Book Reviews by James B. Boskey

Reviews of Dispute Resolution Literature from The Alternative Newsletter - 1988 to 1995

Melamed, James C. and Corcoran, Kathleen O'Connell, Mediating Divorce and Family Agreement, The Mediation Center, 440 E. Broadway, Suite 340, Eugene, OR 97401 (320pp $69.95 1994)

Book review by James B. Boskey

Jim Melamed has been in the conflict resolution game as long as almost any member of the second generation of conflict specialists (the first generation consisting largely of alumni of the Federal Mediation and Conciliation Service and a few negotiation trainers). He founded The Mediation Center in 1983 and has been, until recently, the editor of The Mediation Quarterly. Kathleen Corcoran has been with the Center since 1988 and has also been active in a wide range of mediation settings.

This new book takes much of what Jim and Kathleen have learned about the nature of conflict and means of resolving it and puts it in a clear and accessible form. It takes a traditional approach to divorce mediation, focusing on finding a resolution that meets the needs of the parties, but considers theoretical, practical, and ethical issues where appropriate. While the focus is on divorce mediation, the approach presented and the analysis used would, for the most part be applicable in any disputing situation. Throughout the materials the authors cite other articles and books which have influenced their thinking about disputing and dispute resolution processes to allow the reader to examine competing approaches.

The book begins by laying a foundation on the nature of conflict and of alternative dispute resolution. It then turns to an examination of negotiation, focusing on principled negotiation and the problems of balancing power in negotiation. Using that as a base, the authors then turn to mediation as a means of creating the necessary balancing of power.

The fourth through sixth chapters of the book provide an overview of the role of the mediator, the practice of mediation, and the skills needed to be an effective mediator. They compare business and family mediation on a number of dimensions, and then, using Folberg and Taylor's seven stage analysis of mediation, discuss each of the stages including sample documents to be used by a professional family mediator at each stage of the process. Some of the forms used are based on Oregon law and practice, but most could be easily adapted for use in other jurisdictions. The final chapter of this section of the book focuses on communication and facilitation skills, recognizing the importance of flexibility of approach, presenting different means of soliciting information, ideas, and attitudes, considering outcome measures and means of moving parties towards outcome discussions, while paying attention to both verbal and nonverbal means of communication.

The next four chapters focus on different aspects of the divorce mediation practice. They examine the psychological and emotional issues, parenting agreements, support issues, and property and debt, and are followed by a chapter on drafting the agreement. While some of the materials in these chapters are Oregon specific, most of them are not, and even many of the Oregon items are ones that will provide useful ideas to mediators in other states. The authors do not seek to oversimplify any of the processes, a problem with many divorce mediation books, but rather demonstrate how the complexity of the issues can help to achieve settlement and resolution.

A final general chapter addresses practice and policy issues in mediation, focusing on some of the principal ethical issues that face family mediators-ie. abuse, safety, and the like. Additional sections address Oregon mediation ethics and offer a collection of relevant Oregon statutes and rules and materials from several of the national organizations of neutrals.

This is a very teachable book for a course in divorce mediation at the undergraduate or graduate level (including law school). If taught outside Oregon some modifications or supplementation with local materials would be needed but this would not be a difficult task. This is not primarily a manual for the training of divorce mediators, although it could be used for that with appropriate lectures and tapes, but rather it provides the basis for an intellectual and practical analysis of the divorce mediation phenomenon.

Melamed, James C. and Corcoran, Kathleen O'Connell, Family and Divorce Mediation Resources, The Mediation Center, 440 E. Broadway, Suite 340, Eugene, OR 97401 (~150pp + 2 disks $99.95 1994)

Book review by James B. Boskey

Resources is a collection of forms and materials for divorce mediation practitioners in hardcopy (what we used to call printed) and on disk. The forms on disk, which come with the hardcopy version is available in Word Perfect, Word, and ASCII formats. The volume contains approximately 54 forms, most, if not all, of them ones that appear also in Mediating Divorce and Family Agreement, reviewed above. They range from letters for use throughout the mediation process from letters confirming first appointments through letters used at the time that a file is to be closed. In addition, client information forms, budget forms, parenting questionnaires and similar forms used in the mediation process are included.

Perhaps most interesting of the forms are those designed to be given to the client to provide background or context for particular parts of the mediation. Among those included are ones discussing the nature of mediation services, time-sharing guidelines, children's rights in divorce, the emotional stages of ending a relationship, and many others.

While most of the forms will have to be revised to meet the specific needs of the user, the basic forms are well done, and would provide a convenient manner for a new practitioner to develop her own forms or an experienced one to upgrade those in use.

Rothman, John D., A Lawyer's Practical Guide to Mediation, John D. Rothman, Oklahoma Mediation/Arbitration Service, 7666 East 61st St., Suite 335 Triad Center, Tulsa, OK 74133 (152pp $39.95 (discount for quantity purchase) 1995)

Book review by James B. Boskey

John D. Rothman is the owner and Legal Director or the Oklahoma Mediation/Arbitration Service, a for profit dispute resolution provider with offices in Oklahoma, Arkansas, and Kansas. In this book he seeks to offer assistance to the attorney who is representing his or her client in mediation. He begins the work with a disavowal that it will serve as a mediation training manual-for those who wish to learn to mediate or an academic work for those seeking to develop an understanding of mediation or dispute resolution theory or for those concerned with the pubic policy implications of mediation. He also excludes from his coverage divorce mediation.

Given these assumptions and the intended audience of practicing dispute resolving, as opposed to transactional, lawyers, Mr. Rothman provides an excellent introduction to the mediation process. His presentation is balanced, taking note of both court-annexed and private provider mediation and accurately pointing out the advantages and disadvantages that may, but do not necessarily attach to each. Reference is made, where appropriate, to specific statutes and rules governing mediation in a variety of jurisdictions, but full attention is paid to the effect of a lack of such provisions on the process as well.

The writing and discussion is direct and clear. Mr. Rothman has a viewpoint on most issues, eg. his preference for including attorneys in the mediation process, but his views are well thought out, clearly presented, and, most importantly, he offers a fair and reasoned analysis of alternative views and approaches as well. His advice is practical, whether it relates to selection of a mediator, process design issues, or the respective roles of parties, attorneys and mediators. He addresses those ethical issues in mediation which impact on the representing attorney without worrying the reader with information that is really relevant only to the neutral.

The description of the mediation process that he offers is a straightforward, but accurate, one. He divides the mediation process, after the pre-mediation planning stage, into three segments: the information phase, the negotiation phase, and concluding mediation proceedings. While this typology is probably too simplistic for the practicing mediator, it defines precisely the information needed by counsel and allows the author to clarify approaches that counsel might otherwise misunderstand.

Overall, this is a book that can be highly recommended for any attorney involved in providing representation in mediation except for one who is already very experienced in the area. Its brevity, clarity, and accuracy make it a valuable contribution.

Hoffman, David A. and Matz, David E., Massachusetts Alternative Dispute Resolution, Butterworths, Building C., 8 Industrial Way, Salem, NH 03079 (2 vol 785pp $180 1994)

Book review by James B. Boskey

1994 Directory of Massachusetts Alternative Dispute Resolution Providers, Boston Bar Association, 16 Beacon St., Boston, MA 02108 (296pp $20 1994)

Book review by James B. Boskey

As dispute resolution spreads amongst and within the states, publishers are beginning to bring out state based books on dispute resolution, many of which combine substantial local resources with solid introductory material on the nature of the dispute resolution process in general. David Hoffman and David Matz's two volume work Massachusetts Alternative Dispute Resolution, is an excellent example of the genre and will provide a useful model for other states. Considering the well known expertise of its two authors, this comes as no surprise.

The first volume of the book is essentially a treatise on alternative dispute resolution with an emphasis on the law and practice in Massachusetts. In fifteen chapters the authors begin with a general overview of ADR, including definitions of terms and the why and how of using ADR with a section on who is in fact using the processes. This is followed by a chapter on drafting ADR clauses, which is primarily a checklist and set of sample clauses and then a series of six chapters on different forms of ADR from the often omitted subject of methods of dispute avoidance, mediation, advisory opinions, arbitration, masters, and court-annexed ADR. The final three chapters provide information about neutral service providers and how to become a neutral, the role of law firms in ADR, and a brief discussion of major subject areas where disputes are often settled by ADR processes. The volume is completed with a bibliography an da list of organizations involved in dispute resolution and dispute resolution training.

The second volume consists of the appendices, tables, and index. The appendices include lists of community mediation programs in Massachusetts, ADR providers in the state, state statutes relating to ADR processes, and an extensive selection of other statutes, court rules, sample forms, and rule sets and other materials from major national organizations.

This is a set that anyone involved in ADR, either as a neutral or an advocate, in Massachusetts will want to have on their shelf or desk. The treatise materials are well written and well thought through, offering enough coverage to deal with most issues that will need to be addressed in the delivery of service, but not overwhelming with excessive detail The appendices will provide a convenient reference source for materials, which while they would be otherwise available, are far more convenient collected in this manner.

Also available, for those who merely need a list of providers, is the 1994 Directory of Massachusetts Alternative Dispute Resolution Providers published by the Boston Bar Association Litigation Section's Alternative Dispute Resolution Committee, which provides similar, but somewhat different information. It provides a comprehensive list of court-annexed ADR programs in the federal and state courts, providing for each a brief program description as well as source or referrals and fees, and a further listing of about 125 private ADR providers with information on their geographical and service range, types of disputes handled, experience, approvals, professional background, fees, and such additional information provided as can fit on a single page. Also included are a list of relevant Massachusetts statutes, and a collection of dispute resolution clauses from various sources.

It is rather surprising how little overlap there is between these two volumes. Anyone active in the ADR field as advocate or neutral in Massachusetts will need to have both on their desk or at least readily available.

Rogers, Nancy H. and McEwen, Craig A., Mediation: Law, Policy, Practice (2d ed), Clark Boardman Callaghan, 155 Pfingsten Rd., Deerfield, IL 60015-4998 (2 vol. 1724pp 1994)

Book review by James B. Boskey

For mediation in the United States, while there are many books discussing the subject, there is only one primary reference, Rogers and McEwen's Mediation: Law, Policy, Practice. The second edition of this comprehensive reference maintains the quality of the first edition, but expands its coverage in light of the extensive growth that the field has seen since its publication. The new edition, unlike the first which was perfect bound and could be supplemented only by pocket part, is in looseleaf form so that it can be updated by the insertion of pages with additional or changed information.

As with the first edition, this one is divided into two sections. The first is a comprehensive treatise on mediation dealing with a full range of issues concerning mediation practice with a strong emphasis on ethical standards and conduct by mediators, mediation providers, and representatives or advocates in mediation. Three new chapters have been added to this edition. Chapter 2 deals with dilemmas presented by the institutionalization of mediation, Chapter 6 with the issues involved in planning a public mediation program, and Chapter 13 which looks towards the development of a simple code of mediation procedure and proposes a short (2 page) Uniform Mediation Act, and additional sections have been added to other chapters dealing with a range of subjects including mediator certification and continuing accountability, lawyer duty to advise of dispute resolution alternatives, etc. The other chapters have been extensively updated with new ideas and reference to materials and cases which have been published and decided since the original edition.

The second portion of the work is the appendices. Two tables provide summaries of confidentiality legislation and types of disputes and legal principles covered and established in state legislation on a state by state basis. The largest portion of the book, however is Appendix C which sets out, state by state, and also for the United States, Puerto Rico, and the District of Columbia, the language of major legislation dealing with mediation and recommending or requiring its use in particular situations.

This is then, the fundamental reference for understanding and following the development of mediation in the United States. Any law library of any size will need to have this available, and those who are involved in research in the field will want to have it on their desks as well. Many books will provide information about how to mediate, but this is the one which will identify the directions in which mediation is developing in this country.

Moran, Robert T. and Stripp, William G., Dynamics of Successful International Business Negotiations, Gulf Publishing Co., PO Box 2608, Houston, TX 77252-2608 (250pp $27.50 1991)

Book review by James B. Boskey

Moran and Stripp have prepared this volume as an advisory for managers who are interested in, or have begun to, explore the globalization of their businesses. The book is clearly written and well illustrated with lists and diagrams emphasizing the points made.

The first unit of the book begins by addressing the reasons for "going global" and some of the questions that need to be addressed in this context. The development of globalization strategies and means of locating opportunities outside of one's own country are considered. The authors then turn to discussing the nature of culture, drawing on Murdock's anthropological work and address the need to develop a corporate culture that can deal with the issues such globalization presents, identifying the goal as a geocentric corporate culture.

The second unit of the book examines cross-cultural negotiations. The first two chapters lay out some general considerations in a historical and theoretical context and then set a framework for the understanding of global negotiations including identifying twelve negotiating variables that change from culture to culture. They then proceed to analyze the approach to negotiation in eleven cultures in terms of these variables, in each case providing a brief historical perspective and a concluding scenario summarizing the major points. The cultures addressed are: Japan, China, South Korea, India, USSR, Germany, France, Spain, Nigeria, Mexico, and Brazil.

One of the most valuable features of the book is the inclusion, with each chapter, of an extensive bibliography of further readings. The authors have done a solid job of presenting the basic issues, but these lists will allow the reader to explore the questions presented in much more substantial depth.

Rolph, Elizabeth and Moller, Erik, Evaluating Agency Alternative Dispute Resolution Programs: A Users' Guide to Data Collection and Use, Institute for Civil Justice, Rand, PO Box 2138, Santa Monica, CA 90407-2138 (93pp $13 1995)

Book review by James B. Boskey

This manual was developed for the Administrative Conference of the United States by the Rand Institute for Civil Justice, to assist those responsible for evaluating federal alternative dispute resolution programs. The manual begins by dealing with the question of why evaluation is necessary and the positive consequences that can flow from an effective evaluation program. This is followed by a look at evaluation design issues including the question of the appropriate mix of quantitative and qualitative measures, the selection of control groups, and selection of statistical measures to evaluate the results. The sections are brief and summary and would not provide a sufficient basis in themselves for evaluation design, but they raise many of the appropriate issues that need to be considered in that process.

Additional chapters deal with developing data collection plans and data analysis plans with a final chapter on presenting the results. Again, these sections are very brief, although the inclusion of a list of appropriate research questions and measures and performance indicators is useful and may help to select a more effective design. Appendices, which make up 46 of the 81 pages (the remaining 12 pages being a list of Rand publications) offer forms used in other studies for record abstraction, evaluator surveys, disputant surveys, attorney surveys, and mediator/hearing officer surveys. These will be useful in many cases as they can be modified to meet the needs of the particular evaluation being undertaken.

For the agency or individual attempting to undertake an evaluation of either a private or public dispute resolution program for the first time this manual will be moderately useful. The forms provided in the appendix are well prepared and the text is accurate if limited. At a minimum, attention to the ideas presented will avoid some of the most obvious pitfalls in conducting such an evaluation.

Rolph, Elizabeth, Moller, Erik and Peterson, Laura, Escaping the Courthouse: Private Alternative Dispute Resolution in Los Angeles, Institute for Civil Justice, Rand, PO Box 2138, Santa Monica, CA 90407-2138 (102pp $15 1994)

Book review by James B. Boskey

The growth of private ADR as an alternative to the use of the courts proceeds apace. California, at one time the center of this movement may have been supplanted in this regard by Florida, but still remains one of the primary places where private dispute resolving mechanisms are used and probably still is primary in terms of decision enforceable alternatives (arbitration, private judging). This report, which profiles the private dispute resolution market in Los Angeles, raises important questions about the appropriateness of these developments and their implications for court and other public systems.

The study that was undertaken involved an extensive survey of private ADR providers in the Los Angeles area. Nine firms were identified as providing these services as well as large numbers in individual practitioners. The private caseload at present constitutes about 5% of the overall dispute resolution caseload, but it has been growing at a rate of about 15%, and, perhaps more significantly it is made up largely of cases involving substantial amounts of money, 60% of the private sector cases involving more than $25,000 as opposed to about 14% in the public sector. Almost one half of the cases in the private sector are automobile personal injury cases. Interestingly about 58% of all private cases are dealt with through arbitration with another 5% by private judging, while 22% are mediated and 7% through voluntary settlement conferences.

The study provides substantial detail on the characteristics of the providers and the nature of the procedures offered and used. It also examines dispute and disputant characteristics. A brief, but well stated conclusion asks some of the basic questions about the appropriateness of private practice of this kind and its effect on the general court system and proposes further research on the consequences of the growth of the private system for the public sector and for the disputants themselves.

This in an important study as it is one of the first to offer a broad view of the growth of private dispute resolution in any geographic area. There are many lessons to be drawn from the statistics provided and many additional questions raised by the study which need to be addressed. One of particular interest is the extent to which mediation is really overtaking other means of dispute resolution in fact as opposed to in the minds of dispute resolvers. No clear answer is available, but this should lay the foundation for more work in this and other areas.

Marcus, Leonard J., et. al., Renegotiating Health Care: Resolving Conflict to Build Collaboration, Jossey-Bass Publishers, 350 Sansome St., San Francisco, CA 94104-9825 (432pp $36.95 1995

Book review by James B. Boskey

There is no administratively complex industry than health care, especially in the hospital context. In what other industry does one combine two major distinct professions (medicine and nursing) each of which is divided into a pair of subprofessions (medicine and surgery) and each of which is further subdivided into a series of complex subspecialties who are employed in a mix of employee, independent contractor and other statuses, and then provide administration often from another professional area (business and medical administration) and impose the obligation to deal with funding sources ranging from government through private and quasi-public insurance companies to direct payment, and suppliers who are wholly external to, though dependent on, this full range of professionals. Add to that a customer base which has a very limited understanding of the complex of the industry and of the knowledge base on which it draws, but which is usually forced to rely on industry professionals in circumstances of crisis where the customer's own decision making powers are seriously compromised by external factors. Is it any surprise that the operation of hospitals and other medical facilities is, at best, an art rather than a science, and requires a range of professional skills, beyond the merely technical, which is at least as great as in any other industry or occupation.

