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Mediation and Political Theory: A Critique of Bush and Folger

Published online by Cambridge University Press:  27 December 2018

Neal Milner
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Type
Review Section Symposium
Information
Law & Social Inquiry , Volume 21 , Issue 3 , Summer 1996 , pp. 737 - 759
Copyright
Copyright © American Bar Foundation, 1996 

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References

1 National Institute for Dispute Resolution (NIDR), Performance-based Assessment: A Methodology, for Use in Selecting, Training, and Evaluating Mediators (Washington: NIDR, 1994) (“NIDR, Performance-based Assessment”).Google Scholar

2 Among practitioners in the United States, ADR, a shorthand for alternative dispute resolution, is the term commonly used to include all forms of nonadjudicatory third party dispute processes. For that reasons I use the term throughout, and I use it interchangeably with the term “mediation.”.Google Scholar

3 Id. at 31.Google Scholar

4 Id. at 17.Google Scholar

5 The NIDR report is (pp. 4–6) both conciliatory and distant toward Bush and Folger's work. Saying nothing about the foundation of the authors' arguments, the report's brief discussion argues that there are costs and benefits to both settlement-oriented and transformative approaches and argues that many of the best mediators have the skills to do either transformative or settlement-oriented work.Google Scholar

6 For another recent book that links mediation to transformational politics, see Edward W. Schwerin, Mediation, Participation, Citizen Empowerment, and Transformational Politics (Westport, Conn.: Praeger, 1995) (“Schwerin, Mediation”). Schwerin uses a more precise definition of transformational politics than do Bush and Folger.Google Scholar

7 C. Wright Mills, The Sociological Imagination (London: Oxford University Press, 1959).Google Scholar

8 Citing Mills, id., Ewick and Silbey argue that narratives that obscure the link between the personal and the political reinforce hegemony. See Ewick, Patricia & Silbey, Susan, “To ward a Sociology of Narrative,” 29 Law & Soc'y Rev. 197, 219–23 (1995).Google Scholar

9 Promise of Mediation, pp. 85–94. See Schwerin, Mediation 55–108, for a different approach to conceptualizing empowerment.Google Scholar

10 John Paul Lederach, “Nets, Nails, and Problemas” (Ph. D. diss., Sociology, University of Colorado, 1988); Vicki Shook & Neal Milner, “What Mediation Training Says-or Doesn't Say-about the Ideology and Culture of North American Community Justice Programs” (“Shook & Milner, ‘What Mediation Training Says’”), in Sally Engle Merry & Neal Milner, eds., The Possibility of Popular Justice: A Case Study of Community Mediation in the United States 239–64 (Ann Arbor: University of Michigan Press, 1993) (“Merry & Milner, Popular Justice”).Google Scholar

11 Schwerin, Mediation 158–59; Shook & Milner, “What Mediation Training Says.”.Google Scholar

12 Deborah M. Kolb, When Talk Works: Profiles of Mediators (San Francisco: Jossey Bass, 1993). See also Sara Cobb, “Domestication of Violence in Mediation: The Social Construction of Disciplinary Power in Law” (presented at Law & Society Association annual meeting, Philadelphia, 1992). Cf. John M. Conley & William M. O'Barr, Rules versus Relationships (Chicago: University of Chicago, 1990).Google Scholar

13 Carole M. Rose, “Property as Storytelling,”in Rose, Property and Persuasion 40 (Boulder, Colo.: Westview Press, 1995) (“Rose, ‘Property.”’).Google Scholar

14 Ralph Bean, “The Importance of Community Justice” (presented at National Conference on Peace Making and Conflict Resolution, Montreal, 6 March 1989); quoted in Shook & Milner, “What Mediation Training Says,” at 239.Google Scholar

15 For a discussion of this view in action, see Avery, Chel, “The Front Porch”, 2 Mennonite Concil. Q. 2 (1990).Google Scholar

16 Adler, Peter, Karen Lovaas, & Neal Milner, “The Ideology of Mediation,” 10 Law & Pol'y 317 (1988).Google Scholar

17 For a study of a group with attitudes regarding conflict that are very different from Bush and Folger's, see Carol J. Greenhouse, Praying for Justice: Faith, Order, and Community in an American Town (Ithaca, N. Y.: Cornell University Press, 1986).Google Scholar

