Book Reviews by James B. Boskey
Online Reviews of Dispute Resolution Literature from The Alternative Newsletter - March 1999
See other Boskey reviews written between 1988 and 1999.
Due to a printer error, the following two reviews were misprinted in the previous issue of this newsletter. They are reprinted here to correct for that error.
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Blauert, Jutta and Zadek, Siman, Mediating Sustainability:
Growing Policy from the Grassroots, Kumarian Press, 14 Oakwood
Ave., West Hartford, CT 06119-2127(306pp $25.95 1998)
ISBN:1565490819
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Mediating Sustainability is a fascinating book about the process of encouraging the development of sustainable agricultural and development projects in the third world. For those with an interest in rural and agricultural development it presents a series of thoughtful articles looking at patterns of response in various Central and South American nations. Unfortunately, however, the term mediation as used here has little reference to its use in the dispute resolution community. Rather the editors are referring to effectuation of policy as mediation, a proper use of the word, but not one that has substantial relevance to the interests of most readers of this newsletter.
Lickson, Charles, Ironing it Out: Seven Simple Steps to
Resolving Conflict, Crisp Publications, 1200 Hamilton Court,
Menlo Park, CA 94025-1427 (177pp $12.95) ISBN: 1560523794
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Ironing it Out by Charles Lickson of Mediate-Tech is a useful introduction to personal conflict management for a middle range audience. It attempts, generally successfully, to win their attention and teach them some useful skills without overwhelming them with information or demanding undue effort. Originally published as a manual for Lickson=s conflict resolution training courses, the book is pitched a bit below the level of sophistication that I would have expected, but provides some straightforward and solid ideas on dispute management. It should be noted that the subtitle is somewhat misleading as the focus of the book is really on dispute resolution rather than conflict management, although many of the techiques for the one are clearly applicable to the other.
The seven simple steps of the title will seem familiar to most in the field. Derived, in large part, from Getting to Yes, (careful editing would have corrected the consistent misspelling of William Ury=s name) but restated in different form, they include identifying the real problem, developing alternative solutions, communicating to be heard, and look to preserve relationships, well trod, but strongly valid lessons. Examples are provided from a wide range of disputes including professional and personal, and specific chapters address workplace, family, and public disputes with note taken of other areas of attention. Exercises included in the book are often ones that would be more useful in a training program than for self-administration, but do point up the issues that are being addressed
Overall, the tendency to oversimplify the analysis of disputes and lack of care in the editing process would not make this a prime choice for a self-education program, but it could serve well as a manual to accompany dispute resolution training.
And Now Back to the New Publications:
Hammond, John S., Keeney, Ralph L. and Raiffa, Howard, Smart
Choices: A Practical Guide to Better Decisions, Harvard Business
School Press, Boston, MA 02163 (254pp $22.50 1999) ISBN:
0875848575
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
In teaching courses in negotiation Getting to Yes and Getting Past No provide solid and useful texts for teaching about the negotiation process itself, but neither really addresses, except in passing, the process of planning for negotiation, other than to make clear that such a process is essential and needs to focus on a broad view of the needs that are to be addressed in the negotiation itself. Hammond, Keeney, and Raiffa have taken a step back from that process and addressed, in a readily accessible way, the decision making process that needs to be undertaken before consideration is even given as to whether it is appropriate to engage in negotiation over a particular questions.
The process of decision making has been a focus of serious attention over the past two decades by psychologists, management theorists, and others, but relatively little attention has been paid to reducing the learning that has been acquired in such academic research to a clear set of guidelines for the individual involved in day-to-day decision making. Just as Fisher and Ury translated several decades of negotiation research into popular and accessible form, these authors have done the same for decision processes, providing thereby an approach which is likely to guide a new generation of trainers and teachers in dealing with this earlier stage of the planning and decision making process.
Much of what is offered here will seem familiar to those who remain abreast of the literature in the decision process and negotiation fields, but the division of the process of intelligent decision making into indentifiable stages provides a clear and effective direction for the decision maker, with appropriate checks on the process to help avoid missing available options. The proposed acronym, Proact, divides the decisional process into problem identification, clarification of objectives, identification and expansion of alternatives, consideration of consequences, and evaluation of tradeoffs, with additional attention, beyond the acronym, being paid to means of dealing with uncertainty, accounting for levels of risk tolerance, and recognizing the range of consequences of decisions, which may affect other apparently and less obviously linked decisions. Finally attention is paid to some of the psychological traps which hinder effective decision making and which Reuben was so adept at identifying.
Roger Fisher=s cover comment on the book, AThe best book I know on how to make a decision.@, may be a slight exaggeration if one were willing to take into account some of the academic literature, but is clearly correct when speaking of popular works. While not promoting a paradigm shift itself, Smart Choices builds on the paradigm shift that has flowed from Fisher and Ury=s work and provides an important foundation for those involved in dispute resolution and decisional planning processes.
LLP Press, the former Lloyds of London Press, has brought out a new series of Dispute Resolution Guides, presented in similar covers and designed to introduce various aspects of the field to those who are new, or just coming, to an interest in the area. The series includes both new works and new editions of some previous works which meet these criteria. The following four reviews are of the first books in this series, and, as will be apparent, LLP has set a remarkably high standard for the series. Although addressed primarily to newcomers, each of them also offers useful and effective material for the experienced practitioner and will make a welcome addition to the dispute resolution bookshelf. It is worth noting that the text of the books is substantially shorter than their length as each contains substantial appendices, generally including the text of the English 1996 arbitration act and other supportive materials.
Cato, Mark, So You Want to Be an Arbitrator?, LLP Ltd.,
Legal Publishing Division, 69-77 Paul St., London EC2A 4LQ, England
(244pp $94 1999) ISBN: 1859788793
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
The English take arbitrator training seriously. Unlike Americans who, until recently, were, outside of the labor-management arena generally prepared to assume that Uncle Ned or Aunt Tillie, whose fondly remembered efforts at resolving childhood disputes amongst their nieces and nephews, or that a randomly selected attorney would be fully capable of understanding their dispute and bringing to its resolution an ability to recognize and apply the appropriate rules, they have usually insisted that arbitrators be trained in decision making skills and be familiar with the law governing the areas in which they are to make decisions, or at least be fully prepared to inform themselves of that law. The Chartered Institute of Arbitrators and others offer staged training programs that qualify arbitrators to deal with a wide range of cases and continuing education to keep their skills and knowledge sharp. Training materials, up to and including the extraordinary The Sanctuary House Case by the same author as this volume and also published by LLP, which offers a detailed examination of all aspects of the arbitration process, are regularly published.
The current volume is designed for those who cannot, or are not yet ready to, invest the extensive time and effort required by Sanctuary House, but who are nonetheless serious about a career in arbitration. Despite the light spoof of the title, this is a serious work, providing a broad and effective introduction to the pre-hearing arbitration process from the viewpoint of the neutral and an understanding of what is necessary to be effective in that role. Written in the form of a conversation between the author, one of the most experienced construction arbitrators in England and his goddaughter, an commercial attorney with an interest in but little knowledge of the arbitral process, it combines a pleasantly chatty style with detailed, clear, and specific information about the role and sources of authority the arbitrator under English law and practice. While the general focus in on construction arbitration, Cato is careful to include warnings about alternative processes and specifically discusses rent review arbitrations which are a major category of case in England.