Leonard Marcus and his co-authors approach this complexity from the viewpoint of negotiation and conflict resolution theorists, but, rather than focusing on the traditional areas of conflict identification and formal dispute resolution paint the complex picture of a hospital as a total institution and apply their theoretical insights to considering the management styles and techniques that are needed to both prevent formal conflict from arising and ameliorate its effect where it has already occurred.

The book is framed with a series of tales from the fictional Opidania Medical Center. While it may seem to the reader not versed in hospital operations that this is a peculiarly crisis ridden place, for those involved in hospital administration it will instead suggest the familiar tones of Edward R. Murrow saying, "It is a day like any other day, but you are there!". The tales, which range from problems of patient/provider interaction through staff conflict to major contract negotiation between the medical center and a large local HMO and the consequences of the failure of that negotiation, paint a very clear and accurate picture of many of the kinds of problems that can arise in any health care institution.

Based on the tales, the authors suggest ways in which the traditional armory of the negotiator/conflict resolver can reduce the scope of crises and sometimes prevent them from occurring. The armory includes the search for mutually beneficial solutions, the reframing of issues, the reconstruction of options, and the careful selection of participants, amongst many other means of maintaining a focus on institutional and individual needs and accomplishing the real and legitimate goals of all players. The authors do not fall into the trap of suggesting that even with the proper use of these tools all problems will be resolved successfully, but they make it clear not only that, but why, the use of these tools will enhance the likelihood of a successful conclusion. They also are careful not to imply that the solution to all dispute resolution opportunities can be reduced to a formula, but acknowledge the complexity of the search for the, or a, proper solution to each difficulty.

That the book is elegantly written and a pleasure to read should come as no surprise considering the outstanding authors who are involved. Nonetheless, the ability of Len Marcus to coordinate this project so that there is no inconsistency of tone is remarkable. The largest portion of the book was apparently written by Marcus, but the four additional authors each contribute a valuable chapter which utilizes the general model and applies it to a specific area of concern. Velvet Miller deals with the public health and health policy perspective, Janice Wyatt with balancing clinical and business issues in the health care management arena, Phyllis Beck Kritek applies her uneven table analysis to the position of nurses in the system to provide a model for the professionals most often caught in the middle in such negotiations, and Barry Dorn looks at the reconstruction of the doctor's role and the consequences of the need for the doctor to serve as manager as well as healer and some ways of accomplishing this goal.

This is an exceptional book in all respects. While it is primarily directed to the health care community, management theorists and consultants will find guidance within it which can be applied in any commercial and industrial setting. In a less productive year it would have been a shoe in for one of the outstanding book prizes, and even in a year such as this one which has produced so many exceptional works it is likely to be a strong competitor.

Mediation UK, Training Manual in Community Mediation Skills, Mediation UK, 82a Gloucester Road, Bishopton, Bristol BS7 8BN, England (338pp £39.50+£12p&p 1995)

Book review by James B. Boskey

Mediation UK does not do things by halves. Their Training Manual in Community Mediation Skills is over 335 full size pages in length, and provides comprehensive coverage of the skills and information that is or may be needed by a new mediator in a community mediation setting. Elegantly designed, with an attractive and effective layout and careful and effective use of various fonts, even before one turns to the substance of the book, the reader is assured that this is a work of real and serious quality.

And then we turn to the substance. The fundamental philosophy of Mediation UK is clear early on, as the principal substantive issue considered in the introduction is power imbalance and equal opportunity. The authors focus directly on the need for an effective community program to recognize that different groups and individuals have different degrees of power in society and that it is the responsibility of a mediation service to provide the opportunity to all such groups and individuals to both oppose discrimination and to provide each participant with the best possible opportunity to represent his or her own interests in as effective a means as possible.

The body of the Manual is divided into nine sections plus an introduction to the manual. A course based on the manual will proceed through the first six sections, the addition three being evaluation and assessment, trainer's notes, and resources, and will provide the trainee with a comprehensive understanding of the mediation process, the role and responsibilities of the mediator, and the skills needed to function effectively in that role. Each section provides a series of exercises and, nicely gathered at the end of each section, the handouts that will be used to perform those exercises and provide information about the issues considered in them.

The first section, Introduction to the Course, offers a series of icebreakers, trust games, and selected other games to be used as breaks during the course. The descriptions of the games are brief, but sufficient to provide the trainer with the information needed to implement them, and, where appropriate, ideas on debriefing or processing of the learning that is expected from the games. Handouts deal with the ground rules for participation and the goals of the course.

With the second section, the course turns to the nature of mediation and providing a basic understanding of conflict. The exercises take the form of brainstorming and discussion settings mixed with some modest role plays that explore the issues discussed. Attention is continuously paid to values and their role in the conflict and conflict resolution process. Handouts detail approaches and considerations in selecting and implementing conflict resolution approaches.

The third section focuses on getting ready to mediate, examining the listening process, building rapport, and working towards impartiality. The exercises are again supported by handouts which summarize the lessons to be learned and point out alternative approaches to resolving the issues identified.

Section Four provides an overview of the mediation process. Included are a demonstration of how people in a dispute behave, a mini-mediation, possibly based on the traditional orange pulp/orange rind simulation, and a more extensive mediation demonstration, which may use videos or actors to portray the process.

Section five is the most extensive section dealing with mediation in practice. It is divided into seven subsections dealing with different stages of the mediation process: first contact with first party, first contact with second party, preparing to work on the dispute, setting the scene, exploring the issues, building agreements, and closure and follow-up. Each of these processes is worked out through a series of exercises, and then the entire process is worked out with a range of different role plays.

The sixth section looks at working as a mediator including issues support and development, standards, telephone and other communication skills and the like. The evaluation and assessment and trainer's notes sections support this basic material.

There are many different programs that can be implemented on the basis of the materials in this volume. Three that are suggested in the trainer's notes are a one-day introductory and informational workshop, a five day 40 hour intensive training, and an evening and weekend 32 hour foundation course. Other permutations and combinations of the materials could be used to design courses to meet specific needs and goals. While there are occasional references to English law and practice, these are not fundamental to the program, and the materials could readily be used for a program in any country or region. While they are not, and indeed could not be, culturally neutral, the exercises and handouts provided are sufficiently general that they will rarely pose problems, and those that do could be easily adopted to local conditions.

This is a volume that every mediation trainer, whether working in the community mediation area or not, will want to have on his or her close bookshelf. For the community mediation trainer the program can be adopted almost as written in most areas, but even the more specialized trainer will find many gems that he or she can use to support their own training.

Price, Richard and Dunnigan, Cynthia, Toward an Understanding of Aboriginal Peacemaking, UVic Institute for Dispute Resolution, P.O. Box 2400, Victoria, BC V8W 3H7, Canada (66pp $13can 1995)

Book review by James B. Boskey

The idea that aboriginal peoples were inherently peaceable is, of course, a rousseauvian fiction reinforced by the fact that many of the researchers who have examined aboriginal societies did so at a time when their cultures were severely suppressed by surrounding colonial societies and often had been defeated in military conquest. Despite this, there is much to learn from these societies in terms of forms of peacemaking, partly to assure that members of these societies are able to participate in peacemaking efforts being used today, but also because some of their peacemaking models can be elaborated for effective use by members of other cultures.

Price and Dunnigan offer in this study an intelligent and substantial look at such peacemaking devices, primarily amongst Canadian First Nations peoples, both in historical and modern settings, and combine this with a carefully annotated bibliography that will allow the reader to expand on the information provided.

The study begins with an examination of intertribal historical means of peacemaking with selected examples from the Canadian experience. The authors note clearly that not all relations were peaceful, but that mechanisms existed which could enhance peaceful relationships, especially where there was substantial parity between groups. Examples discussed include the building of intergroup kinship ties, the use of formal gift giving ceremonies and trade, and the use of peace-pipe ceremonies and other treaty making devices. They continue with a look at indian-european relations in the fur trade and French-Algonquian negotiations in the western great lakes area, and then examine some of the breakdown of peace processes and their reestablishment later in the British-Indian relations. Finally they turn to examining three modern First Nation peacemaking processes: inter-tribal dispute resolution processes amongst the Salish, sentencing circles in Alberta and the Yukon, and the Navajo Peacemaker Court. They close with a brief discussion of ways of building cross-cultural peacemaking.

This report, as good as it is, merely whets the appetite for more information. The information offered is valuable, but too little space is provided for the extended discussion which is really needed. It is to be hoped that the authors will expand this study into the book length manuscript that is really needed to begin the dialog that they commence.

Rogers, Thomasina V., Toward Improved Agency Dispute Resolution Implementing the ADR Act, Administrative Conference of the United States, Suite 500, 2120 L St. NW, Washington, DC 20037-1568 (55pp 1995)

Book review by James B. Boskey

This Report, by the Chair of the Administrative Conference of the United States (ACUS) to the Congress, is an evaluation of the Administrative Dispute Resolution Act (ADRA), which is due to sunset in October 1995 and a proposal for its reenactment with specific amendments. The ADRA is the primary authorization for federal agencies to participate in dispute resolution activities, although, as noted in the report, in a formal sense no such approval was needed for nonbinding processes. Nonetheless, the ADRA has been extremely effective in encouraging agencies to establish ADR plans and programs, and substantial savings have resulted to the federal government from these activities.

After an introduction and summary of the Act, the report sets out the activities of the ACUS in the ADR area, before and after ADRA, but with its primary focus on the latter. It then reviews the extent of implementation of ADR activities within the Federal Government with some passing mention of their effectiveness in meeting agency and public goals. This is followed by a discussion of some of the issues that have arisen in the implementation of the Act, followed by a recommendation that the Act be reauthorized and proposals for specific amendments to improve its functioning.

Mediation UK, Victim-Offender Mediation Conference: Collected Papers, Institute for the Study and Treatment of Delinquency (ISTD), Kings College London, Strand, London WC2R 2LS, England (20pp price not stated 1994)

Book review by James B. Boskey

This volume reports on a conference on victim-offender mediation held in London on February 9, 1994 under the sponsorship of ISTD and Mediation UK. It includes only the two principle papers given, as the remainder of the conference consisted of workshops which were not reported. The two papers offered are Philip Priestly's introductory personal view of "positive justice" and Marian Liebmann's more extensive paper reviewing the status of victim-offender mediation in the United Kingdom.

Martin, Carol, Resolving Crime in the Community: Mediation in Criminal Justice, Institute for the Study and Treatment of Delinquency (ISTD), Kings College London, Strand, London WC2R 2LS, England (32pp £5 1995)

Book review by James B. Boskey

Resolving Crime in the Community is the report of a conference held in London on September 23, 1994 under the sponsorship of ISTD and the London Victim-Offender Mediation Network. The volume consists of three papers presented at the conference, an introduction to the conference offered by its chair Tony Marshall, and a brief conference summary reprinted from another publication.

The three papers are John Brathwaite's discussion of restorative justice reform in New Zealand and Australia, Teresa Reynolds analysis of the question of whether shaming is an appropriate reintegrative device to deal with victim needs, and a further discussion of shaming by Terry O'Connell. John Brathwaite also includes six case studies from New Zealand on the use of ceremonial restorative justice techniques. The papers are brief but informative, and the volume provides some useful perspectives on recent developments in the way in which victim-offender relations are perceived.

NYSE, New York Stock Exchange, Inc. Symposium On Arbitration In The Securities Industry: A Report, NYSE, 11 Wall St., New York, NY 10005 (13pp 1995)

Book review by James B. Boskey

This brief report on a symposium held by the New York Stock Exchange in late 1994 is of more importance than its length would suggest. The symposium was used to discuss emerging issues in securities arbitration and this report presents the recommendations of the symposium on each of the major issues. Considering the attendance at the quality of the recommendations, it is likely that both the NYSE and the SEC may take note of these recommendations in seeking to reform the arbitration process. Amongst the issues considered seriously were the eligibility (six year) rule, the awarding of punitive damages and the appropriateness of continuing to allow a choice of law which usually bars such damages, and other issues.

Palmer, Nancy S. and Tangel-Rodriguez, Ana, When Your Ex Won't Pay, Pinon Press, PO Box 35007, Colorado Springs, CO 80935 (174pp $12 1994)

Book review by James B. Boskey

Nancy Palmer is an experienced matrimonial attorney in Florida who now practices exclusively as a mediator and Ana Tangel-Rodriguez is an attorney specializing in the collection of child support under contract to the state of Florida. Together they have written a valuable guide to the establishment and collection of child support from a national standpoint. The focus of the book is on providing the claimant for support, usually the wife, the information that will allow her to decide whether a claim should be made and the appropriate elements to consider in making such a claim, as well as some of the factors that make it possible to enforce a judgement of child support once received.

The tone of the book is basically chatty, mostly in the first and second person. The authors take the view in almost all cases that it is the responsibility of the custodial parent to maximize the amount of child support being received, and look at child support as fundamentally a right of the child rather than the parent. They examine child support in the context of the traditional family, the complex family, and the non-family, and do so with attention to the various approaches to child support questions that are taken by the different states.

It is never possible in a national book such as this to achieve 100% accuracy, and there are various points at which I would question the authority of their statements. Examples include post-majority support and support for post-secondary education which they imply can never be ordered, although many states, not including Florida, do allow such provision in court orders. They also emphasize the use of public programs to establish and enforce support to a greater extent than may be appropriate in all cases. A further weakness is the failure to deal with the problems resulting from the federally mandated non-modifiability of support orders, and the consequences for the claimant. Despite these matters, the book is largely accurate and provides substantial detail on an area of law that is more important to clients than to lawyers and frequently not well covered in mediation training.

The tone of the book is friendly, but heavily advocacy oriented. A great deal of time is spent attempting to convince the reader of the justice of making support claims and encouraging such claims to be prosecuted in all cases. The book can be well recommended for the client with child support issues. From the attorney's viewpoint it can be used to convince the reluctant client to claim her rights and for the mediator it serve to answer payor's objections as to the legitimacy of claims for such support.

McMahon, Christina, Implementing Peer Mediation: A Teachers' Guide, The Conflict Resolution Network, P.O. Box 1016, Chatswood, NSW 2057, Australia (70pp $A35 1995)

Book review by James B. Boskey

McMahon, Christina, Implementing Peer Mediation: Student Workbook, The Conflict Resolution Network, P.O. Box 1016, Chatswood, NSW 2057, Australia (40pp $A12 1995)

Book review by James B. Boskey

There have been several worthwhile manuals published on the implementation of peer mediation programs in the schools, and McMahon's is yet another worthwhile alternative for that purpose. Although McMahon is Australian and the program described was designed for use in Australian schools, there is little about it that is country specific and it could easily be adopted elsewhere.

Unlike some of the other manuals, this one is designed to be used specifically in conjunction with an expert consultant in mediation or at least by a teacher or school administrator with substantial mediation experience. McMahon spends relatively little time in the Teacher's Guide describing the nature of mediation or the peer mediation process and focuses instead on the implementation of a program. She distinguishes between whole school and classroom programs, clearly favoring the former while recognizing that in particular schools or systems only the latter may be possible. The guide focuses on the specific steps necessary to get the program operational and is clear and direct in providing this information.

The student manual is similarly concise and clear. Substantial teacher input will be needed to use it, but for an experienced teacher/mediator it may be a more attractive alternative than works which tend to spell out every detail for the student in text. The entire Student Workbook is included in the Teacher's Guide so that it is readily available for teacher review.

Moore, Melanie, Wong, Pia, and Mclaughlin, Milbrey, Evaluation of Phase 1 of the Whole School Conflict Resolution Project, Community Board Program, Suite 490, 1540 Market St., San Francisco, CA 94102 (24pp $5 1995)

Book review by James B. Boskey

The Whole School Conflict Resolution Project was launched by the Community Board Program in three San Francisco high schools in Spring 1994 and phase 1 continued throughout the 1994-95 school year. The goals of the project were to foster a safe and supportive school environment, improve school staff's ability to respond to crisis and prevent conflict, increase student's conflict resolution capacity, increase parent awareness and improve parenting skills, and develop student job readiness skills in communication and negotiation. The program is designed to be implemented over a three year period at nine schools.

The action plan involved training of peer mediators, adult staff, creation of parent workshops and neighborhood mediation forums, and development of school and school related personnel to implement and maintain these programs. This report describes the success of the program during its first 1½ years at each of the schools. Generally the report indicates that the first stage of implementation has gone well and that the program has not only been accepted but welcomed at each site.

McLaren, Richard H. and Sanderson, John P., Innovative Dispute Resolution: The Alternative, Carswell, PO Box 1991, Station B, Toronto, ON M5T 3G1, Canada (413pp $97.50 1994)

Book review by James B. Boskey

The tone and nature of Innovative Dispute Resolution: The Alternative is well established in the opening words of the foreword:

"Why does a former litigator combine with an academic to produce a book that is not in a traditional legal format on a topic which the legal profession is trying to ignore?"

Irreverent, amusingly and well written, and clearly analyzed, this volume is one of the best books for the advocate in dispute resolution available on the market today.

Although the authors describe the book as not being designed specifically for lawyers, it is to lawyers that it will be most valuable, although business people and other disputants will find it very useful as well. It offers a clarity of focus on the decision to use alternative means of dispute resolution and the implementation of that decision that is, if not unique, at least very rare in the field

McLaren and Sanderson are both Canadian lawyers with extensive backgrounds in labor/management dispute resolution. Each has moved from this narrow focus to active involvement in a wide range of dispute resolution activities, and while their views on dispute resolution are informed by their backgrounds they are not limited by them. Rather they have taken the knowledge they acquired as advocates and neutrals in the labor process and generalized that knowledge, with a great deal of additional research and experience, into a broad range of understanding of the goals and methods of dispute resolution.

