Book Reviews by James B. Boskey
Online Reviews of Dispute Resolution Literature from The Alternative Newsletter - November 1997
See other Boskey reviews written between 1997 and 1999.
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Golann, Dwight, Mediating Legal Disputes: Effective
Strategies for Lawyers and Mediators , Aspen Law &
Business, 1185 Ave. of the Americas, New York, NY 10036 (581pp $105
1996) ISBN: 0316319899
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, November 1997.
With Mediating Legal Disputes , Dwight Golann has taken the top rung in the list of books for mediation training. While the book is not suitable for all training purposes, for example it would be overkill in a basic mediation training program, it provides far and away the most intelligent approach to general mediation in a commercial or litigation setting, and addresses most, if not all of the questions that should be addressed in guiding a mediation trainee in deciding on what cases may be appropriate for his or her assistance at various stages of personal development as a mediator.
The book begins, after an introductory chapter which addresses some of the range of possibilities of approach that face the mediator or mediator trainee and look at the strengths and weaknesses inherent in the mediator's role, by presenting "A Basic Mediation Strategy". This is a relatively straightforward approach to mediation that is broadly applicable and has the advantage, for the beginning mediator, of limiting the harm that can be done to the parties by its abuse. It breaks the mediator's role into seven parts (note these are not the equivalent of the stages of mediation, but rather an analysis of some of the fundamental tools which the mediator uses, sequenced, but not in a binding sense). These seven: creating a settlement event, allowing party venting, moderating bargaining, testing party solutions, probing for hidden issues, and, where appropriate, proposing a settlement, will not satisfy the strict nonevaluators, but provide a useful picture of common mediation practice. This is followed by a look at the stages of mediation, with substantial emphasis placed on the use of caucuses.
The second section of the book, entitled Specific Issues and Strategies, provides a far more detailed and more sophisticated analysis of mediator options. It begins with two chapters on the premediation stage and then turns to examining the tools of the mediator in substantial details. Separate chapters address process obstacles, psychological obstacles, merit obstacles, and the process of creating value. Two chapters, one by Marjorie Corman Aaron alone and the other by her with David Hoffer, examine the role of evaluation in mediation and provide a detailed look at the use of decision analysis as a basis for approaching evaluation where it is appropriate. Without denigrating the remainder, it is this section which makes the book so valuable, as it is the most sophisticated look at settlement barriers available in a training context in the literature.
The third section of the book addresses special problems. A good chapter deals with confidentiality an liability issues and another offers a reedited version of Robert Baruch-Bush's classic examination of ethical dilemmas. I would have liked to see this latter chapter supplemented with some of the more recent material in this area, but the article does raise most of the fundamental issues. The final section, which to my mind was unnecessary offers chapters on employment, environmental contamination, and product liability disputes. These chapters, all by outside authors, are well written and each is of substantial value in and of itself, but they lengthen an already long work beyond what is really appropriate for its purposes.
Overall the writing of the book, as could be assumed from my opening comments, is excellent. Dwight writes clearly and directly and the organization of the individual chapters as well as of the book as a whole encourages the reader to remain involved. Of particular note are the many examples which he includes in sidebars which tell concise and useful stories of mediations that demonstrate the issues under consideration.
Goodpaster, Gary, A Guide to Negotiation and Mediation
, Transnational Publishers, 1 Bridge St.,
Irvington-on-Hudson, NY 10533 (309pp $95 1997) ISBN: 1571050299
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, November 1997.
Gary Goodpaster does for negotiation much of what Dwight Golann, above, does for mediation. Rather than the usual training manual, which promotes a single approach to negotiation, he offers a comprehensive look at the negotiation process in a framework that is suitable for a very sophisticated training program. Basically Goodpaster approaches negotiation from a strategic point of view, classifying negotiation strategies as competitive, cooperative, and collaborative. Unlike many who draw that distinction, however, he does not then assign a ranking to each of the strategies and limit his focus to the preferred one. Rather, he treats each of the strategies as having substantial validity, especially in the eyes of their adherents, and suggests the advantages and disadvantages of each. While he does clearly rank the strategies from best to worst as collaborative, competitive, cooperative, he offers an honest attempt to justify each, although he is patently somewhat uncomfortable with a cooperative strategy.
Interspersed with his detailed analysis of each of the major strategies, Goodpastor provides a good look at aspects of negotiation practice that crosscut these strategic lines. In his chapter on information variables, for example, he provides an excellent examination of the sources of bargaining power in negotiation that calls the reader's attention to sources of power that might well be otherwise overlooked. Similarly his chapter on deception suggests a wide range of deceptive tactics that may legitimately be used without ignoring the ethical and legal issues that may result from excessive or inappropriate deception. Other chapters look at means of facilitating efficient trade-offs and some of the cognitive problems that inhibit negotiators and/or parties from properly evaluating their opportunities. The negotiation planning chapter offers a worksheet for the negotiator to use in evaluation of the situation faced in a particular negotiation which draws on much of the earlier information.
Additional chapters deal with special situations in negotiation. A good, although too brief, chapter looks at multiparty and representative negotiations. The multi-party materials focus on building and responding to coalitions and building one's own position within a coalition. The concepts presented are valuable, but need more elaboration that the space allowed. The section on representative negotiations is too brief to deal sufficiently with the serious and interesting questions that that process raises. Separate chapters deal with lawsuits as negotiations, mediation, other dispute resolution devices, complex negotiations, and cross-cultural negotiations. While Goodpastor has interesting things to say about each of these areas, the chapters are too short to offer more than sensitization to the kinds of questions that should be raised in each of these areas.
Overall, this is clearly one of the strongest texts for teaching about negotiation or for training in negotiation skills that is available. It contains too much information to be used in the usual one or two day training program, but for a more extended training course or academic program it would be an outstanding work. It could also be used in an introductory survey ADR course where the emphasis was to be placed on the negotiation process and the forms of ADR were introduced with the expectation that they would be elaborated on in further courses.
SPIDR Environment/Public Disputes Sector Critical Issues
Committee, Best Practices for Government Agencies: Guidelines
for Using Collaborative Agreement Seeking Processes , SPIDR,
815 15th St., NW, Suite 530, Washington, DC 20005-2201 (17pp 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
This report, which is part of the continuing effort of SPIDR (The Society of Professionals in Dispute Resolution) to define best practices in various areas of dispute resolution. As government agencies increasingly utilize dispute resolution techniques, it is essential to be certain that they are used in productive ways and not used to oppress citizen petitioners or repress their opportunities for hearings. The eight major recommendations offered here in conjunction with explanations, definitions and appendices, provide an important basis for the decision to use these processes and to select amongst them.
Heyman, Richard, Why Didn't You Say That in the First
Place? , Jossey-Bass Publishers, 350 Sansome St., San
Francisco, CA 94104 (192pp $16 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
Heyman classifies himself as an ethnomethodologist, which appears to be the subcategory of sociology and communications that deals with interpersonal communications or conversation. Drawing on his experience in detailed analysis of conversations and the theoretical framework in which he performs that analysis, he has written, here, a popular book which is designed to improve the quality of communication between individuals, especially in the workplace.
The primary theoretical construct with which Heyman works is the intrinsic ambiguity of words and the importance of context in explaining their meaning. For example, the sentence "Wasn't that blue" is wholly ambiguous unless the listener knows the context in which the statement was made, ie. referring to the ocean this morning, the sky last week, or a dress worn some months ago. Even given this aspect of context, the question of the meaning of blue and the issue of whether the phrase is a question, statement, or exclamation, remains ambiguous.
In light of this ambiguity of language, and the frequent inefficiencies that result from misunderstandings created by such ambiguity, Heyman encourages a process which he calls "strategic talk". This involves from the listener's viewpoint questioning ambiguities in instructions or requests for action so as to be as certain as possible that they context in which they are stated is understood, and, from the speaker's viewpoint encouraging such inquiries to be made to assure that one's meaning is clear. Heyman explains clearly that it is never possible for an individual to be certain of the clarity of his or her own conversation as the speaker can never know fully the cultural context of the listener.
Overall, Heyman calls for organizations to create institutional cultures that encourage searches for clarity and understanding. He points to the example of sexual harassment as an area where misunderstandings are common, but can be avoided by appropriate clarification. From the viewpoint of dispute resolution, conscious attention to linguistic ambiguity will help to assure that disputers are in fact communicating what they think they are. It is very easy for communication to break down in a conflict setting because of linguistic ambiguity, and this is no less true for the neutral than the parties.
While there is little in this book that will come as a great surprise to the experienced dispute resolver, it is always helpful to be refocused on particular issues of importance. The book is reasonably well written and the examples are generally useful if occasionally of somewhat suspect accuracy in their interpretation.
Lechman, Barbara A. Nagle, Conflict and Resolution
, Aspen Law and Business, 1185 Ave. of the Americas, New
York, NY 10036 (219pp $20.95 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
Lechman, Barbara A. Nagle, Conflict and Resolution: Instructor's Manual , Aspen Law and Business, 1185 Ave. of the Americas, New York, NY 10036 (50pp 1997)
Barbara Nagle is a friend, whose work at Montclair State University has been responsible for very substantial improvement in its paralegal training program including the expansion of its coverage of alternative dispute resolution into a major focus. It is, therefore, disappointing to have to report that her new book Conflict and Resolution is, while adequate, not as good as it should be.
Conflict and Resolution is designed to provide paralegals in training with an introduction to dispute resolution, especially the issues and activities that they are likely to deal with in their post-graduation practice. This is of particular importance as, in many cases, the paralegal may have had more exposure to dispute resolution in her education, than the lawyer she works for, unless the lawyer attended law school relatively recently. Paralegals, or legal assistants as they are now often designated, can play important roles in assisting both attorneys and clients in preparation for participation in dispute resolution settings.
First the best part of the book. Ms. Nagle's training and primary interest in dispute resolution is in the area of mediation. The chapter on mediation is excellent, clearly written and demonstrating an excellent grasp of the range of options available in structuring and running a mediation. The emphasis is perhaps a bit more on the neutral than on the party or advocate with whom the paralegal is likely to be dealing than might be desired, but all of the necessary information is provided, and the potential benefits of the process clearly demonstrated as well as some of the pitfalls which may hinder its usefulness pointed out.