Most of the book is dedicated to the prehearing stages of the arbitration. Cato takes the reader through the process from the first notice to the neutral of appointment, the preliminary meeting and the paper work which precedes and follows it - a far more important process under English than American arbitration, and the use and availability of interlocutory orders. While he addresses in brief the role of the courts and the arbitral hearing itself, these chapters are really afterthoughts, intended to whet the reader=s appetite for the more comprehensive coverage offered in other training works. The book is fully focused on process under the Arbitration Act 1996 and includes extensive cites to its provisions where appropriate.
While the English arbitration process is far more structured than that in the United States, the American reader as well as the English reader stands to gain a great deal from reading this book. Cato deals, effectively though often in passing, with many of the important philosophical issues of arbitration and many of the processes he describes could well be adopted in a simplified form by American arbitrators as well. For an English arbitrator, or would be arbitrator, the book is a must read, unless he or she is prepared to deal with full Sanctuary House volume as a starting point. Nowhere else will one find as clear an comfortable an introduction to the nature of the arbitration process.
Huleatt, Mark, Gould, James, and Gould, Nicholas,
International Commercial Arbitration-A Handbook (2d Ed), LLP
Ltd., Legal Publishing Division, 69-77 Paul St., London EC2A 4LQ,
England (165pp $102 1999) ISBN: 1859788793
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
This second edition of the International Commercial Arbitration Handbook is another of the volumes in the LLP Dispute Resolution Guides series. As with the other volumes in the series it is designed principally for newcomers to the field, but contains solid information and insights that will make it of value to the knowledgeable reader as well.
The purpose of the Handbook is to introduce the concept on International Commercial Arbitration and provide the reader with both an understanding of its place in the dispute resolution continuum and the way in which it is invoked and operates. The Handbook focuses on the major international arbitral providers, LCIA, ICC, AAA, etc. and on the use of ad hoc arbitration, especially under the UNCITRAL rules. It begins by explaining the reasons for the popularity of this form of arbitration and the advantages and limits on its operation, as well as recognizing the usefulness of other forms of alternative dispute resolution in the international commercial context and reviews of the major sources of arbitral authority.
Most of the remainder of the books takes the reader step by step through the arbitral process. This is not, however, done merely as a narrative of the process, but a detailed examination of the rules and approaches used by arbitrators and courts in implementing and enforcing arbitration. Complex concerns are not shirked, the discussion of multi-party arbitrations being a particularly useful example of a concise and functional treatment of a complex and difficult topic. Chapters examine the agreement, appointment of the panel, jurisdiction and powers, proceedings, awards and their recognition and means of resisting them. Appendices provide lists of states adherent to the New York convention and who have adopted the UNCITRAL model law, a comparative table of international arbitration rules, and various model arbitration clauses.
For those who already own the first edition, the new edition is not greatly changed, but has been updated to take account of revisions in the various international rule sets and the English arbitration law of 1996 and other national changes.
d'Ambrosia, Peter L., What is Dispute Resolution?, LLP
Ltd., 69-77 Paul St., London EC2A 4LQ,England (222pp $77 1998) ISBN:
1859788343
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Peter d'Ambrosia's What is Dispute Resolution? is slightly misleadingly titled as the book is designed, in the first instance, less to provide a definition of the nature of the dispute resolution process than to provide a potential claimant or defendant an understanding of the nature of the processes that are available for the conclusion of their contrtemps. Focused specifically on civil disputes, with an emphasis on debt collection, employment issues, and the problems of partnerships, while specifically excluding from its consideration family and matrimonial disputes, the book provides a clear, although somewhat uneven, understanding of the processes available and the risks and opportunities that they present.
After introductory chapters which introduce the idea of disputes and provide an overview of some of the settings in which they arise, d=Ambrosia turns to specific approaches to dispute resolution. He begins, logically enough, with the courts, and describes the basic procedure for bringing a case in contract or for personal injury, and some of the pitfalls that such litigation may pose. He points out, but is less detailed than one might wish, the concerns posed by the charging of costs to the losing party in litigation, and makes note of, but does not seriously discuss the effect of legal aid on this process. Generally he focuses on the costs and delays involved in litigation, suggesting that it may be appropriate only in a limited set of circumstances.
He then turns to a series of chapters presenting the major alternatives to litigation: mediation, medarb, and arbitration. The chapter on mediation is clear, but a bit overly prescriptive in its definitions of mediation. The author has a tendency to provide clear answers to questions which are open to serious debate in the field, ie. whether substantive expertise is useful in a mediator. He also has a rather inaccurate view of the extent to which mediation has been accepted by the bar in the United States, leading to a rather negative response to the activities of the bar in England. Also, in this chapter, the orientation turns too frequently from that of the disputant to that of the neutral, an approach which may confuse the casual reader. The medarb chapter is a brief one of about four pages which provides a limited and inadequate view of the reasons why medarb might be useful. It could better have been omitted or would have to have been expanded substantially. The arbitration chapter provides a clear description of Acommercial@ arbitration process, but could have used a bit more on the process of submission of an existing dispute, the theme of earlier sections of the book.
Finally two chapters address enforcement of arbitral decisions and agreements reached in mediation and a brief summary chapter, AWhy and How ADR?@, which reviews some of the advantages of the various processes. The appendices include a set of sample letters, the text of the Arbitration Act of 1996, and the text of the UNCITRAL rules.
Overall, the book contains a good deal of useful information, but seems to have been prepared a bit too hastily and not subjected to a suitably complete editorial process. Changes of tone between chapters leave the impression that they may have been written at different times for different audiences and insufficient consideration has been given to their consolidation herd. One may legitimately wonder about the usefulness of the latter two texts in the appendices to the average reader of this volume, considering the large amount of space that they consume. Few lay readers will gain much from a blind reading of a statute or set of model arbitration rules. The book is of some value, but is clearly the weakest link in a strong new series.
Crowther, Harold, Introduction to Arbitration, LLP Ltd., Legal
Publishing Division, 69-77 Paul St., London EC2A 4LQ, England (332pp
$85 1998) ISBN: 185978831
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Harold Crowther's Introduction to Arbitration is said, by him, to be directed to those with little previous knowledge of arbitration and also to serve as a practice manual for serious students of the field. He is well suited to meet both purposes as an experienced arbitrator, former Chair of the Chartered Institute of Arbitrators, the premier training organization for arbitrators in England and around the world, and more particularly as the course director of the Diploma in Arbitration program offered by the College of Estate Management at Reading University. By focusing on the 1996 Arbitration Act and practice thereunder, he achieves both of these purposes, although the book is perhaps more successfully designed for the serious student as the newcomer may be a bit overwhelmed by the detail that he provides.
In essence what Crowther has provided is a detailed analysis of the 1996 act and its implications for the practice of arbitration. In this respect, the book resembles several of the analyses of the act that were published shortly after it was promulgated, but it assumes somewhat less background on the part of the reader, allowing it to be used in an introductory course or program. After a somewhat too brief review of the history of arbitration in England and of the 1996 act, Crowther precedes step by step through the arbitration process, dealing with the mandates of the statute and some of the surrounding issues and procedures. He starts with the agreement, examines the appointment process in three chapters, the preliminary hearing, with an extensive commentary on agenda items to be discussed, preparation for and operation of the hearing, the availability of court assistance and intervention, the award and the ever present issue of costs. Appendices include the 1996 Act, various orders implementing it including the relevant rules of the Supreme Court, and UNCITRAL Notes on Organizing Arbitral Proceedings.