The list of topic considered in Innovative Dispute Resolution is not, on its face, extraordinary. Chapters deal with factfinding, early neutral evaluation, mediation, arbitration, mediation-arbitration, mini-trial, and international commercial arbitration. The book is, however, by no means as limited in scope as this list of topics would suggest. Other forms of dispute resolution such as ombuds processes and non-binding arbitration are considered in the course of discussion, and, more importantly, the overlaps between the processes and the development of hybrid processes combining different dispute resolution techniques are given full consideration.

The overall outline of each of the chapters is similar. Each begins with a description of the basic technique under consideration including the type of neutral needed, timing of the use of the process, the process itself, and the role of lawyers in the implementation and execution of the process. This is followed by a discussion of the process of selecting the neutral with separate consideration given to the type of person appropriate to particular disputes. Additional sections in each chapter deal with the process of preparing for the dispute resolution activity, offer case study examples of the approach, and discuss precedents (basically forms and rule sets) for the process.

The constant focus of each of the chapters is on accomplishing the needs and goals of the parties to a dispute. Unlike many of the works in this field, which even when purporting to discuss advocacy end up focusing on the neutral, the authors here keep their attention on the needs of the parties and their advocates. The decisions involved in selecting the best process for the type of dispute and the best means of implementing this process are always primary.

This would be an excellent volume for a neutral or dispute resolution administration service to present to an attorney who they were trying to recruit as a source of cases. A careful reading of the book will both increase the volume of cases referred and allow the neutral to maximize her effectiveness in accomplishing the parties needs and goals.

Plapinger, Elizabeth, Confidentiality in ADR, CPR Institute for Dispute Resolution, 366 Madison Ave., New York, NY 10017-3122(141pp $50/$15 for CPR members 1995)

Book review by James B. Boskey

In the last issue of this newsletter I reviewed several of the new volumes in the Model ADR Procedures and Practice series from the CPR Institute for Dispute Resolution. Three additional publications in this series have recently become available, and I am pleased to have the opportunity to deal with them as well.

Confidentiality in ADR similarly begins with a collection of articles from CPR publications on confidentiality issues. Included are articles on general principles, court adr, multiparty adr, and government settings-the latter being a statement by the Administrative Conference of the United States. The second section includes CPR's model ADR confidentiality clauses, procedures and agreements, while the third section offers a selected bibliography. Again the materials here are available in other publications, but this collection offers a convenient means of examining important discussions of one of the essential issues in dispute resolution.

Moscovi, Serge and Doise, Willem, Conflict and Consensus: A General Theory of Collective Decisions, Sage Publications, P.O. Box 5084, Thousand Oaks, CA 91359-9924 (214pp $69.95(c) $21.95(p) 1994)

Book review by James B. Boskey

Moscovi and Doise are social psychologists who, in this volume, propose a general theory of collective decision making. The process of collective decision making is a complex one. In initially thinking about the process where a group of individuals collaborate in reaching a conclusion, one might expect that the ultimate decision would be a compromise somewhere towards the center of gravity of the ideas of all participants, but both experience and research have indicated that this is not necessarily, nor even usually, the case. Rather, it is not uncommon for group decisions to cluster near one end of the spectrum of possible results. It is this phenomenon which forms the basis of the analysis here.

Various factors may tend to lead to this result. Amongst them are the relative efficiency of many groups in discovering a broad range of possible solutions to a particular problem that is posed to them. Interestingly, the efficiency of the group in discovering such solutions is enhanced, rather than compromised, if members of the group have no strong prior relationship with each other. Brainstorming, one of the basic techniques for identifying such solutions, is more effective if conducted by those with a wide range of possible perspectives than those who share a common viewpoint.

Similarly consensual participation in the decision making process tends to encourage collective involvement whereas normative participation lowers it. The latter tends to polarize the level of involvement, while the former leads to modification of the central ideas towards a just or correct mean. Thus, to the extent that the group can be denormalized, it is more likely that an efficient result will occur and that it will draw the group together is support of the eventual conclusion.

This is a seriously oversimplified statement of a complex and sophisticated argument that is fully and clearly detailed by the authors. From a dispute resolution point of view, their analysis and conclusions are important as they address some of the basic concerns that arise in any disputing situation. A careful study of the material offered will be well repaid in one's understanding of, and ability to assist in, the process of consensus development for groups of any substantial size.

Reynolds, Michael P., Arbitration, Lloyds of London Press, 27 Swinton St., London WC1X 9NW, England (211pp £29 1993)

Book review by James B. Boskey

Michael Reynolds' Arbitration is a clear, well written, introduction to the practice of arbitration in England designed for the potential user of arbitration services rather than the attorney or arbitrator. Rather than attempting to deal with many of the abstruse theoretical questions that can arise in the arbitration process, he has focused on the issues that will be of concern to an individual or company who is involved in a dispute, or is entering an agreement that may incorporate an arbitration clause, and provides a solid basis for understanding the appeal of and limitations on the effectiveness of arbitration as a procedural process.

The first section of the book addresses preliminary considerations, defining arbitration as a consensual process and looking at the binding effect of an arbitration agreement. Some attention is paid to the form of the agreement, but, while Reynolds suggests care in its drafting, he provides less guidance than many would think advisable.

The bulk of the book is the second section which examines the mechanics of arbitration. Reynolds begins by examining several of the major procedural rules sets available in England and then turns to an examination of the arbitration process. He walks the reader through each step of the process, from preliminary fact analysis, through the hearing, to the enforcement of the award and questions such as award of costs and the like. At each stage he is clear as to the most common processes, but also points out important variations that may arise from the nature of the case or the style of the particular arbitrator. While his treatment of the law of arbitration is not detailed, he is careful to point out areas where the law sets limitations on the process and call attention to major cases impacting on arbitration procedures. He is also not shy about calling attention to areas where law reform would be appropriate to improve the quality of the arbitration process in England.

The final section of the volume is entitled "The Key to Successful Arbitration". This section begins with hortatory comments on the importance of management of the arbitration process and preparation for arbitration as well as a discussion of the respective roles of lawyers and clients in the process. This is followed by a brief survey of arbitration in Europe, country by country, providing some elementary guidance to special process features that exist in each country. Finally a set of extensive appendices offers the arbitration statutes, the Chartered Institute of Arbitrators rules, a model for fast track arbitration, and a collection of forms for special situations.

Overall, the book is a useful introduction to the arbitration process in England. It might well be read by a student seeking to obtain an overview or by a potential user of the arbitration process seeking to evaluate its applicability in a particular situation. Reynolds, unlike many other authors in the field, is not hesitant in setting out problems as well as advantages to the use of arbitration, and, in doing so, he makes the work more valuable.

Nagel, Stuart S., Legal Scholarship, Microcomputers, and Super-Optimizing Decision-Making, Greenwood Publishing, PO Box 5007, Westport, CT 06881-5007 (232pp $59.95 1993)

Book review by James B. Boskey

Stuart Nagel, who has long specialized in the use of microcomputers and microcomputer programs for the analysis of negotiation, turns to a related, but somewhat different area in this new work. Instead of focusing on programming, he has elected to examine the concept of super-optimization of negotiation results in a somewhat more traditional context.

The idea of super-optimization is one derived from game theoretical analysis of negotiations. A parieto-optimal solution to a particular negotiation/game is the result, reachable by the parties through direct negotiation, which will maximize the joint benefits to the parties. A super optimal solution is one which the parties cannot reach through direct negotiation, but which would yield superior benefits than any solution that they can reach directly. Nagel fails to mention the source of the concept, but a description and mathematical analysis of such solutions can be found in Howard Raiffa's marvelous book The Art and Science of Negotiation.

Nagel has taken this concept of super optimization and attempted to apply it a variety of real world situations. Unfortunately, his failure to define the concept will lead many readers to conclude that all that the concept means is looking creative ways to resolve negotiation issues. He takes several "political" negotiation problems from the third world-preventing bicycle accidents in China, improving traffic problems in the Philippines, etc.-and proposes solutions that the parties engaged in attempting to resolve the problems have been unable to identify directly.

Nagel's approach to the location of super optimal solutions involves a determination of the basic goals of each of the parties to the negotiation, a ranking of the relative importance of each goal, classification of each parties solution as conservative, liberal or neutral, and then the presentation of a purportedly super optimal solution that accomplishes more of the goals of each of the parties than any solution that has been previously proposed. Nagel does not, however, offer a process for discovering the super optimal approach, nor does he demonstrate why the parties themselves could not have reached the super optimal solution that he proposes, except where in several cases his solutions are "cheats" raised by bringing in additional governmental resources that were not available to the original negotiators. Indeed, in several cases-the bicycle case being one, it is not clear that his solution is in fact super optimal rather than parieto optimal, a distinction which he fails to draw. Rather he presents each super optimal solution as if it had sprung full-born from the head of Zeus and was discovered by the unique brilliance of the analyst. There are structured processes by which super optimal solutions are discoverable, but Nagel fails to reveal these, reveling rather in the apparent brilliance of the discovered solution.

Additionally Nagel oversimplifies the process of evaluating the goals of the parties. His oversimplifications may be justifiable, but he fails to offer the justification, leaving the reader with the impression that he has often overlooked additional concerns which would have to be dealt with in the real world. His tone further suggests that the mere offering of the super optimal solution will lead to each party accepting the solution while praising its discoverer, ignoring practical and political factors that may make the acceptance of such solutions difficult.

The search for parieto and super optimal solutions is an important goal for those involved in both the analysis and implementation of negotiation processes. Unfortunately this volume will not be of great assistance to them in accomplishing these aims.

Ordover, Abraham P., Alternatives to Litigation: Mediation, Arbitration and the Art of Dispute Resolution-Simulations, National Institute for Trial Advocacy, 1602 North Ironwood, South Bend, IN 46635 (87pp $5 1993)

Book review by James B. Boskey

In the last issue of this newsletter I reviewed Abraham Ordover's new book on alternatives to litigation which was published by the National Institute for Trial Advocacy. Since the publication of that issue, I have received a copy of the simulations which were published to supplement that volume.

The volume, nicely packaged in a three ring binder, offers eighteen simulations designed for use with the book in a mediation and assisted negotiation training program. Most of the simulations are straightforward, a good thing as no instructions for their use are provided with them, the author assuming that an instructor using the volume will be familiar with simulation techniques and the manner of presenting a simulation to a class or training group. Most of the simulations offer a set of general facts to be distributed to all participants and sets of private facts to be provided to each of the parties. They appear to be designed so as to be useable for any dispute resolution training, whether focused on negotiation, mediation, arbitration, or other means of dispute resolution.

The subject matter of the simulations varies widely. Amongst the subjects covered are gender discrimination in pay for a law firm associate, a personal injury matter involving injury to a child, lease negotiations, sexual harassment, an Americans with Disabilities Act problem, a labor relations issue, etc. More complex simulations include a highway construction problem with five players and an environmental problem with four participants.

Having not used the simulations, it is difficult to fully evaluate them, however, a couple of observations can be made. Most of the simulations are sufficiently complex to have no single solution and are well designed to require a balancing of interests between the parties for a solution to be reached. They also appear well designed to encourage principled negotiation, or at least a cooperative approach, and to lend themselves well to third party intervention. I expect to try several of these simulations with my course in negotiation, and I feel that many teachers and trainers will find them useful in planning their own programs.

Moscovi, Serge and Doise, Willem, Conflict and Consensus: A General Theory of Collective Decisions, Sage Publications, P.O. Box 5084, Thousand Oaks, CA 91359-9924 (240pp $69.95(c) $21.95(p) 1994)

Book review by James B. Boskey

Conflict and Consensus combines a comprehensive review of the social-psychological theory of group decision making with the presentation of a new generalized theory of such decision making. Much traditional scholarship in this area has suggested that the normal result of such decision making is compromise with the decision that results being somewhere near a midpoint amongst the views of all parties. Exceptions have been seen as based on either imbalances of power amongst the decision makers or an agreed common basis for establishing external truths.

Moscovi and Doise have identified an alternative reason why group decisions may tend to one extreme rather than being compromised. Their theory is complex, but rests on a range of factors including the climate of the discussion. In the course of presenting their theory, they review the literature extensively and deal with most of the alternative theories that have been presented. This is not an easy book to read. The writing is often less than clear and the pattern in which the argument is stated can also be confusing. Nonetheless, for one who wishes to become familiar with all that has been said on group decision making in the psychological community, this will serve as a primary reference.

Jacobs, Marcus S., Commercial Arbitration: Law and Practice, The Law Book Company, 44-50 Waterloo Road, North Ryde, NSW 2113, Australia (4vols $A495 1990-92)

Book review by James B. Boskey

Jacobs' Commercial Arbitration: Law and Practice is probably the most comprehensive work ever written on the law and practice of commercial arbitration in a single nation. Its four looseleaf volumes, updated quarterly, offer comprehensive coverage of all aspects of commercial arbitration in Australia and international commercial arbitration from an Australian point of view. Drawing on case law and statutory information from Australia, Great Britain, the Commonwealth, and the United States as well as various international arbitration reporters, it provides a breadth of information that is breathtaking.

Although published in four volumes, the work is really divided into three parts, the first two volumes carrying the numbers 1A and 1B. These two volumes deal, in 54 chapters, with the substantive law of arbitration. The chapters are grouped into the following categories: preliminary, appointment of arbitrator and umpire, conduct of the arbitration proceedings, awards and costs, powers of the court, general provisions as to arbitration, and foreign awards-miscellaneous. Volume 2 of the set primarily addresses practice issues. Drafting considerations are given a strong priority and attention is paid to other forms of alternative dispute resolution. Various types of arbitration and forms of reference are discussed as are issues in the conduct of the hearing and the enforcement of the award. This volume covers chapters 54-92 and includes a detailed index. The final volume consists of the appendices which include statutes, court rules, and extensive examples of arbitration and other dispute resolution clauses.

The text of the volume is clearly, but not terribly elegantly presented. There is, perhaps, too much reliance on quotations from cases and other documents rather than analysis by the author. Despite this weakness, it is difficult to conceive of anyone seriously entering the practice of arbitration in Australia without this set. The information offered is so comprehensive as to make it an essential reference for any questions that arise and the collection of forms is outstanding.

Ramirez, Gloria, et. al., Jeux et Violences: Jeux Agressifs, Jeux Coopératifs (Games and Violence: Aggressive Games, Cooperative Games, Non-violence Actualité, BP 241, 45202 Monargis cédex, France (48pp 70ff 1992)

Book review by James B. Boskey

This volume offers a series of essays on children and play, dealing with the question of whether violent play is appropriate and/or necessary for young children. The individual essays are fairly brief, but clear and well written dealing with such questions as war games, gender stereotyping, ritual violence and the like. Overall the conclusion is that violence is not inappropriate in children's play, but that there is a need for children to understand and learn from that violence the limits of appropriate conduct.

Macneil, Ian R., Speidel, Richard E., and Stipanowich, Thomas J., Federal Arbitration Law: Agreements, Awards and Remedies Under the Federal Arbitration Act, Little Brown, 34 Beacon St., Boston, MA 02108 (3024pp-5 vol. $695 1994)

Book review by James B. Boskey

It is difficult to imagine a more exceptional set of authors to prepare a treatise on federal arbitration law than Professors Macneil, Speidel, and Stipanowich. Between them they offer a breadth of background, not only in arbitration but in various related areas of law that is manifested throughout the volume in the depth of analysis that is offered.

The five volume treatise is divided into nine sections plus appendices: Overview of Arbitration in the US and Arbitration under the Federal Act, Introduction to the Act, Enforceability of Arbitration Agreements, Initiating Arbitration, The Arbitrator and Administering Institutions, The Arbitration Process, Arbitral Remedies and Awards, The Award in the Courts, and Appeals. The appendices offer selected statutes, treaties, procedural rules, institutional rules-including AAA commercial mediation rules, AAA forms, and the AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes. The one area temporarily omitted from the volume in the effect of the Federal Arbitration Act in international arbitrations. A major chapter on that subject is currently being prepared, and will be added to the volume in a year or so. The writing in the book is consistently clear and direct throughout, and, while the different authors' styles can be recognized in the chapters that they primarily prepared, each of them is an excellent writer and the style difference do not prove disturbing.

This is a "true treatise" on the Act. By that I mean that it is far more than a practitioner's guide to how to arbitrate or how to enforce arbitration agreements or awards in the courts. Rather it provides a detailed understanding of both the law and procedure under the Act and does not pretend that there are simple answers to complex questions. Much of the law of arbitration is still unsettled, although recent United States Supreme Court cases have begun to standardize many aspects of arbitration jurisprudence. The authors are not, and do not pretend to be, neutral as to the way in which the law should develop, but rather, while accurately describing the current state of the law, do not hesitate to critically evaluate that state and propose appropriate directions in which the law should develop.

From the viewpoint of the academician this is a uniquely valuable contribution to the literature of arbitration. For the practitioner it will also be very valuable, but somewhat more difficult to use. While it is possible to dip into a chapter to find citations to support a particular view, each chapter really demands to be read as a whole, and often to be read in the context of other chapters or sections of the book, in order to develop a real understanding of the topics discussed. Often practitioners, especially those on the arbitration and trial level as opposed to appellate practitioners, are reluctant to spend the time necessary to acquire the kind of sophistication that this work offers. For those who can invest that time, they will find that the quality of their work product will improve greatly as they will be able to offer the courts or other tribunals a truly sophisticated analysis and understanding of the issues that they face.

