Book Reviews by James B. Boskey
Online Reviews of Dispute Resolution Literature from The Alternative Newsletter - July 1997
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Smit, Hans and Pechota, V Vratislav, Roster of
International Arbitrators, Juris Publishing ($ prices), 1
Odell Plaza, Executive Park, Yonkers, NY 10701 and Sweet and Maxwell
(£ prices), Cheriton House, North Way, Andover, Hants SP10 5BE,
England(1149pp $150/£100 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
The new 1997 edition of the Roster of International Arbitrators is the first volume to be published in the Parker School series on International Arbitration. While, as a roster of arbitrators, it contains little that is novel, it sets a good pattern for the series with its careful editing and high quality of printing and binding.
The first edition of the Roster, published as Guide to International Arbitration and Arbitrators appeared in 1989, and it was superseded in 1992 by the successor edition. Each edition has increased the number of arbitrators listed, now almost 1000, while maintaining a clear standard for listing based on experience in the field and refusing compensation for listing, allowing it to thus maintain the integrity of its listings. The new volume separates the Guide from the Roster, the guide now being published in six volumes providing comprehensive information about the international arbitration process, while the roster has become a separate, and additional, volume in that series. In light of the length of the roster and the continuing growth of the field, this is fully appropriate.
The contents of the roster are little changed from its predecessor volumes in style, other than the excision of the Guide. Several ethical codes, including the International Bar Association Rules of Ethics for International Arbitrators and the American Bar Association/American Arbitration Association Code of Ethics for Arbitrators in Commercial Disputes are included, but the bulk of the volume consists of the resumes of the arbitrators listed in alphabetical order. In addition to language skills, identifying and contact information, the format includes information on nationality and education, professional licenses and bar admissions, present position, professional background, areas of specialization, professional associations, arbitration panel memberships, experience, and publications. In addition, the arbitrators are indexed by nationality, language, and area of specialization.
For those involved in selecting an arbitrator for an international case, and sometimes even for a domestic arbitration, the information contained in the Roster is invaluable. While most of those experienced in international dealings are aware of some of leading neutrals, nobody can know all of the potential arbitrators who might be proposed for a matter, and the roster provides an easy way to perform a preliminary background check to determine their suitability. In addition, it can be used to suggest additional persons who may be available and suitable to sit on a particular matter. Clearly, no written resume will provide the measure of the man or woman, but at least it provides a place to start one's inquiry.
Lovenheim, Peter, How to Mediate Your Dispute: Find a
Solution You Can Live With Quickly and Cheaply Outside the
Courtroom, Nolo Press, 950 Parker St., Berkeley, CA 94710
(325pp $18.95 1996) ISBN 0873373294
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Peter Lovenheim's How to Mediate Your Dispute is an excellent example of a Nolo Press book, a rubric which I, unlike some of my colleagues, consider a compliment. For those unfamiliar with Nolo, they specialize in self-help legal publications for those who are either handling a legal problem without the assistance of a lawyer or who are seeking to keep themselves informed so as to be able to evaluate the quality of legal services they are receiving. In general such books need to be legally accurate, but written in clear and direct prose so as to be understandable by an educated reader without legal training, and, perhaps most importantly, need to warn of pitfalls that may invite or require the use of a lawyer or other expert adviser.
This book does a first rate job of meeting the needs of the person faced with a dispute that they might consider submitting to mediation, but who lacks a sufficient understanding of the process to make an appropriate judgment, or who needs some additional guidance in preparing to participate. The focus is on community and commercial disputes, although divorce mediation and business disputes each are discussed in passing throughout the book and focused on in separate chapters after the general discussion. The presentation is balanced, discussing various approaches to mediation without strongly favoring one over another, while giving the reader a real idea of some of the choices that he or she might wish to make.
After an introductory section on the nature of mediation, the book continues with a series of chapters on process selection, including which disputes should be mediated, sources of mediation services, starting the process, selecting a service and mediator. It then moves to preparation for the mediation, followed by a straightforward six stage analysis, which, to my mind, slightly overemphasizes the use of the caucus, but is otherwise more than adequate. Additional chapters look at the preparation of agreements, with appropriate attention to lawyer review and what to do if no agreement is reached. A final chapter deals with the use of lawyers for assistance in mediation and offers a brief look at legal research at a very basic level.
As one expects from Nolo, the book is well laid out for easy reading with clear sections and frequent, but unobtrusive, outtakes and guideposts. Some of these offer the best value in the book. Advice on what to do with regards to issues from scheduling and the use of plural mediators to whether one should mediate where one is guilty of a serious crime, are entertainingly written, acute in their analysis of reality, and of substantial value. The illustrations add little to the text, but are well presented to represent the issues under discussion. Overall, a very good introduction to mediation from the viewpoint of the potential unrepresented user. It will not solve all problems, but will do as much as possible to put that individual on the right track.
Stern, James L. and Najita, Joyce M. eds., Labor
Arbitration Under Fire, ILR Press, School of Industrial and
Labor Relations, Cornell University, Ithaca, NY 14853-3901 (277pp
$39.95 1997). ISBN 0801433053
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Labor Arbitration Under Fire continues the discussion which has been the focus of the National Academy of Arbitrators over the past decade and indeed of almost every meeting of the labor arbitration, labor law, or labor-management community: Whither Arbitration. As in the Gilbert and Sullivan operetta The Gondoliers, there is no possible doubt that arbitration is receding in the face of changes in both law and practice, or it is equally clear and beyond doubt that while arbitration is changing it is in a stage of growth rather than shrinkage.
What Stern and Najita have done in this volume is invite the leaders of the debate to look at the issues of their primary concern in extended essays which allow them the freedom to lay the historical foundations for their predictions of the future and to spell out at length the developments that they see occurring. The authority of the authors is beyond question. From Theodore St. Antoine on the law of arbitration R.T. Clark and John Zalusky looking from the management and labor sides at arbitration and the nonrepresented employee, we are engaged by leaders in their fields who offer a broad and well reasoned perspective on their topics.
This does not mean, of course, that the authors are in agreement or share a common vision of the future. In general those involved in private sector arbitration share a fatalistic view of the approaching end of the world as they have known it, while those in the public sector see an era of growth. Similarly, those who believe that collective action provides the only real basis for protection of workers are generally distraught over the increasing utilization of commercial arbitration approaches to dealing with employment arbitration in non-unionized workplaces, while those who have led the way in this area see workers gaining protection from appropriate ethical, and perhaps eventually legal, limitations on the scope of such arbitration and the increased use of voluntary resolution devices such as mediation and ombuds services.
Overall, the book is a pleasure to read. For one like myself whose involvement with the labor sphere is limited, it provides an excellent review of how we got to the present state of the law as well as a variety of visions of the future. Although it was not really designed for this purpose, I would also not hesitate to recommend it to a law school student in a labor law course who was looking for an accessible overview of the field.
Cooley, John W. and Lubet, Steven, Arbitration
Advocacy, National Institute for Trial Advocacy, 1602 North
Ironwood, South Bend, IN 46635 (375pp $29.95 1996)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
I always find it irritating when a book starts out with a blanket statement of fact which is patently incorrect. In the third sentence of Chapter One Cooley or Lubet states, "In the days of Benjamin Franklin ... no alternatives to the traditional judicial process existed." A halfpence of research would have revealed to them that both arbitration and mediation were extensively used in colonial America, especially in Franklin's home town of Philadelphia, and that, in many respects these and other alternatives were more widely used than they are today.
I call attention to the above, because in many ways it reflects the nature of this book. Cooley and Lubet are excellent writers with a good understanding of advocacy and an effective approach to teaching advocacy skills. I would have no hesitation in recommending a program which they taught in case preparation and case advocacy in a litigation or arbitration context. Their weakness, however, is in their knowledge and understanding of arbitration and arbitration practice.
There are several substantive and procedural bodies of law in the arbitration field, and while it is possible to serve as counsel in an arbitration without a knowledge of the relevant law, it is probably almost as foolish as litigating without an understanding of the rules of procedure. Unlike the courts, however, where the written rules formally govern the practice to a substantial extent, in arbitration the skilled advocate is the one who understands the inapplicability of the rules and the effective use of acceptable processes to reach a goal without undue concern for formal process. The authors apparently lack the experience in arbitration that would lend that judgement, and instead offer formally correct, but factually inaccurate images of the process. They frequently appear to assume that the way they practice in the courts is the best and most effective manner of proceeding in arbitration, and fail to recognize the flexibility that a good arbitration process brings to the development of a case.
This is perhaps most clear in their discussion of advocacy during the hearing. The discussion is formally correct and the approach would be excellent in a courtroom. In an arbitration chamber, however, their is usually a procedural informality which requires the adaptation of the litigation approach. Many arbitrators will tell you that the worst arbitration presentations they have seen are often by experienced trial counsel who are unable to adjust to the demands of this new forum. The authors here lack an understanding of the kind of adjustment needed, and, therefore, their advice may often lead to missing the subtleties of the arbitration which would increase the chances of winning.
Some additional examples may be helpful. The authors state that discovery rarely continues once the arbitrators are appointed, suggesting that it would be inappropriate to seek discovery at that point. This is inconsistent with every published set of arbitral rules and with both the federal and most state statutes which clearly allow arbitrators to supervise discovery. Discovery may not be sought in arbitration for a range of reasons, including a greater likelihood of mutual voluntary disclosure, but it is hardly barred or even questionable. Similarly, the discussion of the drafting of arbitration agreements or clauses is almost embarrassing in its oversimplification. The suggestion that the correct answer to how to draft an arbitration clause falls somewhere in the middle between the detailed clause and the general submission, may, or may not, be true in any given case, but provides the reader with worse than no guidance in making an informed decision.
There is a real need for good arbitration practice/advocacy books in the United States, the English arbitration bar having been more productive in this regard. This book is, overall, probably not terribly harmful, but fails to meet the needs of any identifiable group of practitioners.
Hopmann, P. Terrence, The Negotiation Process and the
Resolution of International Conflicts, University of South
Carolina Press, 937 Assembly St., Carolina Plaza, Columbia, SC 29208
(367pp $39.95 1996)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Do diplomats do it differently? At base this is the question about the negotiation process in international diplomatic settings that P. Terrence Hopmann asks in this extensive, elaborate and often elegant examination of the application of negotiation theory in international settings. Using as a base the partial test ban treaty negotiations which culminated in the Moscow treaty of 1963, he examines most of the major models of negotiation process to see how they fit with the experience of those involved in that negotiation process.