This will be a very useful book for the student arbitrator and can also serve as a refresher for the experienced arbitrator seeking to quickly check the effect of a section of the statute.
Leung Mei-Fun, Priscilla and Wang Sheng-Chang, Selected Works of
China International Economic an Trade Arbitration Commission Awards
(1989- 1995) Updated to 1997, Authorized English Version, Sweet
& Maxwell Asia, Suite 1808, Asian House, 1 Hennessy Road,
Wanchai, Hong Kong (392pp $195 HK$1500 1998) ISBN: 0421578300
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
The first volume of this set was published in 1995 and provided information as of 1993. This volume, largely a translation of the official Chinese version, provides updated versions of the CIETAC Arbitration rules and procedures for the appointment of arbitrators, and reports on selected decisions of the CIETAC tribunals. The awards are presented in chronological order, and most of the same awards that were in the Chinese edition are reoffered here, although five of the Chinese awards have been replaced here by three more recent awards that have more general relevance. The earliest decision included in this volume dates to January of 1989 and the latest to September 1997.
Each decision is headed by a digest summarizing the basic facts of the case and the ruling, includes a statement of the jurisdictional basis of CIETAC for dealing with the case, a detailed statement of facts, the Opinion of the Tribunal, and the award. The translations are clear and idiomatic, and the cases selected raise interesting questions of law and process. The series provides a clear picture of the effectiveness of the CIETAC process and of the types of decisions rendered.
Várady, Tibor, Barceló, John J., and von Meheren, Arthur T.,
International Commercial Arbitration: A Transnational
Perspective, West Group, PO Box 64526, St. Paul, MN 55164-0526
(845pp $59 1999) ISBN: 0314230742
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Várady, Tibor, Barceló, John J., and von Meheren, Arthur T., Documents Supplement to International Commercial Arbitration: A Transnational Perspective, West Group, PO Box 64526, St. Paul, MN 55164-0526 (278pp 1999) ISBN: 0314230734
The growth of interest in Alternative Dispute Resolution has focused principally on mediation and other non-binding processes, but arbitration has benefitted also from the expanded interest in non-judicial processes. In the past several issues of this newsletter we have seen at least two new United States based casebooks on commercial arbitration, and these are now supplemented by an excellent casebook on commercial arbitration in the international setting.
It is not that there has been any lack of interest in international commercial arbitration or any shortage of writings in the area, but despite several excellent English teaching books in the area, no United States publisher had come out with a book designed for the American law classroom in this field. This gap has now been filled by a first rate effort which combines extensive case law selections, from arbitral panels as well as United States and other nations= courts, with carefully selected materials and extensive comments which place the selections in context.
The book consists of five chapters, each with substantial subsections. The first places international commercial arbitration in its legal and structural setting beginning with a look at the nature of the disputing process and providing a contextual understanding of the place of arbitration in the context of both litigation and mediation. It also introduces the concepts of institutional v ad hoc arbitration, and looks at the standing of arbitration in national legal systems and the sources from which legal norms are drawn for decisions in arbitration cases. The second chapter looks at the authority of arbitral tribunals, examining first the arbitration agreement as the Acornerstone of the arbitration process@ and then turning to the question of arbitrability under national law.
The third chapter examines the arbitrators, considering issues of qualification, selection and appointment, and challenges. The fourth looks at AFocal Points in the Arbitration Process@, actually considering a series of practice issues ranging from the lex arbitri to issues such as confidentiality, party representation, time limits, discovery, expert witnesses, and the like. It then turns to questions about the nature of the award and choice of law issues. The final chapter focuses on the effects and limits of the award, looking at the confirmation process and its effect and judicial control through recognition, enforcement, and setting aside of awards.
The materials are carefully selected and very tightly edited for focus on the questions of concern. The range of sources is impressive and the careful use of materials from all parts of the world is helpful in maintaining the international flavor of the course. In a few areas the limited number of chapters leads to some overly fussy organizational features, but on the whole this will be a very teachable book. My only concern is that the length of the materials will discourage some teachers from including sufficient experiential learning in the course, but this is not a part of the authors= plan.
The document supplement contains the text of several of the major international conventions on commercial arbitration, the UNCITRAL Model law, selected national legislation, and selected arbitration rules including the ICC and LCIA rules of 1998 and the AAA rules as well as several specialized rule sets.
Mosten, Forrest, Operating a Profitable Mediation Practice,
Family Mediation Training, 10990 Wilshire Blvd., Suite 940, Los
Angeles, CA 90024 (373pp $49.95 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Woody Mosten is best known outside of California for his The Complete Guide to Mediation published by the Family Law Section of the American Bar Association, and one of the best introductory guides to family and divorce mediation for attorneys with little knowledge or background in the field. He is also, however, a very active mediator and mediation trainer, and this volume is the manual from one of his most successful training programs. As he pointed out to me in a conversation about this book, he is somewhat uncomfortable with releasing to general circulation a book that was designed to be accompanied by a full two day training course, but the interest in the area is so great that he felt it was worth taking the risk.
On the whole, the risk was worth taking, and the resulting manual is a very useful and usable volume. It is not as refined as a fully edited and published work would be, but the information provided and the analytical approaches used are consistently valuable and easy to use.
The book is divided into three sections. The first is designed assist the mediator with the creation of a Amediation signature@, a specific identity as a mediator that differentiates the individual practice from the mass of practitioners. He considers what is apt to attract a client to a particular practice and what is apt to lead them to recommend the practice to others. The materials include many charts, fill in questionnaires addressing topics on the mediation practice and more.
The second section looks at strategic marketing of a mediation practice. Included are some general marketing principles and specific ideas for a professional practice of this type. The issue of presentation as a generalist or a specialist is considered, selections from the writings of others, and sample ads are included.
The final section focuses on the management of the mediation practice. It includes some sample forms, checklists, and ideas for the effective operation of the practice as a business, as well as a description of confidential mini-evaluation as an compromise between a transformational and evaluative process.
As suggested earlier, this book is not a polished product of the sort that one would expect in a published volume, but was intended to be used with the two day training program that would set many of the materials in context. With that as a given, the book will be valuable to many mediators, as it raises the right questions, and Woody Mosten=s insight shines out repeatedly suggesting new and creative approaches to dealing with regular and unanticipated issues. While the focus is on family mediation, much of the learning is more broadly applicable and the benefits of the volume can accrue to the commercial mediator as well.
Powell-Smith, Vincent, Sims, John, and Dancaster, Christoper,
Construction Arbitrations: A Practical Guide (2d ed.),
Blackwell Science, Osney Mead, Oxford, OX2 0EC, United Kingdom
(320pp ,37.50 1998) ISBN : 0632039922
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Construction Arbitration is a well designed and clearly written volume intended to introduce the reader to the use of arbitration as a means of resolving disputes in the construction industry in England. While it is written for the novice, the discussion of both law and practice is carefully drawn and sophisticated enough that it will benefit the experienced user of arbitration services as well. This is especially true in light of the changes that the 1996 Arbitration Act has imposed on the arbitration process and the other recent legal changes which influence the manner in which arbitration is and will be practiced. The basic outline of the book is straightforward. It begins by defining arbitration and comparing the arbitration process both with litigation and with mediation and other dispute settlement approaches. It examines the statutory framework, looks at types of arbitration agreements, including an example of an ad hoc one, and examines the powers of the parties, the arbitrators, and the courts in dealing with an arbitration situation. While the book was in press, the House of Lords decision in Beaufort Developments (NI) Ltd. v Gilbert Ash NI Limited came down, and the changes it makes were reported in the preface to the new edition.