Miller, Francis, Arbitration, Ruthrek Ltd., 19 High St., Herne Bay, Kent, England (121pp 1994)

Book review by James B. Boskey

Although we have never met in person, Francis Miller has become a friend through our periodic communications about our respective newsletters. Mr. Miller was, until recently, the editor of Arbitration News & Views, which is the newsletter of the South East Branch of the Chartered Institute of Arbitrators. This newsletter, which covers arbitration activities in southeastern England, was, under his supervision, and continues to be under his successor's, one of the most enjoyable newsletters I read with its light, personal and often humorous tone.

Mr. Miller, who has recently retired from his editorial labors, has produced, in Arbitration, a volume which carries forward the tone of that newsletter, while providing useful information about the nature of arbitration and the ways in which it is best conducted.

The body of the book is a socratic pluralog between A-an experienced lay arbitrator, B-a barrister, C-a man of commerce, and S-Socrates, with occasional input from P-Plato, who serves as secretary and scrivener for the discussion. The imagined pluralog takes place over a five day period with luncheon and dinner breaks, and covers a wide range of issues as to the nature of arbitration. The tone is deliberately kept light, but the substance of the discussion is serious and informative, and the reader is gently led to an in depth understanding of the nature of arbitration, some of the problems with arbitration schemes, and many ideas for the improvement and elaboration of the process. The footnotes are similarly light in tone, but detailed and accurate as to sources and alternative approaches that could be suggested that did not fit within the pluralog itself. An appendix offers a set of arbitration rules, developed by Mr. Miller from existing texts, which provides some of the substantive basis for the discussion.

It takes a wise, and perhaps somewhat foolish, person to take the risk of informal presentation of difficult issues. It would be very easy for a book of this kind to sink into trivialities, but instead Mr. Miller has proven himself a master of a very difficult art. This is not a book that one would choose to introduce a novice to the idea of arbitration, nor is it designed as such, but it would be very high on the list of readings for a person experienced in arbitration who wishes to improve not only his or her knowledge, but more importantly understanding of the essence of arbitration practice.

The CPR Institute for Dispute Resolution (formerly the Center for Public Resources), 366 Madison Ave., New York NY 10017 has issued three modules in its ADR Training Series. Each module consists of a trainers manual and a participant's coursebook.

Module I: Introduction to Business-Related ADR (1991)
Trainer's Manual (100pp + 9 transparencies)
Participant's Coursebook (179pp)

Module II: Selected Issues in ADR Practice (1991)
Trainer's Manual (96pp + 11 transparencies)
Participant's Coursebook (133pp)

Module III: ADR Suitability Analysis and Methods (1992)
Trainer's Manual (151pp + 13 transparencies)
Participant's Coursebook (163pp)

Although the CPR Training Modules discussed herein are less recent than many of the materials that I review here, I have not previously had an opportunity to review them, and, having done so, feel that they are important enough that they should be called to the readership's attention. The materials are restricted to non-profit use only and demand, to my mind although the authors differ somewhat on this, an trainer with substantial knowledge and experience in ADR. Given those factors, they appear to be as good a training package as is available in the areas covered.

The first module, designed for about 2 1/2 hours of training time consists of four segments. The first, an introduction (5 minutes) offers an orientation to ADR and presentation of the distinction between non-binding and binding processes. It also looks briefly at court-related ADR processes. The second segment (20 minutes) includes an overview of the development of ADR, its influence on the legal community, and a preliminary look at some of its benefits. The third segment (90 minutes) surveys the ADR landscape and involves the trainees in evaluating the merit of different arbitration modes. The final segment (30 minutes) examines court related ADR.

The second module (2 1/2 hours) builds on much of the learning in the first. It is divided into three segments. The first ADR Flexibility (30 minutes) discusses the development of novel or specially designed ADR processes both in pre-litigation and during litigation stages. It discusses the process of developing such processes and the practical consequences that must be evaluated in their development and use. The second segment (75 minutes) looks at implementation issues including ADR clauses and their enforcement, discovery, confidentiality, neutral selection, etc. This is set in the context of an extended simulation of a fuel supply contract situation. The third segment (45 minutes) deals with convincing an opponent to use ADR and includes an exercise in this area as well as ideas on how to address objections to the use of the processes.

The third module (2 1/2 hours) focuses on issues of suitability of particular disputes for ADR and particular processes. After a five minute introduction, it is divided into six segments: a look at CPR model procedures (5 minutes), preliminary suitability inquiries (30 minutes), suitability checklists (45 minutes), applying the checklists (30 minutes), detailed suitability analysis (90 minutes) and the next steps (20 minutes).

Each of the modules training manuals includes an extensive outline of information, appropriate transparencies, and selected simulations and games to involve the participants in the training process. The participant's coursebooks support this with copies of some of the materials from the trainers manuals and articles and other materials elaborating on the points made.

This is a very sophisticated training system, well designed for business persons and others involved in commercial situations in which ADR may be useful on a day-to-day basis. The training manuals are well thought out and the supporting materials and exercises well designed to orient such individuals to the sophisticated use of ADR.

Miller, Richard M., Partnering, Compass Consulting Group, 17175 Bay St., Jupiter, FL 33477 (36pp no price stated 1993)

Book review by James B. Boskey

Richard Miller's Partnering describes the important new dispute prevention and dispute avoidance process that has begun to be used extensively in the construction industry and provides summary information on how to implement the process. As Miller points out himself, this is more of a booklet than a book, and the amount of detail that can be offered in such a brief compass is limited.

On first looking at Partnering, I expected to be very irritated by it. It is printed, for the most part, in a non-standard, informal, font and makes what I would generally consider overuse of diagrams to the point of cutseyness, a good example being the structuring of the table of contents as a flow chart. Despite these expectations, I was pleasantly surprised to find that many of the things that I expected to object to worked well within the context of an introductory book.

Miller begins by providing an overview of the partnering process and the environment in which it works. He suggests the reasons why the process is preferable to standard disputing and dispute resolution processes, and then proceeds to offer a more detailed statement of the way in which the process is implemented including the three basic products: the charter, the evaluation process, and the issues resolution process.

This book would not, by itself, allow the reader to implement the partnering process effectively, but that is not what it is designed to do. Rather, it is intended to sell the process to those who will be participating in it, and in this respect it should be a useful tool.

Morris, Catherine (ed.), Resolving Community Disputes: An Annotated Bibliography About Community Justice Centers, UVic Institute for Dispute Resolution, PO Box 2400, Victoria, BC V8W 3H7, Canada (60pp 1994)

Book review by James B. Boskey

Resolving Community Disputes is another in the useful series of annotated bibliographies that have been published by the Institute for Dispute Resolution at the University of Victoria in British Columbia. It opens with a useful 14 page introductory essay on the nature of community dispute resolution programs and some of the issues that they face. The bibliography contains articles, reports and books on community justice and program issues from a wide range of English language sources, each listing supported by a one paragraph annotation describing the substance of the issues dealt with in the publication. Also included are author, title, and subject indexes. The annotations are clear and to the point and will provide an understanding not only of the topics covered in the underlying publications, but also the slant on the issues taken by the authors.

National Institute for Dispute Resolution, Dispute Resolution in State Courts: Sample Legislation and Court Rules-Resource Notebook 2, NIDR, the National Institute for Dispute Resolution, 1901 L St. NW, Suite 600, Washington, DC 20036, 202-466-4764 (~300pp 1993)

The Resource Notebook offers a collection of statutes, court rules, and other formal state documents from 12 states that deal with a wide range of dispute resolution issues. It was collected to provide examples of the kind of enactments that are occurring in the states at large.

Mayberry, Grant E., Successful Negotiating (stock #95024OR1), The American Management Association, Educational Services, 9 Galen St., Chartley, MA 02712 (110pp $99.95 1993)

Book review by James B. Boskey

The American Management Association offers one of the most comprehensive sets of training materials of any professional organization. The two items reviewed here are examples of their independent study curricula. They are presented in attractive looseleaf binders, carefully printed and clearly presented.

Mayberry's Successful Negotiating is similarly structured, with text, review questions, a first examination, a practice case, and an examination case. The text is somewhat less accessible than Byrnes, with the case examples being a bit too short for my taste. Also the text is extremely directive, looking largely to a single style and approach to negotiation rather than recognizing the range of approaches that are possible, and individual sections tend to be too brief to allow for the development of a full understanding of the processes described.

The course is divided into five units: Planning for Negotiation, Prenegotiation Preparation, Developing Strategy and Tactics, Negotiation Techniques, and The Negotiation Session. Little attention is paid to the idea of cooperative approaches and win-win strategies, and the student is apt to finish the course believing that there is a single best approach to all negotiation situations. The basic analogy of negotiation as war is an implicit assumption of most of the material.

Unlike the Byrnes course, this one cannot be recommended. There are too many excellent negotiation training courses and books available for a limited approach like this to be accepted.

Ross, Mark Howard, The Culture of Conflict, Yale University Press, 92A Yale Station, New Haven, CT 06520 (264pp $30 1993)

Ross, Mark Howard, The Management of Conflict, Yale University Press, 92A Yale Station, New Haven, CT 06520 (232pp $25 1993)

Book review by James B. Boskey

In The Culture of Conflict Mark Howard Ross presents an elegant, detailed and closely reasoned analysis of the factors that lead a culture to be heavily engaged in conflict behavior or to have such behavior play a relatively small role in social functioning. Ross uses the tools of political anthropology and psychocultural analysis to present a large quantity of cross-cultural data and test the mutual hypotheses that conflict in a society is structurally or culturally based, developing a sophisticated group of answers which draw on both theoretical approaches to attempt to unify our understanding of conflict management.

Ross begins by noting the extraordinary differences that exist in levels of conflict in different societies, starting with the traditional dichotomy of the Yanomamo (known as the fierce people) and the Pygmies of the Mbuti Forest (identified as one of the most peaceful peoples). He lays out the different perceptions of conflict that exist in different societies and suggests that conflict is properly viewed as cultural behavior rather than as an abstract concept applicable cross-culturally. He demonstrates that a society's culture of conflict defines what is valued and the appropriate means of obtaining such value within the society.

He continues by setting out the basis of our understanding of struturalist and psychocultural development and their strengths and weaknesses as bases for understanding conflict. Each provides some important concepts, but neither is sufficient unto itself to define the nature of conflict that develops in societies. Rather, the strengths and weakness of the two theories complement each other in providing an overall view of the nature of and response to conflict.

In order to examine these approaches, Ross uses Murdock's Standard Cross-Cultural Sample of 90 preindustrial societies to evaluate and compare political as opposed to interpersonal conflict. These societies are well documented and standardized codings of information about them is widely available. The use of this standard sample makes his data base easily accessible to those seeking to compare other societies that are not included in the data base to the information that he has drawn on.

The correlations which Ross develops are too wide ranging to be described in the compass of a review such as this. Some examples will, however, be useful to demonstrate the strengths of this approach. Low levels of affection, harsh socialization, and male gender identity conflict increase both internal and external conflict and violence. Higher levels of societal complexity increase external conflict, but not internal conflict. The correlations, interspersed by Ross with detailed descriptions of particular cultures and their patterns, provide the best existing information on the sources of societal conflict yet offered anywhere.

Ross moves his analysis forward with a demonstration that the patterns discovered in preindustrial societies appear to apply to industrial ones (and perhaps post-industrial ones as well) through an examination of conflict and culture in Northern Ireland and Norway, the former being a high conflict society and the latter a low conflict one. The same structural and psychocultural features that are predictive of conflict behavior in the preindustrial societies appear similarly predictive in this context as well.

In The Management of Conflict, which can be read independently of The Culture of Conflict, but is much more valuable in combination with the other work, Ross generalizes the principles developed in the first book and applies them to development of conflict management structures and processes in industrial and post-industrial societies. He maintains the cross cultural perspective developed in the earlier work and draws examples from preindustrial societies as well, but applies the lessons clearly and effectively to a wide range of conflict situations.

Ross sets up two alternatives ways in which conflict management can fail in any society. Type one errors are inappropriate actions which accelerate, or fail to decelerate, conflict situations, and Type Two errors are failures to act when action is appropriate. He suggests that type two errors are far more common today, both because of ignorance and inertia. While an increasing involvement in conflict resolution will increase the number of type one errors, he suggests that this is a reasonable price to pay if the number of successful cases of conflict management rises also. This should not be taken to suggest a view that conflict is inherently a negative phenomenon. Ross recognizes that the proper use of conflict techniques is necessary to effect appropriate change, and that a proper analysis of conflict management requires recognition of the positive as well as the negative aspects of conflict.

He then proceeds to look comparatively at conflict management processes in several societies where such management is constructively handled. This is followed by an in depth analysis of the conflict management process as applied from a theoretical standpoint with an emphasis on the dispute level, using the conflict in Forest Hills, NY as an example, and an evaluative examination of sources of conflict and their effect on the management process.

Ross then turns to examples of successful and failed conflict management, drawing examples from both preindustrial and industrial societies including race relations in the southern United States and the MOVE events in Philadelphia. He then turns to the psychocultural prerequisites for constructive conflict management, and ends with proposals for improving the conflict management process.

The two volumes combine to provide one of the most powerful analyses of conflict processes that has yet been written. Anyone with an interest in the theory of conflict will find extraordinary insights in them, and those concerned with practical aspects of conflict management will find many lessons that can be applied to their own practices.

Phillips, Barbara Ashley, Finding Common Ground: A Field Guide to Mediation, Hells Canyon Publishing, PO Box 646, Halfway, OR 97834 (223pp $16.95 1994)

Book review by James B. Boskey

Barbara Ashley Phillips is a true believer and, even more than that, a convert to mediation. Like many religious converts, she has decided that her former faith, in the legal process, was the product of, if not the devil, at least serious misinformation, and her goal, in Finding Common Ground, is to convert others to her new belief system.

In fairness, there is nothing wrong with believing that mediation provides a better way than litigation. Many of my best friends, and even I, myself, believe that, but it is not necessary or appropriate to trash litigation in order to follow up on that belief. Ms. Phillips, however, sees the way to truth through mediation as lying through the elimination of "lit-think" (litigation thinking), and fails to recognize that there are circumstances where litigation may be appropriate or even where, if litigation is not appropriate, telling the parties and the lawyers that they are running a scam may not be the best way to convert them to the new faith.

An early clue to the problem of the true believer appears in Ms. Phillips introduction where, drawing on a piece of new age fluff, she declares that there was a golden age of peace in Europe lasting for 20,000 years prior to the rise of the indo-europoeans. Acceptance of such fictions is representative of the level in intellectual depth that this volume represents.

This is not to say that Ms. Phillips may not be a competent mediator. Her Yale law school training has survived in her fluency and her capacity to oversimplify mediated cases to make the results seem obvious by disguising the complexities that underlie them. Her approach to mediation, however, assumes a new age attitude and demonstrates a serious lack of understanding of the fact that there are various approaches that may be needed to different kinds of problems.

Unlike some of the mediation books that I have reviewed here, Ms. Phillips work will not harm the reader. It will not, however, seriously improve the readers skills or understanding.

Merry, Sally Engle and Milner, Neal The Possibility of Popular Justice: A Case Study of Community Mediation in the United States, University of Michigan Press, PO Box 1104, Ann Arbor, MI 48106 (388pp $49.50 1993)

Book review by James B. Boskey

Merry, Milner and their coauthors have, in this book, used Frederic DuBow's unpublished 1983 study of the San Francisco Community Boards Program as a jumping off point for examining the subject of community justice. The precise meaning of the term community justice is a difficult question and one that the authors fail to answer directly, but it basically means any system of dispute resolution which originates in the community and is subject to community control or direction. As most purported community justice systems fall, either originally or as they develop, under the sway of the state, the fundamental question that needs to be, and is, addressed is whether such systems can exist on other than a short term basis.

It is clear that Ray Shonoltz, in creating the Community Boards, had a goal of developing a true community justice system. He rejected formal ties to the state justice system and emphasized the role of the community in defining the project. As a consequence, however, the research indicates that the project was, in many respects, marginalized, as case referrals tended to be limited to issues that did not involve any form of violent behavior, and much of the community did not accept the legitimacy of the Board as meeting their dispute resolution needs. One suggestion that comes through clearly, is that the areas of San Francisco where the Boards operated lacked the identification as a community that would make such a system feasible.

The scope of the book is, however, far wider than the Boards program alone. The fundamental question is addressed in a variety of contexts, and the suggestion that lingers is that community justice can only really exist where there is a substantial community of values and goals shared by the practitioners. Thus, in a Mennonite community the common religious and cultural standards allow for a system that does not work effectively in an urban setting. While not examined in the book, an interesting analogy would have been the Quaker dispute resolution system that operated in West Jersey in colonial days which appears to have successfully incorporated many non-Quakers into its ambit. This may have been successful because of the ideological commonalities that existed amongst early settlers of that territory.

The book serves an important purpose for several communities. For the ADR community it suggests practical limitations on what can be effectively implemented in a modern society and the limitations on the effectiveness of communitarian ideas in drawing in the participation of non-adherents. From an anthropological point of view, it addresses a fundamental question of the nature of dispute resolution systems-the issue of legitimacy, and expands substantially on our knowledge of what is necessary to create and maintain an effective system. For the community organizer, it restates the importance of listening to the community and developing community systems that are responsive to the perceived needs of the community rather than those of the organizer. It also demonstrates that dispute resolution is not, as has sometimes been implicitly suggested in the literature of the field, a magic bullet for the empowerment of the disempowered. The lessons of Saul Alinsky in Reveille for Radicals still maintain their validity.

