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Abstract
Excerpted From: Amy J. Cohen, The Rise and Fall and Rise Again of Informal Justice and the Death of ADR, 54 Connecticut Law Review 197 (March 2022) (238 Footnotes) (Full Document)
In 2002, immediately after graduating from law school, I spent a year in Nepal engaged with projects advancing community mediation. I encountered an organization called the Centre for Victims of Torture (CVICT), which was formed in the aftermath of Nepal’s 1990 democratic revolution to provide counseling and other services to victims of state torture. The organization quickly discovered that it often ended up with clients after police intervention in local community disputes. It accordingly decided to teach community mediation techniques to Nepali villagers to preempt the involvement of police and thus the state violence that frequently followed. As the CVICT director then told me:
Many of the victims who came here were discussing [the fact] that the main reason for them to be tortured was when there were small disputes in the community and one of them went to the police . . . So we thought: Can we do something to stop those people going to the police for a small dispute? . . . Basically, the idea [for community mediation] came out of directing people [not] to go to the police . . .The idea was given by the torture victims themselves . . . [T]his component—[the] prevention [of police] torture component—is very strong.
My fin de siècle training in Alternative Dispute Resolution (ADR) at Harvard Law School, the law school that pioneered ADR as a field in legal education, did not once suggest that mediation might be a useful means of protecting communities from state violence. Nor did I have any inkling at the time that what someone was saying halfway around the world in Nepal during a Maoist insurgency was exactly what organizers in the Movement for Black Lives would be saying in the United States nearly twenty years later. I was unprepared for CVICT mediation trainings that began with Nepali facilitators lighting candles for “martyrs of democracy” and victims of police abuse. And for mediation trainings that encouraged women to combine into “pressure groups” so that they could attempt collectively to hold abusers in their villages to account without turning to law enforcement.
ADR scholars were equally unprepared. When I came home and described these observations, many of my ADR colleagues could not believe that what CVICT was doing was, in fact, mediation. As Jean Sternlight explained, “some would disagree that the [CVICT] dispute resolution tool . . . was appropriately labeled ‘mediation.’” This was because, she elaborated, the CVICT tool “‘is often public and coercive,’ and purposely enunciates the political demands of members of the society.” As such, it disrespects liberal principles of mediator neutrality and party self-determination. These are principles that mean disputants may consent to any agreement they wish, free from third party or community impositions—and that today largely define mediation within the field of American ADR.
Yet in the broader history of dispute processing scholarship, it is relatively surprising that by the early 2000s, a dispute resolution practice organized around a normative and political critique of the state—and that otherwise involved third parties intervening in interpersonal conflict without the authority to issue binding decisions—appeared to ADR scholars as something other than mediation. For it was only a few decades earlier that the study of informal dispute processing had produced a spate of critical political and analytical questions that were simpatico with the questions my Nepali interlocutors wrestled with. For example: How could analysts study dispute resolution without a theory of society in which disputes play only a particular part? Could left social movements use mediation to translate political aims into individually felt grievances and then link these grievances back to demands for collective self-determination? And, as mediation becomes part of public governance, could analysts “see” how state power was changing by studying everyday dispute processing? Answers to these and similar questions, by their nature, could scarcely hinge upon formal process definitions.
This Article recounts some of the discipline’s transformation from the 1970s until now. It traces how, as ADR became a field in American legal education, complex sociolegal and political questions faded from its thinking, and it argues that it is time to revitalize the field by bringing these sociolegal and political questions again to the front and center. In recent years, the field has been marked by a pervasive sense of crisis. In blog posts, conferences, and papers, a range of scholars have argued that ADR is now dying, not as a set of practices or institutions, to be sure, but as an entrenched scholarly field of legal education. As Deborah Thompson Eisenberg summarized recently: “[S]ome are concerned, if not downright panicked, that the future of ADR in the legal academy looks bleak.” I argue that ADR’s march to instrumentalization—that is, its march to develop formal institutional procedures defined by a specific set of best practices to resolve conflicts—has left scholars constrained in the political, social, and economic questions that they can claim to explain why ADR should remain an important scholarly field in legal education.
But as readers already anticipate, I recall my fieldnotes from Nepal in a moment when prison and police abolitionist organizers are practicing their own versions of community mediation as an alternative to police torture and mass incarceration. Americans now, like Nepalis then, are asking how they can resolve local disputes and conflicts without turning to the police, in part because turning to the police risks introducing outsized responses of state violence. Thus, at the same moment that ADR is losing its status as an intellectually vibrant field within law, experiments in what is often called transformative justice or community accountability processes are proliferating in left-wing American social movement consciousness.