Subsequent chapters take the reader through the arbitration process, examining, in turn, activities before the hearing, problems arising before the hearing, the hearing, problems at the hearing, the award, and the post-award process. In each area a clear description of the basic, or usual, process is provided, and points where issues are likely to arise are clearly indicated with proposals for dealing with such issues including the legal standards which govern them, where applicable, and alternative ways of addressing the problems. Not every conceivable difficulty is covered, this is intended as a readable volume not an encyclopedia, but the major controversies that are likely to arise are considered in appropriate depth.
The book is well supported with appendices including The Arbitration Act 1996, the Construction Industry Model Arbitration Rules, the ICE Procedure, and more. Overall, a well designed and useful book that provides clear and useful information in a comfortable format.
Aitken, Neil and Spragge, Charles, A Guide to Arbitration and
Litigation in Central and Eastern Europe, Suchen Debling,
Cameron McKenna, 160 Aldersgate Street, London EC1A 4DD, England
(144pp ,9.99 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
In the last issue of this newsletter I included Michael Chapman's review of this book, noting that I had not yet seen it myself. Having now received a copy and having had a chance to review it, I can only agree with Michael=s comment that this is A[a] refreshing new book, in a refreshing new style (and at a refreshing price)@. The book begins with a foreword which points out the importance of dispute resolution provisions in cross-border contracts, and explains why arbitration is usually the preferred process in dealing with parties in Central and Eastern Europe. The presentation is strong, but balanced, and is accompanied by a model arbitration clause, designed for an administered arbitration, which covers the principal issues that should be of concern in drafting an agreement. This is followed by an overview which takes account of the differences between common law and civilian systems, and briefly addresses other issues which explain the advantages of arbitration in this context.
This introduction is followed by chapters addressing The Czech Republic, Hungary, Poland, and the Russian Federation. Each chapter provides a background to the current legal system followed by a description of the legal system that is now in place in the nation in question. It then addresses legislation and procedural rules governing arbitration in the particular country and, finally, examines the permanent arbitration bodies in place in each. The writing is consistently clear and to the point and the information provided appears to be fully up-to-date. Anyone considering commercial dealings in these nations, or already involved in a commercial dispute with someone from one of them, would be well advised to review this book.
Grzybowski, Alex, et. al., Building Democratic Institutions
and Practices in Cambodia, Uvic Institute for Dispute
Resolution, P.O. Box 2400, Victoria, BC V8W 3H7, Canada (101pp 1998)
ISBN: 1550581503
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Few peoples and fewer nations have seen the extent of violence that has been committed on Cambodia in recent decades. Even with the ending of the extemes of violence imposed by the Khmer Rouge under the leadership of Pol Pot and others, including the current prime minister, periodic outbreaks of murder and lesser violence have continued to plague the nation. It is this unstated background which provides the foundation on which efforts to develop peaceful means of conflict resolution must be built in Cambodia, and with which the Canadian originated project reported here must address.
To read this report, however, one would be left with the impression that Cambodia was simply one more lesser developed nation struggling with developing democratic or quasi- democratic institutions to address relatively minor ongoing violations of human rights. The project, which is a joint effort of its Canadian sponsors and members of the Cambodian government and polity, takes no account of the recent history of the State, but merely provides serious academic discussion of forms of dispute resolution that might be appropriate for any nation in the early stages of development and modernization.
This is not to denigrate the quality of the contributions that are contained in this brief volume. Both the Cambodian and Canadian contributors are leaders in their fields and they provide serious, well thought out, overviews of dispute resolution processes in outline and bulleted paragraph form. Om Kem, the Director of the Institute for Buddhist Education, provides an excellent historical reconceptualization of conflict resolution as a buddhist skill, H.E. Pol Lim of the Ministry of the Interior offers a very nice theoretical classification of types of conflict, and the Canadian contributors provide clear and concise descriptions of Canadian approaches to conflict resolution, the art of the Ombuds, techniques of investigation in a human rights context from a developed society viewpoint, and an excellent survey of experience with land policy development around the world. Each contribution, standing on its own, offers real value to the reader, and the editing is highly professional, maintaining interest in the contributions without impinging on their content.
In one sense, I suppose, what is missing is a different book that, perhaps, could not have been written by invited foreign guests and local officials who are trying to provide dispute resolution services without stirring up difficulties that have only recently, and perhaps momentarily, been quieted. Nonetheless, the rarified intellectualism reflected here seems to offer little to address the very real underlying tensions facing the Cambodian peoples.
Kennedy, Leslie W. and Forde, David R., When Push Comes to
Shove: A Routine Conflict Approach to Violence, State University
of NY Press, c/o CUP Services, PO Box 6525, Ithaca, NY 14851 (199pp
$59.50(c) $19.95(p) 1998) ISBN 0791440338/40346
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
The title phrase, A when push comes to shove, has been used elsewhere in the conflict and dispute resolution literature, but nowhere more appropriately than in this sociological study of the origins of interpersonal violence. While most conflict work does not directly address physical violence, the potential for such activity is often present, and the threat of its use as an alternative to a reasoned solution is often implicit, although rarely explicit in dispute resolution settings.
Kennedy and Forde examine violent interpersonal conflict from a theoretical viewpoint that focuses on the social construction of appropriate conduct (the acceptability of violence as a response), the fact that violence is usually only one of several alternatives available to a person responding to a situation and the selection of the violent alternative is generally a conscious, rather than programmed or unthinking, response, and that the decision to engage in an act of violence is generally related to a specific, usually coercive, intent on the part of the actor. In order to understand the use of violence, it is important to look at each of the three elements and consider the actor=s choices at each level.
The authors conducted an extensive survey in Alberta and Manitoba provinces in Canada to determine the manner in which violent conduct is socially constructed. The survey combined a look at the recent experience of the respondents with violence with an examination of their predictions of their response to preprogrammed situations where a violent reaction might be expected. A similar examination was conducted by a third author on a large number of Astreet youth@ who spend a good part of their time Ahanging out@.
The study suggests strongly some of the correlates of violent action by individuals. While it does permit the prediction of response in individual cases, it suggests clearly conditions and factors that are likely to increase the likelihood that violence will occur in a particular situation. Those dealing with such violence in community mediation and VORP programs will find the ideas presented here very useful in program design, screening decisions and in improving the effectiveness of mediation in settings where violence has been threatened or used.
Adam, Hussein and Ford, Richard, Removing Barricades in
Somalia: Options for Peace and Rehabilitation, United States
Institute for Peace, 1550 M St. NW, Suite 700, Washington, DC
20005-1708 (33pp 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Somalia is in many ways the great paradox of the developing world. The utter lack of a national state suggests a primitive tribal society that should not be able to function in the modern world. Despite that, banking, telephone and other systems, operated on small scale, private, local bases have been effective and efficient and had little difficulty in integrating their services with multinational competitors where it is useful for them to do so. At one level, Somalia is seen as nation of outlaws with crimes of violence going unpunished by the state and retribution, by family or tribal group being the closest thing to a stable social norm. At another it is seen as an outlaw nation, having rejected intervention by both the United Nations and the United States in recent years.