Rau, Alan Scott and Sherman, Edward F., Rau & Sherman's Texas ADR and Arbitration Statutes: Commentary and Annotations 1994, Shepards/McGraw Hill, PO Box 35300, Colorado Springs, CO 80935-3530 (666pp $48.50 1994)

Book review by James B. Boskey

It takes a certain amount of chutzpah to produce an annotated set of statutes in this day and age, and a great amount of skill to do so in a manner that makes the volume useful and valuable. With Alan Rau and Ed Sherman undertaking the task, however, their is no lack of either the needed chutzpah nor the skill.

Texas, as I have noted elsewhere in this newsletter, has become one of the leading states in ADR if not the leading one. In terms of publications on the subject, its status as leading is beyond question as none of the other states in which ADR plays a major role is large enough to support the kind of specialized publications that the Texas bar can. This volume continues that leading status and becomes yet another "must have" volume for the Texas lawyer and one that could be of substantial value to attorneys and legislators in other states as well.

What Rau and Sherman have done is take the basic statutes and court rules relating to dispute resolution processes with which a Texas lawyer would be likely to come into contact, collect them, and provide detailed commentary on the more important ones. The commentary in each case follows the statute section by section, pointing out problems that may arise under the statute and the major case law which has interpreted the section. As one would expect from authors like these, the commentary is clearly written, well focused, and occasionally controversial as they move beyond merely reporting to serious analysis of legislative activity and its consequences. Obviously the comments are not full treatises on the subjects covered. The eighty pages of commentary on the Federal Arbitration Act is, obviously, far less comprehensive than the recent five volume work on the same subject, but the major issues are clearly addressed, and for the practitioner who only occasionally deals with issues under the statute the information provided may well be ample.

The materials are collected under seven headings. They are: Texas statute on alternative dispute resolution, Texas and Federal statutes and treaties on arbitration (further divided into general, labor, and special topics), selected dispute resolution provisions of NAFTA, Texas and Federal statute and rules related to settlement, Texas and Federal court rules concerning ADR, Texas statutes and regulations governing ADR practice in state government, and standards of practice for ADR.

For anyone who is interested in seeing how ADR can become an increasingly important area of legal practice this book will be very informative. For a Texas lawyer dealing with these issues, it will be essential.

Mediation UK, Directory of Mediation and Conflict Resolution Services 1994, Mediation UK, 82a Gloucester Road, Bishopton, Bristol BS7 8BN, England. 0272-241234. (46pp £5 1994)

Book review by James B. Boskey

For anyone who is seeking a comprehensive list of mediation services in the United Kingdom, this is the volume that you need. Projects and services are listed by region with type of service, a brief description of the program or provider, address, phone, and contact person. Included are public, private, and individual providers. Also included are a list of regional groups and interest networks, national services, international organizations, colleges and universities offering courses in conflict resolution, and organizations with an interest in conflict resolution. Clearly presented and well indexed, this is a fundamental reference volume.

Mediation UK, Guide to Starting a Community Mediation Service, Mediation UK, 82a Gloucester Road, Bishopton, Bristol BS7 8BN, England. 0272-241234. (58pp 1993)

Book review by James B. Boskey

Most books about mediation and mediation programs take a somewhat abstract view of the process of establishing a mediation program. The interest of the authors is often so focused on the mediation process that they may forget that there are serious practical problems that need to be overcome to establish and operate a service that have little to do with the mediation process itself. Mediation UK, which is, inter. alia., a promoter of the development of new mediation programs, has developed this manual to address these pragmatic and practical problems. While it is very much tailored to the needs of one establishing a program in the United Kingdom, many of the issues that are raised will be relevant for those working in other countries as well although the solutions will have to be adapted to the legal, governmental, and other constraints of those nations.

After a brief introduction to the subject of mediation (after all if one is establishing a service one presumably knows what the process is) and description of the Mediation UK and the nature of community mediation services, the book offers a flow chart of the process of setting up a community service. The remainder of the volume is dedicated to filling out that flow chart with practical "how to" information.

The major portion of the work looks at the general aspects of establishing a service. These begin with how to establish a steering committee, deciding whether the service should be part of an existing agency, an independent service, or an informal voluntary operation and the like. It proceeds with a discussion of the advantages and disadvantages of using paid staff and volunteers, fundraising, resources and equipment, record keeping, the care and feeding of volunteer workers, publicity, practice standards and accreditation. Separate sections provide information about the legal requirements for establishing a free standing program, including incorporation, charitable status, etc. and the alternative of making the service part of an agency.

Anyone who is establishing a community mediation service in the United Kingdom will find this book absolutely invaluable. It answers, on a solid practical basis, most of the questions that will arise during the development of the service. For those from other areas of the world it will be less useful as many of the solutions provided are specific to the British Isles, but it would still be useful as an outline of the matters that need to be dealt with is building the service although the particular solutions may be quite different.

Reynolds, Michael P., Arbitration: A Lloyd's List Practical Guide, Lloyds of London Press, Legal Publishing Division, 27 Swinton St., London WC1X 9NW, England (211pp £29 1994)

Book review by James B. Boskey

Michael Reynolds Arbitration is a solid practical treatise on the law and practice of arbitration under English law with appropriate attention to international aspects of the subject. It is not an attempt to provide the answers to all of the esoteric questions which can arise in a complex arbitration case, but rather a detailed introduction to the subject with ample detail to satisfy the needs of the beginning advocate or neutral and sufficient clarity and information to make it of value to the experienced one as well.

The book is divided into four parts. The first, preliminary considerations, sets out a general definition of arbitration, looks at the nature of the arbitration agreement, and introduces some of the considerations in drafting. The second, which makes up the greatest portion of the book, examines the mechanics of arbitration. It begins with a look a various sets of arbitration rules (including the Chartered Institute, Institute of Civil Engineers, etc.), and then proceeds through all aspects of preparation and presentation of the case. Issues examined include fact investigation, arbitration notices, procedure and preliminary meetings, discovery, procedural applications, security for costs, joinder, the hearing, speeches, examination and cross-examination, the award, appeals, motions to stay, etc. The third section is entitled "The Key to Successful Arbitration". It addresses preparation, client and lawyer involvement, and provides a survey of arbitration practice in various European nations. The final section, appendices, includes various statutes and rules as well as selected precedents.

Overall the book is well written and the focus is clear and practical. My only complaints are with the layout. The use of numbered paragraphs, appropriate in a true treatise, serves to confuse rather than clarify in a book of this kind which is more likely to read through, or at least read section by section. Also the typeface used is too small and not as clear as it might be. Despite this, the book is one that will be of real value for both the novice and experienced arbitrator.

Program for Community Problem Solving, Pulling Together: A Land Use and Development Consensus Building Manual, Program for Community Problem Solving, Suite 600, 915 15th St. NW, Washington, DC 20005 (145pp $30 1994)

Book review by James B. Boskey

Pulling Together is designed as a manual to inform government and business leaders about the use of consensus building techniques for public purposes, especially in the area of land use planning. Drawing on the literature of alternative dispute resolution, citizen participation, and meeting management, it presents a clear picture of the reasons for using consensus building techniques, methods of implementing them, and the benefits to be achieved from their use.

The manual begins with a description of some of the conflicts which exist in the hypothetical community of Edge County. Edge is a coastal county near a growing metropolitan area with a small city as its political center. It is a region moving rapidly from agricultural to mixed use. A planning process without the use of consensus techniques has broken down. This hypothetical is used to clarify the issues discussed in the remainder of the manual.

The first substantive chapter addresses the reasons for seeking consensus, discussing the increasing inability of the politically powerful to impose their ideas on development against the will of large segments of a community. It discusses the fact that development disputes are distributional by nature and the consequences of that fact on the ways in which consensus can be reached. It them proceeds to define the collaborative approach in general.

The manual continues with chapters on developing strategies for the implementation of and designing processes for collaborative processes. The first deals with preplanning, identification of parties, issues, etc., while the next looks at process design and the adaption of general models to the needs of the particular community and its problems. It considers issues such as the use of third party consultants and neutrals, ways of encouraging effective participation by organized and unorganized interests, various means of communication-ranging from electronic town meetings through hot lines to public hearings and workshops. The final two chapters address the implementation of the consensus building and problem solving processes themselves and techniques of meeting management that have proven effective in public fora. The book is supplemented with a series of case studies of successful consensus building programs in the planning area and a resource kit of sample documents for use in these processes.

While there are more elaborate volumes on consensus building processes, and ones that are facially more sophisticated, this volume is one of the best that I have seen designed for practical use by those who lack extensive training in consensus building. It hides the sophistication of the concepts presented through clear and direct language and, apparently obvious, examples. The manual is in fact, however, a very sophisticated presentation. The authors should be congratulated on translating difficult materials into straightforward and useful form.

Morris, Catherine and Pirie, Andrew, Qualifications for Dispute Resolution: Perspectives on the Debate, UVic Institute for Dispute Resolution, PO Box 2400, Victoria, BC V8W 3H7, Canada (228pp $US21 1994)

Book review by James B. Boskey

Certainly one of the hottest issues in the dispute resolution field is that of qualification of neutrals. The subject has been examined in numerous articles and several reports, and different approaches have been suggested by various organizations in the field. Many of the issues in the qualifications debate turn, of course, on the perspective of the writer. Approaches range from the professionalizers, who would like to see very strict qualification standards uniformly enforced on state, if not national or international basis, to libertarian community organizers, who take the view of letting 100 flowers bloom.

Few can be better qualified to examine this subject than Catherine Morris, the Director of Programs at the UVic Institute for Dispute Resolution and a member of the SPIDR Commission on Qualifications, and Andrew Pirie, the Executive Director of the UVic Institute, brings an additional useful perspective to the debate. While this volume is explicitly Canadian, all twelve of the contributing authors being from Canada, neither the substance of the discussion nor the specifics in the articles are limited to a Canadian perspective. Rather the volume pulls together much of the best thinking about qualifications in a concise and clear form.

The book begins with Catherine Morris's overview of the qualification dilemma. She notes many of the sources of the complexity of the qualification problem: ideology, different perceptions of the purpose of ADR, differing backgrounds of the participants, etc., while noting the common themes and goals that are acknowledged as needing to be addressed. The remainder of the book is divided into two sections: qualifications in context and critical perspectives, and is supported by an extensive bibliography or writings about the issues raised.

The qualifications in context section is made up of five essays examining the problem of qualifications in specific contexts. Barbara Landau addresses family mediation with especial attention to the feminist critiques, Constance Edwards looks at dispute resolution practitioners in education, Guinker and Wanlin consider consensus facilitation with special reference to natural resource issues, Lisa Schirch-Elias looks at public dispute intervenors, and Gilman and Gustafson consider the victim-offender scene. Each of the essays is solidly well informed and clearly written although several might have benefitted from a bit more length allowing the authors to elaborate further on some of the points that they made.

The critical perspectives section offers four essays. Patricia Monture-Okanee addresses the issue of cultural factors in dispute resolution practice with a focus on the situation of the aboriginal peoples of Canada, many of whom find the general model of dispute resolution inappropriate to meet their needs. Michelle LeBaron Duryea expands on this view with comments on the inappropriate acceptance of majoritarian approaches to dispute resolution as representing the only model available and concludes that the current state of knowledge is not sufficient to support standardized credentialling of dispute resolvers. Cheryl Picard addresses one of my personal favorite topics, considering whether, or to what extent, mediation as it is now practiced meets the standards which have been used to define the existence of a profession, while Andrew Pirie expands on this question calling attention to the downside of professionalization and suggesting other routes to realizing mediation's potential.

This is a very valuable book. It addresses one of the most important issues now facing the dispute resolution community and provides a broad perspective on that issue. I am inclined to feel that the orientation of the authors is generally a bit too negative towards credentialling, but they raise in clear and accessible form most if not all of the issues that need to be considered.

Rahim, M. Afzalur and Blum, Albert A., Global Perspectives on Organizational Conflict, Greenwood Publishing, PO Box 5007, Westport, CT 06881-5007 (168pp $55 1994)

Book review by James B. Boskey

The importance of cultural difference in negotiation style and technique has been widely recognized for many years, so it should come as no surprise, negotiation being merely one form of dealing with conflict, that similar differences exist in the full range of conflict expression and approaches to conflict resolution. Increasingly one of the major focuses of conflict and conflict resolution scholarship has been an examination of these differences, and studies such as Michelle LeBaron Duryea's in British Columbia and others (see for example Conflict Analysis & Resolution as Education: Culturally Sensitive Processes for Conflict Resolution: Training Materials reviewed in this issue) have demonstrated the importance of an understanding of cultural difference in designing and implementing conflict resolution systems.

Rahim and Blum, both professors of management, are amongst the leading scholars on conflict resolution from a business and management theory point of view. In this volume they have selected scholars specializing in conflict resolution in each of seven nations and invited them to write about organizational and personal conflict in their nations of specialization.

The countries included in this survey are all ones that are active in international markets. Included are: France, Japan, the Netherlands, Norway, South Africa, Spain, and Turkey. Each of the chapters is organized similarly, based on an outline provided by the editors. They begin with an examination of social, cultural, and economic factors, using Hofstede's model of culture elements (power distance, uncertainty avoidance, individualism, and masculinity), styles of handling managerial and interpersonal conflict (focusing on collectivist v individualist methods), available techniques of alternative dispute management, and a brief summary discussion.

The focus in each chapter is on conflict in commercial and industrial organizations. The conflict management styles and techniques seen in such organizations are reflective of those used in the general society, but have, as the authors generally point out, unique features. The chapters are well written and the information provided clear and useful. Anyone who is going to be dealing with individuals from companies in these countries would be well advised to read and consider the information provided.

Parker School of Foreign and Comparative Law, Guide to International Arbitration and Arbitrators (2d ed.), Transnational Juris Publications, 1 Bridge St., Irvington-on-Hudson, NY 10533 (2 volumes 1472pp $245 1993) [7/93]

Book review by James B. Boskey

Sometimes a project seems to take off with a life of its own, and I have the feeling that that is exactly what occurred with the Parker School of Columbia University's Guide to International Arbitration and Arbitrators. The one volume first edition was a valuable contribution to the international arbitration literature, offering a collection of information about international and national arbitration administrative bodies and their rules as well as some of the conventions governing international arbitration and a collection of arbitrator resumes. The second edition, running two volumes, offers an expanded set of the same background materials, but the number of arbitrators seeking inclusion in the Guide has expanded to the point that a second volume was necessary to include them.

The first 500 pages of the first volume offers much of the same information as was contained in the original edition. For each of the leading international and national arbitration bodies, the book provides a description of their background, a model clause or clauses for the invocation of their jurisdiction, the text of their administrative rules for international arbitrations, and a bibliography of books and articles about arbitration practices under these rule sets or in the country in question. Included are UNCITRAL, the International Chamber of Commerce, the Inter-American Commercial Arbitration Commission, and arbitration organizations from ten major commercial nations (the United Kingdom and the United States each being represented by two different organizations). Also included are lists of other international and national arbitral organizations which do not rate the same extensive coverage. Two other sections of the text offer codes of ethics for international arbitrators, specifically those of the International Bar Association and the American Arbitration Association/American Bar Association codes, and an analysis of the New York Convention on arbitral awards.

The bulk of the volumes is dedicated to the resumes of individuals available to serve as arbitrators in international matters. Each resume includes, in addition to the name, address and telecommunications information needed to contact the arbitrator, the individual's nationality, date and place of birth, education and professional licenses, present position, professional experience and associations, areas of specialization, arbitration experience, publications, and languages. The list of arbitrators is indexed by nationality, area of specialization, and language skills.

The Guide is an essential reference for those involved in international arbitration and belongs on the shelves of every law library whose users participate in international transactions. The translation into english of the various rule sets and information about the arbitral organizations provides a great deal of valuable information, and it is difficult to conceive of a responsible advocate selecting arbitrators for an international case without having reviewed the resumes offered.

Princen, Thomas, Intermediaries in International Conflict, Princeton University Press, 41 William St., Princeton, NJ 08540 (259pp $29.95 1992) [3/93]

Book review by James B. Boskey

Thomas Princen, a Professor at the University of Michigan, has made one of the more important contributions to our understanding of dispute resolution processes with this study of the role of intermediaries in international conflict. While it has long been recognized that third parties often play an important role in resolving disputes between nation-states, most of the attention that has been paid to the role of third parties has been based on a balance of power approach and has focused on the most visible interventions such as those of President Carter with Israel and Egypt at Camp David.

What Princen offers is a combination of an excellent highly analytical approach to the theory of third party interventions with an examination of specific interventions as a test some of the theory's parameters. Princen begins by noting that third party intermediaries can be idealtypically divided into three categories: disputants (those with a direct interest in the underlying dispute), principal mediators (those with an indirect interest in the dispute who purport to play a somewhat neutral role with respect to the underlying parties while simultaneously promoting their own interests), and neutral mediators (parties having neither direct nor indirect interests in the results of the dispute, but being otherwise motivated to assist in resolving it). While acknowledging the potentially interesting aspects of the disputant role, Princen focuses his discussion primarily on the two "mediator" types.

An important feature of Princen's argument is the recognition that the principal mediator is not a true neutral and the interventions that such a party makes cannot realistically be viewed as promoting "peace at all costs", but rather the principal mediator's own interests. Because of the principal mediator's interests, however, this mediator may be very effective as those interests, and possible investment in the results of the underlying negotiation, allow the principal mediator to bring to bear economic, political, or other power to encourage a particular or range of resolutions. Examples of such principal mediation which Princen discusses in detail in this volume are Camp David and Theodore Roosevelt's mediation between Russia and Japan at Portsmouth, New Hampshire in the early part of the century.

The neutral mediator, the more familiar model to the academic dispute resolution community, operates without intrinsic power through the improvement of communication and the development of reliance by the disputants on his or her services. Examples discusses in the book include the papal mediation by John Paul II of the territorial dispute between Chile and Argentina over the Beagle Channel Islands and the Organization of African Unity, British and Quaker mediation activities during the Nigerian Civil/Biafran War.