The partial test ban treaty is a useful model for the examination of these questions, both because it occurred long enough ago for our information about the negotiation process involved to have largely stabilized and for many of the ambiguities in our earlier understanding of the negotiations to have been resolved and because it involved direct participation in the negotiations of a wide range or players from President Eisenhower and Chairman Kruschev through professional and quasi-professional diplomats, to unofficial outsiders such as Norman Cousins who created back channels for communication between the senior negotiators in settings where direct communication would have been difficult or potentially embarrassing.
The book begins with a review of the negotiations over the idea of a nuclear test ban that led to the partial test ban treaty. The description of the negotiations and party roles is clear and, so far as I can tell, well balanced. While a more detailed examination of certain aspects of the negotiations would have been interesting, the selected information is clearly sufficient to raise the basic issues that Hopmann seeks to address.
The second and third sections of the book set out the different theoretical frameworks that are commonly used for the analysis of negotiations. While Hoppmann often draws examples from the international sphere to explain these theories, the purpose of these chapters is to explain the theoretical approaches rather than to place them in the international context.
The second section of the book looks at fundamental academic models of bilateral bargaining and evaluates their strengths and weaknesses as explanations of the real world. It begins with games theoretic models, making the point that these models are not designed to be accurate representations of reality while showing how the models often reveal otherwise hidden aspects of real negotiation processes. Hopmann then turns to a more traditional bilateral bargaining model of negotiation, drawn from Thomas Schelling's work and that of his successors, which is facially more "realistic" and reflective of the real world, although, as he clearly explains, it is less clear that its explanatory power is any greater than the first approach. Nonetheless, it adds additional considerations, such as the distinction between distributive and integrative bargaining that are useful in descriptive, and sometimes analytical, evaluations. Finally, he turns to the problem-solving bilateral models which are increasing popular, suggesting that these, while powerful planning concepts, may be less useful as descriptors of the actual practice of negotiators who are not thinking in these terms.
The third section of the book addresses issues of complexity in negotiation. Among the topics addressed are: power asymmetries, the "great man" theory of negotiation - focusing on the individual negotiator more than the process, the effect of bureaucratic politics on the freedom of the negotiator, the role of third parties, and the special problems of multilateral negotiations.
Finally, the fourth section of the book attempts to apply the learning of the second and third sections to the test ban negotiations. Hopmann basically steps through the theoretical approaches to see what each provides of an increased understanding of the partial test ban negotiations, with an emphasis on the approaches in part three. Disappointingly, this section is far to brief, covering only 36 pages in whole. This provides the opportunity for Hopmann to raise a few issues, but hardly to provide the depth of analysis that we might expect in view of his expertise.
Thus, as a case study of the use of different models of negotiation in an international setting, this book is disappointing. Looked at from another viewpoint, however, it is useful and valuable. Parts 2 and 3 of the book provide a clear, concise and well-written summary of much of the theoretical framework that is available for the analysis of negotiations. They would provide an excellent basis for the analysis of negotiation case studies in the classroom. They are sufficiently general that the case studies involved need not be international, but could include commercial, community and interpersonal negotiations as well. It is not uncommon for negotiation courses to undervalue or to look at only a limited range of negotiation theory as a basis for analysis of real negotiations. This could serve as a useful corrective.
Stiebel, David, When Talking Makes Things Worse : Resolving
Problems When Communication Fails, Whitehall & Nolton,
5120 Northaven Dallas, TX 75229-4353 (275pp $24.95 1997) ISBN:
1888430427
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Dr. David Stiebel is a model for popularizers. He writes clearly, in short sentences, tells a good story which appears to be relevant to his subject matter, and gives the appearance of thinking deeply without imposing on his reader the effort that real depth of thought might require. What is more, his dedication to self-promotion is sufficient to include solicited quotes not only on the cover of the book, but as its first page, and to include advertisements for hiring him as a speaker, and, if, heaven forfend, you have borrowed the book rather than purchasing it, an order form to correct for that situation. Large print and a deep affection for italics also increase the books accessibility.
Dr. Stiebel's analytic approach basically consists of suggesting that common wisdom projects a particular approach to a specific problem and then showing that common wisdom is not applicable in every case. Thus he begins by suggesting that the common wisdom is that all differences are based on misunderstandings and that people generally believe that if you reveal everything and are fully open such differences will disappear. His wisdom is such that, unlike the common herd, he is able to demonstrate the flaw in this analysis, and recognize that sometimes people may really disagree or have conflicting interests. Therefore he suggests it may not always be wise to reveal your bottom line to the person you are negotiating with at the start of the negotiation.
His analysis goes on from depth to depth. He notes that merely restating one's view may not convince the other person in a discussion to change hers. He also makes it clear that expressing one's views without considering what the other person may think about those views is often a bad idea.
However, there is a solution, and the solution lies in the four steps of strategic thinking. (A bottle of Perilli's Miracle Elixir might be of assistance too.) These steps involve determining whether there is a misunderstanding or a disagreement, crate the other person's next move (focusing on their immediate interest and ignoring any long term benefits which might be available to them under an agreement), use their perceptions to convince them of the advantages of the next move you have designed for them, and predict their response so that you can repeat the process as often as necessary.
The bottom line on the book is best stated in the quote included from Dave Barry. "This is an excellent book. Or at least the part about worm sex is."
Dukes, E. Franklin, Resolving Public Conflict: Transforming
Community and Governance, St. Martin's Press, 175 Fifth
Ave., New York, NY 10010-7848 (240pp $69.95(c) $19.95(p) 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
E. Franklin Dukes book on Resolving Public Conflict tries to accomplish too much in one volume and, while the general result is valuable, it is weaker than it needs to have been in making the important case which he presents for transformative practice in public dispute resolution. The book appears to combine material from the author's dissertation with some of his more recent, and useful thinking about the development of transformative practice in public dispute resolution.
The first two sections of the three sections in the book appear to be drawn in large part from the dissertation and both benefit and suffer from this fact. Like many dissertations, they gain the advantage of the requirement of detailed literature review, but suffer from the relative unsophistication of the analysis offered and the relative inexperience of the researcher in the field. Also it is clear that, as in many such documents, the individual chapters were written separately and at different times, and little effort has been made to revise those written earlier in light of the information acquired later, leading at times to functional contradictions in the materials reported. Similarly there is a tendency to make broad statements which often are not fully justified by the supporting materials and which a member of the field might see as suspect.
The bulk of the first two sections is a historical presentation of the development of conflict resolution with some emphasis on the public domain and a report on the "current" practice in this area. I place the word current in quotes as much of this material is several years out of date and Duke, himself, in his later sections demonstrates the extent to which the field has moved beyond its situation at the time that this material was written. His failure to date or update the chapters leads to frequent statements which, while correct when made, have not been true for several years. Examples include his discussion of the roles of various foundations, the status of dispute resolution in the federal government and the like. Also, his attempt at a brief assessment of international public dispute resolution practices is almost embarrassing in its weakness. Leaving aside the international area, if one takes these first two sections as of the time they were written, they are not a bad review of the history of the dispute resolution field. As such they will provide a moderately useful resource when a fuller history is written.
The third section of the book is the more recent and more important section from the viewpoint of the field. In this section Dukes takes the idea of transformative practice from Bush and Folger and seeks to apply it in a public arena. He begins by restating his proposition, stated and defended earlier, that the United States faces a crisis of governance evidenced by the disintegration of community, alienation from the institutions and practice of governance, and an inability to resolve public problems and conflicts. He proposes that the use of a transformative decision making model based on dispute resolution techniques offers a solution to these problems, or at least leadership in a direction towards their solution. In this he resembles many of the classic social thinkers of the past 100 years who have seen process, and especially public process, as a means of solving substantive weaknesses in governance.
In many respects, his argument makes a good deal of sense. The effective implementation of citizen involvement programs is likely to lead to more involvement of citizens in decision making processes and to reduce levels of anomie and alienation, and even, perhaps, to improve and expedite the processes of governmental decision making. His argument would be strengthened if it were less formalistically portrayed and if he cited to, or at least was aware of, the communitarian movement which makes many of the same arguments and earlier social reformers such as Alinsky who proposed similar or related mechanisms. Nonetheless, the basic approach is a reasonable one and will provide those unfamiliar with the extended use of conflict processes with an understanding of their potential.
Thus the book as a whole is a contribution to the literature of dispute resolution and does provide some moderately useful insights on public conflict processes. It would not be a first recommendation for reading in this field, but would be a reasonable supplemental source of information and ideas.
Jandt, Fred E., Alternative Dispute Resolution for
Paralegals, Anderson Publishing, 2035 Reading Rd.,
Cincinnati, OH 45202 (236pp 1997) ISBN 0870844377.
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Fred Jandt's Alternative Dispute Resolution for Paralegals is a basic textbook designed to introduce paralegals to the world of alternative dispute resolution. Jandt brings to this task a strong background in ADR, not to mention several other books he has written on the subject. He writes clearly and well, and generally the book could serve as a useful course text, but, as will be discussed below it is weak in its coverage beyond negotiation and mediation. Also a weakness from my point of view is that the orientation for paralegals is sometimes less than clear. In the mediation section the basic focus seems to be the provision of the kind of information that would be needed by a neutral and in the negotiation section much of the material is for the negotiator. While a para may fill these roles in particular circumstances, they are not generally the anticipated role for one with paralegal training, and a clearer focus on the support function of the para would have perhaps been beneficial.
The coverage of the book is traditional. It begins with an overview of dispute resolution with particular attention to cross-cultural issues in the selection and implementation of dispute resolution processes. It then turns to negotiation, opening with a useful, but too brief, item on the paralegal's role and the settlement brochure, and following with an overview of negotiation looking at both positional and interest based processes.
This is followed by a four chapter section on mediation which, after a general introduction to the mediation process - including a twelve step process description, discusses the difference between general and family mediation, looks at community mediation, and offers brief discussions of judicial, police, VORP, and corrections mediation. In this area I would have liked to see more attention paid to mediation in a commercial and personal injury setting which, with family mediation, is likely to be the primary focus for the para in practice.
The fourth section of the book looks at arbitration. This section is relatively weak, including primarily a collection of documents rather than serious discussion of the arbitration process and the role of the para. This may be excused as the para's role in arbitration is usually not that much different from her role in litigation, but a sharper focus would have been useful. Court-annexed arbitration is similarly provided only brief discussion.