This study, conducted by a combined Somali and American team under the auspices of the United States Institute for Peace, attempts to address these apparent contradictions and suggest ways of protecting common interests of the Somali people in the absence of an effective state system. The solutions proposed are not ones that will be comfortable to many experienced in the efforts to improve the operation of nation-states in the developing world. In essence, the report calls for a recognition of the importance to the Somali=s of decentralization and for allowing local rather than national control of most activities as the only effective model for development. While some form of central government may emerge from the process, its existence is neither a necessary nor a sufficient condition for effective development.
International relief agencies will be very uncomfortable with these conclusions. As large bureaucracies they are, generally, only comfortable in dealing with similar national bureaucracies. The Somali experience, however, may suggest that in some cases the elimination of the agencies may be an advantage rather than barrier to development. The Somalis, despite many problems, seem to be developing a novel system of governance which functions more adequately than many of the post- colonial governments in Africa. Perhaps they should be left alone to find their own way.
World Trade Organization Dispute Settlement Decisions:
Bernan's Annotated Reporter - Volume 1, Bernan Press, 4611-F
Assembly Dr., Lanham, MD 20706 (535pp $75 1998) ISBN: 0890591059
World Trade Organization Dispute Settlement Decisions:
Bernan's Annotated Reporter - Volume 2, Bernan Press, 4611-F
Assembly Dr., Lanham, MD 20706 (508pp $75 1998) ISBN: 0890591067
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
The dispute settlement process of the World Trade Organization is one of the most important non-state quasi- judicial decision makers in the world. Its importance rests not only on the subject of its decisions, but on its availability as a model for common action by states in support of a decisional process.
Bernan's Annotated Reporter provides, perhaps, the clearest presentation of the decisions of the body combining verbatim reproduction of the full text of the case, including notes, and detailed annotations discussing significant determinations made by the Panel or Appellate Body with cross references to other resources (especially the relevant sections of GATT) which make the decision intelligible and fill in lacunae in the official discussion.
Bernan's is a true reporter, with the cases incorporated in chronological order. The text is broken into numbered paragraphs for effective cross-reference and the annotations follow that paragraph numbering. Volume 1 (covering January 29, 1996 through February 25, 1997) presents seven matters, three of them including Appellate Body as well as panel decisions, while Volume 2 (covering February 26 through May 31, 1997) presents a further report of the Appellate Body on one of those cases, and two other cases, the European Community banana import case taking up most of the volume.
Each volume of the reporter is supported with a series of tables setting out an overview of dispute settlement activity, the countries involved in disputes, the treaty provisions interpreted, and cross- references to Basic Instruments and Selected Documents along with othr dispute settlement decisions.
Every academic law library, and the library of any firm practicing in the international trade area will want to have these reports readily available. While the decisions are reported elsewhere, Bernan=s seems to have taken the lead in terms of clear and effective presentation of them.
McKnight, Marilyn S. and Erickson, Stephen K., Mediating
Divorce: A Client's Workbook, Jossey-Bass Publishers, 350
Sansome St., San Francisco, CA 94104-9825 (95pp $19.95 1998) ISBN:
0787944858
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Erickson and McKnight are a team of amongst the most experienced divorce mediators. They have been active in the field from almost its earliest days and have trained many mediators in basic and advanced mediation techniques with a primary, but not exclusive, focus on family and divorce mediation. In this volume they offer a manual which they have developed for their clients to explain many of the issue that they will face in the divorcing and divorce mediation processes and to assist them in preparing for and presenting themselves in the mediation process.
The book is written in clear direct prose, that assumes a literate and intelligent reader, but one who may be unfamiliar with the emotional and practical issues presented by marriage termination. It begins with a poem by Stephen Erickson which nicely points out the tensions of the divorce decision and the need for reconstructing oneself in response to the end of one life period and the opening of a new one. While I am often suspicious of such poetic images, it seems to me that in this case, Erickson has gotten the tone precisely right and encourages the reader to understand his or her own fears and opportunities.
Following a brief introduction which begins the process of examining the turmoil that the divorce process usually involves, the book consists of nine chapters. It begins with an examination of the emotions involved in the divorce process, pointing up the problems of denial and the idea of promoting a healthy post-marital relationship between the spouses. It then turns to a definition of the mediation process, focusing on the potentially constructive uses of conflict and the importance of cooperation even in a conflict based setting. It then turns to the initial consultation with the mediator, addressing isssues of mediation process, mediator roles, the contract to mediate, rules, and fees. The material is general enough to cover most professional mediation practices, but specific enough to be useful to the client in understanding what the process is about.
The next group of chapters address the substantive issues that will most commonly be dealt with in mediation, including: parenting schedules, budgeting future expenses, and dividing property. Each section provides important information about the issues that will need to be addressed and, where appropriate, provides examples of a range of possible solutions which the parties might consider as guidelines in reaching their own conclusions. Again, the coverage is generic, but sufficiently detailed to assist the parties in thinking about their concerns and making sure they understand the matters they will have to take into consideration.
The final two chapters address the closing process with a look first at issues such as taxes, legal questions, and the like that should be addressed as a part of the clean-up process and a short chapter on finalizing the memorandum of agreement. I am pleased to note that the authors strongly take the, to my mind only, ethical view that the drafting of the agreement is for counsel and not for the mediator. The book ends with two appendices a mediation questionnaire which is a useful tool for collecting financial information and a household inventory form which provides similar advantages for objects.
While there is little in this book that a mediator could not provide during the mediation process, providing the book to clients who will read it and follow its ideas will often simplify and accelerate the mediation process. I must admit to having had doubts about whether a generic guide of this kind could be effective, but having reviewed this one, my doubts are laid to rest and I can highly recommend it to any divorce mediator. While the price is a bit high for a book of this length, it will nonetheless provide good value for money, especially when the cost of a copy for each spouse is placed against the total costs of mediation or divorce.
United States Institute for Peace, Guide to Specialists
1998-99, United States Institute for Peace, 1200 17th St. NW,
Washington, DC 20036-3006 (40pp 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
The United States Institute for Peace Guide to Specialists provides a useful resource for the press and civic organizations who are seeking either expert commentary or analysis of a particular region of the world or international policy issue. The specialists are listed by region and topic and their picture and background provided to permit the user to select the right consultant. Contact with the specialists is provided through the USIP=s Office of Communication.
Thompson, Leigh, The Mind and Heart of the Negotiator,
Prentice Hall, Upper Saddle River, NJ 07458 (380pp $53 1998) ISBN:
0132709503
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
The Mind and Heart of the Negotiator is a new textbook, designed primarily for the business student and businessperson, but usable in the training of lawyers and law students in negotiation skills as well. Unlike a Getting to Yes or its successors, however, this is not an attempt to provide an overview of an approach to the negotiation process, but rather to offer a detailed examination of many of the factors that go into the making of an effective negotiator. Like most of its predecessors, it focuses on integrative bargaining as the primary skill needed in most negotiation settings, but it does not overlook distributive bargaining, and provides serious and useful coverage of the issues that arise in that process as well. The book draws heavily on the research of the past several decades on all aspects of negotiation and integrates that information into an explanation of the way in which the effective negotiator plans for and participates in the negotiation process. Both the breadth and depth of the coverage make the book one of real value to both trainee and teacher.