Unfortunately the same cannot be said for the discussions of negotiation and arbitration. While the chapters on each of these subjects does offer a full laundry list of subjects, the discussion of each is disorganized and likely to mislead the uninformed reader. In the area of arbitration, for example, the distinction between binding and non-binding arbitration is noted in passing, and the inherent difference in goals, techniques, and functions between the two processes is not well clarified. Little explanation is given of the effect of the two approaches, when each is likely to be used, and the different consequences of each for the parties. In the discussion of labor arbitration mention is made of interest and grievance arbitration, but the distinction between them is left vague. In negotiation, similar gaps appear in the analysis. The terms competitive and cooperative are used, but they appear to be used to describe the general process of negotiation rather than the style of individual negotiators. Also, at the end of the chapter the author reinforces the common, but extremely dangerous, misperception that competitive negotiations are antisocial and cooperative ones intrinsically good.
The opening two chapters of the book address the nature of conflict. They are less than clear in distinguishing between the various meanings of conflict, sometimes focusing on disputing and other times on violence. Each chapter is accompanied by a set of exercises and role plays, the confidential information for which is included in the instructor's manual.
Birkhoff, Juliana, ed., Conflict Resolution Syllabi
Anthology 1997 , NIDR, the National Institute for Dispute
Resolution, 1726 M St. NW, Suite 500, Washington, DC 20036-4502.
(336 $40 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
One of the most useful services, amongst many, that the National Institute for Dispute Resolution (NIDR) has provided over the years has been as a convener of academics with a common interest in dispute resolution into forums where they can effectively exchange ideas about teaching and training in conflict resolution as well as dealing with research issues. Although more limited in funding than in its heyday, NIDR continues to provide these services through its convening of NAME, the National Association for Mediation in Education, and its efforts to expand the scope of NAME to include a wide selection of post-secondary academics as well as its traditional elementary and secondary education base. In addition, through works like Conflict Resolution Syllabi Anthology 1997 , it makes available much of the information that formal convening of a meeting might otherwise have done.
After a brief essay on the development of conflict resolution in higher education in the United States, the bulk of this volume consists of selected syllabi from a range of courses at colleges and graduate programs around the United States in various areas of conflict resolution. For the most part courses that are focused on peace studies and diplomacy studies are excluded, but otherwise there is a good range of topics covered. The syllabi, which are simply recopied in their original form into the book, are classified into several categories.
Syllabi from introductory courses include eight from undergraduate classes in conflict resolution (including sociology, peace studies, social psychology, etc.), five from graduate classes (communication, trust and trust building, nature of conflict, conflict and literature), five from law schools (all ADR except Larry Ray's negotiation course), and nine from graduate schools of planning, business, education etc. (a widely mixed assortment). More specialized syllabi include five negotiation based courses (including Jeanne Brett's cross-cultural negotiation course and Keith Murnighan's "Dynamics of Bargaining Games"), five conflict resolution theory courses, three skills training courses (two on mediation and Wally Warfield and Frank Bleckman's laboratory course on community and organizational conflict), eight widely varied graduate electives, and four law school clinical seminars. Also included is a brief resources section listing major organizations in conflict studies and a bibliography on the teaching of conflict resolution in higher education.
Many of the major figures in the field of conflict resolution studies are included amongst those who have made their syllabi available through this book. There is a great deal to be learned from examining what is included, both for the novice putting together a first course and for the experienced teacher looking for new approaches to refresh his or her approach to the classroom.
Mealey's International Arbitration Review 1996 ,
Mealey Publications, PO Box 446, Wayne, PA 19087-0446 (226pp $95
1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
Mealey's International Arbitration Report is one of the leading private reporters collecting opinions of arbitrators in international cases and thus providing much of the raw material on which both arbitration scholarship and precedent building are based. As a part of that newsletter, Mealey includes a series of brief articles/commentaries by scholars and practitioners of international arbitration, which usually address matters that are either of such moment as to require relatively rapid publication or are not in need of the in depth analysis that law reviews or other professional journals might require. This, should not, however, lead the reader to underrate the importance of these pieces. They provide useful insights into the thinking of leaders in the field on a regular and timely basis.
Having published such commentaries for many years in its newsletter/report, the decision was made to prepare a compilation of the articles from the 1996 year, hopefully looking forward to the regular publication of such compilations. This volume offers eighteen of the commentaries published in 1996 in a convenient soft-covered volume.
The articles included are presented in nine categories, several of which, however, contain only one article. The largest category is legislation which includes looks at developments in the United Kingdom, India, the United Arab Emirates, and Russia with outstanding authors including Arthur Mariott and Lawrence Ebb. Three articles examine rule changes and rules sets in the ICC, Unidroit, and Vietnam Arbitration Center context, while two each look at enforcement of awards and issues of kompetenz. Single articles address attitudes towards arbitration in Ontario, confidentiality of reinsurance arbitration decisions, the role of party-appointed arbitrators, evidence issues, and a look at pathological arbitration clauses in Germany.
The subjects covered by the articles are varied and, while a few are either time bound or have been superseded by more comprehensive analyses elsewhere, there is ample material here to make it of continuing interest to those involved in international arbitration. It will be far more convenient to locate these articles in this volume than to track them down through the back files of the Mealey report.
Volz, Marlin M. and Goggin, Edward P, Elkouri &
Elkouri: How Arbitration Works, 5th ed. , BNA Books, 1250
23rd St. NW, Washington, DC 20037-1165 (1269pp $135 1997) ISBN:
0871797909
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, November 1997.
Elkouri and Elkouri How Arbitration Works is the standard text on labor arbitration. After the completion of the fourth edition in 1985, the Elkouris, who had been fully responsible for the prior editions of the work, decided that they did not wish to continue to undertake responsibility for the continuous updating necessary to maintain the supplements or the preparation of an eventual new edition and authorized the Committee on Labor Arbitration and the Law of Collective Bargaining Agreements (now the Committee on ADR in Labor and Employment Law) of the American Bar Association's Section of Labor and Employment Law to take over full responsibility for the volume. The section has provided two major supplements during the time since that decision, and, with this volume, has now produced its first complete new edition. The committee effort, under the supervision of Professors Volz and Goggin, has succeeded in producing a worthy successor to the earlier editions.
This is fundamentally a very conservative rewriting of the fourth edition. The basic structure of the book remains unchanged with the same nineteen chapters. A good deal of the text of the prior edition also remains unchanged with the chapter editors modifying it only where the law or practice has changed so substantially as to outdate the prior language. The bulk of the changes are, thus in the footnotes. The Elkouri's have always been noted for both the thoroughness and currency of their citations, and here the work of the committee is beyond reproach. New cases, statutes, and other materials are carefully incorporated into the notes and new notes have been added where appropriate.
The book thus maintains its status as the leading text in labor arbitration. At some point in order to preserve this status a comprehensive rewrite will be needed, but for the present it continues to serve its purpose.
Najita, Joyce M., ed., Arbitration 1996: At the Crossroads
, BNA Books, 1250 23rd St. NW, Washington, DC 20037-1165
(410pp $40 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
Arbitration 1996: At the Crossroads is the Proceedings volume for the 49th Annual Meeting of the National Academy of Arbitrators, held in Toronto in late May and early June, 1996. The format of the proceedings has not changed substantially, nor is there any reason for it to do so, as the substance of the papers presented is always so strong as to make them essential reading for anyone in the labor arbitration field.
To some extent this meeting seems to have been less thematic than some of the recent meetings of the Academy, and to have been stronger as a result in the presentations made. The presidential address by JFW Weatherill is a bit more optimistic than those of the recent past, and the distinguished speaker presentation by Jean-Claude Javiller provided a valuable window on labor from a European/French/World perspective.
The substantive sessions, 10 are reported, covered a wide range of subjects. Workplace issues addressed include free speech, testing for promotions, and reasonable accommodation of disabilities. Economic issues addressed include subcontracting, contracting out clauses, privatization of municipal services and competitive bidding, and workplace violence. Other sessions examined pre-hearing procedures, the future of industrial relations, decisionmaking in the future workplace, and, of particular interest to this reviewer, a session on problem-solving approaches in the workplace entitled "When Arbitration is not the Answer". Alan Gold provided a delightful set of "reminiscences", which provide lessons from the past for the future in a light and enjoyable setting.
Excellent editing and solid substance remains the basis of this series, must reading for all those in the labor field as well as those seeking a broad image of the dispute resolution process.
Weintraub, Russell J., International Litigation and
Arbitration: Practice and Planning (2d ed) , Carolina
Academic Press, 700 Kent St, Durham, NC 27701 (568pp $50 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
I requested a review copy of Weintraub's International Litigation and Arbitration having forgotten that in reviewing the first edition I had found that the titular reference to arbitration was at best misleading. The book is at base a civil procedure book for litigation involving foreign parties in United States courts. In the course of discussing the procedural issues, he addresses several issues that are potentially of interest to the international arbitrator such as sovereign immunity, act of state, and the like, but largely deals with them only from a litigation standpoint. His one chapter on arbitration, the final chapter appears to be largely an afterthought with brief items on some of the basic conventions and sources of judicial assistance as well as a brief discussion of the Iran Claims tribunal. A good book for its intended purpose, but, from an ADR standpoint, a very misleading title.
McCold, Paul, Restorative Justice: An Annotated
Bibliography 1997 , Criminal Justice Press, PO Box 249,
Monsey, NY 10952 (182pp $20 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
Restorative justice is one of the ADR subjects which has received a great deal of academic and professional attention, overlapping as it does the fields of ADR, Criminal Justice, and Court Reform. In this volume Paul McCold collects the abstracts of articles and books in the field from Criminal Justice Abstracts and supplements them with others from the National Criminal Justice Reference Service and other resources. He takes a broad definition of restorative justice, necessary and appropriate to a relatively new field that is still in the process of defining its bounds and scope.
The bibliography lists 552 with the abstracts running from four to about ten lines each, providing, usually, a reasonably factual summary of the subject matter of the item in question. Overall, the selection looks to be drawn primarily from publications in the criminal justice area, and it appears that more attention could have been paid to the dispute resolution literature for additional sources. Despite this, the list is extensive and will provide a large body of resources to the restorative justice researcher. The abstracts are listed alphabetically by author, and title, author, and subject indexes are included. It is intended to have this bibliography republished annually, and those aware of items not included are invited to submit them for inclusion.