A final section addresses some special uses of ADR that are largely court oriented. Included are summary jury trials, mini-trials, private judging, and pro-tem trials. The discussions are brief and primarily serve to make certain that the para is familiar with these terms rather than prepare him for participation in the processes.
Overall the book is strongest in its overview of ADR and in the negotiation and mediation sections. I would use either of these for a paralegal course without hesitation and might also consider them for a course for a general audience. The latter sections on arbitration and court related ADR are weak and would need a great deal of supplementation from the teacher. The simulations that support the negotiation section of the book and exercises that support all sections are well selected and well designed. The forms included will be helpful, although I would have sought to include American Arbitration as well as private provider forms in most cases as these are the ones that most paralegals are most likely to see.
Allen, Elizabeth L and Mohr, Donald D., Affordable Justice:
how to settle any dispute including divorce out of court,
West Coast Press, 4401 Manchester Ave., Suite 202, Encinitas, CA
92024 (206pp $19.95 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
MEDIATION CAUGHT IN A HAIL OF BULLETS. Affordable Justice, which is intended to serve as an advertisement for the lay reader as to the glories of mediation and offer a basic understanding of the mediation process, falls to a combination of excessive layout and overexposure to the methods of modern advertising. The basic book, 159 pages not including acknowledgements and appendix, consists of 75 chapters, mostly two or three pages in length with one of those pages given over to a more or less relevant quotation about the chapters subject matter. The remaining page, or sometimes two, consists of a series of bulleted paragraphs (one or two sentences in length) which purport to explain all that one might want to know about the mediation process. A moment's thought will reveal that bulleting every paragraph means that no paragraph is notable for its importance. In that case, why not simply omit the bullets and pretend, with apologies to Moliere, that one is writing prose.
The remainder of the book, beyond the acknowledgements, consists of a one page list of referral sources, a one page list of providers with locations in more than one city, and some forty pages of mediation providers which appears to have been lifted wholesale from the membership list of one of the dispute resolution organizations, probably the Academy of Family Mediators. The appropriateness of republishing a list of this sort is questionable, especially as no acknowledgement of source is given. The list offers an annotation as to the area of practice claimed, but no basis for a decision on competence or capacity. Similarly the list of referral sources seems to have been drawn almost at random from one of the authors' rotodex. The complete list, published without comment consists of: The Academy of Family Mediators, The Association of Family and Conciliation Courts, the National Association for Community Mediation, Conflict Resolution Center International, the Council of Better Business Bureaus, the International Alliance of Holistic Lawyers, and the Family Firm Institute. The disclaimer that neither the authors nor the publisher endorse anyone on these lists is perhaps well taken.
The format and appendix failures of this book are unfortunate, as, if one can get past the formatting and the extremely overaggressive sales pitch for mediation that makes up much of the book, it is clear that the authors do have a good basic understanding of the mediation process and potentially have some thing of value to say. They are both mediators with experience in a wide variety of cases, and there is a fair bit of good advice offered here between the lines. Maybe next time a real book.
(The following reply was sent by Elizabeth L. Allen and Donald D. Mohr, the authors of Affordable Justice)
We recently received your unfavorable review and request that this letter be printed along with it, if it appears in your newsletter.
We believe that you entirely misunderstood the intent of the book, as well as the value of its style. Affordable Justice was designed to provide information about mediation and arbitration to the lay person. Our goal is to help the general public become more informed about a process that is available, affordable, and so far, largely misunderstood. The format was chosen specifically to make the book readable and to distinguish it from a text book, which it does not purport to be. Our intent was to write a book that would serve as a wake-up call for a public that is generally unaware of its ADR options.
We did not take the list of providers from our rolodex. What we did was include some of our graduates and some practitioners from lists provided to us by other respected organizations. Our goal is to let the consumer know that trained, professional mediators and arbitrators are available in their communities.
We believe that Affordable Justice is unique, that it fulfills a need for easily accessible information, and that it will make a major impact on the utilization of mediation by the general public.
Anderson, David A. ed., Dispute Resolution: Bridging the
Settlement Gap, JAI Press, 55 Old Post Rd (#2), Greenwich,
CT 06836 (250pp $73.25 1996)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
The process of dispute settlement is a complex one, especially in a legal context, and the development of models that adequately describe, let alone predict, the results is difficult. The principal developers of such models have been the legal economists, and Dispute Resolution: Bridging the Settlement Gap puts some of their best work on display with a series of articles by leaders in the field on aspects of modeling settlement behaviors in both controlled and open systems. The resultant articles are often difficult to follow, requiring substantial sophistication in analysis, but answer or propose answers to some of the most difficult issues facing the field.
The principal focus of many of the articles is on the evaluation of settlement devices, or, more properly stated, what conditions are relevant or necessary to settlement. Factors that need to be considered include the accuracy of each party's perception of the likely results of an imposed solution to the underlying conflict (or more accurately the similarity of their perceptions), the acceptable level of risk taking for each individual, the actual or perceived costs of bargaining, and the like. Various approaches have been suggested that may yield efficient results in conditions of complete information, and some in conditions where information is less than complete, ranging from cake cutting exercises through third party interventions, but usually it is necessary that the parties understand the condition they are facing to make the adoption of such approaches or devices acceptable.
As the authors consistently recognize inconsistencies in factual information are, theoretically at least, readily correctable through fact-finding schemes ranging from discovery through early neutral evaluation, to mini and summary jury trials. The more interesting issues are raised by lack of process information, and it is these issues that are most often addressed in this volume.
The articles her are important and will repay careful study by the reader. While developing an understanding will require the investment of substantial time and effort, the ideas presented offer the basis for developing useful settlement techniques in mediation and other negotiation settings.
Mock, Ron, ed., The Roleplay Book, 2d ed, Mennonite
Conciliation Service, Box 500, Akron, PA 17501-0500 (123pp $18 1977)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
After a pair of brief, but useful, essays on training and the use of roleplays, The Roleplay Book offers a range of scenarios and role plays that meet several of the ongoing needs of mediation and conflict resolution trainers. They are divided into six sections based on the type of conflict and approach used and can either be used as written or adapted to meet the needs of a special training population. The role plays are mostly based in community setting and many are designed specifically for use in mediation as well as direct negotiation settings.
The first section offers four one party scenarios designed to develop listening skills and confrontation techniques. Two address complex feelings and two hidden contradictions. The fact situations are designed to be revealed through supportive and, sometimes, confrontational questioning by the non-role player. Editor's notes provides ideas on how the scenario might be used.
The second section offers a series of simple interpersonal conflicts, usually two person scenarios which can be played out fairly rapidly in either a negotiation or mediation context. They range from elementary school to adult in subject matter and involve negotiation over interpersonal rather than commercial/money issues.
The third section offers more complex interpersonal conflict settings. The complexity lies not in the roleplay, but in the scenarios which involved dealing with more complex interpersonal and emotional problems including many cross-cultural issues. Many of the settings appear more commercial than those in the second section, but the commercial settings are primarily used to elaborate the emotional factors rather than for their own sake.
The fourth section offers several multi-party conflicts, including school and church disputes and a plant closing scenario. The Fifth section offers five scenarios in a victim-offender context.
The most interesting group of scenarios are, however, the sixth, which include several case studies, two sociodramas, an a scripted roleplay demonstration. The editor provides an introduction on how these are used, and they present useful training approaches that have not been widely adopted in the field.
Overall, the collection of roleplays here is a really valuable one, especially for use in community mediation programs. The roleplays have been carefully thought through and tested and will make valuable additions to the trainers resources.
Weiss, David S., Beyond the Walls of Conflict: Mutual Gains
Negotiating for Unions and Management, Irwin, 1333 Burr
Ridge Pkwy., Hinsdale, IL 60521 (248pp $30 1996)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
There is no single arena for negotiation where the mutual gains (win-win) approach is more appropriate, important, and useful than in labor-management relations. The need for cooperation exists not only during the negotiation process, but throughout the contract period, and a breakdown in cooperation will be harmful to both parties and prevent both from achieving their principal goals. Despite this, in many plants and industries adversarial negotiation is the common model, and the adversarial attitudes that are developed during the contract negotiation process are carried over to the day-to-day issues that arise in the workplace.
In Beyond the Walls of Conflict, David Weiss, a Canadian consultant on labor-management relations and organizational effectiveness, provides an introduction to and model for the use of the mutual gains processes in the contract negotiation setting. He begins by focusing on the need for and possibilities of rethinking the negotiation process. Too often the participants in the negotiation process, coming from an adversarial viewpoint, focus on the demands of the respective parties rather than the problems that need to be resolved for their mutual benefit. The assumption that each party looks out only for their own interests inspires a lack of trust which may prevent a mutually beneficial idea from being considered or being implemented simply because it originated with one of the parties. This same lack of trust means that a great deal of time is often wasted in overcoming artificial barriers to communication between the parties.
Weiss sees mutual gains bargaining as the solution to many of these problems, and here presents a detailed explanation of how to introduce this process in a setting where power and adversarial negotiations have been the norm. He takes the reader through a five stage analysis of the negotiation process, beginning at the planning stage and moving through starting the face-to-face process, problem analysis, and solution development to closure and the finalization of the agreement. At each stage he provides solid suggestions as to how to move to and maintain the mutual gains process.
This will be a very useful book for those in the labor-management area, especially for trainers and consultants who are seeking to move an organization in the direction of more effective negotiation practices. Unlike some of the works treating of mutual gains negotiation, Beyond the Walls takes full cognizance of the factors that motivate parties to remain in the adversarial mode and proposes realistic means to move them beyond that approach. It also offers relatively sophisticated means of maintaining the mutual gains approach in the heat of the negotiation process when those traditionally trained have a tendency to fall back on what they know best. Weiss writes clearly and literately, making appropriately limited use of diagrams and lists to emphasize, rather than develop, the points he is making.
Trakman, Leon E., Dispute Settlement Under the NAFTA:
Manual and Source Book, Transnational Juris Publications, 1
Bridge St., Irvington, NY 10533 (434 pp $95 1997) ISBN: 1571050434
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Trakman's Dispute Settlement Under the NAFTA is designed to provide some quick and dirty information about the dispute settlement procedures under the North American Free Trade Agreement and access to official and semi-official sources that may provide additional information on the availability and use of these processes. Not really a book, it is divided into three sections which were clearly compiled so as to be early into the market rather than analytical or comprehensive.