The book=s style is suprisingly informal and readable, although a tendency to overclassification may bother some readers. At times it seems that every concept can be broken down into a specific subset of categories, an approach that will lead some students to overlook the real complexities of the processes discussed and I am somewhat concerned that the use of ATake- Aways@, lists of major points included at the end of each chapter may lead the weaker student to focus on these rather than the details of the discussion. The text in each chapter is carefully broken into digestable sections, and diagrams are effectively used to clarify points.
After an overview opening chapter, three chapters address the basic negotiation process, considering preparation for bargaining, the process at the table, and the integrative process for expanding the scope of the discussion. By focusing first on distributive factors, the author avoids allowing the students the easy assumption that integrative bargaining is automatic, and encourages them to keep their eye on the strategic ball. The next four chapters offer behavorialist insights into the negotiation process, beginning with two chapters explaining the elements of rational decision making (utility theory) and the limitations on the assumption that people conduct themselves according to that theory, followed by two chapters on social cognition and behavior and how they influence the negotiation process. Among the points discussed here are some of the psychological barriers to effective negotiation.
The following chapters detail some of the consequences of the approaches that have been presented and elaborate on some of the settings in which difficult problems may arise. Chapters address the problems presented by multiple parties at the table (groups and teams), the rapport building process and some of the rituals involved, questions of the role of justice in the negotiation process - nicely raising many of the ethical issues which plague philosophical theorists in a practical context, and a look at the prisoner=s dilemna and the lessons to be learned from it as a model for negotiation processes. Finally, two chapters examine the process by which people learn about negotiation, including the role of experience, best practices, expertise and the like and the way in which resource scarcity limits the range of concensus. Also examined briefly in these chapters are the negotiation through electronic means and cross- cultural issues, both topics deserving of much more comprehensive treatment than is available here. Overall, The Mind and Heart of the Negotiator is an excellent text which will provide the serious student with a great deal of information and understanding about the negotiation process. It does a solid job of integrating the knowledge that we have acquired about the process in an attractive and usable framework.
Fisher, Tom (ed.), 4th National Mediation Conference -
Melbourne - April 1998 - Proceedings, School of Law and Legal
Studies, LaTrobe University, Bundoora 3083, Australia (439pp
1998) ISBN: 1864464828
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Australia is probably the leading anglophone country in mediation research, certainly on a population adjusted basis, and while insights from Australia sometimes seem to trickle slowly into the American mainstream, this reflects more on the breadth of attention of United States mediators than on the quality of the insights from the Australian side. This collection of papers, from the 4th National Mediation Conference, held in Melbourne in April 1998, reflects the breadth and depth of Australian mediation and the range of knowledge and information available there to those outside the region. Included are 53 papers, in addition to seven keynote adddresses, covering the length and breadth of the mediation field.
The keynotes set the stage for the breadth of papers. Peter Adler, Joe Folger and Alistair Nicholson set the stage by examining the current status and likely future of mediation, while Hillary Astor deals with identity and diversity issues, Dale Bagshaw with adolescents and peer mediation, Susan Gribben with children in conflict situations and the effects of mediation, and Moira Rayner examines the use of mediation in protecting and developing human rights in the developing democracies.
The papers themselves cover a wide range of topics. Fourteen deal with family law issues ranging from ethical questions to the development of mediation norms, several papers addressing the role of children=s voice, etc. Other groups of papers examine peer and victim-offfender mediation, the roles of lawyers in mediation, labour and community and specialized settings for mediation, mediation training, and nine papers on cultural issues in the mediation process. While not every paper offers major insights, most of them include ideas and information of real value, and all will repay careful reading. This is a volume that belongs in any serious library of mediation resources.
Slaikeu, Karl A. and Hasson, Ralph H, Controlling the Costs
of Conflict: How to Design a System for Your Organization,
Jossey-Bass Publishers, 350 Sansome St., San Francisco, CA 94104
(253pp $29.95 1998) ISBN: 0787943231
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Slaikeu and Hasson's Controlling the Costs of Conflict is aimed directly at the hearts and minds of members of the management or business book club, those middle and upper level managers who are seeking ways of improving their corporate operations that range from quick fixes through more extensive revisions in corporate culture that will increase their efficiency and productiveness. There is little in this book that will appear novel to experienced dispute resolvers, especially those who have been involved in promoting the development of corporate dispute resolution systems, but for the manager who has barely been exposed to the idea that conflict is controllable and manageable, much of what they say will come as a revelation.
The power of the authors' ap- proach lies in the clarity of their writing and their ability to synthesize the ideas that others, including themselves in earlier works, have produced, and to present them in a form accessible for the non-specialist. At least equally important is their capacity to eliminate material extraneous to the interests of their readership, which too often leads to nonspecialists losing interest in a presentation before reaching the point of understanding its importance. Thus, almost uniquely, Slaikeu and Hasson do not bother to attempt to define conflict and spend almost no time demonstrating its ubiquity, points that most managers will now be familiar with, and open instead with an examination of the basic approaches to conflict management that exist in organizations.
In summary form, the basic approach the authors promote is a straightforward encouragement of collaborative problem solving at all levels of a corporation or organization with formal and informal reinforcement for those who elect to utilize collaborative rather than competitive or avoidance responese to conflict. They draw heavily on the experience of Brown and Root and General Electric among others and, while avoiding the terminology, encourage readers to informally benchmark their company processes against these leaders. Usefully, they focus strongly on the use of ombuds and of mediation, but they make it clear that both are techniques for encouraging collaboration rather than ends in themselves, a point which is frequently lost in the benchmarking literature.
Overall, this is not a book that one would recommend for use in an academic conflict resolution program or for the information or training of a professional conflict resolver. It is, however, one that could be very highly recommended to a corporate or organizational manager who is looking for a means of improving his or her firm=s operations.
Office of Juvenile Justice and Delinquency Prevention, Guide
For Implementing the Balanced and Restorative Justice Model,
Juvenile Justice Clearinghouse, PO Box 6000, Rockville,
MD20849-6000. (99pp free 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
The Guide For Implementing the Balanced and Restorative Justice Model was developed under a federal grant by Gordon Bazemore and Mark Umbreit, two of the leaders in the field of VORP or restorative justice. It provides a broad picture of the restorative justice movement and a detailed process for implementing such a system in a juvenile justice setting. The approach focuses on enabling the offender, through improved competencies and making amends, while protecting the public through a process involving victims, offenders and the community.
The Guide focuses first on the Balanced and Restorative Justice Philosophy, examining questions of accountability, competency development, and community safety and the manner in which each of these elements can be implemented. It then shows how the combination of these factors can be brought together into a unified program and the changes that this brings about in the operation of a traditional juvenile justice system. Finally it provides some specific tactical assistance for those seeking to implement a program, offers case studies of three successful programs, and provides some resource information.
Despite its somewhat philosophical tone, the volume is highly practical and readable and will provide the interested reader with a real understanding of the strengths of an effective program and the points of concern where a program can be damaged by ineffective implementation. Extensive use of charts and bulleted lists are effective in communicating the ideas presented.
