Com m u n ity mediation providing just ice a nd prom ot i n g tra n sfor ma t i on

Community Mediation: Providing Just ice a nd Promot ing Tra nsfor mat ion MARTHA WE1 NSTEl N

This articlefocuses on how a community mediation program can be a conduitfor socialjustice. Three complex social issues are addressed the meaning ofjustice, the challenge of race relations, and overrepresentation of incarcerated minorities and minority youths who are adjudicated as adults. Examples are given of how one community mediation program has worked with its community on these issues.

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ustice is the multifaceted treasure that sits at the heart of our American democracy. The richness of our Constitution guarantees equal rights for all. It is through application of justice that our values as a nation are exemplified and clarified. Justice must be living and constantly growing to keep pace with our ever-changing world. Its fairness is judged by the beneficiaries and is based upon its impact-ften associated with economics, social class or ethnicity, and political power. Many of us have witnessed a system of dual justice in which similar problems have resulted in remarkably different outcomes. The notion of justice and its accessibility, application, and outcomes have been challenged. In recent years, courts and law enforcement have acknowledged the existence of racial and ethnic bias and are striving to make changes. Community mediation, through its values and practice, transcends many of these institutional shortcomings. It allows parties to create meaningfd justice for themselves as individuals and for broader and socially complex community issues as well.

As mediators, we are learning that on the basis of the style of mediation practiced, a powerhl transformation may occur in the individuals involved. We have also observed how larger group mediation can have similar results within our communities. We have seen miracles occur through individual interaction and willingness to allow others to share in the power of decision making. We have witnessed collaborative efforts to C@NtLI( I

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overcome the oppressive aspects of our society. With each interaction, each step, and each transformation, there has been a slow and steady change in some of our institutions as well.

It is the position of this article, written from a practitioner's point of view, that the mere existence of a community mediation program can transform a community by offering a new set of values and opportunities for problem solving. Community mediation is a form of social justice that uses lawful processes to change what is perceived to be unjust. Courts are not often perceived as welcoming to all, but community mediation affords cultural diversity among mediators and overcomes financial barriers.

Although laws are often based upon the desires and values of the dominant cultural group, community mediation gives voice to all those involved in environmental issues. Racial profiling and overrepresentation of minorities in our judicial processes exist; nevertheless, community mediation honors cultural differences and encourages restorative justice. Although law enforcement officers are moving toward community-oriented policing, community mediation affords new opportunities for enhanced community relations with city and county police.

As a long-term community activist with a commitment to social justice, I believe community mediation presents an enormous opportunity for social change and community transformation. A community mediation program is a reflection of its community: its volunteers are representative of those who live there; the problems that find their way to mediation mirror problematic community issues. The values espoused through community mediation are ones we aspire to in an egalitarian society in which all are welcomed, valued, and honored. Through our leadership efforts in community mediation via respectful problem solving and inclusive, culturally sensitive conflict-resolution styles, we are able to transform individuals, agencies, and institutions-and hopefully society itself.

In my experience, the mere presence of a community mediation program is transformational. Immediately, there is a new standard for resolving dispute that goes beyond the traditional adversarial belief of win-lose or me-against-you. Fisher, Ury, and Patton's Getting to Yes (199 1) teaches a "principled approach" of me-and-you-together-against-the-problem. With Bush and Folger's transformative model (1994), we know further that mediation has the potential for enormous change.

From relatively simple cases common to community mediation programs, such as landlord-tenant disputes, neighbor-to-neighbor disagreements, and merchant-consumer problems on up to more complex social

Community Mediation 253 problems, people learn from their mediation experience that they can work together to change a situation that plagues them. More important, they often leave mediation with a deep sense of knowing one another and with a desire to build their relationship. The seeds planted are those of collaboration and community building, which I firmly believe to be the expression of our human longing to live among one another in a community of love and support.