The first section of the book provides, in four chapters, an outline of the dispute resolution procedures established under NAFTA. The term outline is used advisedly, as each chapter consists of a series of bulleted paragraphs organized as an outline of the topic covered. Each bullet includes one or two sentences, and no attempt is made to turn the outline into a real text. The chapters read like the detailed preliminary proposal that an author might submit to a publisher of a proposed volume, rather than the completed volume itself.
The chapters in the first section address: Chapter 1 - procedures for dispute settlement under NAFTA Chapter 20 (general dispute resolution procedures available only to state parties), Chapter 3 - disputes between investors and state parties under NAFTA Chapter 11, Chapter 4 - antidumping and countervailing duty issues under NAFTA Chapter 19, and Chapter 2 - Other dispute resolution mechanisms under NAFTA.
The second section provides lists of information resources on NAFTA questions. Organized by NAFTA chapter, each book chapter provides a paragraph summary of the scope of the chapter, where available a committee or working group contact in each of the member states (with address and phone number), and a list of contacts or information sources in each of the members states for further information about related issues as well as major state institutions that may play a role in its implementation.
The third section is simply a collection of the dispute resolution provisions of the NAFTA treaty plus the separate Rules of Procedure and Code of Conduct that relate to them.
In conclusion, Dispute Settlement Under the NAFTA appears to be, at best, a work in progress. While there is a good deal of useful information provided in this volume, it has clearly been rushed to press before it was really ready for public scrutiny. The first section needs to be transformed from outline to text (eliminating the irritating and uses shadowed boxes which are used as bullets would be a good first stage), the list of contacts in the second section needs to be republished in a looseleaf format so that as the identities of the parties change the book will not immediately be outdated, and more attention needs to be paid to the format in which the treaty sections are presented in section three to make them more readily accessible. There is the foundation for a useful book in what is presented here, but it may be appropriate to wait for the next edition before purchasing it.
Ambrose, Clare and Maxwell, Karen, London Maritime
Arbitration, LLP Ltd., 69-77 Paul St., London EC2A 4LQ,
England (450pp £78 1996)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
The question of what constitutes a London maritime arbitration is, as the authors of this volume point out, less than clear. One definition would be any arbitration involving a ship which takes place in London, while another would be any arbitration taking place under the rules of the London Maritime Arbitrators' Association (LMAA) or under a panel headed by one of the LMAA's members. The LMAA, which was founded in 1960, is primarily a professional organization of United Kingdom resident dispute resolvers in maritime matters, but also provides codes of arbitration and conciliation and some limited administrative services. Because of this ambiguity, the authors of this volume have taken care to be comprehensive in their analysis and review of sources so as to cover the full range of possible matters that could fall within the title's definition.
This book was published at almost the same time as the final promulgation of the Arbitration Act 1996. To accommodate the changes that the Act imposes, the authors included as separate chapter reviewing major features of the Act and also added to each substantive chapter a separate discussion of the effects of the Act on the earlier materials.
In essence this volume is a comprehensive examination of the arbitration process with a focus on maritime matters. While the case selection and examples chosen are focused on maritime matters, the arbitration process used in these matters is not radically different from that used in other commercial settings, and thus much of the book addresses the same concerns as other commercial arbitration treatises, especially those with an international orientation. The twenty-one chapters step the reader through the arbitration process from agreement to challenges to the award, and provide a comprehensive overview of that process.
The book is very well written and the documentation is impeccable. The timing of the publication, in light of the passage of the Act was unfortunate, but the supplemental sections in each chapter do a good job of pointing out the changes that the Act will make, and are in some ways more valuable than a complete integration would be as they allow for a clearer focus on the changes that are occurring. The book can comfortably recommended to those with an interest in maritime arbitration, but also to those seeking a broad picture of the arbitration process.
Alderson, Priscilla, ed., Changing Our School: Promoting
Positive Behaviour, Highfield Junior School, Torridge Way,
Efford, Plymouth, Devon PL3 6JQ, England (80pp £6+£2 inland or £7
outside UK post & packaging 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
While editing credit for Changing Our School goes to Priscilla Alderson, authoring credit, and more importantly program credit, goes to the staff and pupils of the Highfield Junior School who have turned a school which, drawing its pupils from a deprived area, had a reputation as a "sink school" into a well respected and positive institution, without using exclusions from the school as a primary means of controlling the atmosphere. This book describes and explains the process by which this transformation has been effected, not as a finished work, but rather as a continuing work in progress. It does not propose a single model as a solution to its own problems or the problems of other school, but rather demonstrates how a flexible response system can deal effectively with disruption and other issues in a school's operations.
The book is written in the voice of the students and staff of the school. Short quotations from members of the school are put together to explain, and, more importantly, provide the tone of the processes employed. The basic concept presented is the use of circle time as a collective governance method for the school, with the students and teachers together developing rules of conduct and means for their enforcement which rely on community processes rather than interpersonal physical or emotional violence. Each class has its own discussion circle, and each class's circle interacts with those of other classes where appropriate, as well as staff and often parents where their input is helpful or needed. In addition students serve as "guardian angels" to protect their peers against misconduct and as council members to assist in guiding the processes and helping individual students in dealing with problems they face.
As suggested earlier, the processes used here are not magic wands that will cure all problems for all schools. What they do offer is a process that can be adapted by other schools to improve the relations between students, staff, parents, and others and increase the quality and quantity of learning. As a process, this is a model well worth consideration and implementation in many elementary and middle schools.
Daly, Joseph L., Arbitration Manual, Bookstore,
Hamline University Law School, Hewitt St., St. Paul, MN (305pp $15
1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
I would not usually review, or even see, a set of class materials prepared at another law school for teaching of a class within the school, but, while I was visiting at Hamline this spring, I noticed Joseph Daly's Arbitration Manual, and, as I was teaching the overview of ADR course, picked up a copy as I thought it might be useful to me. I found it a useful reference for the course that I was teaching, and it occurred to me that other readers, either teaching an ADR survey course or a course on arbitration might find it useful as well.
Be aware that this is by no means a finished or polished work. Rather, like most of us, Daly has pulled together a collection of materials that he finds useful to supplement his texts (here Coulson's Guide to Arbitration and Murray, Rau, and Sherman). I found the organization and the materials collected to be useful ones which I might well adapt for my own class.
The manual is divided into twelve sections. It includes some definitional material on conflict, selections from international, federal and state law on arbitration, selected cases, various essays on arbitration subjects, and an arbitration and a mediation role play, plus some examples of arbitration awards.
While one would want to adapt the materials to one's own state and one's own approach, they are well selected and would provide some real assistance to one putting together a course in this area.
Laohasiriwong, Suwit, Morris, Catherine, and Kongdee, Wongsa,
eds. Dispute Resolution in Thailand: Working Together for
Peace and Prosperity, Uvic Institute for Dispute Resolution,
P.O. Box 2200, Victoria, BC V8W 3H7, Canada (55pp $9Can 1996)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Dispute Resolution in Thailand is the proceedings of a workshop held in Khon Daen, Thailand in June, 1995. The workshop was cosponsored by Khon Kaen University in Thailand and by the Uvic Institute for Dispute Resolution and Commission of Resources and Environment from Canada.
The proceedings include, in addition to opening addresses, keynote speeches by Professor Parwase Wasi of Bangkok and Stephen Owen, the Commissioner of the Commission of Resources and Environment from Canada. Dr Wasi addressed the nature of conflict in Thai society and the need for conflict resolution mechanisms while Mr. Owen presented a description of the Canadian use of cooperative processes in the resource area. This was followed by a panel discussion with five Thai participants on aspects of conflict and its management in Thailand, and the dramatic presentation of a resource mediation taking place in a fictional Canadian valley, Trouble in Clearwater Valley with comment on the process by the participants.
The volume will be useful to several communities. The Thai presentations are especially interesting as they demonstrate both he commonalities and differences between southeast Asian and western societies in their approach to conflict resolution. Owen's presentations offers little that will be new to those who have been following the Commission's activities, but provides a good summary for those who are not aware of them, and the mini-drama provides a well designed fully scripted model for a good beginning look at environmental dispute resolution.
Mysliwiec, Eva and Morris, Catherine (eds), Dispute
Resolution in Cambodia: A Road to Peace and Reconciliation,
Uvic Institute for Dispute Resolution, P.O. Box 2200, Victoria, BC
V8W 3H7, Canada (101pp $15Can 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Dispute Resolution in Cambodia is, like Dispute Resolution in Thailand, reviewed above, a report of proceedings of a workshop, this one held in Phnom Penh, Cambodia in November, 1995 with similar sponsors to the Thai workshop, but with The Cambodian Development Resource Institute as the local sponsor. The workshop was somewhat more elaborate than the one in Thailand, although Owen's keynote and the analytical drama Trouble in Clearwater Valley were repeated from that conference.
Additional activities at the Cambodian Conference included a presentation on Buddhism and Peacemaking: Western Conflict Resolution and Buddhist Wisdom by John McConnell, a strong panel examining Cambodian experience with conflict resolution in the contexts of sustainable development, urban poverty, a buddhist and a legal and justice perspective. Presentations were also made by Pirie, Morris and Grzyboswski, the Canadian participants, on dispute resolution with particular reference to environmental issues, and an exercise on licensing of a dam was performed.
Overall this was a somewhat stronger conference than the Thai one in terms of formal presentations, although it appears that the range of the groups represented by the participants may have been greater there.
Davies, Marie, Davis, Gwynn, and Webb, Julian, Promoting
Mediation: Report of a Study of Bristol Law Society's Mediation
Scheme in its Preliminary Phase (Research Study #21), The
Law Society, Research and Policy Planning Unit, 113 Chancery Lane,
London WC2A 1PL, England (54pp 1996)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
The Bristol Law Society Mediation Scheme is a pilot project established under the guidance of The Law Society, the professional association of solicitors, to provide civil mediation. Originally conceived as a court-annexed program, objection from the Lord Chancellor's Department lead to it being implemented on an out-of-court, free-standing basis. Mediators for the scheme were provided by CEDR and the ADR Group, both major providers of mediation services in the U.K., who provided their member's services on a discounted basis. Referrals were anticipated from the community of solicitors in Bristol, but, in the event, the bulk of referrals came from a single legal expense insuror with a national client base leading to a skewed selection of cases.