Fang, Tony, Chinese Business Negotiating Style, Sage
Publications, P.O. Box 5084, Thousand Oaks, CA 91359-9924 (336pp
$59(c)$28.50(p) 1998) ISBN: 0761915761
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Tony Fang brings an unusual combination of experiences and attributes to his examination of Chinese business negotiation style. Born and raised in China and trained as a naval architect, he has worked in Scandianvia in export management, studied marketin in Sweden, served as an international trade consultant, and then returned to complete his management degree at a Chinese University where his dissertation formed the foundation of this book. This range of background has provided him with both an insider=s and an outsider=s view of negotiation in China and he draws effectively on both viewpoints in identifying and classifying the techniques he has observed.
While the book has many of the characteristics of the typical dissertation, an overwhelming concern with authority and excrutiatingly detailed attention to the prior writings in the field, Fang writes far better than most graduate students, and his background text is generally readable and enjoyable. When he turns to Chinese business culture, which is the center of his thesis, however, his theoretical model seems more descriptive than analytic. He focuses on three sources of culture, the PRC condition, Confucianism, and Chinese stratagems (largely the ideas of Sun Tzu=s Art of War) and draws principles from each as governing Chinese negotiation practice. Actually, little that he has to say about these three sources is new, and the unifying themes that he notes have mostly been identified previously in the literature.
Given that the theoretical model presented is not highly original, the book, nonetheless, serves a useful purpose. Fang provides a clear and literate summary of the prior literature on Chinese negotiation style and his descriptions of cultural factors are well constructed and useful. In addition, his illustrations and analyses (a series of short summaries of business negotiation experiences involving westerners and Chinese) are useful and help the reader focus on the cultural elements discussed earlier. Overall a useful contribution to the literature on Chinese negotiation, though less valuable as a theoretical work on negotiation style.
Lipsky, David B. and Seeber, Ronald L., The Appropriate
Resolution of Corporate Disputes: A Report on the Growing Use of ADR
by U.S. Corporations, Cornell/PERC Institute on Conflict
Resolution, 621 Catherwood Library Tower, Ithaca, NY 14853 (40pp $15
1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
In 1977 several Cornell entities headed by the PERC Institute for Conflict Resolution and Price Waterhouse Coopers conducted a survey of ADR usage by the Fortune 1000 companies. With an exceptional return rate of 60% from corporate counsel or the chief litigator for each company, they report here the results of the survey. Overall, the results demonstrate that almost all of the companies in question use ADR at least occasionally, primarily but not exclusively mediation and arbitration, but that the use of these techniques is, for the most part, occasional rather than regular and tends to be in certain specific types of disputes. While there is little here that will suprise the knowledgable ADR activist, it is clearly useful to have the extended documentation which this study provides.
Dika, Mihajlo and Uzelac, Alan (eds), Croatian Arbitration
Yearbook v4 Year 1997, Permanent Arbitration Court, Croatian
Chamber of Commerce and Arbitration Association, Rooseveltov trg 2,
Zagreb, Croatia (225pp $50 1997) ISSN: 1330-6219
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Dika, Mihajlo and Uzelac, Alan (eds), Croatian Arbitration Yearbook v4 Year 1997, Permanent Arbitration Court, Croatian Chamber of Commerce and Arbitration Association, Rooseveltov trg 2, Zagreb, Croatia (269pp $50 1997) ISSN: 1330-6219
The Croatian Chamber of Commerce's Permanent Arbitration Court was first established in 1853 and for many years was a leading arbitral institution. Around 1930 it had over 10,000 pending cases. From 1945 through 1965 the Court did not operate, but it was reestabished in the latter year and provided a successful forum for domestic cases until 1991 when the Republic of Croatia became independent and the Court began to take jurisdiction in international cases under the Zagreb Rules, which were based on the UNCITRAL rules and practice. Its panels, renewed in 1997, now include more than 40 Croatian and many foreign arbitrators.
It would be very impressive for any national arbitration organization to publish a journal of the extent and quality of the Croatian Arbitration Year- book, but to have it produced by an organization that has only relatively recently reconstituted itself is an extraordinary accomplishment.
Published entirely in English, except for a summation in Croatian included in the back of each volume, the Yearbooks provide serious contributions to international arbitral jurisprudence with an emphasis, though by no means exclusive, on developments in southern and eastern Europe and particularly the states of the former Yugoslavia. Contributing authors come from a range of countries and backgrounds, with a plurality from the region, but a wide representation.
Volume four contains three articles on arbitration and bankruptcy, two on arbitration in Bosnia and Herzegovina, two on foreign investment issues including the use of FIDIC rules and the issues created by globalization, analyses of arbitraion in Belarus, a comparison of the Zagreb and Vienna Arbitration Rules, and several comparative pieces examining the place of the Rome and Vienna conventions in determining the sustantive law in arbitration, a regional view of UNCITRAL processes, publication of awards, and items on conciliation in commercial disputes and avoiding arbitration in maritime ones. Also included are the Report on the Achievements of the Working Group for the Reform of the Croatian Arbitration Law, and a list of cooperative agreements between the Croatian arbitration court and other arbitral institutions.
Volume five begins with the final proposal for the new Croatian arbitration law and an annotated text of the third draft. It follows with a discussion of the English Arbitration Act of 1996 and a look at the education of arbitrators in England, a review of the new Brazilian act, articles examining the language of arbitration as a ground for non-enforcement - examining a Bulgarian case, and a log of the activities of the Croatian Court of Arbitration. A series of articles address particular issues including arbitration under bilateral investment treaties, protection of business secrets, arbitration of bank guarantees and documentary credits, and much more.
Overall the volumes reviewed offer important substantive contributions to the law of international commercial arbitration and should be a part of any library with a serious interest in the area. Subscriptions to upcoming volumes are available.
Carley, Patricia, Nagorno-Karabakh Searching for a
Solution, United States Institute for Peace, 1550 M St. NW,
Suite 700, Washington, DC 20005-1708 (50pp 1998)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
The continuing stalemate over the territory of Nagorno-Karabakh, be- tween Armenia and Azerbaijan remains a matter of serious concern although the worst of the fighting there ended in 1993. Much of Azerbaijan remains occupied by Armenian troops and the territory of Nagorno-Karabakh has declared itself independent, a status unrecognized by any nation.
This volume of Peacworks reports on a March 1998 roundtable about the status of the region and the possibilities of peaceful resolution. The report provides a clear statement of the complexities of the political situation and, while suggesting some possible directions in which solutions might be found, makes it clear that this is one of the most difficult settings for peacemaking around the world. Differences between the parties, not only in conclusions about their goals, but in their perceptions of the problems they face make this a truly intratable conflict.
Avruch, Kevin, Culture and Conflict Resolution, United
States Institute for Peace, 1200 17th St. NW, Washington, DC
20036-3006 (172pp $14.95 1998) ISBN: 1878379828
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
The concept of A culture is owned in an academic sense by anthropology and the anthropologists, so it is fully appropriate that an attempt to refine the understanding and use of the term in conflict resolution studies should come from an anthropologist who was also a founding member of ICAR (Institute for Conflict Analysis and Resolution) at George Mason. Culture is a slippery concept, having not only many possible meanings, but also being used in ways that relate to, but are quite distinct from, the technical meaning which Avruch addresses. Thus, the idea of Ahigh culture@ or Abeing a cultured individual@, while having to do with an understanding of social institutions has little to do with the functional meaning that has allowed culture to be used as an analytical tool in studies of human society.