Mika, Harry An Evaluation of Michigan's Community Dispute
Resolution Program: Executive Summary , Community Dispute
Resolution Program, 309 N. Washington Sq., Box 30048, Lansing, MI
48909 (38pp 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
Mika, Harry An Evaluation of Michigan's Community Dispute Resolution Program: A Methodology for Multi-Site Community Dispute Resolution Program Evaluation , Community Dispute Resolution Program, 309 N. Washington Sq., Box 30048, Lansing, MI 48909 (82pp 1997)
Mika, Harry An Evaluation of Michigan's Community Dispute Resolution Program: An Appraisal of the Evaluation and Implementation Phases , Community Dispute Resolution Program, 309 N. Washington Sq., Box 30048, Lansing, MI 48909 (42pp 1997)
Mika, Harry An Evaluation of Michigan's Community Dispute Resolution Program: Detailed Findings, Recommendations and Appendices , Community Dispute Resolution Program, 309 N. Washington Sq., Box 30048, Lansing, MI 48909 (184pp 1997)
When the Michigan Community Dispute Resolution Program contracted with Harry Mika of Central Michigan University for an evaluation of their program, one has to wonder whether they expected the comprehensive publication that has resulted. The overview of the project suggests that this was "the first study done nationally of a state's multi-site community dispute resolution program", a matter about which some doubt must be expressed, however, it is clear that this was one of the most extensive such evaluations that has been done.
The study examined, in detail, the thirty community mediation centers in operation in the state funded through the program. The approach used is fully described in the Methodology volume, which includes the instruments developed for the purpose, and involved organizational audits, surveys, interviews, site visits, technical assistance, crisis intervention, and a series of formal and informal meetings with a wide range of participants. Thus the study went beyond the evaluative in providing technical assistance to the operations based on the experience of the senior evaluator during the process of the evaluation.
The Executive Summary volume is the essence of the evaluation. It offers a program overview, a brief look at the evaluation process, and summary examinations of the community environment for the programs, the programs organization and services, and a look at some of the challenges that face the programs as they continue. The Detailed Findings volume elaborates on these and provides a more detailed look at the Michigan program including legislative and regulatory origins and funding, describes the growth of the program from 1990 through 1995, and then describes in detail the approach to evaluation used. It summarizes the nature of the programs and presents a series of recommendations for general and specific program improvement. Unfortunately, much of what is reported about problems in program operations appears rather subjective, and the relationship to the research conducted is less clearly drawn than it might be.
The Appraisal volume offers a brief review of the activities involved in the evaluation and implementation phases of the project. It briefly describes the process used to identify problem areas needing work in the operation of the programs and the implementation workshops held to encourage cooperation amongst the programs in addressing the issues identified. Local implementation plans were developed for many of the programs and a few site visits were undertaken to assist in their implementation as well as some telephone communication. (Underlying this one gets the impression of a group of local center directors who have been seriously overburdened by a very intrusive evaluation process and were becoming resistant to spending their time satisfying an external evaluator.)
There is a moderate amount of useful information included in the reports of this evaluation and some of the instruments used and methods employed will be of interest to others evaluating mediation programs, especially multi-center ones. Overall, however, the reports provide relatively little useful information about the programs studied and spend too much of their effort simply repeating in various forms a discussion of the methodology used.
James, Paula, The Divorce Mediation Handbook: Everything
You Need to Know , Jossey-Bass Publishers, 350 Sansome St.,
San Francisco, CA 94104 (235pp $16 1997) ISBN: 078790872X
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, November 1997.
The subtitle of Paula James' Divorce Mediation Handbook , Everything You Need to Know, is surprisingly accurate, or rather would be surprising if we had not already been exposed to Ms. James Marketing and Maintaining a Family Law Mediation Practice which provided a clear picture that this was one of the more thoughtful matrimonial mediation practitioners around. In this book, which is designed for those contemplating or commencing the divorce process, she provides the reader a solid basis for understanding the personal costs of divorce, for both the spouses and the children, the proper role of counsel in a divorce case, and the appropriate, and inappropriate, circumstances for the use of mediation in such matters.
The book is made up of four sections. The first addresses the decision to mediate. The second section provides a description of the mediation process from the viewpoint of the client, while the third and fourth sections look specifically at substantive issues in divorce, the children and financial fairness. Also included are a useful bibliography and a property chart and income and expense form designed to help the reader organize his or her thinking about the consequences of divorce.
The first section, the decision to mediate, begins with an explanation of the differences between litigation and mediation and the functions of each. This includes a chapter on factors to consider in deciding whether the mediation process is appropriate in a particular case, including questions of power, knowledge, and ability of the parties to deal responsibly. It then proceeds to look at the process of choosing a mediator, considering the range of professional backgrounds that individuals bring to the mediation process and the effect of that background, and also looks to issues of fees and expenses. The final two chapters in this section examine the role of the mediator and the role of a consulting attorney. James, throughout, strongly recommends the use of consulting attorneys for all parties and does one of the better jobs in the literature of explaining why they are needed.
The second section, the process of mediation, begins with three chapters describing what happens before mediation commences, what happens during the first and subsequent sessions, and how agreement is reached. These are written broadly enough to cover a variety of mediation styles, but address the issues that will concern the client, and will provide reassurance that the mediation they are undertaking is going forward well. This is followed by two exceptional chapters addressing the responsibilities of the mediated parties and supporting them in responding properly to the mediation process, and looking at "What Doesn't Work", ie power struggles, surrender, etc. and what the appropriate response is to their use.
Finally the third and fourth sections provide the reader with a reasonable idea of the important issues that need to be resolved and of the importance of dealing with them well. The two chapters on children's issues are especially notable for their calm but strong advocacy for assuring that the interests of the children are not lost in the mediation or litigation process. The financial chapters are clear, and focus directly on evaluation of the needs of he parties in the post-divorce situation. James is a bit overconcerned with alimony issues, in large part because of the lack of court ordered alimony in Texas, but she deals fairly with the range of questions and focuses the reader clearly on future needs rather than past events.
Overall, the book is well written and will well meet the needs of literate clients who are going through the divorce process, whether or not they decide to use mediation. The stories of actual cases with which James illustrates the chapters are especially valuable, as many clients will see themselves in the stories that she tells.
Goldsmith, Jack L., ed., International Dispute Resolution:
The Regulation of Forum Selection , Transnational
Publishers, 1 Bridge St., Irvington-on-Hudson, NY 10533 (339pp $95
1997) ISBN: 094132074X
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, November 1997.
The Sokol Colloquia, of which this is the fourteenth, at the University of Virginia, have the reputation of providing some of the most literate papers in international law. This volume does not disappoint, and despite the highly technical nature of the subject matter, a number of the papers sparkle and all are readable and are of substantial interests.
The thirteen papers included are divided into three sections. The first examines party control over forum selection led by William Park's outstanding reevaluation of the approach of the courts to type of forum (arbitration/litigation) and choice of forum (court selection) clauses. Also included in this section are useful papers on forum selection clauses v arbitration agreements, Carnival Cruise Lines in the international sphere, and the effects of the Brussels and Lugano Conventions under Swiss law on such clauses.
The second section looks at provisional relief and protective measures. Transnational and extraterritorial aspects of such relief are reviewed in two papers, while English and European approaches are dealt with in two others.
The final section addresses judicial regulation of improper forum selections, starting with Russell Weintraub's delightful analysis of the United States as a magnet forum and suggestions as to appropriate judicial responses. Other papers look to the general topic more broadly, and at specialized subjects such as the use of the antitrust injunction as a forum selection device by US federal courts, and the adequacy of alternative fora for forum non conveniens purposes.
Generally, this is an outstanding collection of papers which will be enjoyed by any reader suitably enmeshed in jurisdictional complications.
Fisher, Ronald J., Interactive Conflict Resolution
, Syracuse University Press, Syracuse, NY 13244-5160 (307pp
$49.95(c) $19.95(p) 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
The field of interactive conflict resolution has been the home of a remarkably prolific group of scholars and peace advocates. The fundamental premise that they base their work on is that there are a class of conflicts in the political arena, which John Burton characterized as deep-rooted conflicts and have more recently been described in the conflict resolution community as intractable conflicts. These include traditional ethnic (serb/croat/bosnian, white/ african-american, irish, etc.), but also include a range of other disputes which are not classifiable as ethnic. These "identity based conflicts", are distinguished by the fact that the underlying conflict is purportedly not about interests, but about the need for dignity, recognition, and other non-resource issues. The interactive conflict resolution community suggests that while such conflicts are often disguised as interest conflicts, they reveal themselves when the parties are unable to recognize, or accept, self-developed solutions which are clearly mutually beneficial.
Because these conflicts are not interest based, the interactive conflict resolution community believes that traditional models for resolving interest-based conflicts are unlikely to be successful in resolving them. Instead they promote the use of non-structured conferences involving influential members of the communities in question as a means of influencing the parties towards resolution of their issues.
Ronald Fisher, who has a long history as a member of the interactive conflict resolution community, has written very literate work which combines a historical review of this approach with a review of our current state of knowledge in the area and a look at the potential of the process. He reviews the history through an examination of the work of the founders of the field, John Burton of University College, London and George Mason, Leonard Doob of Yale, and Herbert Kelman of Harvard. The three of them developed a model for holding largely unstructured workshops for groups in deep conflict, which they believe, against most of the evidence promote peaceful resolution of these disputes.
The leading example of a success which the founders of the movement rely on is the end of the conflict between Indonesia and Malaysia over their common borders. While it is true that John Burton had held one of his sessions on this subject, accepting that sessions responsibility requires ignoring an intervening coup d'etat in Indonesia and the need of the new leadership for border peace in order to stabilize their new government. Other areas were success is claimed, Somalia, Northern Ireland, Israeli-Palestinian relations, Cyprus, and the like seem to demonstrate that these sessions provide little or no benefit as the conflicts have proceeded apace. The interactives would like to claim that interim peace efforts are based on their work, but there is little evidence to suggest that that is the case.
The second section of the book looks at the successors who have built on the approaches of the three founders. The work of Edward Azar, whose failures in the Malvinas, Lebanon, and Sri Lanka are spoken of as evidence of the success of these methods is described, as is the work of several unofficial diplomats, mostly with a background is social psychology, who have wandered the world claiming to have improved communication between warring parties. This is followed by a discussion of several other similar approaches.
The final section of the book looks at the potential for further development of the interactive model. It discusses barriers to implementation and the increasing reluctance of funders to pay for conferences at resort sites for conflict resolvers who seem to have little or no influence in the areas in which they work. It calls for more research to demonstrate the effectiveness of the approach and to bring the understanding of the processes in line with the practice.