Of the 24 cases reviewed in this study ten involved a common plaintiff and defendant's represented by a common solicitor. Of the 24, only two cases in fact proceeded to a mediation hearing, most of the remainder being rejected for mediation by either the plaintiff or defendant's solicitor or having been mooted by subsequent circumstances. The study, therefore, focused on solicitor's reasons for considering mediation or, more commonly, rejecting it, and found, not surprisingly, that lack of experience with mediation, an assumption that mediation added nothing to the usual negotiation amongst solicitors, and a feeling of hopeless deadlock were the primary reasons for rejection. Interestingly, neither expense nor concern about fees were cited as important factors by any of the interviewees.
Overall, the report sounds depressingly familiar to many in the less mediation active sections of the United States. Resistance can be overcome, but it can be a long and tedious process to accomplish.
Bergsten, Eric E., International Commercial Arbitration;
Pacific Rim, Oceana Publications, 75 Main St., Dobbs Ferry,
NY 10522 (~500pp $180 1996)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Bergstein's International Commercial Arbitration; Pacific Rim offers a English language compilation of statutes, rules, other documents, and occasional brief articles about the arbitration process in various nations on the Pacific Rim. Countries included are Australia, China (People's Republic), China (Taiwan), Hong Kong, Japan, Korea, Singapore, and Thailand. In addition, material from the UN Economic and Social Commission for Asia and the Pacific (formerly the Economic Commission for Asia and the Far East) and the Regional Centre for Arbitration in Kuala Lumpur are included.
Over half of the material in the book is from Australia. The Institute of Arbitrators rules, federal legislation, and state legislation are reprinted at substantial length. For China the CIETAC rules, the Maritime Commission Rules, and the Arbitration Act are included, while for Hong Kong the International Arbitration Centre's Dispute Solutions pamphlet and arbitration rules and the Arbitration Ordinance and Order 73 on Arbitration Proceedings are offered. On Japan included are the Japanese Commercial Arbitration Association rules and the Shipping Exchange Maritime Rules. For the other nations listed similar material is provided.
It appears that the materials collected here are only those that are available from their sources in English translation. No attempt to include translations of statutes or other materials not available in English is made. The best description appears to be that the general editor, and editors in each of the countries, apparently cleared their files of English language pamphlets and forwarded them to Oceana for publication. It is not clear who, if anyone, would benefit from this compilation sufficiently to purchase it.
Chapman, M.J., Commercial and Consumer Arbitration:
Statutes and Rules, Blackstone Press, 9-15 Aldine St.,
London W12 8AW, England (783pp £60 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Michael Chapman is perhaps best known the readership of this newsletter as the editor of European Arbitration, the first wholly electronic newsletter in the dispute resolution field. In his spare time, between arbitrating and publishing the newsletter and working on several others books, he taken a moment to compile a collection of arbitration statutes, rules, and related documents for the UK based international arbitrator or attorney who is active in UK based international arbitration. The documents collected come from various parts of the world, primarily Europe, but they are all ones that would be useful to the international arbitrator or arbitration attorney.
The documents are collected in nine sections. The first: Statutes, includes arbitration laws from the full range of, loosely defined, british jurisdictions (England, Scotland, Northern Ireland, Ireland, Alderney, Guernsey, Man, Jersey). The second includes the UK Statutory Instruments related to arbitration and the third Order 73 - the rules of the English Court in this regard. Part four offers the European Union Council Directive 93/13/EEC affecting arbitration, while part five offers the major international documents (the Geneva Conventions and Protocol, New York Convention, etc.)
Part six offers a broad selection of arbitration rules from various sources. The selection is occasionally idiosyncratic (was it really necessary to include the Rules of the Arbitration Scheme for the Plastics Window Federation published by the Chartered Institute) but includes at least some rule sets from most of the major national administrative bodies including the AAA, CIA, DIS (Germany), CCIG (Geneva), ICC, JCAA (Japan), etc. Part seven offers five codes of ethics or arbitration practice (CIA, DIS, GAFTA - Grain and Feed Trade Assn., IBA -International Bar Assoc., and Milan Chamber. Finally, sections eight and nine include two standard evidence rule sets for arbitration (IBA and Mediterranean and Middle East Institute) and the CIA guidance notes for parties.
The collection of the statutory materials could be a real convenience for the arbitrator who does not have ready access to a top flight British law library and provides some interesting information for comparativists looking at differing approaches to the arbitration process. The collection of rules is even more useful for this latter purpose, but also will serve the active arbitrator as a source for ideas when the rules under which he or she is working do not cover a particular subject. The print is small, but as the book will be used primarily for reference this should not be a serious problem.
Brunet, Edward J. and Craver, Charles B., Alternative
Dispute Resolution: The Advocate's Perspective: Cases and
Materials, Michie, PO Box 7587, Charlottesville, VA
22906-7587 (743pp 1997) ISBN: 1558344799
Brunet, Edward J. and Craver, Charles B., Teacher's Manual - Alternative Dispute Resolution: The Advocate's Perspective: Cases and Materials, Michie, PO Box 7587, Charlottesville, VA 22906-7587 (148pp 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Still hunting for the perfect casebook for the Alternative Dispute Resolution Survey course? Well, it still does not exist, nor will it ever as each teacher has different needs in the book and in most cases different needs from year to year. What we are beginning to see, however, is some new casebooks with novel approaches which provide to opportunity to experiment with new ways of teaching the course.
Brunet and Craver's Alternative Dispute Resolution: The Advocate's Perspective clearly falls into this category of new approaches. At first glance, the summary table of contents, it looks like most of the other books in the field: Introduction and four parts-negotiation, mediation, arbitration, other forms. As one gets into the book, however, it becomes clear that the focus is quite distinct. While it provides the requisite survey/definitional coverage of the field, the authors have focused far more heavily on specific, practical, advocacy skills rather than the more common focus on the role of the neutral.
The introductory section of the book is fairly standard in its contents. It briefly surveys the field and offer the usual selections from Judy Resnick and Owen Fiss, with some slightly less well known items from Jim Henry and Bryant Garth. It is when one gets into the negotiation section (Part One) that one begins to get the flavor of the new approach.
The negotiation section of the book is made up of four chapters. Instead of leading with Getting to Yes, the first chapter looks primarily at factors affecting negotiation, including party needs and negotiation style, but with an emphasis on the forms of verbal communication and the way in which particular communication devices can be used to accomplish specific purposes. This is much more "down and dirty" than the usual approach, and has the advantage of forcing the student to focus early on the details of the process rather than its general nature. Both verbal and nonverbal communication is considered and very specific examples of each are provided. The second chapter takes a more global look at negotiation breaking the process into six stages. Again here, however, the breakdown is distinctive focusing on changing tactics from stage to stage rather than an assumed consistency of style in the negotiator. The third chapter returns to communications looking at common negotiation tactics and strategies and responses to them, while the final chapter in this section focuses on ethical issues.
The mediation section is somewhat more traditional, but begins with the, to my mind, appropriate approach of focusing the students' attention on the fact that mediation is at base an extension of the negotiation process. It then goes on to examine the stages of mediation (a four stage model) and looks at confidentiality and ethical issues. A second chapter in this part looks at the variety of uses to which mediation is put with principal focus on divorce, commercial, environmental, employment and VORP.
The arbitration section is broken up into five chapters which allow serial and detailed focus on different issues. The first chapter looks at the general nature of arbitration, common areas of use, and the federal and model acts. Separate chapters then deal with the preemption question (Southland through Mastrobuono), the relationship between the arbitrator and the court - including the scope of judicial review, the growing judicial push for universal arbitration (McMahon, Alexander, Gilmer, et. al), and finally a chapter on arbitration procedure including drafting of agreements and hybrid processes.
The final section of the book is divided into two parts. The first deals with court annexed techniques including Summary Jury Trial, Early Neutral Evaluation, court-annexed arbitration, mediation in court, and the like. The second section looks at administrative ADR processes: reg-neg, and the use of arbitration and mediation in the agency.
This is quite a different approach to teaching the ADR survey course. It has some strong appeal, but is likely to draw specific people away from the other books rather than be a rotational book for those who like to change their materials from year to year. It is well edited and generally very readable. The Teacher's Manual offers some very brief comments on the coursebook materials (a total of about 38 pages), but includes nineteen negotiation and mediation simulation exercises, some thoughts on grading, an a sample final exam.
Craver, Charles B., Effective Legal Negotiation and
Settlement (3d Ed), Michie, , PO Box 7587, Charlottesville,
VA 22906-7587 (486pp 1997) ISBN: 1558344780
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
The third edition of Charles Craver's Effective Legal Negotiation and Settlement updates and improves one of the basic law school teaching books on negotiation. While he has proven unable to resist the urge to expand the size of the new edition, by just over 100 pages, Craver has compensated for this by rewriting, clarifying and updating, much of the text, and by adding a good deal of useful new material.
The expansion can be seen throughout the book from the introduction which has gained 50% in length, to the list of nonverbal forms of communication which has gone from 17-27 topics and negotiation games from 24 to 27 topics. More importantly he has made substantive changes such as refocusing the chapter on cultural differences into one clearly focused on ethnic and gender issues, adding a chapter on international negotiations, which includes a subsection on national negotiating styles, and changing the formerly weak chapter on judicial mediation into one on mediation/assisted negotiation which gives a better picture of developments in the field.
Responses to Craver's book have always ranged from the love to hate, and this will not change with the new edition. For those in the first camp, however, the expansions and changes will improve an already effective teaching book.
The Teacher's Manual offers a copy of the course syllabus that Craver uses and a brief discussion of the course methodology. It also includes a set of 16 negotiation exercises covering a wide range of subjects.
Kruk, Edward, Mediation and Conflict Resolution in Social
Work, Nelson-Hall Co, 111 North Canal St., Chicago, IL 60606
(357pp 1997) ISBN: 0830414681
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
The best way to prepare a compiled book is to select the most knowledgeable and best writers in each area of a field and invite, ask, or beg them to write chapters on the subjects that they know best. While Edward Kruk has not managed to acquire all of the leading writers in the field, he has come far closer to that goal than most folks would have thought possible, and the results show in a book that provides a thoughtful and valuable perspective on the uses of mediation.
As Kruk points out in his opening chapter, much of the traditional work of the social worker could well be described as mediation. The social worker intermediates between society and its disadvantaged members (clients), between the client and various public and private institutions, and between clients where there interests or aims are contradictory or unacceptable by general social norms. Surprisingly, in light of this, there has been no single work discussing the range of mediation interventions that may fall within the social work domain or that teach the applications of mediation techniques in social work settings.