This Article argues that transformative justice renews one of the normative claims and critical questions that helped originate scholarly interest in mediation. The claim is this: democratizing control over dispute resolution is a meaningful part of achieving social transformations. Movements to achieve deep-structural change should proceed not only at the level of political and economic systems. They should also confront questions of interpersonal conflict, harm, and violence—and not least because interpersonal conflict and harm make people vulnerable to state power through institutions that advance punishment and the interests of capital. But—and this is the critical question—efforts to “take back” conflict from the state and professional adjudicators invariably confront a problem. In any society organized around inequalities—capitalism, racism, and patriarchy—how can people engage in informal, democratic practices of dispute resolution in ways that transcend rather than reproduce these inequalities without defaulting back to formal legality and state incorporation—the very institutions that compelled people to search for alternative processes?
This Article proceeds in two parts. In Part I, I describe some of how American ADR became the field it currently is. I trace its roots in left utopian politics; to its status as a subject of left critical sociolegal inquiry; to its establishment as a centrist and programmatic field in legal education as it became commonsensical for American law schools to devote faculty resources to ADR scholarship and teaching; to its experience of crisis today. In Part II, I describe a return to left emancipatory politics among Black Lives Matter and prison and police abolitionist organizers advancing practices of nonstate justice. I illustrate how these organizers translate transformative politics into microsocial practices by teaching skills and designing conflict intervention processes meant to be egalitarian and radical. The pandemic meant that I could participate in webinars and Zoom trainings offered virtually throughout the summer and fall of 2020 by Black, Indigenous, and people of color (BIPOC) organizers and survivors, many of whom have been practicing and sharing skills in transformative justice for decades. These trainings were offered publicly, in a moment of heightened popular urgency, given the renewed spate of police violence and killings of BIPOC lives.
I conclude by explaining why I wish to claim transformative justice as mediation—even as I know transformative justice organizers themselves do not adopt this label and, to the contrary, draw functional distinctions among processes. It is because I wish to recover mediation as more than a specifically defined institutional practice but rather as an open-ended analytical category—one that sits between state adjudication and self-help or violence and that allows analysts to observe how people navigate and resist dominant social orders and envisage alternatives to them.
[. . .]
In 1977, Norwegian criminologist Nils Christie published an essay that elaborated the basic values and aspirations that would coalesce first as restorative and then transformative justice. Christie argued that advanced industrialized states deprive citizens of a critical resource—conflicts—which citizens rightfully “own” and should be entitled to use to elaborate their own norms and social relationships. He extensively criticized professional, statist forms of expertise and called instead for lay-oriented community moots that would stage intensely personalized and dialogic encounters between victims and offenders.
Christie’s essay remains famous to this day. Less remembered, however, is how he ended it. Christie linked his plea for the mass democratization of crime control systems to radically democratic theories of education (e.g., Freire, Pedagogy of the Oppressed (1970)) and of the economy (e.g., Schumacher, Small is Beautiful (1973)) and criticism of the concept Gross National Product. And then he turned to the role of universities. “More schools for more lawyers, social workers, sociologists, criminologists,” he lamented. “While I am talking de-professionalisation, we are increasing the capacity to be able to fill up the whole world with them.” Hence, he asked: “what about the universities in this picture?” “The answer,” he surmised:
[H]as probably to be the old one: universities have to re-emphasise the old tasks of understanding and of criticising. But the task of training professionals ought to be looked into with renewed scepticism. Let us re-establish the credibility of encounters between critical human beings: low-paid, highly regarded, but with no extra power—outside the weight of their good ideas. That is as it ought to be.
In 1977, when Christie offered this humble vision he did not then need to confront a very different attack on scientific expertise and professional social planning alongside an attack on state-sponsored education and intellectualism—attacks introduced and entrenched in American popular consciousness by prominent neoliberal thinkers (think: Frederick Hayek, James Buchanan, Milton Friedman). Today, in part for this reason, I do not think it is desirable, let alone plausible, to call for deprofessionalization in legal education.
This Article has, however, suggested that ADR is today increasingly understood as a field devoted to professional skills and industry best practices apart from “the old tasks of understanding and of criticising”—a programmatic orientation that no longer appears to suffice to sustain ADR as a necessary and vibrant scholarly field in legal education. And yet this Article has also ventured that the demands of the political present suggest that, perhaps more than ever, law students interested in dispute practices need critical encounters with professionalisms that are oriented around theories of nondomination, direct democracy, and political-economic change. And that ADR can therefore be a foundational and critical steppingstone for radical thinking.
Amy J. Cohen, Robert J. Reinstein Chair in Law, Temple University Beasley School of Law and Professor, UNSW Sydney Faculty of Law & Justice 17 U. St. Thomas L.J. 1022
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