concern with licensing mediators and establishing more formal and mandatory links between courts and ADR processes is a contemporary manifestation of the continuing political tension embodied within and constitutive of this reform movement: To what extent is mediation autonomous from or dependent...