As the former and founding director of the Neighborhood Justice Center in Tallahassee, Florida, I have witnessed miracles occurring in mediation when people allow their hearts to be opened to experiencing a person and a situation in a new light. For example, two neighbors who were arguing over the loud music one had been playing created a schedule for quiet andloud music hours. What changed during the mediation was their learning about each other’s lives. In a note several months later, they told of becoming fast friends. Neither had family nearby, and their mediation was a turning point from which they became supportive to one another in many ways.

The seeds planted by our center began to take root and grow. People were taking notice of this place where folks could go to work things out respectfully-and for free! Employers called, asking if their employees could come in for mediation. Teachers wanted to know if they could use mediation with other teachers or with their principals. The newspaper asked to publish weekly articles about our work.

Community mediation gives voice with power to those who are often left out of decision making in community issues. The Neighborhood Justice Center was instrumental in achieving a variety of transformations. A small social services agency changed its hiring and supervising policies and now advocates for similar nonoppressive policies in other agencies. Those notified of the immediate relocation of a drug rehabilitation facility into their neighborhood were finally (upon their highly charged and vocal demands) brought into a collaborative decision-makingprocess. An annual community celebration whose figurehead was an insult to many ethnic groups was reconfigured.

Community mediation has the capacity to blend tough issues related to democracy, oppression, and justice. Written into our Constitution are the ideals of justice and equality for all, supported by processes allowing people to create laws and change them as needed. Our democracy, as Martin Luther King, Jr., resoundingly reminded us in his August 1963 “I Have a Dream” speech, created a “promissory note to which every

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American was to fall heir. This note was a promise that all . . . would be guaranteed the inalienable rights of life, liberty, and the pursuit of happiness. . . .” These ideals have been subject to vast interpretation since written. We have become painfully aware that our diversity does not guarantee harmony. Instead, we suffer from division, oppression, and alienation.

The creating and amending of laws is largely controlled by members of the dominant culture. These individuals are, according to William R. Jones’s “analytical model of oppression,” those who historically have dominated “the social institutions of control (political forces, universities, media, and board rooms) which set policies, laws and remedies affecting subordinated groups” (1990). Oppression theory helps us gain a better understanding of social stratification and how, as a result, specific groups of individuals and actions are criminalized. It also results in what Jones calls “startling statistics”4arge numbers reflecting a negative impact on the subordinated group, with small numbers reflecting a positive impact on the dominant group. The overrepresentation of incarcerated minorities or of minority youths who are adjudicated as adults is an example of this phenomenon. Part of our American journey, then, is acknowledging the harm done through oppression and making changes that correct this situation through a transfer of power to those who are traditionally subordinated.

Oppression has had far-reaching consequences on the notion of justice.

Standards of justice are applied to groups according to social, economic, and political status. People such as Howard Thurman (see, for example, Thurman, 1979), Martin Luther King, and Thurgood Marshall have been influential in my thinking about civil rights and creating a just society (that is, personal and community transformation). Dan McGillis describes “quality of justice issues” in the National Institute of Justice Community Mediation Programs: DeveLopments and Challenges (1997). As we consider the delivery of high-quality justice to disputants and expand the quality of justice concept to broader social issues that divide communities, we are now talking about items such as the meaning of justice, the challenge of race relations, and the overrepresentation of incarcerated minorities or minority youths adjudicated as adults.

How does community mediation fit with these notions of democracy, justice, and oppression? Kenneth Cloke has described mediation as a democratic process (1994). In doing so, he identifies the absence of an “elite dictating a result” and notes, too, that “power and results are controlled democratically by agreements” reached through a neutral process decided upon by the participants. He further claims that mediation “works as a

Community Mediation 255 model for social interaction and as a goal for future societies” (pp. 381384). It has also been suggested that although our judicial system is charged with interpreting and clarifying the intent of the law, our behavior can impede application of the law. Using mediation allows individuals andsociety to reach agreements that are lawful and that bring about meaningful justice for those involved, in a collaborative, voluntary manner (Weinstein, 2000). I have learned how crucial this is, particularly among those who do not feel welcomed in the courts.