To correct for this, Kruk invited leaders in the mediation community to each write a chapter about their area of the field. As a general guideline, each was asked to first describe the field of practice, the usefulness of mediation in that field, provide an overview of salient theory and research, describe current controversies and emerging trends, and provide an outline of the process of mediation practice in the field, as well as make note of other conflict resolving mechanisms that may be applicable. Most of the authors followed this outline, but, being professionals, did so sufficiently idiosyncratically to keep the reader involved as he or she moves from one to the next.
In addition to the introductory overview there are seventeen chapters discussing different areas of mediation practice. The first five are in areas of what is generally classified as family mediation. Lois Gold looks at couple and family disputes, Emily Brown at divorce, Kruk at parenting, Lynn Jacob at mediation in step-families, and Mark Umbreit and Kruk at parent-child mediation. Other family related issues include Ruth Parsons and Enid Cox on aging questions, Jeanne Etter on adoption mediation, and Allan Barsky examining the child protection area. Jeanne Clement and Andrew Schwebel look at client empowerment interventions in the mental health area, while Peter Maida writes on mediating disputes involving people with disabilities. Community mediation is dealt with by Harry Kaminsky and Ann Yellot and Peer Mediation by Nancy Kaplan. Mark Umbreit describes the VORP process, Judy Mares-Dixon looks at the mediation of workplace harassment, Bernard Meyer at social policy and mediation and Michelle LeBaron at intercultural disputes. With this kind of a cast there is little more that needs to be said. Recommended not only for social workers, but for anyone looking for a broad overview of the mediation scene.
Crawford, Donna and Bodine, Richard, Conflict Resolution
Education: A Guide to Implementing Programs in Schools,
Youth-Serving Organizations, and Community and Juvenile Justice
Settings - Program Report, Office of Justice Programs,
Office of Juvenile Justice and Delinquency Prevention, U.S.
Department of Justice, Washington, DC 20531 (150pp 1996)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Conflict Resolution Education was designed to provide schools and school systems with the basic information that they would need in order to implement conflict resolution programs. Based in large part on government funded initiatives, the book describes four approaches to conflict resolution training: the process curriculum approach, the mediation program approach, the peaceable classroom approach, and the peaceable school approach, and provides a basic understanding of each.
The book begins with an introduction which explains some of the reasons for the adoption of such a program. The focus is on violence prevention and safe school, the transformative effects of conflict resolution training being somewhat deemphasized. The first chapter addresses the nature of conflict and conflict resolution. It explains some of the origins of conflict and the range of possible responses and then focuses in conflict resolution as a problem solving process.
The next four chapters each addresses one of the four approaches to training. The process curriculum chapter looks at the Program for Young Negotiators, the Peace Education Foundation mediation program, and the National Institute for Citizen Education in Law. The mediation program one looks at peer mediation programs in general with a focus on the New Mexico and Illinois Institute programs. For peaceable classroom the focus programs are Teaching Students to be Peacemakers and Educators for Social Responsibility. Finally, the peaceable schools approach is represented by Resolving Conflict Creatively and the Illinois Institute.
The following two chapters examine non-school based implementation of conflict resolution programs. Implementation in juvenile justice facilities and alternative education is seen through the Community Boards Program and the International Center for Cooperation and Conflict Resolution. Parent initiatives focus on Parents as Teachers, Parents Anonymous, and the Franklin Mediation Service. Community programs included Lawyers adopt-a-school, East Cleveland Youth Services Mobile Mediation Project, Roxbury, Community Boards, Boys and Girls Clubs, Americorps Conflict Resolution Program, and the Community Relations Service. Four arts and conflict programs are also described: Urban smARTS, Pathways to Success, Arts and Prevention, and California Lawyers for the Arts.
The final three chapters look at various issues. One examines conflict resolution research and evaluation, a second developmentally appropriate practice, and finally a look at the process of establishing a program. Appendices provide lists of resources and some basic forms.
The purpose of this well written book, to make available the information needed to begin the process of thinking about the implementation of school or community based children's conflict resolution programs is well met. There is not sufficient information in the book for it to be used as a sole source on any particular program, but there is enough for the preliminary process decision making stage. My only criticism is that an expanded bibliography of training manuals and programs would have increased the value of the work.
Dignan, Jim, Sorsby, Angela and Hibert, Jeremy, Neighbor
Disputes: Comparing the Cost-Effectiveness of Mediation and
Alternative Approaches, Center for Criminological and Legal
Research, Department of Law, Crookesmoor Bldg., Conduit Rd.,
Sheffield S10 1FL, England (112pp £15 inland and Europe £20 other
1996) ISBN: 1872998364
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
With the substantial attention, and criticism, that the Rand study of dispute resolution in the US federal courts has received, interest in other studies of the cost effectiveness of mediation and other dispute resolution techniques should increase. Most of the cost studies that have been done have suggested that the cost savings from the use of mediation, except in the area of divorce, are marginal, and that the strongest arguments for the adoption of mediation processes is client satisfaction rather than cost savings. This appears to be confirmed by the results of Dignan et. al.'s study of neighbour disputes in England.
The early funding of community mediation programs in England was relatively easy, but, as the programs cease to be seen as experimental and are accepted as a part of the usual course of business, funding becomes more difficult to obtain. In response to this, Mediation UK, the leading professional association for, inter. alia., community mediation decided to undertake a study to determine if, or to what extent, community mediation reduced the cost of management of neighbor disputes.
The study was undertaken by a team from Sheffield University, and this volume reports the results of the study. It is one of the most carefully performed studies of this type, and, while minor quibbles may exist, the conclusions reached appear to be well supported.
This is not to say that mediation programs will necessarily be pleased with these results. The conclusion reached is that in dealing with neighbor disputes overall a community mediation program is more expensive than the usual governmental response to these issues. That this is caused by government's immense capacity to ignore the issues and do nothing, appears to reflect American as well as English reality.
This does not mean that all hope need be surrendered. The cost advantage may well be lost where the matter is one that government decides that it must or should actually attempt to assist in resolving the problem. In addition the study offers some indications of the effectiveness of mediation as a remedial process.
The study is well written and the short case descriptions will be particularly useful to community mediation programs outside of England who will be able to correlate their experience with that of the English programs.
American Bar Association - Section of Litigation, Program
Book: "If it Ain't Broke, Don't Fix it!" - Arbitration - Fixing
What's Broke After 70 Years Under the Uniform Arbitration
Act, Section of Litigation, American Bar Association, 750
North Lake Shore Drive, Chicago, IL 60611 (~400pp 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Like Henny Youngman, arbitration "don't get no respect" in the dispute resolution movement, but it remains the most utilized form of alternative dispute resolution and, with the recent Supreme Court decisions in the area, one that is only growing in importance. The recent publication of MacNeil, et. al.'s Federal Arbitration Law has given us the opportunity to learn all we ever wanted to know and were afraid to ask about that statute, but, despite Doctor's Associates, most arbitrations still are conducted under state arbitration acts, and most of them are or are similar to the Uniform Arbitration Act.
The Uniform Arbitration Act is still a very viable statute, but after seventy years the Commissioners have decided that it is time for a revision. The conference for which this program book was prepared is an effort by the Section on Litigation to review the proposed changes and suggest other issue that need to be dealt with.
The program book offers a series of useful papers on the Uniform Act and related issues. All are reasonably scholarly but well written and accessible. Topics covered include the British Arbitration Act 1996, a proposal for a predispute limited judicial review option, discovery, arbitrator disclosure, arbitral immunity, punitive damages, judicial review to correct arbitral error, dispositive motions, and more.
Basically the volume is must read material for the arbitration practitioner. It looks both forward and back in time, raising the serious questions about the process that need to be addressed. It also, by implication, suggests problems that could be met with careful drafting of the arbitration clause.
Leviton, Sharon and Greenstone, James L., Elements of
Mediation, Brooks/Cole Publishing, 511 Forest Lodge Rd.,
Pacific Grove, CA 93950 (108pp $13.95 1997) ISBN: 053423982X
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
I came to Elements of Mediation prepared to hate it. The inside of the front cover provides a list of suggested parts of the book to be read by people from different professions, presumably so they do not have to waste their time learning anything that it not obviously and immediately relevant to their issues, and the book is heavy in bulleted lists, another feature which I generally deplore. And yet, Sharon Leviton and James Greenstone appear to be too good as academics to publish the kind of book that the above might suggest. Instead they have written a, too short, overview of the mediation process which is, I suspect, too sophisticated for the anticipated audience of the utterly uninformed, but will be a useful tool for intermediate mediators who have completed a basic training and are seeking ways of expanding their understanding of the process.
Within and between the bulleted lists, this is a very sophisticated book on mediation, raising many of the difficult questions which a mediator or mediation advocate must consider in implementing the process and suggesting directions in which solutions, or approaches to solutions, may lie. The discussion of the issue is always too brief, but cogent, and the short outtakes from the mediation process include a number of gems that I may well adopt in my own teaching and training. The book begins by jumping into the middle of the process with the assumption that one can define mediation by what it is not (arbitration, therapy, etc.), an approach I find highly suspect for beginners, but of real value for the intermediate trainee. It continues by looking at preparation for mediation, the setting, the mediation process, and ways of preventing or breaking impasse. Special attention is paid to family mediation and comediation, and client stress and ethics each are focused on in a chapter of their own.
Work your way past the cover and first chapter and this is a useful contribution to the mediation literature. It appears to demonstrate that an author's intelligence will out, even when he and she try to suppress it.
Woods, Robert E., Devney, John L. and Popovich, Peter S., A
Guide to Dispute Resolution for Business, Briggs and Moran,
2400 DS Center, 80 South Eighth St., Minneapolis, MN 55402 (78pp
free 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
A Guide to Dispute Resolution for Business is one of a series of pamphlets published by the Minneapolis/St Paul MN law firm of Briggs and Morgan to inform their clients about issues of concern. I call this a pamphlet, but it is really an extended essay or monograph, nicely packaged with creative printing, on good quality paper in an attractive soft cover.
The contents of the monograph are an introduction to and overview of alternative dispute resolution in general and as it is practiced in Minnesota. It is clearly written and addresses all of the basic points that one would want covered. It begins by putting alternative dispute resolution in context in light of the difficulties that can be posed by litigation, and offers several brief case studies of its effective use. It then looks at the Minnesota ADR Court Rule, and then provides overviews of mediation, arbitration, early neutral evaluation, fact-finding, mini-trials and other dispute resolution processes. This is followed by discussion of the use of ADR in intellectual property and business disputes, some of the issues in drafting ADR clauses in business contracts, and a look at other aspects of the use of the dispute resolution process.