In fairness, having made my attitude towards the interactive movement clear, it should be noted that Ronald Fisher is not to blame for these problems and that his books is a very well written and researched history of the development of the field. He has known and has interviewed most of the leading participants in the area, and he is very effective in reporting on the way the field has grown.
Rothman, Jay, Resolving Identity-Based Conflict in Nations,
Organizations, and Communities , Jossey-Bass Publishers, 350
Sansome St., San Francisco, CA 94104-9825 (220pp $28.95 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
Jay Rothman, the director of the Peace and Conflict Studies program at Bryn Mawr/Haverford and formerly of the Conflict Resolution Program at Hebrew University of Jerusalem, is a member of the interactive conflict resolution community, discussed in the above review of Ronald Fisher's book, and has been actively involved in convening meetings of members of communities in conflict to attempt to address their deep-rooted issues.
He argues, with the interactives, that because these conflicts are not interest based, the traditional models for resolving interest-based conflicts are unlikely to be successful in resolving them. He acknowledges that it is true that in some cases an interest-based resolution model may succeed in focusing the disputants on their non-interest concerns and assist them in finding solutions, but he sees this as more commonly leading them to resolve the surface interest-based issues and suppress, usually temporarily, the underlying problems. This does not usually resolve the conflict but merely covers it up, allowing it to break out again at another time. The Dayton Accords offer an excellent example of the misapplication of the interest-based model to such an identity conflict, and the failure of the Dayton process on the ground in the Balkans is arguably related to the lack of understanding of the difference between the two types of conflict in the American "mediators".
Rothman proposes an extension to the interactive resolution model developed by earlier practitioners as an approach to resolving such identity based conflicts. His model, which he calls ARIA (Antagonism, Resonance, Intervention, Action), is well described in this volume and several examples of its application are offered. It is commonly applied in discussion groups made up of members representing all major elements of the underlying conflict.
The first stage of the process, antagonism, involves encouraging all of the parties to express their perception of the underlying conflict. This will usually involve accusations addressed to the others of their responsibility and the absolute, or relative, innocence of the speaker. Such expressions of antagonism serve two purposes: 1) it allows each party to feel that the other has heard her concerns and 2) it provides a frame of reference for the following parts of the process as the parties may be encouraged to see how the adversarial nature of the conflict sustains it and serves as an obstacle to resolution.
The second stage, resonance, involves each party reflecting on their own motivations and reconceptualizing the conflict so as to see how all parties contribute to it and may be needed to escape from it. The goal is to establish a pattern of movement from blaming and lack of control to responsibility and finding means of control that will allow for a shared investment in constructive action.
The third stage of the ARIA process, invention, is fundamentally the same as in interest-based negotiation. To make this clear, Rothman begins his discussion of the invention stage with the 17 camel story which has become the standard example of "outside the box" creative thinking. In the fourth, action, stage, however, the emphasis turns to the development of common agendas for action and programs that reinforce confidence in the commitment of each party to the conclusions reached in the third stage. Emphasis must be placed on the maintenance of momentum and on means of confirming the adherence of each party to the processes implemented.
As Rothman gets into his examples of the application of the model, there is a certain feeling of the rule that "if all you have is a hammer, everything looks like a nail." He suggests early in the book that union-management conflicts are generally identity conflicts, clearly misreading the fact that, while there are cases where the conflicts are ones of identity - usually at the union organizing stage, most such conflicts are over interest/resource issues, even when disguised, as in the recent UPS strike, as identity ones. His two primary examples: the Jerusalem peace seminars he ran and his experience with labor-management relations at a hospital, are weak ones. The ability to obtain formal agreement in situations where such agreement has no consequences, as in the Jerusalem seminars, is evidence of the willingness of people to be agreeable where this has no real consequences, not of effective peacemaking. This is a common problem with those working in this area and has been a continuing issue since Burton originated the approach. The evidence that this agreeability carries over into long term solutions is almost nonexistent. Interestingly, Rothman does not discuss the fact that responses developed in this context might be useful to those involved in "serious" negotiations, perhaps because to do so would denigrate the value of his process. In the hospital situation which he describes, his description suggests that it was not the ARIA process, that led to solutions, but that any third party who provided the participants and opportunity to focus on their problems would have been equally successful regardless of approach.
There is little in the ARIA approach to distinguish it from other forms of intervention called for by the interactive community. Moreover, it is almost identical to the basic divorce mediation model proposed and implemented by John Haynes and others. Rothman does, however, write well, and the breadth of his experience does provide some good examples of how the approach can be used in a high conflict arena. The book would make a good starting point for discussions about different types of conflict and the need for appropriate responses, and provides some clear examples of how such approaches might be developed.
Beer, Jennifer E. and Stief, Eileen, The Mediators Handbook
, New Society Publishers, PO Box 3064, Stony Creek, CT 06405
(176pp $19.95 1997) ISBN: 0865713596
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, November 1997.
The Mediator's Handbook is a training manual that has been developed over the past fifteen years by members of the Friends Conflict Resolution Programs, and is now, in its functional third edition, being published for public use. The mediation model used is quite specific, being based on a normative two hour session for the completion of the mediation and using, not exclusively, but by preference, a comediation approach. The issues addressed are mostly those that are common to community mediation programs, small interpersonal and commercial disputes that are not usually important enough to engage persons other than the principals and their immediate families.
The manual is divided into six chapters plus a collection of appendices. The first chapter provides an overview of the mediation process including a brief description of the seven analytical stages used here, some notes on the specific commitments of the Friends program with its emphasis on development of respect for and between the parties, a brief look at the nature of conflict, and a series of sample scenarios where mediation can be effective.
The second chapter focuses on the mediation session with more detailed analyses of each of the stages. The following chapters address the mediator's toolbox. The first, supporting your people, examines cultural and language issues as well as tone setting and confidentiality. The next, controlling the process, looks at the appropriate level of intervention by the mediator and intervention skills such as restating, confronting, etc. Finally, solving the problem addresses interest v position questions, mediatable issues, identifying alternatives, testing agreement, and a brief look at moving through impasse. The final chapter looks at informal mediation, when it is appropriate and how to implement it.
The many editions and extensive rewriting that have preceded this edition of the Handbook have paid real dividends. The language of the book is clear but carefully accurate and the illustrations have been refined so that they communicate what is intended without undue distraction. The book could be effectively used in most community mediation basic mediator training programs with some minor adjustment to address the peculiarities of the Friends program. The appendices provide lists of useful resources and a few of the forms that will be helpful to the mediator within a program.
Shulman, Diana, Co-Parenting After Divorce ,
WinnSpeed Press, Suite 329, 14622 Ventura Blvd., Sherman Oaks, CA
91403 (126pp $12.95 1997) ISBN: 0965690709
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, November 1997.
Diana Shulman must be very embarrassed. Here we have a book which, according to its publicity letter, "is presented in 'sound bite' rather than narrative form, and when you pick up the book to read it you discover that its author is not only literate, but writes clear and useful short essays that provide serious information about some of the problems and opportunities that coparenting presents. Her editors have made a real effort to cover up this deficiency. Each paragraph, regardless of content, is headed by an attractive sun shaped bullet which is intended to make you believe that it can stand alone, but all but the most simple-minded reader will see through this device and discover that there is a real book hiding out between the covers.
The book is designed to provide parents undergoing separation or divorce with an understanding of what coparenting is and what some of the options are that they need to consider. It also addresses many of the concerns that coparenting raises, perhaps most usefully reassuring the parent that their concerns are not idiosyncratic, but are common and can often be dealt with by established solutions. It also focuses on the need for communication between coparents and the legitimacy of the concerns that parents in a two home family will naturally feel. Even though it is oriented toward parents, the book could also be usefully read by attorneys and mental health professionals who are less than fully familiar with the coparenting concept and by divorce mediators as well as their clients to make certain they have addressed all necessary issues.
The first three chapters address the nature and formation of coparenting plans including the selection of an attorney. Ms. Shulman appears to be less than fully familiar with mediation, discussion of mediation would have been useful at this point, but the material is clear and useful. The next chapters address telling the children and general do's and dont's for coparents. The following chapters deal with managing children's and parents' adjustment to the new system including dealing with transition anxiety and, feelings management, and an acute look at the effects of age on the needs of children. Despite its editors, a useful contribution to the literature.
Stern, Fred, Hassle Free Zone: "Teaching Students Peer
Mediation" , Marshall Enterprise Learning, "Roseneath", 39
Avon Rd., Avonsleigh, Victoria 3782, Australia (56pp A$22 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
Stern, Fred, Oz Problem Solver: "Teaching Students Peer Mediation" (Revised Edition) , Marshall Enterprise Learning, "Roseneath", 39 Avon Rd., Avonsleigh, Victoria 3782, Australia (56pp A$20 1997)
Fred Stern is a youth worker who, while working with a youth housing initiative in Victoria, Australia, was exposed to the use of mediation as a means of dealing with disputes amongst children and between children and adults and became interested in promoting mediation's use for the benefit of children. Now the coordinator of a mediation service in Geelong, Victoria, these two books are manuals that he has developed for use in school "peer" mediation programs for the training of the student mediators. Oz Problem Solver is designed for use in secondary schools and Hassle Free Zone for students in fifth grade through middle school. His intentions are clearly good, and I am sure that as he implements the program it has been successful, but unfortunately neither his communication skills nor his understanding of training processes rise to a level that would permit recommending these manuals to others, especially in light of the many excellent peer mediation training manuals available in Australia, the US, the UK and elsewhere in the world.
Before turning to the substance of the manuals, several process problems need to be mentioned. The manuals are poorly edited and grammatical errors appear with unacceptable frequency, especially for a book intended for schools use, and many of the exercises are poorly described, leaving to the imagination of the trainer to figure out what the author intended. Some of the exercises which would otherwise be useful are seriously compromised by this lack of description.
Turning to the program itself, Stern fails to describe the model of peer mediation that he recommends and barely deals with the necessary administrative structure to make such a program viable. He suggests that an individual training from the manuals should have mediation training, but does not think it essential although he fails to provide sufficient information about the nature of mediation to correct for this lack and fails to recognize that the type of training and mediation experience of the trainer will influence the person's view of the process and affect what is communicated.