Princen's modeling of the mediation process is as effective as any that has been done in the field. While his model suffers the, inevitable, weakness of representing extremes of conduct rather than the full continuum that exists in the real world, it offers a powerful tool for examining dispute resolution processes in the sub-national as well as the international arena.

Mackie, Karl J. (ed.), A Handbook of Dispute Resolution: ADR in Action, Routledge Publishers, 29 W 35th St., New York, NY 10001 (317pp 1991) [3/93]

Book review by James B. Boskey

The Handbook of Dispute Resolution, edited by Karl Mackie, originated in a conference held at Nottingham which may have been the first to offer a broad look at ADR from the British perspective. The papers included in this volume include several from the conference as well as additional papers which were commissioned expressly for this volume. The coverage of the volume is broad, and while the papers are relatively brief, averaging perhaps 9-10 pages, they provide a useful overview of the field with the exception of a notable lack of attention to the victim-offender mediation schemes which have been very active in England.

The papers are collected into four categories. The first group, classified as Dispute Resolution Mechanisms and Procedural Justice, range from an examination by Tom Tyler of the question of whether disputants are more concerned with substantive or procedural fairness through examinations of different mechanisms, commercial arbitration, administrative law complaint mechanisms, and neighborhood dispute mediation, to the use of ADR in the civil justice system and the role of mediation. The second section, disputes in social context, examines labor, family, financial service, consumer protection and community conflict. The third section offers some examples from other nations including West Germany, China, Australia, and British Columbia, while a final section offers articles on training of mediators, a research agenda, and a look to the future of dispute resolution.

Overall the papers are well written and well edited. The book is very professionally edited with a full set of indexes and reference list. It provides a very useful overview of developments in ADR in England and Wales and some valuable comparative material.

McMillan, John, Games, Strategies, and Managers: How Managers Can Use Game Theory to Make Better Business Decisions, Oxford University Press, 200 Madison Ave, New York, NY 10016 (252pp $22.95 1992) [3/93]

Book review by James B. Boskey

John McMillan's Games, Strategies, and Managers provides a comprehensive, but largely non-mathematical introduction to game theory and its applications in the real world. To understand game theory at a truly sophisticated level it is necessary to be quite conversant with sophisticated mathematics, but one of the beauties of the theory is that many of its principles can be applied to the real world without such sophistication. Professor McMillan assumes no greater mathematical ability in his reader than the capacity to do basic addition, subtraction and multiplication, but, despite the limits that that would appear to impose, manages to make games theory available as a useful tool.

While the book is directed at management, the examples used to explain the theoretical concepts are not limited to management situations, and cover enough ground to make the book valuable to anyone interested in improving his or her analysis of negotiation and decision making. The first section of the book addresses some basic theoretical concepts in the use of games theory in decision making-starting with an analysis of the simple prisoner's dilemma, expanding the dilemma through iteration, and introducing the problem of risk tolerance and risk aversion as limitations on the pure game. The second part, entitled negotiation, addresses the use of information in bargaining and analyses the effects of full information and limited information in restructuring the likely results of a negotiation. In this section the negotiation of international trade agreements is used as an example to demonstrate how the theory plays out in a real-world complex game.

The third section of the book, entitled contracting, addresses some of the questions of designing a game situation so as to increase the likelihood of a favorable consequence. Working with management incentives as an example of a game where one party has substantial ability to set the terms of the transaction, McMillan shows that abstract game design has very practical consequences in dealing with issues such as compensation. The fourth section of the book examines the bidding process, an area of games theory that has been explored more comprehensively in real world situation than many others. The section sets out the theoretical problems posed by bid development and then used bidding in olympic competition as an example to elaborate the practical uses of the theory. The final section of the book draws together many of the lessons of the earlier sections by examining the subcontracting process as a complex game. Comparing the Japanese and American approaches to subcontracting, McMillan is able to demonstrate many of the intended and unintended game theoretical consequences of the decision to utilize subcontractors or to manufacture parts of a product in house.

Overall the book is both informative and enjoyable to read. The careful design of the examples used makes their theoretical underpinnings very accessible and makes the practical applications of theory apparent and usable.

Merrills, J.G., International Dispute Settlement (2d Ed.), Grotius Publications Ltd., P.O. Box 115, Cambridge CB3 9BP, England (288pp $39 1991) [3/93]

Book review by James B. Boskey

The resolution of disputes between states (countries) in international law is a complex process, involving, as it usually does, political, economic, strategic, and other issues. Despite that complexity, the techniques used to resolve such disputes are identical or similar to those used in most other disputes, although the implementation of those techniques may vary from their use in other situations. Experience with the application of those techniques in an international setting will often provide creative ideas for the resolution of disputes at other levels of complexity. It may be well to remember that much of the experience that led Fisher and Ury to the publication of Getting to Yes lay within this sphere.

The second edition of J.G. Merrills book, International Dispute Settlement (I have not seen the first edition and cannot, therefore, comment on changes between the two editions), addresses the full range of dispute settlement techniques in use in the international arena with useful examples of the application of each technique to specific disputes.

The book begins with a discussion of six basic dispute resolution alternatives which are available in the international sphere: negotiation, mediation, inquiry (the equivalent of fact-finding), conciliation, arbitration, and the World Court. Each is discussed in a separate chapter (the World Court actually consuming two separate chapters), and each techniques is defined, described, and examples of its application provided. The material is clearly presented in a balanced format which identifies the strengths and weaknesses of each of the techniques and, where appropriate, demonstrates the difference between their use in international and national settings. One useful example of such difference is the common use of an interested mediator in international settings as opposed to the common model of a truly neutral mediator for other types of disputes.

The second section of the book (the chapters on the World Court arguably belong to both sections) examines some of the dispute settlement institutions that exist in the international arena and how they operate to alleviate disputing. In addition to the World Court, the book looks at the procedures set forth in the Law of the Sea Convention, a complex set of dispute resolving processes combining many of the techniques in the earlier chapters, the role of the United Nations, and the actual and potential contribution by regional organizations. A final chapter offers an analysis of the current trends and prospects for dispute settlement in this arena with a useful discussion of means of improving both the political and legal aspects of the existing processes and expanding of elaborating their effectiveness.

Overall this is both an important and enjoyable book, especially for those of us with an interest, but little information, about the use of dispute resolution techniques in the international setting. It is well written, carefully documented, and presents important ideas clearly and directly.

Plapinger, Elizabeth and Shaw, Margaret, Court ADR: Elements of Program Design, CPR Legal Program, 366 Madison Ave., New York, NY 10017-3122 (124pp $35 (free to court systems, law schools, and CPR members) 1992) [11/92]

Book review by James B. Boskey

The book that everyone was talking about at the SPIDR meeting in Pittsburgh in October is the new volume on Court ADR prepared for the CPR Legal Program by Elizabeth Plapinger and Margaret Shaw. This book, which offers a comprehensive description of the approaches to the introduction of ADR programs in the federal courts under the Civil Justice Reform Act and other rules, with appropriate analyses of state court efforts, in the context of an analytical framework which addresses most, if not all, of the important and difficult issues faced by a court in implementing an efficient and effective ADR program which will be responsive both to the needs of the court and the needs of litigants.

After an introductory chapter which discusses the question of mandatory versus voluntary ADR programs and the nature of the cases referred to them, five chapters examine specific aspects of program design as proposed and implemented in the various courts in an evaluative context. The chapters address the matching of cases to appropriate ADR processes, the decision to exclude certain cases from these process or allow the parties to opt out of them, the financing of programs and the payment of neutrals, neutrals qualifications and training, the process of neutral selection, and confidentiality provisions. The final two chapters address the evaluation of court ADR programs and other aspects of program design including codes of conduct for neutrals, case management issues, and ADR education for lawyers. Appendices include a "taxonomy" of ADR processes with bibliographic references, a chart of ADR programs adopted under the Civil Justice Reform Act, and a detailed index.

The analysis that is offered and the information collected make this book one that will be an essential part of the library of any dispute resolver who has any connection with the courts or court affiliated programs. The analysis of neutral compensation alone is worth the price of admission, and anyone who has attempted to evaluate even one of the Civil Justice Reform Act proposals will be greatly relieved to have this model available as an analytical tool. From the viewpoint of the courts or court administrators, the idea of going forward with the development of an ADR plan without a review of this work should be unthinkable.

MacNeil, Ian R., American Arbitration Law: Reformation-Nationalization-Internationalization, Oxford University Press, 200 Madison Ave., New York, NY 10016 (288pp $35 1992) [3/93]

Book review by James B. Boskey

Ian MacNeil, the Wigmore Professor of Law at Northwestern, has written a history of the growth of commercial arbitration in the United States during the twentieth century. He, by his description, began this project when he discovered, in the course of coauthoring a treatise on the United States Arbitration Act, that it was not really possible to understand the history of that act and its interpretation without an understanding of the origins of the act in the general arbitration reform movement which began with the century.

After an introduction setting arbitration in the context of the alternative dispute resolution movement of the past decade and providing a useful definition of arbitration which distinguishes true arbitration from most of the other forms of alternative dispute resolution which have attempted to usurp its name, he proceeds to set the stage for the reform movement by examining the existing state of the law at the turn of the century. He notes that, despite the later rhetoric of the reformers, the law was not unfavorable to arbitration, and, using the situation in Illinois as an example, generally speaking the courts responded well to requests to enforce arbitration awards and post-dispute submission agreements.

He then proceeds to examine the development of the reform movement which led to the broad enactment of modern arbitration statues by the states (noting that the meaning of modern in this context is a word of art) and the federal government. He looks upon the reformers zeal as excessive, and twits the movement with a series of section titles comparing them to religious reformers, but provides a solid, if not especially novel, analysis of the growth of the movement and its success, noting, in the final chapter of this section, later judicial developments which at first appeared to be limiting the scope of arbitration, but which have since been beaten back.

In the second section of the book, MacNeil addresses the United States Arbitration Act in a similar manner. He discusses the campaign for its enactment, the enactment process, and the legislative history of the Act. He divides the post-enactment history of the USAA into two periods, from 1925-1956 when, in his view, the Act was interpreted properly as Congress intended as a procedural statute creating a limited remedial system available only when arbitration issues were litigated in the federal courts. With Prima Paint, the United States Supreme Court began to reverse this view and began to treat the USAA as substantive, making it applicable in cases of conflict between state and federal law to all interstate arbitrations. He is offended by this change, seeing it as an example of gross misinterpretation of legislative history by the Supreme Court, but nonetheless, in his final recommendation accepts this as an appropriate approach if only it were supported by suitable statutory change.

The third section of the book provides a very brief overview of the internationalization of arbitration law leading up to the enactment of the New York Convention in 1958.

Overall the book provides a useful history of the development of arbitration law in the United States during the 20th century. It offers little new information, but provides a useful summary for those unfamiliar with the history of these developments. It is well written and easily readable, and Professor MacNeil's strong views on the development of the law make the material much more entertaining than the usual treatises on the subject.

Marlow, Lenard, Divorce and the Myth of Lawyers, Harlan Press, Suite 705, 666 Old Country Road, Garden City, NY 11530 (180pp $19.95 1992) [11/92]

Book review by James B. Boskey

The award for best book cover of the year, and perhaps of the decade, has been won by Lenard Marlow. The cover of Divorce and Myth of Lawyers offers two armored knights in battle with the international sign of negation (a red circle bisected by a diagonal line) superimposed on them. Under the author's name is added a boxed notice "Attorney's General Warning: Adversarial Divorce Proceedings May Be Hazardous To Your Health".

Behind the cover, is one of the best books for parties undergoing divorce that has been published in recent years. Marlow, and attorney and mediator, presents as his basic thesis the point that if parties have been able to resolve their differences during a marriage, they should, in most cases, be able to do the same at the time when their marriage is ending. While a penultimate chapter offers divorce mediation as an aid in resolving disputes, Marlow's basic approach is the empowerment of the parties. He recognizes that some formalities may demand third party assistance, but focuses on the fact that the parties are far more aware of their needs and goals than any third party to whom they look for assistance can be.

This thesis is elaborated through twelve chapters, each of which debunks one of the classic myths of adversarial divorce. Some sample myths include: "A Couple's Decision to Separate and Divorce Leaves Them With A Legal Problem", "Legal Rules Will Provide Separating And Divorcing Couples With Answers To Their Problems And Lawyers Employ Legal Rules To Get Them Those Answers", and "Adversarial Legal Proceedings Are Designed to Protect The Best Interests of Children".

Many lawyers will want to hide this book from their clients, although they will recognize the accuracy of the viewpoint that Marlow presents. Even mediators may be reluctant to allow couples to see the book as it may convince them that they can resolve their problems without the intervention of a third party. Marlow writes very well, balancing anecdotes with advice with reality therapy in a manner which will attract any educated reader.

Burn this book, but first make sure that your close friends who are getting a divorce are provided with copies.

Nolan-Haley, Jacqueline M., Alternative Dispute Resolution in a Nutshell, West Publishing Co., 610 Opperman Drive, Eagan, MN 55123 ($13.95 1992) [11/92]

Book review by James B. Boskey

Back in the olden days, when I was attending law school, West Publishing's "Nutshells" were considered by most of the students to be little more than course outlines in text form and were used by most students merely to help them in organizing their studying for some of the more difficult courses or to explain a complex theory that had not come across clearly in the classroom. Since that time, West has substantially reconsidered the nature of this set and the newer nutshells now provide a convenient summary of an area of law or practice, written by an academic with expertise in the area, with few or no footnotes. The books are no longer purchased or sold only to supplement a casebook, but often can be used, on their own, to develop a preliminary understanding of a field where the reader is unable or unwilling to invest the time for a more comprehensive study.

Jackie Nolan-Haley's contribution to the nutshell series follows this pattern. It is not designed to, nor will it serve, as a replacement for a treatise or casebook in any of the areas considered, however, it provides a clear, easy reading, and, most importantly, accurate introduction to the subject which will provide a student, attorney, or other interested party with a good basic understanding of what the current issues and approaches are to these areas.

The introduction to the nutshell sets the stage for an understanding of ADR and the alternative dispute resolution movement. It sets the study of ADR in context and gives a brief history of the developments that have led to the increased focus, in law and other disciplines, on non-litigation means of dispute settlement. This is followed by detailed chapters describing negotiation, mediation, and arbitration as dispute settlement methods and one chapter each on court-related dispute settlement techniques (summary jury trial, early neutral evaluation, and magistrates, special masters, and neutral experts) and hybrid dispute resolution processes (mini-trial, reference, med-arb, negotiated rulemaking, and ombudsperson). The book is further supplemented with appendices which present ethics codes, court rules, and legislation that relates to dispute resolution approaches.

The individual chapters on the different dispute resolution techniques are exceptionally well written and presented. Without allowing the reader to be overwhelmed by the technical jargon that has developed in these areas, Nolan-Haley presents clearly and concisely the issues that need to be addressed in using these techniques and skills and allows the reader to become familiar with the approaches that have been developed in the scholarly and popular literature. For example, in dealing with negotiation, she presents clearly but critically the approach promoted by Fisher and Ury in Getting to Yes, but does not overlook the views of scholars such as Owen Fiss and Lax and Sebenius. The skill she shows in doing this in a relatively brief compass without overwhelming the reader is extraordinary.

This is not a book that one would be likely to adopt as a course book for a law school or business school course in alternative dispute resolution, but it is one that might well be used in an undergraduate course on the same subject. In addition, it is a book which can be safely recommended to students who lack the opportunity to take a course in ADR or one of its component areas, but would like to develop an overall familiarity with the field.

Reisman, W. Michael, Systems of Control in International Adjudication & Arbitration: Breakdown and Repair, Duke University Press, Box 6697, Durham, NC 27708 (174pp 1992) [11/92]

Book review by James B. Boskey

W. Michael Reisman of Yale Law School addresses in Systems of Control in International Adjudication & Arbitration: Breakdown and Repair the question of the need for external controls on international judicial and arbital decision making. Like many international lawyers, especially those trained by Myres McDougal at Yale, he is uncomfortable with the idea of an adjudicatory system which can determine its own jurisdiction and competence, but does not fully trust national legal systems to apply appropriate controls on such jurisdiction. Where such systems determine their own power, there is always the risk of an excèss de pouvoir, the panel acting beyond the scope of the jurisdiction granted it, and his feeling is that this risk is sufficiently strong to discourage the use of neutral international decision making.

Reisman addresses three specific problem areas in this book, the International Court of Justice, the ICSID arbitration procedure, and arbitration conducted under the auspices of the New York Convention. In each case he finds important examples of inappropriate assumption of jurisdiction to an extent that he feels compromises their effectiveness, although in the case of the ICSID he feels that early problems have been substantially corrected. He favors the creation or recognition of some external body to which questions of arbitral misconduct could be addressed and which would have the power, which exists in ICSID to set aside an inappropriate award.

The argument that Reisman makes is carefully documented and clearly if somewhat turgidly expressed. Ultimately, however, it is less than fully convincing. Reisman largely ignores the fact that, if an international panel has failed to adhere to appropriate process, the disadvantaged party will refuse to voluntarily submit to the enforcement of the award, and national courts in which enforcement is sought are well prepared to deal with such excesses. While it might, at a theoretical level, be more attractive to have these issues decided by an international tribunal without having to be concerned about a national tribunal favoring its own citizens, the expense, both in time and money, of having such a procedure available makes this option a less than attractive one.