The Guide is a model of how a law firm can intelligently introduce its clients to the use of alternative dispute resolution. It hits exactly the right tone, neither evangelist nor critic, but reasonable lawyer looking for the best solution for the client. Highly recommended.
Mitchell, Christopher and Banks, Michael, Handbook of
Conflict Resolution: The Analytical Problem-Solving
Approach, Pinter, Wellington House, 125 Strand, London WC2R
0BB, or 127 West 24th St., New York, NY 10011 (209pp $25.95 1996)
ISBN: 1855672774
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
The Centre for the Analysis of Conflict (CAC) at University College, London, was one of the earlier players in the development of theories of conflict intervention. Originating in the political sciences, the Centre's members focused on international conflict and, frequently, on what would now be designated intractable conflicts. The intervention model which they developed (CAPS for collaborative, analytical, problem-solving process), and which is described in this book, is a facilitative, problem solving approach which, in some respects, resembles process consultation. Participants are typically drawn together in a relatively brief workshop setting where they address their respective perceptions of the issues they face in common and develop communication processes to aid in overcoming the existing tensions between them so as to allow serious analysis of their underlying concerns.
The focus of the CAPS approach is the identification of violent conflict as a problem. This takes the focus away from the alleged rights and wrongs which may have led to the violence and focuses rather on the violence itself and the ways in which it can be prevented, stopped, or at least reduced. The assumption that the absence of violence will resolve all issues is not an appropriate one, but it will at least provide an atmosphere where other issues can be addressed in a rational manner. Third party intervention under the CAPS approach is not directed at "solving" the underlying problems, but rather providing a forum in which the parties can bring their own problem-solving skills to the table and where those skills can be augmented by suitable facilitation. The facilitator is responsible for ensuring that the interests of all at the table are addressed so that mutual benefits or gains can be explored.
The basic purpose of the handbook is to provide the understanding necessary for the implementation of the CAPS approach in the classroom in preparation for its implementation in a real conflict situation. To do this the handbook takes the reader/student through five stages in the implementation of the CAPS model: diagnosis of the situation, obtaining access to the parties, arranging for the first workshop, conducting the workshop, and followup. Each section is interspersed with a series of exercises which students can use to evaluate their understanding of the lessons presented or which can be used as practical exercises by the instructor. The exercises, all of which are set in an international political setting, include some based on real events and some created specifically to meet the needs of the program. Where appropriate they are supplemented with memos from the parties, maps, and other materials to clarify the issues.
This is a truly outstanding program for the development of conflict resolution skills. It is similar to track two and other programs, but is the best developed for use by a non-expert that I have seen. In addition to its potential use in political science and international relations courses or programs, it would provide an excellent introduction to complex, high tension, issues in other conflict resolution programs.
Briggs, Charles L., Disorderly Discourse: Narrative,
Conflict and Inequality, Oxford University Press, 2001 Evans
Ave., Cary, NC 27513 (248pp $49.95 1996) ISBN: 0195087763
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Disorderly Discourse offers a collection of papers by anthropological linguists looking at the relationship between narrative and conflict in various settings. The importance of narrative in conflict identification and resolution has been increasingly accepted in academic community in recent years, but the roles played by narrative in structuring conflict have only begun to be observed and evaluated.
The eight substantive papers included here present a wide range of approaches to the analysis of narrative and an even wider range of settings where it plays an important role. Two of the papers address aspects of United States' legal system. Mertz examines narrative structure in the US Supreme Court opinions in Plessy v Ferguson and Brown v Board of Education. While no new factual information is elaborated, her approach to the opinions is helpful in understanding the way in which conflict is expressed in such formal settings. O'Barr and Conley look to the other end of the legal system, the small claims court, and examine the manner in which litigants structure their arguments and what that reveals about popular perception of legal ideology and understanding of the conflict roles of the courts. Ochs, Smith and Taylor look at another use of narrative as a defining device in American Society. They consider dinner table, and post-dinner, conversation in American white, english-speaking homes and observe family members using storytelling as a form of problem solving activity.
Three of the papers address narrative issues in native american societies in Latin America. Basso examines a trickster figure, Taugi, from the Kalapo of central Brazil. Taugi is used by Kalapo storytellers to model both effective and ineffective ways of reacting to aggression. Haviland examines Tzotzil speaking groups in Mexico and their use of narrative to bring orderliness to the inherent disorder of issues between spouses in marriage. Briggs looks at the use of meetings to mediate conflict situations amongst the Warao of Eastern Venezuela.
Outside the Americas, Herzfeld looks at narrative resourcefulness amongst animal thieves on Crete. He discusses how the creative use of narrative avoids being shamed for what otherwise would be deemed misconduct. Brenneis examines two types of narrative structures in an Indian community on Fiji, gossip and mediation session, and shows how the narrative use of "trouble stories" told in very different settings can have important commonalities.
The papers in the books are generally well written. They raise important issues for our understanding of conflict and the ways it can be dealt with in society. The effective use and regulation of narrative is one of the primary tools of the dispute resolver/mediator, and these articles offer useful perspectives on the ways of using them.
Dolson, William F., Barreca, Christopher A., and Zimny, Max,
Labor Arbitration: Cases and Materials for Advocates,
BNA Books, 1250 23rd St. NW, Washington, DC 20037-1165 (592pp $45
1997) ISBN: 1570180369
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Labor Arbitration: Cases and Materials for Advocates is designed as a companion volume to the textbook Labor Arbitration: A Practical Guide by the same authors which was published by BNA in 1990. Where that book is a treatise, this one is a teaching book, designed to train the advocate in effective presentation of grievance issues.
The format of the book is unique. It presents eighteen actual arbitration case transcripts edited for teaching purposes. Unlike the standard law school casebook which presents almost exclusively appellate decisions, this one focuses on the "trial" level, the arbitration hearing, and provides the student the opportunity to critically evaluate the manner in which the case was presented and develop alternative, and perhaps better, approaches on their own. Excluded from the transcripts are the cross-examinations of the witnesses, allowing the students to develop their own approaches to cross-examination and compare their respective styles in a standardized set of situations. While the book is primarily designed for teaching advocacy skills, it could also be effectively used to train neutrals.
The book begins with a preface discussing some of the aspects of teaching a course based on the book. The authors emphasize the fact that the hearing is not the entire case, and focus the instructor on involving the students is simulated prehearing conferences, issue framing, witness preparation, opening and closing statements, and preparation of briefs.
The cases that are provided are well edited and will make excellent teaching tools. The question and answer format of the arbitration is maintained (although the examination is sharply edited to retain only the tone and relevant evidence) and the relevant exhibits are included. The cases selected present a wide range of the issues that an arbitrator may be called upon to address. Nine deal with discipline and discharge matters, including absenteeism , fighting, drug sales, sexual harassment, theft, and unsatisfactory performance. Three address seniority issues, one a leave of absence, two holiday pay issues, one each lockouts and picketing, and one management rights in a reclassification context. Appendices provide sample forms for preparation for hearing and for documents used in the arbitration process including awards.
The book could be used in wide range of course settings. In addition to use in training courses or continuing education courses for those already in the field, it could clearly be used in a law school or a labor education program for a standing course in arbitration advocacy. Alternatively, one or more of the cases included could be incorporated in a general labor law course to provide the students with a better sense of the reality of the technical materials that they are studying.
Stein, Mark with Ernst, Dennis J., Resolving Conflict Once
and For All: A Practical How-To Guide to Mediating Disputes,
Mediation First, 101 Crescent, Louisville, KY 40206 (152pp $19.95
1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Although I admit to starting with a prejudice against books that include, on their cover, "as demonstrated on the Oprah Winfrey show", I am compelled to admit that Mark Stein's Resolving Conflict Once and For All is a reasonable introduction to mediation for the newcomer to the field. While it offers little that is not available elsewhere, it does not fall into any of the common traps of oversimplifying the process or of treating mediation, or one style of mediation, as being the only proper means of dispute resolution. Rather, it provides a clear view of the nature of the mediation process and some good ideas as to when, where, and how it can be used.
The book is framed by two disputes which are used to demonstrate the nature of the mediation process and some of the pitfalls that may lie in its way. They are a workplace dispute between coworkers and a neighbor dispute. Neither dispute is heavily factual, but each demonstrates well the emotional and personal elements of conflict and the role that mediation can play in resolving them.
The first section of the book introduces the idea of different routes to dealing with conflict and suggests some of the disadvantages and advantages of alternative approaches to resolution. It also introduces the idea of mediation and provides a sense of how parties may be gently pushed in the direction of using it to peacefully resolve their disputes.
The second and third sections deal with the detailed nature of the mediation process. Section two presents an eleven step process, and walks the reader through its application in the two model cases. The approach is fundamentally a community mediation model with a clear opening statement, exploration of facts and emotional issues, and development of a resolution. The presentation is effective, and the approach used in the two cases demonstrates nicely some of the variant ways in which a particular goal can be reached. The third section addresses the dynamics of mediation from a practical, but more generalized view. Stein explores the creation of a favorable physical environment for mediation, examines ways of "surviving deadlock", and looks at the use of "visualization" (I would call it mediator creativity) and the power of agreement to enhance the process. He discusses the transformative power of mediation, but maintains a focus on the resolution of the immediate conflict as the primary goal as is appropriate.
The final section examines some of the range of applications for mediation. Workplace and School Mediation are described in some detail, and its use in other areas mentioned as well. Appendices provide a few relevant forms and a list of resources.
While this would not be my first choice for a book introducing the concept of mediation, it is one which could safely and comfortably be used for that purpose. The author is careful and accurate in his descriptions, makes an, only modestly excessive, use of a sometimes awkward sense of humor, and generally provides the information that one would want such a beginning reader to know.
Smock, David R., Creative Approaches to Managing Conflict
in Africa: Findings from USIP Projects, United States
Institute for Peace, 1550 M St. NW, Suite 700, Washington, DC
20005-1708 (31pp 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Smock's essay on conflict management in Africa represents an effort to share some of the lessons that have been learned from projects supported by the Institute on that continent. Ideas gained from eight projects are summarized here, which are based on a range of different conflict resolving means.