The training program for the older children from the Oz book is a four day program. The first day focuses on the nature of conflict and the individual's perception of conflict. The second day focuses on listening skills and introducing the mediation process, while the third and fourth days focus in more detail on the processes. The Hassle Free program for the younger children is a two day one, the first day focusing on he nature and perception of conflict and the second on mediation processes. Certainly children in either training program will clearly benefit from their participation, but a more carefully designed program would have increased its value.
Flamini, Roland, Passport Germany (96pp $6.95 1997)
ISBN: 1885073208
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, November 1997.
Francia, Luis, Passport Philippines (96pp $6.95 1997) ISBN: 1885073208
Novas, Himilce and Silva, Rosemary E., Passport Spain (96pp $6.95 1997) ISBN: 1885073356
World Trade Press, 1505 Fifth Ave., San Rafael, CA 94901
The passport series of pocket guides to business, customs and etiquette are edited to a strict formula, each of them runs precisely 96 pages and follows closely a 23 chapter outline usually with the same number of pages to each topic, but, despite this structural formality, each of the books has a distinct personality and provides a reasonably useful guide to the business practices and general customs affecting business in the country in question, including negotiation practices. Obviously in a book of this type many of the statements will be overgeneralizations, but with that risk in mind the information provided seem to well reflect the culture discussed.
In looking at negotiation, for example, the book on Spain focuses on the opening protocol, issues of decision making style, and the use of interpreters. The one on the Philippines looks at time as a factor in negotiation, common negotiating ploys, and the use of ambiguous agreement and disagreement in the negotiating process. The German book begins by pointing out the importance of not showing any disagreement amongst members of the negotiating team and the very direct and to the point nature of negotiations. These differences, in my experience, are an accurate reflection of the differences in the cultures and will be helpful to the person dealing in that culture for the first time.
Clearly, the Passports are not academic or in depth studies of the cultures that they discuss and they are not designed for the person with substantial prior experience in a country. For the business person working in a country for the first time, however, they will provide warning against obvious faux pas and provide useful guidance on what to expect.
Société Jean Bodin, Assistance in Conflict Resolution:
Transaction of the Jean Bodin Society for Comparative Institutional
History vol. 63-First and Second Part , Accès+s.p.r.l., Fond
Jean Pâques 4, B-1348 Louvain-la-Neuve, France (237pp 535ff 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
The Société Jean Bodin is an academic society for comparative institutional history. Each year its annual meeting is devoted to the examination of a single subject in comparative and historical perspective. Its sixty-third meeting, held in 1996 looked at the subject of assistance in conflict resolution.
The meaning of this subject is somewhat less clear in english than in the original french. Basically, however, it covers any situation where a person who is not one of the principals to a dispute assists one, several, or all of the principals in reaching a conclusion to the issues they face. This includes potentially neutrals (judges, mediators, amiable compositeurs), advocates (lawyers, pleaders) and formal and informal advisors (notaires, friends, relatives). This is a broad subject matter, obviously not to be comprehended fully within the confines of any one or a series of books, but one that raises interesting questions.
This volume contains parts one and two of the transactions. The first part deals with antiquity and the second with the non-European world. The antiquities section includes seven essays, five in french, one in spanish and one in english. The french essays address are private arbitration in classical Athens, the principal of status quo and the right of possession in arbitration of territorial conflicts in greco-roman society, assistance in conflict resolution in Rome, judicial assistance in greek and roman Egypt, and a look at the ethical rules of judicial assistance from the end of the Roman Republic through the High Empire period, the spanish one (I offer the title as I am not sure of the translation): Sobre la inicial gratuidad de la defensa ejercida por oratores y advocati en el proceso roman), and the english language essay looks at non-judicial conflict resolution in Jerusalem with reference to the classical period.
The essays in part two, the non-European world are all in english. Assistance in conflict resolution is examined in Imperial China and Melanesia as well as provision of such assistance for the poor and Indians in colonial Mexico. Two other essays address conflict resolution during the fur trade in the Canadian northwest in the early through middle nineteenth century and the Burmese legal profession from the 13th through the nineteenth century.
The essays range in depth and quality, but most of them are very good to excellent. Of especial note are Karbélias' essay which does an excellent job of setting the public law and social context in which private arbitration occurred in classical Athens and Andrew Huxley's marvelous essay on the history of the Burmese legal profession, she-ne, which provides both a historical and sociological analysis in a Weberian context that opens a new and previously unfamiliar, at least to most western scholars, window on the nature of professionalism. This is clearly a book for the scholar seeking a longer perspective on conflict resolution processes, and the various essays will provide a good range of approaches to that goal.
Boskey, James B. and McCabe, Douglas M. eds., Democracy and
Dispute Resolution: Power, Principle and Practice - Proceedings,
SPIDR 23rd Annual Conference Washington DC 1995 ,
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, November 1997.
In keeping with my usual practice I do not review books in whose preparation I have participated. I have simply listed the articles included in the current volume and note that it has been published exclusively on the WorldWideWeb.
Section 1: ADR Practice
Imperati, Sam and Abrams, Jeff, Mediator Practice Styles and Ethics: Exploratory Survey
Pierce, Lemoine, Women in Mediation: Victimized or Victorious?
Gaertner, Jason J., Media Relations: Professional Responsibility, but Also Opportunity for ADR Outreach
Section 2: Dispute Resolution in the Labor and Employment Arenas
Newman, W. Bruce, A Protocol for Applying ADR to Employment Disputes
Alexander, David G., Workplace Violence and Dispute Resolution
Malin, Martin H., Legal Developments in Arbitration in the Employment Sector
McCabe, Douglas M., Negotiation, Dispute Resolution, and Conflict Management in Federal Sector Labor-Management Relations - The Perspective of Neutrals and Arbitrators
Section 3: Community Mediation, Multiculturalism and the Family
Hedeen, Timothy, Coordinating Community Mediation: Paradoxes and Issues in Program Development
Domergue, Scott C., Cross Cultural Communication
Pierce, Lemoine, Recommended Background Reading on Race, Gender Age and Sexual Orientation for Dispute Resolution and Processes
Hauser, Joyce, Results from the "Kindred Spirits" Survey
Section 4: Dispute Resolution on the International Scene
Allor, David J., Assessing Cultural Attributes in Negotiating Economic Development /Environmental Conservation Disputes under the North American Free Trade Agreement (NAFTA)
Ormachea-Choque, Ivan, The Challenges of Dispute Resolution in Peru
Burde, Sharon, Airport Stories: Local Realities
Franklin, John A., Can ADR Processes Displace 'Compulsory' Conciliation and Arbitration at the Workplace Level in Australian Industrial Relations?
Section 5: The Partnering Process - Improving Dispute Prevention
Abrams, Jeff and Imperati, Sam, Successful Skills & Strategies for Partnering in a Diverse & Demanding Work Environment
Noyes, Pat and Monsma, Robbie, Designing Non-Adversarial Projects: A Systems Approach to Partnering and Beyond
Shearer, Robert A. and Maes, Jeanne D., Conflict Management Through Partnering: Followup for Success
Section 6: Special Applications of Dispute Resolution
Eggertsen-Pierson, Laura, Conflict Resolution Goes to Jail: The Inside Mediation Program
Kuwik, Lenore R., The Negotiated Rule Making Pilot in New York State
Polkinghorn, Brian, ADR and the Transformation of Regulatory and Policy Decision Making at the U.S. Environmental Protection Agency: Examining Interpretations and Attitudes Toward Negotiating with the Public
Smit, Hans and Pechota, Vratislav, Arbitration Rules -
International Institutions , Juris Publishing ($ prices), 1
Odell Plaza, Executive Park, Yonkers, NY 10701 and Sweet and Maxwell
(£ prices), Cheriton House, North Way, Andover, Hants SP10 5BE,
England (338pp $125/£100 1997) ISSN: 10503900
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, November 1997.
Arbitration Rules is the second volume in the new series from the Parker School at Columbia University on international arbitration law and practice edited by Hans Smits and Vratislav Pechota. The first volume in the series, the second edition of the Roster of International Arbitrators was reviewed in the last issue. When the series is complete, it is intended to serve as a comprehensive reference guide for international arbitration practitioners.
This volume collects the arbitration rules from the most important international arbitration institutions, providing for each a brief introduction describing the nature of the issuing institution, a brief outline of the rule's scope, and some information about their implementation. This is followed by a model clause implementing the particular rules, the text of the rules, and a bibliography of books and articles explaining or critiquing the rule set.
The six rule sets that are included are: UNCITRAL, The International Chamber of Commerce (ICC), The International Centre for the Settlement of Investment Disputes (ICSID), The Inter-American Commercial Arbitration Commission, The Permanent Court of Arbitration, and the World Intellectual Property Organization (WIPO). Not included are the rule sets from single nation based arbitration centers (ie. The American Arbitration Association, The London Court of International Arbitration, The Hong Kong Arbitration Centre, and the like), which will be incorporated in a separate volume of the series.
As a part of the intended shelf of reference volumes, this book will provide a useful reference. It is simply a collection of the rule sets, which are available - usually without cost - from the issuing entities in a convenient package. Analysis of the rules must wait for a future volume. While the bibliography does add some value to the rule set, an unannotated list of books and articles is not really enough to justify the expense of purchasing this volume on its own.
Wiggins, Charles B. and Lowry, L. Randolph, Negotiation and
Settlement Advocacy: A Book of Readings , West Group, 610
Opperman Dr., PO Box 64526, St. Paul, MN 55164-0526 (309pp $25 1997)
ISBN: 0314225862
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, November 1997.
One of the measures of the maturity of a field of law teaching is the publication of sets of readings which can be used to supplement the basic texts in an area and allow the student to expand on the learning in that basic text with deeper and more analytical examination of some of the issues raised.
The need for such collections of readings in legal education is created, at least in part, by the kinds of books that are commonly used in the law school classroom. These are typically either "Langdellian" case books emphasizing learning through a quasi-deductive process from the reading of large numbers of judicial decisions, or, in the case of subjects like negotiation, pragmatic manuals which focus on how to rather than necessarily providing the full theoretical background that might be desired. There are, of course, exceptions on both ends - books that incorporate substantial background readings with the cases or provide broad background to their description of techniques, but, even in these, the selection of materials tends to be rather narrow and overly focused.
This leaves several alternatives for the teacher in these fields who is not satisfied with the traditional approach. Either put together a set of readings to supplement the text or teach the course entirely, or largely, from such a set of selected texts.