18 In addition to Gilligan, In a Different Voice (Cambridge: Harvard University Press, 1982), they cite among others Michael Sandel, Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982); Richard Bemstein, Objectivism and Relativism (Philadelphia: University of Pennsylvania Press, 1983); Alasdair MacIntyre, After Virtue (Notre Dame, Ind.: Notre Dame University Press, 1981); Robert Bellah, The Good Society (New York: Knopf, 1991); Amatai Etzioni, The Spirit of Community (New York: Crown, 1993); Henderson, Lynn, “Legality and Empathy,” 85 Mich. L. Rev. 1574 (1987); Minow, Martha, “Foreword: Justice Engendered,” 101 Harv. L. Rev. 10 (1987);West, Robin, “Jurisprudence and Gender,” 55 U. Chi. L. Rev. 1 (1987).Google Scholar

19 Arthur Turovh Himmelman, “Communities Working Collaboratively for Social Change,” issued by the Himmelman Consulting Group, 1406 W. Lake, Suite 209, Minneapolis, Minn., 1992.Google Scholar

20 For a discussion of the relationship between values regarding mediation and the measures of success that should be used, see Kem Lowry, “Evaluating Community-Justice Programs,”in Merry & Milner, Popular Justice 89–122 (cited in note 10).Google Scholar

21 See sources cited in note 18 above.Google Scholar

22 For an example of the way in which the local effects of global capitalism hampers the impact of informal cooperative conflict resolution, see Steve Olive, “The Coastal Resources of Sarangani Bay, Philippines: Property Rights, Competition, and Dispute Resolution” (Ph. D. diss., University of Hawai'i, Political Science, 1995).Google Scholar

23 Anthony Ryan, a New York City police detective in Ed Dee's novel 14 Peck Slip 14 (New York: Warner, 1994), says this about himself and his partner: “We walked down deserted Water Street, walking close together, bumping shoulders as we talked. My wife says two guys from New York will keep bumping into each other even if they are walking across an empty football field.”.Google Scholar

24 My thanks to Howie Erlanger for suggesting the arguments about the different kinds of communities.Google Scholar

25 The following discussion of common interest housing is based on Richard Thompson Ford, “The Boundaries of Race: Political Geography and Legal Analysis,” 107 Harv. L. Rev. 1843 (1994); Evan McKenzie, privatopia (New Haven, Conn.: Yale University Press, 1994) (“McKenzie, Privatopia”); and Dennis R. Judd, “The Rise of the New Walled City,”in Helen Liggett & David C. Perry, eds., Spatial Practices 144–66 (Thousand Oaks, Cal.: Sage Publications, 1994) (“Judd, ‘New Walled Cities”’).Google Scholar

26 McKenzie, Privatopia 153; Judd, “New Walled Cities” at 155.Google Scholar

27 McKenzie, Privatopia 189.Google Scholar

28 Id. at 24.Google Scholar

29 Quoted in Judd, “New Walled Cities,” at 159.Google Scholar

30 Id. at 141.Google Scholar

31 Ford, 107 Harv. L. Rev. Google Scholar

32 Recently CIDs have been developed as part of shopping, combining walled living with walled shopping. Though the malls are not used exclusively for the CIDs, mall management restricts access and closely regulates patterns of interaction. Some even keep out children. Judd, “New Walled Cities,” at 141.Google Scholar

33 Judd, “New Walled Cities.”.Google Scholar

34 There is a great deal of conflict among those living in CIDs, usually in regard to the rules established by the developers and enforced by the homeowner association governing boards. Mediation has often been used in these situations. The California governor vetoed a bill that would have required mediation of such disputes. Writers about these CIDs give no information about how mediation works in these settings. There is no sense that such conflicts or their resolution foster a sense of community or mitigate the false premises of community on which CIDs are based. See McKenzie, Privatopia 12–29; Judd, “New Walled City” at 158.Google Scholar

35 McKenzie, Privatopia 149.Google Scholar

36 Constance Perin, Everything in Its Place: Social Order and Land Use in America (Princeton, N. J.: Princeton University Press, 1977); Milner, Neal, “Ownership Rights and the Rites of Ownership,” 18 Law & Soc. Inquiry 227 (1993).Google Scholar

37 Rose, “Property” (cited in note 13).Google Scholar