The projects considered the role of American diplomatic initiatives in peacemaking and peacebuilding, problems in the use of African mediators in international conflicts, the role of the Burundi Policy Forum in assisting NGOs in violence prevention, the reform of African militaries, training of women in conflict resolution (the Somali experience), building on traditional peace processes (roles of chiefs and elders), controls on humanitarian aid to encourage peace, and development of a culture of peace (with a focus on Mozambique).
The summaries are brief but informative. While they are insufficient to provide an in depth understanding of the processes used in each case, they can provide ideas for starting points for peace processes elsewhere in Africa or the world. The summaries are well written and very accessible.
Herman, Gregg, The Joy of Settlement: The Family Lawyer's
Guide to Effective Negotiations and Settlement Strategies,
Family Law Section, American Bar Association, 750 North Lake Shore
Drive, Chicago, IL 60611 (183pp $64.95 (Section Members $54.95)
1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
The Joy of Settlement offers an examination of a wide range of issues on the process of planning for and negotiating a settlement is a series of chapters each written by an expert in matrimonial practice. In a sense this is a high quality and highly specialized tips and techniques book, a format which has become increasingly popular with the family bar in recent years. The individual papers average about three or four pages, and each pinpoints an approach to the settlement process, a technique to encourage settlement, or some other clue to assist the practitioner in maximizing the quality of his or her client's settlement. They are generally well written, and the ideas they present are worthy of consideration even if not all of them are novel.
The papers are collected into ten sections: styles of negotiating, the client, opposing counsel, settlement techniques, settlement through mediation, winning through negotiations, settling the personal-property issues, settlement tools, timing of negotiations, and ethics and professionalism. They will reward not only the matrimonial attorney, but, equally, the matrimonial mediator, who will be able, on the basis of these papers, to acquire a far more sophisticated understanding of the attorney's view of the attorney's role than is often conveyed in mediation training.
Goh, Bee Chen, Negotiating with the Chinese,
Dartmouth Publishing Co., Ashgate Publishing Co., Old Post Road,
Brookfield, VT 05036 (202pp $62.95 1996)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
From the title, I expected this book to be merely another tips and techniques for dealing with the "strange" people from another country, a genre of business book or pamphlet that is well established. Instead it turns out to be a well researched, analytic study of the techniques of negotiation that are common amongst those of Chinese ancestry with traditional training, written in an accessible and informative manner, by a serious scholar of intercultural interaction.
The book is divided into six chapters. In the first Goh provides an overview of the negotiation process, noting that negotiation is both a general and a lawyer's skill. He further points up the importance of understanding the Chinese approach in light of the increasing importance of the Pacific Rim. The second chapter looks on Sino-Western Negotiation from a cross-cultural viewpoint. It focuses on the issues of cultural difference and the mutual impacts of culture and language that create problems of mutual understanding across cultures. It also looks at the collectivist focus of Chinese culture in contrast to the individualistic culture of the west, noting that both are overgeneralizations, but that they are useful ways of approaching understanding, each of the other.
Goh then turns to a detailed examination of particular aspects of Chinese culture. He focuses first on a series of philosophies which have guided Chinese development, Confucianism, Taoism, Mohism and Legalism. He then turns to "customs", which he examines through the light of many of the festivals that are commonly celebrated, drawing from them, and from the philosophies, a deeper understanding of the approaches used in negotiation and interpersonal relations in general.
The fourth chapter looks to the psychology of Chinese negotiation and the fifth to "The Art of War at the Round Table". These chapters focus in detail on the negotiation process itself, drawing on the cultural factors discussed before, but elaborating them in the specific context of negotiation. Both strategic and tactical considerations are raised, but the general theme is the understanding of the strategic approaches that the Chinese are likely to adopt and the appropriate way of responding to them. The final chapter offers a series of case studies in Sino-Western negotiation. A brief fact situation is described and then analyzed to demonstrate some of the principles discussed previously.
While reading this book will require more time and attention than the traditional business how to book, it will greatly reward the reader. The writing is clear and the analysis serious and substantial. The recognition of complexity and avoidance of simple tips or answers will encourage the reader to a real understanding of the negotiation process. Throughout the book extensive footnoting provides access to additional sources which will allow the reader to look in more depth at any subject considered.
Ellis, Desmond and Stuckless, Noreen, Mediating and
Negotiating Marital Conflicts, Sage Publications, P.O. Box
5084, Thousand Oaks, CA 91359-9924 (175pp $42(h) $17.95(p) 1996)
ISBN: 0761905030
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Ellis and Stuckless are research sociologists who have conducted some of the most extensive research available on the processes of settlement in divorce matters. In this volume they report on the current state of knowledge of these processes, including both the results of their own direct research and the reported research of others. Their own research is largely based in the experience of mediation in the Canadian courts, and especially with those clients eligible for legal aid, but any limitations which this sample poses are carefully noted, and their review and analysis of the literature in the field is a strong corrective for any biases that this sample might otherwise impose.
The authors provide a wide ranging view of existing knowledge of the use of lawyer negotiation and mediation in the settlement of divorce cases and the consequences that attach to the use of each of the processes. While their research results overall clearly favor the use of mediation as a means of settlement, they provide a balanced picture which points up clearly the weaknesses and strengths of each of the processes and the areas in which each is most effective and ineffective. They have drawn widely on the research literature and effectively integrated information from a wide range of sources in their analysis.
The coverage of marital dispute resolution in the book is extensive, though less than comprehensive. The emphasis is on he spouses and issues of marital violence and the allocation of power. While some attention is paid to the effects of a choice of process on children, children's issues and the economic consequences of the selection get somewhat short shrift.
The above may make it sound as if Mediating and Negotiating Marital Conflicts is some heavy and inaccessible academic tome, but nothing could be further from the truth. The text is clear and both the review materials and the authors' own research are reported in a style that draws one in and encourages careful attention. This is a book that everyone who is active in matrimonial mediation or provides representation to divorce clients should read as well as all those interested in the theoretical bases for settlement processes.
Grenig, Jay E., Alternative Dispute Resolution with Forms,
2d ed., West Group, 64526, St. Paul, MN 55164-0526 (640pp+
disk $95 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Jay Grenig's Alternative Dispute Resolution with Forms is the long delayed second edition of Rodman's Commercial Arbitration with Forms which was published in 1984. Needless to say, changes in the world of dispute resolution since the original was published have required a comprehensive rewrite and, as the title change suggests, an extensive expansion of the scope of coverage.
The book consists of twenty chapters which could be, although they are not formally, grouped into three sections. The first, consisting of two chapters, provides a broad introduction to modern dispute resolution, discussing the decision to use dispute resolution processes, ethical concerns, and the range of providers, followed by a detailed introduction to the various types of dispute resolution. In this area Grenig is comprehensive, listing and discussing, at various lengths, more than twenty processes. The second section offers seven chapters discussing the major processes. Arbitration receives six chapters, surprisingly these are not contiguous, and mediation, minitrials, summary jury trials, and court-annexed procedures one each. These chapters provide clear and reasonably comprehensive descriptions of these processes.
The third section looks at different types of disputes and considers the range of possible dispute resolution techniques available to each. Topics included are: securities, construction, international commercial, insurance, intellectual property, labor and employment, health care, and family. These chapters do an excellent job of demonstrating the range of possible approaches. For example, the construction chapter discusses not only arbitration and mediation, but also partnering, the use of dispute review boards, step negotiations, facilitated negotiation, and standing neutrals. Appendices include the Uniform and Federal Arbitration Acts, the AAA Commercial Arbitration Rules, selected forms, and the federal courts ADR sourcebook published by the CPR Institute. The accompanying disk offers some 93 forms from the book in ASCII format which can be easily adapted to any word processor. The forms, which appear also in the book are about ½ arbitration forms and the remainder various motions, letters, orders, etc.
Overall the book provides a useful overview of the field for the attorney who wants to be able to find out more about a particular process or use of dispute resolution in a particular type of dispute. The writing is clear and direct and, while occasionally oversimplified and making excessive use of bullets, provides accurate and useful information. This is not a book that one would usually read from cover to cover, but rather one that would be used as a reference.
Rue, Nancy N., Everything You Need to Know About Peer
Mediation, Rosen Publishing Group, 29 East 21st St., New
York, NY 10010 (64pp $15.95 1996)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
With large print and only 64 pages, it is clear that the title of this book is misleading. Nonetheless, it can serve a useful purpose, introducing the idea of peer mediation to middle and high school students with limited interest in reading. In its brief compass, Everything You Need to Know About Peer Mediation provides a reasonable overview of peer mediation, with several scenarios, which read as if designed for the script of a videotape, and a modest explanation of the goals and approach of the peer mediation process.
As one might expect in a book of this length, there is a serious tendency to oversimplify. The assumption that conflict managers are the same as peer mediators is questionable in many programs, and the emphasis on violence prevention overlooks some of the more important functions that peer mediation can provide. Also, the summary of the training involved in becoming a peer mediator is quite thin, and several important concepts, such as the peaceful school are covered so lightly that they might better not have been mentioned at all. Despite these weakness, what is included is generally accurate, and the scenarios provide some of the flavor of the conflict resolution process.
Bernstein, Peter L., Against the Gods: The Remarkable Story
of Risk, John Wiley, 605 Third Ave., New York, NY 10158-0012
(393pp $27.95 1996)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, July 1997.
Bernstein's Against the Gods is not a conflict resolution book, but deals with a subject which is important to conflict resolvers, the evaluation and management of risk. An effective popularizer in this and earlier writings, Bernstein considers the development of an understanding of probabilities and the mathematics of gaming or chance to be the foundation of our understanding of risk management. He, therefore, approaches the subject historically, beginning with an analysis of the reasons why it was not until the seventeenth century that Pascal and Fermat introduced the basic mathematical concepts that laid the foundation for later theory. He attributes this to the delayed uptake of the hindu/arab numbering system in the west, especially in Attic Greece where free thinking might have led people in this direction, and the fatalism intrinsic in religious beliefs and agrarian society in Asia and much of the rest of Europe, which discouraged any attempt to predict the future. He sees the renaissance as having provided the ideal setting for the development of these concepts, although it is difficult to see why the same conditions could not be said to have existed in Medina at the time of the prophet.
Regardless, Bernstein proceeds to review developments from both a mathematical and a practical risk management view with a combination of clear instruction and excellent story telling which holds one's attention throughout. From insurance to politics to investment, he demonstrates how risk management theory allows rational decision making in areas where results are uncertain. An understanding of the use of this theory will provide neutrals and advocates with a useful tool for dealing with the needs of their clients.
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