Wiggins and Lowry, both very experienced teachers of negotiation, have elected to follow the former route, and provide here a set of readings which can be used to supplement any of the basic negotiation technique books to provide the student with a broader background in understanding the negotiation process. The coverage is broad, and the individual instructor can easily pick and choose amongst the collected readings to encourage the student to focus on areas that are less than adequately dealt with in the selected basic text. In addition, the editors have provided appropriate lists of additional readings with each of their chapters, which will allow the interested student to further explore the area discussed, as well as a brief, unannotated, summary bibliography.
The selection that the editors have made is excellent. It is drawn from a wide range of sources, both legal and non-legal, and most of the major figures in negotiation theory are represented in at least one, and often more, excerpts. Unfortunately, from my viewpoint, Wiggins and Lowry have been overaggressive with the editorial shears. Following a common practice in many casebooks and recent collections of readings, they have sought to draw the essence from each of the included selections, reducing them typically to two to three pages. While they are very good at capturing the essence, often the elegance of the discussion and the contextual import of the subject discussed appears to have been lost on the cutting house floor. For example, in their second chapter, dealing with the prisoner's dilemma as a negotiation model, they have cut from the selections any description of the classic prisoner's dilemma model, which may leave the student wondering at the name.
The readings are collected in three sections with a total of twelve chapters. Each chapter contains between five and eighteen readings, with a median of about six. The first section deals with the structural nature of the negotiation process, with an introductory chapter followed by chapters on the prisoner's dilemma, distributive bargaining, integrative bargaining, and moving between strategies. The second section focuses on the behavioral nature of negotiation with an overview chapter establishing the issues and a chapters on power in negotiation and the influence of gender on negotiation process, used as a surrogate for cultural difference. The final section focuses on attorneys and their role as surrogate negotiators. Chapters examine the tension inherent in the representative role, the special problems of negotiation in the litigation setting, critiques of settlement advocacy, and finally ethical issues in lawyer negotiations.
Depending on teaching style this can be a valuable supplement to the basic text in a negotiation course for law students or attorneys. If the course is basically being taught from a training volume like Getting to Yes or even an elaborated one such as Craver's Effective Legal Negotiation and Settlement , the book will provide some useful broadening of the course. Because of the brevity of the selections, however, substantial discussion by the professor will be needed to clarify the material.
Irani, George Emile ed., Reconciliation Processes and the
Displaced Communities in Post-War Lebanon , Lebanese
American University, PO Box 36, Byblos, Lebanon or 475 Riverside
Dr., Room 1846, New York, NY 10015-0065 (268pp price not stated
1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
George Irani, who teaches in a nation where the need for alternative means of dispute resolution is apparent on a daily basis, has been one of the longest term subscribers to The Alternative Newsletter. I am very pleased, therefore, to have this opportunity to review this volume, which he edited, of the proceedings of a workshop, which he organized, held in March 1996 at the Lebanese American University.
The workshop, which drew about 80 participants, followed on a US Institute for Peace Conference, which had been held in 1994, and had examined the reconciliation concept and alternative approaches which might be viable, focused on the experiences and needs of the more than 90,000 families who remained displaced at the end of the Lebanese conflict in 1990, many of them living in situations not fit for human habitation.
In order to assist in their return to their villages of origin, the Lebanese Ministry for the Affairs of the Displaced created "Committees of Return" to aid in the return and reconciliation process between victims and victimizers in several villages. The efforts were based on an indigenous process called musalaha, which involves confrontation in the framework of a mediated reconciliation ritual. The workshop, which included attendees from villages where the process was or is being successful as well as from ones where obstacles have been encountered, was designed to provide the displaced and those overseeing the reconciliation efforts with appropriate tools of conflict management.
In addition to two opening speeches, the workshop consisted of two parts. The first examined, in seven presentations, the displacement phenomenon in Lebanon, while the second, in eight more, looked at the problems posed by return and reconciliation. The first section begins with a paper on the demographics of displacement in Lebanon which provides a clear, if horrifying picture of the situation. This is followed by a look at the political problems posed by the displacement, followed by sociological and economic perspectives on the return process. Finally, the situation in two specific villages, one relatively inaccessible, Maaser As-Shuf, and the other frequently targeted, Salima, is examined. The effect of the displacement is perhaps best seen, for an outsider in the report of the Maaser As-Shuf League, which describes a peaceful community broken on the wheel of a conflict not of its own making.
The second section includes looks at specific incidents of return including the Christian return to Mount Lebanon and the experience of Maaser As-Shuf and Tarshish, a multicultural community on the edge of Mount Lebanon. The reports are, in effect, testimonials as to what works and what does not in the return process joined with calls for cooperation and collaboration to ameliorate the tensions. These are interspersed with articles calling for respect for all parties' needs and a search for sources of healing. Of especial note is Rita Ayoub's article which addresses the special problems of displaced youth and the contradictions that they must deal with in the return situation.
Overall this a book that encourages hope. Having been through the functional equivalent of Hell, it is soul satisfying that the participants can take as positive an attitude as is expressed here. These are not polyannas, failing to recognize the very real problems that the return poses, but realists with hope who are prepared to work to bring together those who have fought and help them to resolve their differences.
The book is bilingual in English and Arabic, with the text in both languages being bound together in a single volume. This works well as the languages are read from opposite directions and each has a full cover. The English text is 147 pages and the Arabic 121. The English, I do not read Arabic, is clear and well edited, maintaining the informality of tone of conference presentations without in any way sacrificing meaning or substance to such informality.
Press, Sharon, Kosch, Kimberly and Schultz, Sarah, 1997
Florida Mediation/Arbitration Programs: A Compendium (10th ed.)
, Dispute Resolution Center, Supreme Court Building,
Tallahassee, FL 32399-1905 (310pp 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
If you want to know where the future lies for alternative dispute resolution in the United States look to Florida, and if you want to know what the status of alternative dispute resolution is in Florida look to the annual Compendium compiled by the Dispute Resolution Center at the Florida Supreme Court. The Compendium has grown over the years with the Florida program, from little more than pamphlet length to a book length treatise which provides detailed textual and tabular descriptions of the extensive court-annexed programs with appropriate graphic depictions of some of the information.
The Compendium is broken into twelve tabs (or chapters) and several appendices. After an introduction and a directory of court based programs by county and circuit, court administrators, and chief judges, the next six tabs provide detailed information about the major program types (citizen dispute settlement, county civil, family, circuit court, and dependency mediation, and civil arbitration. Included in each category is a directory, program descriptions, and an analysis of funding, caseload, case type, personnel, and other information. This is followed by a tab examining innovative ADR projects, telephone, fax, e-mail, and web site directories. The appendices offer the Florida statutes, court rules, and similar statewide materials about the program including a list of resources and a set of sample forms.
Clearly printed and well organized, this is a volume that should be on the shelf not only of Florida judges and practitioners, but accessible in every state court administration or ADR program office as a model of the kind of information that can be collected and presented by a well organized operation.
Birke, Richard A. ed., Negotiation Simulation Exercises
, Center for Dispute Resolution, 245 Winter St. SE, Salem,
OR 97301 (191pp $20 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
This is, I believe, the third set of simulation exercises to result from the annual simulation development competition sponsored by the Center for Dispute Resolution at the Willamette College of Law under the direction of Richard Birke. This years competition yielded nine simulations with teaching notes, although the cover suggests that only seven are included. The simulations this year are more varied than in previous ones and offer some excellent ideas for use in courses in conflict in general or in specific means of conflict resolution.
The three winners in the competition were The Peruvian Hostage Crisis 1996-97 by Ivan Ormachea-Choque and Maria Isabel Cordua-von Specht of Peru, Ecolabeling by Mary Elizabeth Skora and Patricia Ann Collins, both students at the T.C. Williams Law School, and The Deadhead Grievance by Marcus Widener and Steven Hecker of the Labor Education and Research Center at the University of Oregon.
The Peruvian Hostage Crisis is modeled on the actual hostage crisis at the Japanese ambassador's residence in Lima, Peru. The authors provide an excellent summary of the recent political history of Peru and of the Tupac Amaru (MRTA). The simulation is divided into four stages, based on the actual events, and can be used to demonstrate or invite participation in various processes including collective decision-making, bilateral and multilateral negotiation, and mediation. The instructor can elect to use all four stages or to combine them to accomplish different purposes. Detailed instructions are provided for each of the stages and processes creating a very teachable scenario.
Ecolabeling is a three stage negotiation scenario in a public policy setting. The first stage involves negotiations between American producers of fine papers and the Environmental Protection Agency over an EPA proposal for a voluntary labeling process. The second stage involves negotiations between the EPA and the Canadian Council on Forest Ministers to create a joint, WTO (World Trade Organization) approved, ecolabeling program. The third stage has the resultant Canadian/US Board negotiating with the Malaysian Government over further developments. Each stage offers a common set of facts and secret facts for each party to the negotiation and the simulation is supported by an extended teacher's guide.
The Deadhead Grievance is a comprehensive labor grievance simulation involving drug testing in the workplace. It is a multi-player simulation which requires the parties (labor and management) to investigate facts by interviewing parties and witnesses, develop an analysis of legal issues, prepare a grievance (union only), and present their case at a simulated arbitration. Witness fact sheets and party information sheets are provided as is a brief set of teaching instructions.
The non-winning simulations are also useful. Two present mediation situations: Neighbor v Neighbor, a community mediation setting dealing with problems over a dog owned by one party, and Diaz v Waters an IEP (individualized education plan) mediation between parent and school district dealing with a child with a substantial history of educational and physical problems. The Gas Pipeline Case is an arbitration/negotiation problem in a commercial contract setting with detailed market information providing a good opportunity to explore preparation for negotiation issues. Arbitration is available as an ultimate solution if negotiations fail. Finally Lynn Lender v Bobby Borrower, is a law school multi-stage simulation with opportunities to deal with interviewing of the client, complaint drafting, counseling, preparation of an answer, representative negotiation (with the unstated opportunity to compare representative and principal negotiation) and drafting of a settlement agreement. The basic issues deal with a personal loan between family members with serious personal and emotional issues playing a role in the parties' positions.
Anyone who teaches in the ADR or negotiation arena will want to have a copy of this book. The simulations can be freely used, a condition of entering the competition, and they are well thought out and will be useful. Each one is appropriate for a different setting, but every teacher will find at least one which will be of use.