Pirie, Andrew and Stanley Dinah, Dispute Resolution and You: What You Need to Know! (Includes BC dispute resolution resource directory), UVic Institute for Dispute Resolution, University of Victoria, P.O. Box 2400, Victoria, BC V8W 3H7 (86pp $7.95can 1991) (7/92)

Book review by James B. Boskey

Dispute Resolution and You: What You Need to Know! is a combination of a directory of dispute resolution services and an introduction to dispute resolution processes. Prepared for the University of Victoria's Institute for Dispute Resolution, it is addressed to members of the public who have disputes that they would like resolved and is designed to provide them, in clear and convenient form, the information that they need to accomplish their goals.

The 21 page introductory section provides a clear and concise introduction to the disputing process. It distinguishes between consensual and adjudicative dispute resolution, describes major dispute resolution processes from negotiation through litigation, and provides advice on selection of an appropriate dispute resolution technique for various common types of disputes. It also offers a brief description of dispute resolution training.

The directory section is remarkably comprehensive. It includes a list of agencies providing assistance in dispute resolution by the specific types of dispute in issue, a list of lawyer referral, legal aid and information services, a list of neighborhood justice centres, and organizations that provide information about dispute resolution. The layout of both the book and the information is very clear, and provides a very good model for others developing a similar work for other areas.

Poundstone, William, Prisoner's Dilemma: John von Neumann, Game Theory, and the Puzzle of the Bomb, Doubleday, 666 5th Ave., New York, NY 10103 (290pp $22.50 1992) (7/92)

Book review by James B. Boskey

For those of the readers of this newsletter who were not brought up on exotic mathematics, the terms zero-sum game, minimax theory, and the like may seem to have appeared full blown from the head of Howard Raiffa or Robert Axelrod without any clear sources. This is, of course, not the case, although games theory, the branch of pure mathematics from which they are derived is of very recent origin and not all that well known to the general public.

The discoverer/developer of games theory was John von Neumann, one of the greatest of modern mathematicians, whose contributions range from computing theory through the mathematical bases of quantum mechanics. In this book which is a combination of a biography of von Neumann and an introduction to games theory, William Poundstone places the origin of games theory and its early development into its historical and social context, while providing a remarkably clear overview of the nature of the problems which games theory addresses.

Anyone who is working in the dispute resolution area will benefit greatly from a reading of this book. The clarity of the explanation of games theory and the acute attention to its potential for providing an understanding of human interaction and its potential misuse is exceptional. It is rare that one can say of an intellectual biography that it is so gripping that the reader could not put it down, but this volume holds the reader in its spell through both the clarity of explanation and the fascination of the subject matter.

New South Wales Law Reform Commission, Training and Accreditation of Mediators, Law Reform Commission, Level 12, 189-193 Kent St., Sydney 2000, NSW, Australia (104pp $8australian 1991) (7/92)

Book review by James B. Boskey

The advantage of an effective law reform commission is not only that better quality laws often are written, but the legislature is better informed as to the basis on which it is legislating because of the quality of research and information that is provided to them. Judging from this work, the New South Wales Law Reform Commission is a model which other legislative adjunct bodies would be well advised to emulate.

The charge to the Commission was very vague and general. They were asked "...to inquire into and report on: ... the need for training and accreditation of mediators; ...[and] any related matter". Starting with this commission, the Commission defined mediation broadly as including related forms of consensual dispute resolution.

The overall conclusions of the Commission are that while training is a useful way for mediators to become competent and demonstrate the credibility of the mediation process, it is not appropriate for the law to require that mediators receive particular training before entering the practice. It further felt that government regulation or accreditation of mediators was not currently required. As to court-affiliated dispute resolution programs, however, the Commission felt the need for clearly articulated guidelines and adequate resources. They point out that case management should not be the sole or primary reason for the adoption of alternative dispute resolution programs.

These conclusions are supported by a first class research report and analysis that includes an extensive review of the literature on mediator training and accreditation. The report provides as good a summary of this material as available anywhere, and the Commissions analysis is thoughtful and effective.

Putnam, Linda L. and Roloff, Michael E., eds., Communication and Negotiation, Sage Publications, 2455 Teller Road, Newbury Park, CA 91320-2218 (320pp $37(c) $18.95(p) 1992) (7/92)

Book review by James B. Boskey

Communication and Negotiation is volume 20 in Sage's Annual Reviews of Communications Research series, and offers the professional presentation and excellent quality that one would expect from a work that is part of such a long tradition. After an introductory paper by the editors that clearly, although perhaps unduly defensively, identifies the unique role of communications studies in the analysis of the negotiation process, the remaining eleven papers are review articles on particular aspects of the field.

In some respects it is almost unfair to say that communications studies offers a unique perspective on the negotiation process, as the reality is that it offers several. The first four articles, grouped by the editors under the title "Strategies, Tactics, and Negotiation Processes" include a valuable reexamination of the planning process in negotiation, a process which has been more sanctified in dogma than examined in detail, a look at the effect of indirect v face-to-face negotiation and the influence of the medium of communication, as well as articles on the communication of offers and the phases of negotiation which are useful as well.

The second section, entitled "Interpretive Processes and Language Analysis", offers more of what this reader would have expected from communication studies, detailed process evaluation. Of especial interest in this section is Steven Wilson's piece on face and its maintenance in the negotiation setting. The final section offers an examination of the relationship between a negotiator and his or her "opponent", constituents, and the mass media.

In general this volume offers quite a valuable summary of the state of the art in communication theory as it applies to negotiation. Researchers in other primary disciplines need to be aware of this work as it overlaps heavily with other disciplinary viewpoints and can contribute worthwhile insights to research for such other disciplines.

Riskin, Leonard, The Farmer-Lender Mediation Program: Implementation by the Farmer's Home Administration, Administrative Conference of the United States, Suite 500, 2120 L St. NW, Washington, DC 20037-1568 (54pp free 1991) (7/92)

Book review by James B. Boskey

One of the most extensive, and on the whole, effective federal mediation programs of recent years has been the Farmer's Home Administration Farmer-Lender Mediation Program. In response to a perceived crisis in farm debt, the congress passed in 1988 the Agricultural Credit Act which, inter. alia., provided matching funds for state mediation programs to assist in the development of "workout" or "restructuring" of the debt of individual farmers. The program has been generally successful, although different state programs have taken somewhat different approaches to their mediation programs.

Len Riskin, of the University of Missouri-Columbia, prepared this report on the program for the Administrative Conference of the United States. He provides a brief history of the program and then offers an evaluation of the accomplishments and problems that have arisen in the program's implementation. On the whole, he finds that the program has been effective, but he identifies a problem in that some of the state programs have taken a relatively narrow view of the role of mediation, while a broader view has been more effective in accomplishing the program's goals. While confirming the value of the approach used, he provides a series of recommendations for improvement of the program.

This is an important report in that it provides one of the first seriously analytical evaluations of a federal mediation program. It provides a model which will be of use in evaluating other programs that have been and will be implemented.

Margulies, Sam, Getting Divorced Without Ruining Your Life, Simon & Schuster, 1230 Avenue of the Americas, New York, NY 10020 (318pp $12 1992) (7/92)

Book review by James B. Boskey

Before beginning this review, I should note that Sam Margulies is a friend and close colleague of mine, we serve as co-directors of the Seton Hall Institute for Dispute Resolution and have collaborated on various dispute resolution projects. This would be unimportant if I did not consider Sam's new book to be a substantial contribution to the literature of divorce settlement, but, as I do, some disclosure is appropriate.

There are an increasing number of self-help books designed for individuals undergoing a divorce which address the divorcing process. These books range from psychological works, to do-it-yourself without a lawyer volumes, to hortatory tomes describing the "best and only" way to manage a divorce situation. Many of these tend to oversimplify the divorcing process, usually reducing the scope of the problems faced in divorce to those the author is comfortable in dealing with, and ignoring the broader range of issues faced by the divorcing individual. Some of the best responses to such works have been prepared by divorce mediators who are forced, by the nature of their work, to look more broadly at the divorcing process, and recognize that no one area of problems is distinct from any other.

Sam Margulies, has been both a matrimonial attorney, a trainer of divorce mediators, and a mediator focusing largely on divorce matters, although in recent years he has practiced only the latter profession, in his new book makes a valuable contribution to this genre. This book is not, however, one about divorce mediation per. se. although it does strongly support the use of mediation as an approach to resolving marital disputes. Rather the book focuses on the negotiation process in divorce settlement, and attempts to empower parties to resolve their own divorce disputes, whether directly, with the assistance of attorneys, or through the mediation process.

The first section of the book focuses on the nature of the divorcing process and the question of what factors create a successful or a "bad" divorce. Combining an understanding of the legal and psychological factors with an understanding of the law and its impact on decision making, he provides a valuable examination of the factors that lead to successful dissolutions. One especially useful distinction, that has not been broadly recognized in the literature, is his focus on the differences in attitude between the individual who initiated the divorce and the other spouse.

The second section of the book examines the negotiation process. After an introductory chapter on negotiation planning and general principles of effective negotiation and an especially useful one on the assessing post-divorce needs, individual chapters address the negotiation of parenting agreements, child support, alimony, and property. A final chapter, omitting the conclusion, addresses the process of finalizing the terms of the agreement.

For the divorcing individual, this is a book that will focus attention on the persons real goals from the divorce. For the divorce mediator, it will provide important assistance to the client in preparing for the mediation process. For the divorce lawyer, who is sensitive to the need of the party to understand the negotiation process, it will similarly serve as a valuable guide to provide to the client in planning for negotiation, whether direct of through the attorney. In addition, the strong focus on protecting the interests of children will be helpful in all three

areas.

Mitchell, Roberta S. and Dewhirst, Scot E., The Mediation Handbook: A Training Guide to Mediation Techniques and Skills, Center for Dispute Resolution, Capital University Law School, 665 South High St., Columbus, OH 43215-5683 (95pp free(?) 1990) (3/92)

Book review by James B. Boskey

Many of the readers who are on law faculties may well have seen this manual already as copies of it were apparently circulated to the Deans of all American Law Schools in November of this year. The cover letter from Dean Smith of Capital identifies the school as a pioneer in the teaching of mediation, which may come as a surprise to some but is probably justified by their participation in the creation of the "night prosecutor" program in the early 1970s which used a mediation model in dealing with petty criminal matters.

The manual was developed as a joint endeavor of the Capital Dispute Resolution Center and the Jamaican Bar Association to introduce the use of alternative dispute resolution techniques in the country of Jamaica. It provides a simple but effective introduction to the mediation process and could easily be used for training of members of the general public in mediation skills.

The manual begins with a description of the negotiation process, speaking of barriers to, positional and interest-based types of and competitive and cooperative styles of negotiation. This is followed by a brief summary of the mediation model and then sections on each stage of a mediation and the role of the mediator at each of those stages. Separate chapters provide discussion of factors that increase the effectiveness of the mediator and special issues in mediation such as neutrality, confidentiality, caucusing and the like. Finally, a transcript of a model mediation is provided, divided into stages to allow the user to understand the application of the skills discussed in the text sections of the work.

Overall the manual is clearly written and makes good use of font changes to emphasize points without becoming overwhelming. Anyone involved in training mediators for small claims and community mediation might find the volume helpful in planning their training program.

Nagel, Stuart S. and Mills, Miriam K, Multi-Criteria Methods for Alternative Dispute Resolution with Microcomputer Software Applications, Quorum Books, 88 Post Rd. West, Westport, CT 06881 (265pp $55 1990) (3/92)

Book review by James B. Boskey

Stuart S. Nagel is certainly one of if not the best known academic specialist in the use of microcomputers in law practice and especially in the alternative dispute resolution environment. Over a series of books he has been promoting the use of a policy-goal algorithm which ia implemented in P/G% software which he has developed as an aid in maximizing the effectiveness of the decision making process in a wide range of situations.

As this is the third book of Nagel's that I have reviewed for a variety of publications, it is somewhat embarrassing to admit that it is only with this volume that I believe that I have finally come to really understand the nature of the P/G% algorithm and its implementation. I am not sure if that means that I am especially slow, or that Professor Nagel's co-author, Professor Mills, has helped to clarify the descriptions offered.

The essence of Nagel and Mill's approach to alternative dispute resolution is their search for superoptimal solutions to particular disputes and their belief that that search can be substantially aided by the computer software using the p/g% algorithm. By super optimal solutions, as opposed to merely optimal or pareto-optimal ones, the authors mean solutions that allow each party to a dispute to accomplish a result better than the one that he or she originally sought.

If that sounds unrealistic, it is only because it is. While the authors provide several examples of potential superoptimal solutions, the situations described are highly artificial, the original party goals stated unrealistic, and the solutions highly unlikely to exist in the real world. The mathematical legitimacy of the search for such solutions has been clearly demonstrated, inter. alia. in the work of Howard Raiffa, but the belief that such solutions are frequently available in the real world, is far more doubtful. This does not mean that the search for such solutions is wasted, but that undue focus on them may distract from more realistic solutions.

Even more unrealistic is the idea that the software described can offer any serious assistance in finding such solutions. Superoptimal solutions almost always, if not always, require the reconstruction of the parties or their representatives conceptualization of the issues that they face. This cannot be accomplished through any existing software, especially P/G%, as the inputs are definitionally insufficient to create such a reconstruction of the problem. It is possible that a "brainstorming" program might offer some assistance in such a search, but that is neither the function nor the design of Nagel's software.

This is not to say that the software cannot be useful. It can, in many circumstances, assist in finding a pareto-optimal solution for a dispute, especially when the primary inputs are easily quantifiable, but the claims made here are simply excessive.

This is a highly technical book which will appeal primarily to lawyers who moonlight in computer science or political scientists who have been following the issues in the development of decision making software. Some of the examples of optimization are of more general interest, especially for lawyers the attempt to resolve the conflict of interest between client and lawyer when a settlement offer is made in a contingent fee case, and for the political scientist the analysis of arms control negotiation processes.

Metzloff, Thomas B., et. al., Summary Juries in the North Carolina State Court System, Private Adjudication Center, Duke School of Law, Towerview and Science Parkway, Durham, NC 27706 (53pp $10 1991) (11/91)

Book review by James B. Boskey

In 1987 the North Carolina Supreme Court, which has been very active in implementing alternative dispute resolution systems, announced a pilot project to experiment with the use of summary jury trials as a means of resolving cases that it was anticipated would otherwise go to trial. The model developed was somewhat different than the summary jury trial procedure in the federal courts in that the process would not be imposed on parties and counsel, but was to be encouraged and made available in cases deemed appropriate by trial judges in three districts. Metzloff et. al.'s report is an analysis and evaluation of that experiment and offers important lessons for other state courts that may be considering implementing that process.

Over the four year period from the implementation of the program through the time this report was prepared, seventeen cases utilized some form of summary jury trial in North Carolina. I use the term some form advisedly, as in nine of the cases the parties agreed to give binding effect to the award of the summary jury panel, making the process a modified form of arbitration with jury based decision making rather than the established model of summary jury trial as a settlement device. Because of the original limited response of the bar to the proposal, summary jury trials, which have usually been limited to cases where a week or more of trial were anticipated, were also made available for cases where shorter trials were anticipated, and, indeed, the majority of the non-binding summary jury trials were of this type.

Overall it appears that the summary jury trials apparently favored defendants, most verdicts falling in the low end of the range of settlement anticipated by counsel or below that range, but this was balanced by very high verdicts in two of the cases, in one of which the defense elected not to present evidence on the question of damages and the other involving the entrusting of a company vehicle to an employee who was known to have drinking problems. The general opinion of counsel was favorable to the experience although issues were raised about the multiple roles of the attorneys as presenters of evidence in addition to the traditional roles.

Overall the report presents a balanced view of the process, concluding that the summary jury trial should be one weapon in the armory of the courts, but that its use should not be mandated against the will of the parties and counsel. From an outsider's view it appears that in a majority of cases all that happened was the development of a new form of arbitration which may be useful, but is hardly fairly described by the term summary jury trial as it has been used generally.

Peachey, Dean and Isaac, Dorothy (eds.), Canadian Dispute Resolution Directory, 1991-92 edition, The Network: Interaction for Conflict Resolution, 298 Frederick, Kitchner, Ontario N2H 2N5, Canada (81pp $12.50can 1991) (11/91)

Book review by James B. Boskey

The Canadian Dispute Resolution Directory, prepared by The Network, provides a useful and informative list of most of the dispute resolution programs which have developed across Canada in recent years. With the rapid growth of the field, no such listing can be absolutely current, but the breadth of their coverage will allow someone searching for a program an opportunity to find someone who will be able to help them.

The programs listed are divided by the type of activities in which they are engaged. The categories used are: Associations and Resource Centres, Community and Court Alternatives, Commercial, Cultural or Racial, Environmental, Multi-subject programs, and University programs and institutes. In addition an appendix provides a list of international resource centres. All listings are, of course, bi-lingual in French and English.

For each organization the Directory provides information about the contact person, for profit or not for profit status, a brief program description, geographic area served, date founded, languages spoken, whether a fee is charged, type of services, processes used, caseload, availability and type of training services, funding sources, number of staff and volunteers, role of volunteers, and resources or materials available.

This volume is essential for anyone who offers referral services in the conflict resolution area or who wants to network with services in Canada.

Medalie, Richard J. (ed.), Commercial Arbitration for the 1990s, American Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611 (400pp $65 1991) (11/91)

Book review by James B. Boskey

At the 1990 American Bar Association Meeting, the ABA Section on Litigation in conjunction with several other sections and committees of the ABA presented a program entitled "Everything You've Always Wanted to Know About Arbitration...". Realizing that they could not provide everything that attorneys wanted to know in that one session, they then compiled extended and annotated versions of the presentations at that session with an extensive group of appendices into this volume, which, while it does not fully answer the question posed, provides an excellent survey of the issues of most concern to attorneys in a commercial arbitration setting. The attorney who carefully reads this volume will be well on the way to developing some serious expertise in providing representation to clients who employ arbitration as one of the strings to their dispute resolution bows.