As Avruch defines culture, it consists of two elements, a presumptively universal one which is biologically determined, and an individual or local one, the primary focus on the discussion here, which is made up of the complex system of meanings shared by indivdiduals in social groups. The traditional view that culture and society are coterminous is no longer accepted and all culture is measured from the viewpoint of the individual, although usually studied in terms of the elements of meaning shared with others of similar background or experience. This necessarily implies a rejection of the nineteenth century idea that cultures can be ranked and compared on an evolutionary scale and focuses on the factors that create and elements of a culture. An individual will share his or her culture with others, but the intensity of the shared elements will vary not only between social groups, but even amongst individuals in an identified group. Thus great care must be taken not to overgeneralize conclusions about cultural phenomena and to recognize that an individual=s response to cultural difference will change depending on both situational and personal factors.
The problem with this approach is that carried to its logical extreme no analysis is possible as all elements of culture are individual. There is an ideological desire to promote this view which has handicapped much of modern anthropolgy, but tempered with realism it presents useful issues to be addressed. In his discussion of the nature of conflict and the processes of resolution Avruch firmly rejects the idea of Anational character@ as an analytical tool, but allows the same issues to seep back into the discussion so long as they are phrased in appropriate Aliberal@ terminology such as Anegotiation styles@. Realistically, Avruch allows a focus on not only differences in conversational style, but also on differences in the manner in which conversation itself is conceptualized and features of such concept that will influence the capacity of individuals to allow their local cultures to be sufficiently coordinated for communication to occur. His focus is on the need to realize that an individual=s culture is a complex entity which cannot be reduced to a simple Anational@ formula. Thus a Chinese national who spent 5 years of childhood as a student at Eton and 4 at Oxford, would hardly be expected to negotiate like an individual who has never left a small rural village in Guangxi. Even amongst those with similar backgrounds, differences that are too subtle to be externally identified will often lead to very different approaches to culturally determined practices. Similarly, an assumption that Fisher and Ury=s description of their approach to negotiation is a universal truth would be at best foolish, although the idea that there might be some universal cultural factors underlying it is not immediately rebuttable.
In essence, Avruch is providing the reader with a warning about careless assuptions about cultural homogeniety or predicatability. He provides a clear understanding of many of the philosophical and practical problems that limit the use of culture as a variable in negotiation training and planning, and does a first rate job of sensitizing the reader to real problems with some elements of the negotiation literature. His unwillingness to recognize that post-Boazian universalism is no less ideolgically based than Tylor=s evolutionism, is a common problem of modern anthropolgy and does not substantially reduce the value of his insights.
Macfarlane, Julie, Dispute Resolution: Readings and Case
Studies, Emond Montgomery Publications, 58 Shaftes- bury Ave.,
Toronto, ON M4T 1A3, Canada (717pp $C96 (practitioners) $C80
(students) 1999) ISBN: 1552390349
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
Looking at dispute resolution from a Canadian rather than a United States point of view provides a somewhat different perspective, even when many of the readings selected for a student reader/casebook are similar to or even the same as those used in US counterparts. Although the underlying processes described are in almost all respects the same, the US based readers share a common approach to dispute resolution as a reaction to the courts, where Macfarlane=s Canadian perspective is more theory based and a closer look at some of the fundamental questions that underlie the process. Each approach has its merits, but many, especially those teaching in non-law school or pre-legal programs, who have been somewhat uncomfortable with the US readers may well find this volume more compatible.
Overall, the book was designed to serve several purposes. In the preface Macfarlane notes that there was a clear intent to showcase Canadian practice and writing, an goal which has been effectively achieved without in any manner compromising the quality of the selections. Canadian selections may have been used where there was an equal choice, but the readings selected come from across the globe and most of the major figures in the movement are showcased regardless of origin.
Following the preface, the book consists of six chapters, three of them edited by Macfarlane and one each by John Manwaring, Ellen Zweibel, and Jonette Watson Hamilton. The first chapter, by Macfarlane sets the tone by addressing conflict analysis with a selection of readings ranging from a single page through four to five pages raising a series of fundamental questions about the nature of conflict and our understanding of it. Authors are included from a wide variety of fields and backgrounds, but the material is drawn together effectively to paint a broad basis for understanding. Manwaring=s chapter on negotiation focuses on much of the negotiation theory that has driven management research rather than more usual focus on competitive v cooperative styles and strategies. Careful attention is paid to power effects and the place of negotiation in law gets serious attention.
The third chapter, Macfarlane on mediation, does a particularly careful job of examining the different ap- proaches to mediation and of examining critical issues in the process including neutrality, power, and ethical standards. Details of process and the range of uses of mediation are discussed somewhat more briefly than elsewhere, but ample basis is laid for further discussion. Ellen Zweibel deals with hybrid processes in chapter four which, as such chapters are wont to do, becomes somewhat of a listing of processes, but the selections describing them are well chosen and edited and provide good information. The chapter is strengthened if read in conjuction with Macfarlane=s chapter six on desigining and evaluating systems which provides much of the context which Zweibel lacked space to offer. Only the chapter on adjudicative systems by Jonnette Hamilton disappoints a bit. It treats arbitration as the only adjudicative system, missing many of the important evaluative schemes which are fundamentally adjudicative in nature, and focuses too much of its effort on a detailed analysis of the Uniform Arbitration Act, rather than considering alternative models such as the UNCITRAL Model Statute and Rules, implemented in several provinces, the new English Act and European approaches to arbitration which ask and invite different questions about adjudicative processes and their proper place outside a state system.
Overall, this is a very worthwhile reader which will make its impact felt in the Canadian and hopefully also the United States classroom. The sense of dispute resolution theory, especially in Macfarlane=s chapters is an important contribution. Only one regret is that it must be noted that in general this is a book for Anglophone Canada. There has been a good deal of important work on dispute resolution in Quebec, but that work receives little or no attention here. A somewhat suprising omission in a book of this sort.
Michigan Supreme Court Dispute Resolution Task Force, Report
to the Michigan Supreme Court, State Court Administrative
Office, 309 N. Washington Square, Lansing, MI 48933 (56pp 1999)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, March 1999.
The Michigan Supreme Court Task Force was convened in 1998 to make recommendations to the state Supreme Court for the integration of dispute resolution processes in the trial courts and for the development of new court rules and the like to expedite the process. After a brief review of the history and current state of dispute resolution in the Michigan courts, the Task Force addresses itself effectively to those concerns.
There are a wide range of recommendations, and in this review I will focus on only a couple of them. From a national standpoint, the recommendation to cease using the term mediation for AMichigan Mediation@, a form of case evaluation, will eliminate an annoying, though substantively unimportant, discrepancy between the state and the rest of the nation. Other recommendations of particular import are the encouragement to make ADR processes available both pre-filing and throughout the course of litigation and the encouragement to the legislature to clarify the confidentiality standards for the processes.
In general the approach here, solid and sane, will commend itself to other courts that are developing new or ammended sets of rules for dealing with ADR processes.
Many thanks to mediate.com for this archive.
The Alternative Newsletter, Copyright © 1999 James B. Boskey. All rights reserved.
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