Shonholtz, Raymond and Shapiro, Ilana, eds., Strengthening
Transitional Democracies Through Conflict Resolution (Vol. 552 The
Annals of the American Academy of Political and Social Science)
, Sage Publications, P.O. Box 5084, Thousand Oaks, CA
91359-9924 (200pp $22.40(c) $14.40(p) 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
As an adolescent, one of my favorite magazines was The Annals (yes, I was a weird adolescent). The Annals was one of the earliest journals to dedicate each issue to a single topic and provide an in depth exploration of that topic with both academic and practical scholarship. While I no longer read the Annals regularly, I was very pleased to discover that they had dedicated their July issue to the role of conflict resolution in strengthening the transitional democracies of Central and Eastern Europe, and that they had called upon Ray Shonholtz to edit the issue.
As most readers will know, Ray Shonholtz was one of the founders and principal leaders of the Community Boards program in San Francisco in their early days. Since leaving the Community Boards, he has dedicated himself to exploring the use of conflict resolution mechanisms in non-United States settings, and, particularly, their use in the stabilization of transitional societies. Partners for Democratic Change, which he founded and remains active in, is a network of nonprofit national centers which are dedicated to advancing a culture of conflict management and civil society. Partners has affiliated programs in at seven Eastern European and former Soviet nations and in Argentina. These programs, which are locally staffed, provide training in conflict resolution techniques to leaders and potential leaders in their societies and coordinate their efforts across national lines to address a wide range of conflicts that can and will arise.
The volume begins with an essay by Ilana Shapiro who is the Central and Eastern Europe coordinator for Partners and who is pursuing two doctorates, one in conflict studies and one in social psychology. She discusses the "modernization" program promoted by the United States in Eastern and Central Europe and looks at the limits that it imposes with its mixing of economic and political issues. She suggests that a conflict resolution focus can ameliorate some of this difficulties and strengthen other aspects of the modernization programs.
This is followed by four articles examining applications of conflict resolution technologies. Partners-Hungary's leadership examines response to ethnic minorities in that nation and the role of conflict resolution in building democratic institutions that offer them protection. The Slovak group examines the role of the non-governmental sector in societal transformation, while others examine management of environmental conflicts, the use of cooperative planning, and conflict resolution's role in promoting transition to a market economy.
Three articles address the democratization process and the place of conflict theory in understanding and implementing the process. Finally two articles examine the specifics of program implementation and Ray Shonoltz sums up with an analysis of "The Mediating Future". Overall, we are provided with a useful picture of the political transition process in Eastern and Central Europe and the roles that conflict analysis can play in assisting in easing this process.
American Bar Association Section of Dispute Resolution,
Directory of Law School Alternative Dispute Resolution Courses
and Programs (2d Ed) , American Bar Association, Dispute
Resolution Section, 740 15th St. NW, Washington, DC 20005-1022 (152
pp $15 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
The American Bar Association's Section of Dispute Resolution has, with this second edition, again made available to the legal community and the general public a nearly comprehensive list of law school courses relating to dispute resolution around the nation. This list will allow students, intending students, and the bar to obtain some idea of the growth of the field and the increasing opportunities offered to students for the development of skills and knowledge in this area.
178 law schools are included in the list, each providing the name, address and phone of the school, a key contact person in the area, and a list of courses offered or proposed. Usually the list identifies for each course the faculty members involved, the number of credits, the teaching method and occasionally additional information. A very useful resource.
Cronin-Harris, Catherine, Building ADR into the Corporate
Law Department: ADR Systems Design , CPR Institute for
Dispute Resolution, 366 Madison Ave., New York, NY 10017-3122 (280pp
$95 non-member $55 member 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
Cronin-Harris, Catherine, Executive Summary - Building ADR into the Corporate Law Department: ADR Systems Design , CPR Institute for Dispute Resolution, 366 Madison Ave., New York, NY 10017-3122 (20pp free 1997)
Building ADR into the Corporate Law Department is designed not to provide basic information about ADR, which is available in a wider range of resources, but rather the address the specific issues that need to be dealt with in integrating ADR into a corporation's structure. While the title might suggest to some that the reference is only to use of ADR in the Law Department, the book is suggesting that department as an initiator and motivator for the development of an ADR enabled and effective corporation.
The text of the book is relatively brief, 53 pages, with the appendices making up the remainder of the volume. In that 53 pages, however, is offered a detailed outline of the ADR system design process based on a five step model.
The model begins with designing the proposed system. The design section focuses on careful need determination, including evaluation of the current structure of dispute management, the development of and ADR team with lead "ADR Counsel" to support implementation, and the use of pilot programs and feedback systems to assure its effective implement. This is followed by the development of ADR tools for the law department, including early case assessment, development and planning for use of ADR clauses in contracts, and the use of decision analysis aids to focus attention on specific issues. Once these are in place, the next step is the provision of ADR resources including formal training sessions and the development of a library of materials, including the development of motivational tools to encourage use of ADR by all corporate staff and those with whom they deal. Finally, the model focuses on tracking and evaluation to make certain that the gains that are made are reinforced and that the changes made become a part of the corporate culture rather than being lost with the passage of time.
The appendices are extensive. Brief summaries of over 20 corporate ADR programs are provided which can serve as models for development of a new program, and an extensive collection of "best practices" documents is included from a range of corporate sources to further aid in the process. CPR also has incorporated several articles from its publications which provide more extensive information about certain aspects of the process.
For those who are trying to develop a corporate culture which incorporates dispute resolution as one of its basic elements, this is one of the best models for implementation. It assumes the reader has substantial familiarity with dispute resolution and knows his or her own company and industry, saving a good deal of space by not having to reconstruct processes for each setting. With that assumption solidly based, this book provides most of the information that one will need to begin implementing the process and provides good resources to search where gaps appear.
Gleason, Sandra E. ed., Workplace Dispute Resolution :
Directions for the Twenty-First Century , Michigan State
University Press, 1405 S. Harrison Rd., East Lansing, MI 48823
(283pp $26.95 1997) ISBN: 0870134361
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, November 1997.
Workplace Dispute Resolution presents a wide range of views, including some serious, perhaps even radical, rethinking of the manner in which dispute resolution is applied in both the union and non-union workplace. Sandra Gleason has clearly invited her authors, who bring exceptional credentials from both the employment and dispute resolution fields, to think broadly about the present and future of workplace dispute resolution, and has been rewarded with an exceptional collection of essays. The basic approach taken is to examine workplace disputes as exemplars of social phenomena rather than as unique to their setting and to see dispute resolution techniques, and their application, as means of expressing both the management and labor voices concerning these phenomena. While no one of the essays explicitly takes this as its primary focus, the general tone they present supports this view.
The essays, excluding the introductory essay by Professor Gleason and a final essay by Timothy Heeden on linking practice and research, are classified into three sections. The first, Perspectives from the United States, has five essays, the second, perspectives from Japan and Western Europe, two, and the final, New Perspectives on Negotiation - three.
Peter Feuille and Sylvia Skratek, in separate essays, begin the first section with looks at the unionized workplace. He sees that workplace as conflict structured and examines the range of conflict controlling mechanisms that are used to limit the potential for serious disputes, while she focuses on "conflictive partnerships" and the common need of management and labor to resolve grievances without war. They both speak favorably to the move towards cooperative dispute resolving programs, but he is more pessimistic about the long term effects of that move. Mary Rowe examines the non-union workplace, where the evolution of integrated conflict management systems has become a major development. She sees this process as continuing and becoming more sophisticated as the nature of the typical workplace continues to evolve.
The remaining two essays offer somewhat different perspectives on conflict issues. Joel Cutcher-Gershenfeld and Thomas A. Kochan looks at the changes in the workplace that have been brought about by the growing use of teams and the needs for effective and efficient dispute resolution systems that that has imposed. The focus is on intra-team issues, but there is an interesting side question hinted at of the changes this imposes on conflict resolution in the greater workplace system. Sandra Gleason and Karen Roberts are concerned with worker's need for a sense of procedural justice in conflict settings and look at the Michigan workers Compensation system as a model for how that sense develops.
The international essays are somewhat different. Michio Nitta offers two case studies on US-Japanese joint ventures in the steel industry and the change in voice on the plant floor that these ventures brought about. R. Oliver Clark, in contrast, surveys four European countries and the way in which the deal with potential work stoppages due to conflict.
The final three essays address broader theoretical issues. Max Bazerman and his colleagues look at the perception of fairness as a factor in negotiated dispute resolution and the manner in which participants draw their sense of fairness into the process. Leonard Greehalgh and Deborah Chapman examine the effect of preexisting relationships on the dispute resolution mechanisms selected and on the negotiation process as a whole, offering an important perspective on the manner in which negotiation decision making takes place, and finally, Deborah Kolb and Linda Putnam offer a nicely tailored gender focused examination of our understanding of negotiation theory.
Overall an excellent set of essays. This book should be a serious contender for book of the year in the labor dispute resolution field.
Riskin, Leonard L. and Westbrook, James E., Dispute
Resolution and Lawyers, 2d ed , West Group, PO Box 64833,
St. Paul, MN 55164-9752 (450pp 1997) ISBN:031407211X
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, November 1997.
The second edition of Riskin and Westbrook's casebook on dispute resolution follows closely the outline of the first edition, but makes a substantial number of changes in detail. The overview and interviewing and counseling chapters are little changed, with the replacement of several articles with more recent ones by the same authors and a few selections looking at newer approaches such as the Ury, Brett and Goldberg selection on system design and Carrie Menkel-Meadow's ethics piece in the first chapter and Binder et. al.'s Client Centered Approach one in the second.
The changes are more substantial in detail, although not in approach, as one turns to the substantive chapters. In negotiation, relatively little has been cut from the first edition, but a good deal has been added. The changes offer no clear pattern, although there is some indication of a somewhat broader approach to negotiation theory than was taken in the first edition.
The mediation section has been substantially rethought and rewritten, providing the most important changes in the book. Perhaps the most notable change is the addition of several reports on specific mediations of various issues and the elimination of the separate section on divorce and family mediation. In addition, the section on the roles of the participants in mediation is mostly new, as is some of the material on when to use the mediation process.
The original edition's arbitration section has been divided into two parts, with the mixed processes, which were dealt with marginally in the prior edition, provided a chapter of their own. The final chapter on selecting and building processes, is relatively unchanged.