The coverage of the volume begins with a discussion of the arbitration process, including the question of what issues are arbitrable, the process of initiating arbitration, the selection of arbitrators, and the presentation of a case in arbitration. This is followed by a discussion of the management of complex multiparty arbitrations, a subject of increasing importance as parties become more willing to submit complex disputes to non-judicial fora. Three chapters address the arbitration award and post arbitration procedures including enforcement of the award and appeals from trial court determinations with regard to arbitration. Professor Whitmore Gray of the University of Michigan offers a mini-treatise on the drafting of a dispute resolution clause, and one chapter addresses the growth of international arbitration, one of the fastest growing areas of concern. The appendices include various treaties, model laws and statutes, arbitration rules, and American Arbitration Association forms.

For the attorney newly involved in arbitration issues, this will be a very useful introduction to the field, and for the experienced arbitration attorney it will provide both new techniques to be considered and ideas about approaches that he or she may not have previously tried. It is a valuable contribution to the growing literature on commercial arbitration.

Matthews, Martha A. (ed), Alternative Dispute Resolution: Practice and Perspectives, BNA Plus, 1231 25th St. NW, Washington, DC 20037 (284pp $35 1991) (7/91)

BNA (The Bureau of National Affairs) published a newsletter called Alternative Dispute Resolution Report (ADRR) from April of 1987 through October of 1990 when it was merged into World Arbitration and Mediation Report. ADRR, while expensive, was one of the most professional newsletters published in the area, and offered a wide range of practice pointers, reports on new programs, and theoretical articles. For the many people who did not subscribe to that newsletter, BNA Plus has now published a selection of the articles of most general value in book form.

The individual articles, which are as one would expect from their source brief, they present a wide range of viewpoints and describe a wide range of programs in ADR. They are collected under 10 headings including uses of different types of ADR, State and Federal agencies and ADR, ADR in labor and the practice of law, public policy and legal issues, and sample ADR Documents. The articles are mostly well written and highly focused, and many of them would serve as useful supplementary readings for a course in ADR. Because of the breadth of the subject matter covered, the volume could also serve as a useful introduction to the range of practices for someone relatively new to the field.

Paddock, Harold, Settlement Week: A Practical Manual for Resolving Civil Cases Through Mediation, BNA Plus, 1231 25th St. NW, Washington, DC 20037 (214pp $95 1990) (7/91)

Book review by James B. Boskey

As docket crowding problems have become increasingly acute in the civil courts (New Jersey cannot be the only state to have been threatened with the elimination of all civil trials in a county to allow the court to "catch up" with its criminal docket), court managers have been paying increasing attention to any techniques that will save judicial time and allow cases to be resolved not only before trial, but with minimal judicial intervention.

The idea of closing down the courts for a week to dedicate that time to the settlement of cases pending on the docket originated in California, but has spread, in various forms, around the country, and has proven to be a very effective way of dealing with at least some of these problems.

In this special report, Harold Paddock, who is a referee in the Common Pleas Court in Columbus, Ohio and former Chair of the local bar association's alternative dispute resolution committee provides a detailed road map for the implementation of settlement weeks which will be useful to courts anywhere which are faced with serious docket problems.

The term "settlement week" has become a misnomer as courts have increasingly begun to use this model of settlement not only on a week, but on other timed bases as well. Fundamentally the approach is one of using trained mediators to assist counsel and parties to resolve their cases at various stages in the litigation process, usually after the completion of discovery but before full trial preparation has taken place.

The report deals with all of the elements necessary to establish an effective settlement week program. After a general description of the nature of such programs and the parties who should be involved in their establishment, it provides a description of the mediation process, the manner of selecting and training mediators, selecting and scheduling cases, and such issues as the judicial role, media coverage and the like. For those who are considering implementing a settlement week program, this manual will provide most of the information needed to develop the basic ideas, while providing useful suggestions of ways to tailor the program to one's local legal culture.

Marlow, Lenard and Sauber S. Richard, The Handbook of Divorce Mediation, Plenum Publishing Co., 233 Spring St., New York, NY 10013 (505pp $75 1990) (7/91)

Book review by James B. Boskey

Lenard Marlow and Richard Sauber in their Handbook of Divorce Mediation attempt to reconstruct our view of the divorcing process, from the viewpoint of mental health professionals. While this book addresses the nature of divorce mediation and proposes a serious rethinking of that process, it is really about the more fundamental issues of whether divorce should be understood as a legal or personal crisis, and, if the latter, how divorce mediation should respond to this phenomenon.

While I agree with the authors that the primary crisis in divorce is personal rather than legal, I must take leave to differ with the conclusions that they draw from this fact as well as from their understanding of the history of the divorce mediation movement.

The basic goal of Marlow and Sauber' approach is the delegalization of the divorcing process. They point out that we do not require the intervention of lawyers in the process of marrying or in the ongoing relationship between members of a family, and proceed to ask whether, in light of this, there is any necessity to involve lawyers when the family breaks down. Their answer, which is a clear no, ignores, unfortunately, the fundamental difference between the phenomena. At the time of marrying and, in most situations during the ongoing marriage, the mutual interests of the parties are stronger than their conflicting ones. At the time of divorce, while their may be strong residual mutual interests, especially as regards children, most other interests are in conflict and there is a need to work through these conflicts to achieve an appropriate resolution. The authors believe that at least a major part of the tension in the divorce situation still is derived from the legal fault finding process, a position that is difficult to justify in light of the universal acceptance of no-fault divorce grounds and the fact that the great majority of divorces around the country are based on these grounds or on a minimal fault determination used only to accelerate the divorcing process.

In fact most divorces are not seriously conflict ridden, and where conflict appears it is usually related to either psychological issues or an unwillingness of one or both parties to attempt peaceful settlement. The fact that most divorce cases, mediated or not, settle before trial is a strong indication that legalization is not the controlling influence in such cases. The use of lawyers to prosecute divorces is uncomfortable for many mental health professionals, but it is reflective, at least in large part, of the need for professional assistance in avoiding the pitfalls that complex tax and property laws impose on parties or their unwillingness to accept third party assistance, where needed, in dealing with issues related to their care of their children.

Marlow and Sauber attribute to the divorce mediation community an acceptance of the "legal" resolution of a divorce as the correct one in most cases and believe that most divorce mediators accept this conclusion as the best for the parties. They ignore, in so stating, the substantial body of literature that treats the anticipated court solution as, at best, a starting point for the parties' negotiations and that recognizes that the final conclusion need not, and rarely will, reflect this result. The role of the mediator is broadly accepted as one of empowering the parties to avoid being dependent on a "legal" answer and to find an answer that is truly suitable for them. The authors also seem to overlook the reality that couples in a divorce situation are, in Mnookin and Kornhauser's words, "bargaining in the shadow of the law", and, that, while the law may not offer them an appropriate solution, few people are sufficiently confident in their world view to ignore the potential relief which a court might grant, even if they later decided to reject that approach.

In explaining the development of divorce mediation, Marlow and Sauber overlook much of the history of the movement in order to emphasize its legalization. They suggest that the movement started with the conferences of the Association of Family and Conciliation Courts and The International Society on Family Law in 1981, long after the early contributions of Coogler, the American Arbitration Association, and the Association of Family Mediators among others. They also accept early statements from bar associations as reflecting the views of attorney-mediators, establishing a false dichotomy of approach between mental health professionals as mediators and all others in the divorce mediation movement. In reality the differences of viewpoint on legalization are relatively minor and the approaches used in resolving cases substantially similar.

The second section of the book, which is labeled practice, is a detailed analysis of mediator roles and techniques. It is extraordinarily well written and one of the most comprehensive analysis of technique that I have seen. Both newcomers to the field and experienced mediators will come away from this section with valuable ideas that will improve their practice.

Despite my disagreement with much of their theoretical analysis, Marlow and Sauber have much that is important to say. Even while not accepting their conclusions, the issues that they raise as to process are important ones and I often find myself agreeing with many of their approaches. On the technical side, the book is a gem and should be read by everyone who is active in the field.

O'Keefe, Daniel J., Persuasion: Theory and Research, Sage Publications, P.O. Box 5084, Newbury Park, CA 91359 (272pp $29.95 1990) (11/90)

Book review by James B. Boskey

The need for an understanding of techniques of persuasion can be important for any of a wide range of Dispute Resolution activities. In some ways persuasion is like pornography, "we know it when we see it!", but an understanding of what is effective and why can provide a basis for substantially improving the effectiveness of both advocates and neutrals.

Daniel O'Keefe has prepared this volume as a text for an advanced undergraduate or graduate course in a psychology or related department. After an introduction to study of persuasion, he offers an analysis of five theoretical approaches to persuasion. This is followed by an analysis of factors which make a communication persuasive or unconvincing, and finally by a chapter on compliance-gaining message production-or why people attempt to persuade others.

While the book is technical in nature and may be more detailed than needed by the average reader, it is well written and provides a good basis for understanding the current state of knowledge.

Oehmke, Thomas, International Arbitration, Lawyers Cooperative Publishing P.O. Box 23909, Rochester, NY 14692-9969 (1012pp $86.50 1990) (11/90)

Book review by James B. Boskey

The growth of international arbitration in recent years, not to mention the promulgation of several treaties designed to encourage its use, make the subject of Thomas Oehmke's book extremely timely. Unfortunately a narrow perspective, careless editing, and other similar problems prevent this from being the leading contribution that it could have been.

Oehmke looks at international arbitration primarily from the viewpoint of the American Arbitration Association. While the AAA is deeply involved in both the promotion of arbitration as a means of resolving transnational disputes and as an administrator of such disputes, this viewpoint is unduly parochial as it ignores the increasing number of alternative administrative organizations that are available throughout the world and focus on a limited number of arbitration rule sets out of the wide variety that exist internationally.

Also somewhat parochial is Oehmke's approach to the law of arbitration. Cases have been reported from around the world on many aspects of arbitration law. Oehmke, however, focuses his analysis almost exclusively on cases decided in the United States, and within that, largely on cases decided by the federal courts. This provides a somewhat slanted view of the development of arbitration law.

Somewhat problematical also is Oehmke's election to include, as chapters 12-19, a basic course in public international law. Almost all of the material in this section is irrelevant to his underlying subject matter, and its inclusion suggests that this had been written as another book and dropped willy-nilly into this volume. This is representative of a weakness in editing which is also reflected by the frequent and repeated misuse of words and the adoption of complex but inexact terms where simple and clear ones would have sufficed.

This is not to say, however, that Oehmke's book is without redeeming features. When he focuses on the arbitration process rather than the law, Oehmke is both clear and informative, and the breadth of his experience shines through. Further his collection of arbitration and litigation forms is very useful, although one could have wished for somewhat greater elaboration of the submission agreement and for examples of preferred arbitration clauses that demonstrate the ability to tailor the arbitration remedy to the specific needs of the parties. Also very useful are the appendices which include major treaties and federal laws relating to arbitration in the international sphere as well as selected rule sets from the AAA and some foreign tribunals.

Porter, Jack Nuan and Taplin, Ruth, Conflict and Conflict Resolution: A Sociological Introduction with Updated Bibliography and Theory Section, University Press of America, Lanham, Md. (114pp $23.75/$11.75 hard/paperbound 1987) (7/88)

There are some topics that can only be dealt with very briefly or at great length. Jack Porter and Ruth Taplin have, in this work taken one of these topics and attempted to inappropriately abbreviate it, making a potentially important contribution almost valueless to the professional or non-professional reader.

Conflict and Conflict Resolution had its genesis in Professor Porter's masters thesis some 20 years prior to the actual publication of this work. The thesis provided, apparently, an overview of sociological contributions to the study of conflict, with an emphasis on the techniques of small group analysis. This work somewhat updates that review and attempts to apply the concept of triadic analysis to the concept of mediation. It should be noted in passing, that the concept of mediation used by Porter and Taplin is far broader than the common term. Mediation is used to cover any situation of tri-partite participation in conflict, rather than merely the situation where the third party has dispute resolution as a goal.

The basic concept presented is an interesting one, but the brevity of the discussion prevents it from being an effective presentation. As an example the contribution an potential role of games theory to the analysis is dealt with in less than 10 pages, and most of the material presented is historical rather than analytical. Similarly the topological equivalence of two of the three primary models of triadic interaction discussed is noted only in one line, and the implications of that equivalence is left undiscussed.

Because the techniques of small group analysis do have a great deal to teach us in theoretical analysis of dispute resolution, it is to be hoped that these authors will attempt a more thorough approach to the subject. Unfortunately, this time they were not successful.

Rogers, Susan J., Understanding Our Criminal Justice Volunteers: A Study of Community Mediators in New York State, Magi Educational Services, Inc., 2 Madison Avenue, Larchmont, NY 10538-1930 (146pp $20 1989) (Executive Summary-8pp-Free on request) (7/90)

Book review by James B. Boskey

As the use of volunteer mediators in community dispute and related programs has become increasingly accepted, it becomes increasingly important to understand who these volunteers are, why they serve, why they cease serving, and what needs of theirs are and are not being met by the programs with which they work.

Under a grant from the New York Court System, Susan Rogers has undertaken an extensive and effective analysis of these questions. Examining community mediators from 10 sites (mixed urban and rural) throughout New York, she paints a clear and useful picture of the volunteers who make the dispute resolution system function.

Much of the information collected is unsuprising, but even that information provides a formal confirmation of popular belief. The majority (60%) of the volunteers are women, they come from a wide range of professional backgrounds (the most common being education), and most are active in other forms of volunteer work in addition to their mediation efforts.

The most useful features of the study, however, is Dr. Rogers' examination of the factors that lead to the retention or loss of mediators and to increased or decreased mediator satisfaction. One important factor is the extent to which the mediator is prepared, by the training, for the amount of work available. In many cases mediators had unrealistic expectations as to the number of cases they would deal with and were frustrated when they had relatively few opportunities to be active. Other factors included the need for agency feedback to the mediator, offering recognition for non-mediation services offered by the volunteers, and a clearer staff-volunteer partnership.

The study is clear and well presented. It is also supported by a detailed examination of the literature on both mediation and volunteering and includes an extensive and useful bibliography.

Robbins, David E., The Securities Arbitration Guide, Prentice Hall Law and Business, 855 Valley Road, Clifton, NJ 07013 (31pp $10 (quantity discounts available) 1989) (7/90)

Book review by James B. Boskey

David Robbins, the former Director of Arbitration of the American Stock Exchange, has prepared a useful pamphlet providing basic information on the nature of securities arbitration. The pamphlet is designed for use by either a client with a claim against a broker or brokerage house or the attorney who is representing such a client. The information is fairly basic, what claims are likely to be successful or unsuccessful, where and how to file a claim, and some basic information about proceedings, but it is information that is not as easily available elsewhere and provides intelligent evaluation of options that is not provided by the arbitration administering organizations.

Rapoport, Anatol, The Origins of Violence:Approaches to the Study of Conflict, Paragon House, 90 Fifth Ave., New York, NY 10011 (620pp $39.95 1989) (3/90)

Book review by James B. Boskey

My first introduction to conflict resolution studies came when I was a law student at the University of Michigan and responded to a bulletin board request for subjects for an experiment in psychology. The experiment, which had me playing a simple zero sum game for fun and profit, was run by a graduate student who, I later discovered, was completing his dissertation under Anatol Rapoport. After participating in several such experiments I became sufficiently interested to follow up by subscribing to the Journal of Conflict Resolution that Rapoport edited, and the rest is, as they say, history.

Rapoport has moved on from the University of Michigan to the University of Toronto, and his new book was developed to serve as the material for an introductory course for a four year program in Peace and Conflict Studies at that University. On receiving the book, I expected that it would provide an extensive introduction to the scientific and mathematical study of conflict resolution, but was surprised to find that instead the volume provides a broad ranging introduction, from largely a political science viewpoint, of peace studies and the nature of violence in human society.

The fundamental thesis of the book is that war constitutes the essential threat to humankind and that to understand war and the reasons that war occurs it is necessary to understand the underpinnings of violence amongst human beings. After a brief introduction which sets the stage for the discussion that follows, Rapoport sets forth four approaches to understanding violence.

The first approach is the "psychological" approach. Drawing on Conrad Lorenz' On Aggression he examines the origins of violence as a biological and sociological institution. The second approach is the "ideological" one. In these chapters, he examines the approaches to violence of both american and soviet leaders, after introducing Lenin and Bakunin as developers of basic justifiers of the use of violence to accomplish legitimate goals.

This is followed by discussions of the "strategic" and "systemic" approaches which suggest the intellectualization of war and the development of a world system based on warfare as a necessary correlate. Finally, in the last section, Rapoport addresses the possibilities for development of a peace focused world and the development of a science of peace. He uses the world order approach to base the idea that peace rather than conflict can become the real focus of a world system.

At base, this volume presents a cry in the wilderness, seeking desperately for a valid intellectual basis for making peace rather than conflict the center of a world system. Intellectually, it is a tour de force, and the approach presented is one that displays limited hope for real change in the world. While the final balance of ideas is not one that this reader can accept in whole, it provides a real intellectual challenge to the conflict resolution community to reexamine its fundamental assumptions and to address the fundamental problem of how world peace can be accomplished.

Robbins, David E., Securities Arbitration 1988, Practicing Law Institute, 810 7th Avenue, NY, NY 10019 (707pp 1988) (3/89)

Book review by James B. Boskey

This is the manual prepared under the supervision of the Practicing Law Institute in New York for their program on Securities Arbitration which was held on June 1, 1988. It includes a series of articles ranging from the State of the Law in the Post-McMahon era, through an analysis of SEC proposals for change in securities arbitration, arbitration under different exchange and other arbitration body procedures thorough a set of articles on practical aspects of representation in securities arbitration.

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