Overall the changes in the book are not likely to sway one who has been using another casebook to select this one, nor are they likely to frighten off current users. The rebalancing to increase the coverage of mediation is clearly appropriate in light of developments around the United States. The updated material is well selected and carefully edited. This remains one of the leading choices for a survey course in dispute resolution.
James, Rhoda, Private Ombudsmen and Public Law ,
Ashgate Publishing Co., Old Post Road, Brookfield, VT 05036-9704
(264pp $64.95 1997) ISBN: 1855217694
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, November 1997.
Rhoda James' study of private ombudsmen in Britain provides a detailed look at an institution which has developed quite differently than those of the same name in either Sweden, where they originated, or the United States. In Sweden the ombudsman is generally a government official with the right to receive citizen and non-citizen complaints against government and its entities and intervene on the complainants' behalf with the agency. In the United States, the ombuds, while sometimes governmental, is often associated with a private or quasi-public institution, but again generally has a right to intervene rather than determine a matter on behalf of a claimant. In Britain, however, for historical reasons which James describes in passing, the role of the ombudsman has more often been that of an adjudicator, albeit one with limited authority. The ombuds' authority over the industry or agency with which he or she is associated comes from a contractual power granted by the members of the industry or agency, and power over the consumer comes by voluntary submission of a dispute by the consumer to the ombuds, usually with the right to reject the ombuds determination if the consumer is not satisfied with it. Thus the ombuds serves as a form of arbitrator rather than the investigator/mediator role that is more common elsewhere.
James takes the view that the decisions of the ombuds should be subject to judicial review. In the leading case on the subject, R v Insurance Ombudsman Bureau and the Insurance Ombudsman ex p Aegon Insurance (1994), the court rejected such authority, taking the view that the power of the ombudsman was wholly private, having been contractually granted by Aegon and other members of the industry, and not subject to judicial action. In this the court may have been anticipating the new view of arbitration taken in the 1996 Arbitration Act, which similarly provides a general immunity from judicial review for private decision making. James, concerned that in many circumstances the ombuds may provide the only outlet for consumer complaints, is unwilling to treat the decision of the ombuds as immune to review, even though generally the consumer is not barred from the courts by the ombuds' decision.
But the purpose of this book goes beyond the presentation of this argument. James provides an extended analysis of six of the more important private ombuds programs in Britain, including not only their manner of operation, but their history and the reasons for their having developed the programs as they have. Those discussed are the Insurance Ombudsman Bureau, the first of the schemes, the banking, building societies, corporate estate agents, pensions, and personal investment ombudsmen. In addition, she examines the role of the British and Irish Ombudsman Association, which has been influential in establishing standards for the operation of ombuds programs.
The overall conclusions that James reaches on the court review issue are of marginal interest to non-British readers, but her comments on the organization and effectiveness of the various schemes are of more direct concern. Clearly these schemes have seen many of the same problems that industry based adjudication schemes have in the United States (for example the Better Business Bureau's Auto Line Program), and the solutions that they have developed, while not fully effective will provide guidance for other like programs. The volume is well written, although a bit dense in its discussion of legal issues, and worthy of attention.
Etter, Jeanne, Mediating Permanency Outcomes: Practice
Manual , Child Welfare League of America Press, 440 First
St. NW (3d Fl), Washington DC 20001-2085 (99pp $24.95 manual and
workbooks 1997) ISBN: 0878686002
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, November 1997.
Etter, Jeanne, Mediating Permanency Outcomes: Parent Empowerment Workbooks: 1. A Child's Needs, 2. Looking at Options, 3. A Cooperative Adoption, 4. Letting Go , Child Welfare League of America Press, 440 First St. NW (3d Fl), Washington DC 20001-2085 (20pp each $16.95 workbooks only 1997) ISBN: 087868669X, 0878686703, 0878686711, 087868672X
One of the areas where mediation skills have long been used, usually without acknowledgement, is social work with families. An effective case worker not only intermediates between the client and the outside world, but also functionally mediates between the client and the social service agency over their respective responsibilities and functions. It is not surprising, then, to see mediation promoted as a means of dealing with permanency issues, and indeed your editor, amongst many others, has had direct service experience in the use of mediation skills in this arena.
Permanency planning is one of the most difficult areas of casework. It arises, usually, when a child has been removed from the parental home because of findings, or at least suspicions, of abusive or neglectful conduct by a parent or the abandonment of the child. At some point after removal, the earlier the better, the question arises as to what is the long term plan for the child. Permanency planning involves the exploration of the question of whether the child is to be returned to the family or to be provided with some form of long-term care, usually adoption. As such it involves some of the most excruciating decisions that can face a social worker, or indeed a court, such as promoting the termination of parental rights, difficult judgements as to the interests and capacities of a parent of parents who are usually damaged themselves, and the need to protect the conflicting interests of protection of the child and the "sanctity" of the familiar relationship.
The program presented here was developed by the social service system in Oregon, and draws on best practice approaches from around the country and the exceptional experience of Ms. Etter and the other developers of the program. It is an exceptional program, although some question may be raised as to whether it is really mediation.
Each of the four workbooks addresses one aspect of the problems that face a parent in the permanency planning setting. They contain a series of stories about issues that the parent will face, each followed by a set of questions designed to allow the parent to turn the generic story into a personal one. The workbooks are designed to be read out loud by the caseworker with the parent and the questions are to be worked on jointly. By responding to the questions, the parent is expected to be able to clarify his or her thinking about his or her relationship with the child and determine what the goals of the permanency process should be.
The goals of the process are clearly to empower the parent, or at least to provide an illusion of such empowerment, in decision making, but the materials are clearly designed to push in the direction of the surrender of the child for adoption. (I would note that I consider this an appropriate goal in many cases for the child, but do not consider it a mediational starting point.) With a strong and effective worker, who knows and understands the social service system in which the program is administered, following the program should give the parent, at least the illusion, of participation in decision making. How real that participation is depends on the system and the particular facts of the case, as in many cases there may be little or nothing that the parent can do to influence the outcome, while in others participation in the program alone, without evaluation of its effectiveness, may have consequences for the parent and the child.
The instructions for the program, which are far too brief, place a great deal of emphasis on voluntary decision making and keeping the parent informed of the realities in his or her case. Unfortunately, the instructions in how to accomplish these goals are vague and more directive than helpful, and the instructional materials themselves do not clearly spell out the techniques to be applied in reaching these aims.
In sum, this program is a powerful and useful tool for permanency planning in social work, but bears little resemblance to mediation as we know it. It does present a form of dispute resolution, but one that is based on an assumption that one of the parties has a clearer view than the other of the "proper" result.
Mikkelsen, Jon, Resolution Revolution (A One-Act Play from
the National Theater for Children) , Pioneer Drama Service,
PO Box 4267, Englewood, CO 80115 (28pp $3.75/script $30
royalty/performance 1996)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
Resolution Revolution is, as the subtitle suggests, a play designed for children to provide them an amusing, nay even enthralling, introduction to conflict resolution. The play, which is designed for a flexible cast of 4-12 runs about 40 minutes and requires a minimal set, limited props, and, while elaborate costuming would be appropriate, it is not necessary. It uses at least two audience volunteers, and has three optional songs which will enhance, but are not essential to a performance.
The play involves a conflict between two radio station performers, a cat and a cowboy. Their conflict is interrupted by a member of the station and a "time machine" invented by the cat is used to take the cat to the stories of Romeo and Juliet, The Three Musketeers, and the filming of a movie, to observe and learn about resolving conflict. It would be a suitable piece to present at an elementary or middle school assembly or for a class in conflict resolution aimed at children of the same age. It is amusingly written, but serious in its intent and should, if well acted, hold the attention of the children.
Olshak, Richard T., Training Peer Mediators in the College
and University Setting: A Trainer's Guide , Campus Judicial
Consulting, PO Box 423, Normal, IL 61761 (180pp $47.95 1997)
Olshak, Richard T., Training Peer Mediators in the College
and University Setting: A Participant's Guide , Campus
Judicial Consulting, PO Box 423, Normal, IL 6176
1 (67pp $8 1997)
Review by James B. Boskey, first published in "Alternative Literature: Books in Review," The Alternative Newsletter, ed. James B. Boskey, Seton Hall Law School, Newark, New Jersey, November 1997.
The training program presented by Richard Olshak is designed to be used at the college or university level for the training of peer mediators to work in residential or other settings within the school. Olshak is the Director of the Student Judicial Office at the University of Illinois, Normal, and has been involved in the development and implementation of campus mediation programs at two prior schools as well.
While there is no shortage of published peer and community mediation training programs available, there is a gap in the literature. Existing peer mediation training books are focused on the elementary and secondary education level, and tend to lack the depth of intellectual content that one would expect in a college level program. Both peer and community mediation training programs are also usually focused on specific types of disputes, and these may not be the type of disputes most common on the college campus. In addition, many of the trainees in a college program are likely to have had peer mediation training in their pre-college schools, and the program offered must accommodate their experience and not bore them with a mere repetition of information and training they have already experienced.
The training program offered here appears to meet those needs, offering serious and intensive training in an appropriate intellectual context. The basic program is designed for period, to be run over a 2½ day by two trainers, a senior and a junior - whose roles are specified, and while no group size is stated, it would appear to work best with a 10-20 person group of trainees. The program is quite detailed, the roles of the two trainers are specifically noted, each exercise is noted and explained, and a full set of overheads is included for use with all portions of the program. The materials are clearly written, carefully edited (a rarity in such manuals), and well thought out.
The program outline is straightforward. It begins with an introduction to the idea of conflict and then of mediation. It explores the role of the mediator, including consideration of comediation, presents a five stage model of mediation (opening, telling the story, defining issues and common interests, generating and testing options, and writing the agreement.) It also addresses special issues such as termination of mediation, challenges to neutrality, and dealing with especially sensitive issues.
This is a well thought out and designed program. It should meet the needs of many college and university mediation programs, providing solid basic training and a good understanding of the process. The author assumes, explicitly, that the trainer is both knowledgeable and experienced in mediation, probably a safe assumption, but I would have liked to see a bit more about the special nature of campus mediation programs for the trainer/administrator who comes from a different dispute resolution community. This is, however, picking nits, and the program is a valuable contribution. The Participant's Guide contains the exercises that are to be completed during the program.
Many thanks to mediate.com for this archive.
The Alternative Newsletter, Copyright © 1997 James B. Boskey. All rights reserved.
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