Let me share briefly what occurred at the Neighborhood Justice Center. Members of the center’s planning and advisory committee learned that the word justice often conveys the message “just us.” Justice is for “just us” who can afford it, or for “just us” of the dominant culture. If you are part of the subordinate culture, you are overrepresented on the other side of the judge’s bench, and in the jails or in prisons. The center’s planners did not want to create the perception of a rich person’s justice versus a poor person’s justice; instead, they wanted to ensure that the services provided are equally valued and respected by the entire community, including the judiciary, law enforcement, political entities, and others.

Honoring diversity became the core of our policies and practices.

Recruiting mediators resulted in an equal number of men and women, with an equal number of African Americans and Caucasians (as well as a low Hispanic and Asian population, whose numbers remain minimal). In addition, a culturally blended co-mediation model is generally used.

Blending an African American mediator with a Caucasian mediator as the co-mediation team modeled cross-cultural harmony rather than a crosscultural clash of values.

Honoring diversity as a core value also led to intensive outreach with African American churches, which in the South are often a bastion of civil rights. We asked them: “What services are of value to you? Will you join us in building this mediation program?”

In 1997, the local chapter of the National Association for the Advancement of Colored People invited the center to officially welcome our community to the MLK holiday celebration. They also gave their blessing to the center’s leadership (in collaboration with the Florida Dispute Resolution Center) in sponsoring annual race relations dialogues held on the MLK holiday. In addition, the center was invited to facilitate dialogue among law enforcement agencies and community members on issues surrounding minority overrepresentation in our jails. (Currently, our jail population is 70 percent nonwhite.)

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Through this sequence of events, in conjunction with intense sessions at many meetings in the community, the center gained a reputation for open, honest, and safe dialogue. People began to call the center for assistance on race-related issues (such as those with the social services agency mentioned earlier). The major turning point was gaining the support of the president of the Tallahassee Interdenominational Ministerial Alliance, a staunch community activist who believes the church is the heart of community change.

Jones has stated that ending oppression depends on transferring power to those in subordinated groups (1990). Community mediation programs can have significant impact in achieving that transfer of power in two specific areas: in relationship with the local police department and through implementation of restorative justice processes.

Community mediation programs generally have a relationship with police departments, which have the discretion of arrest or referral if appropriate. Our chief of police was instrumental in creation of the center. One of his staff and one officer were appointed to the center's advisory council, and the officer became a certified mediator. In addition to teaching officers about mediation, we also facilitated race-related dialogues with a group of officers.

Taking the lead from the Center for Dispute Settlement program in Rochester, New York, which has created a model relationship with its police department, our collaboration continues to grow slowly and steadily There are differing theories regarding the role of law enforcement in community mediation programs. They range from officers as mediators to officers making referrals only. A primary consideration for community mediation programs in any role with the police is to ensure that it is neither coercive nor discriminatory.

Christopher Cooper, author of Mediation nnd Arbitration by Patrol Police Oficers (1999), a former patrol officer and currently associate professor at St. Xavier University in Chicago, advocates for police officers conducting mediation as part of their work. He believes this can empower citizens and ultimately enhance community and police relations. He expresses a preference for this approach over police officers making referrals to community mediation programs.

Pamela Moore, project coordinator for the Conflict Resolution and Mediation Project for Community Oriented Policing in Santa Rosa, California, has worked extensively with community mediation programs and communityoriented police departments. She believes that this combination can result in understanding and reduced conflict among community and police staff. She

Community Mediation 257 states that “when community members and police are trained together in conflict management skills, there is an opportunity to develop new understanding about each other‘s interests, needs, cultures and ways of working (Moore,2000, p. 15).

The Neighborhood Justice Center receives referrals from both city and county police, who usually want to know the results of their referral. One officer really took the mediation message to heart when a conflict between two young women who had been fighting at school for over a year escalated. One of them had been charged with carrying a concealed weapon.

He was fearful that without mediation, one of them would end up dead and their friends injured as well. Their mothers believed the prospect to be valid and wanted mediation to happen. He asked (and permission was given) to participate in the mediation. The results exceeded everyone’s hopes. At the end of an emotional mediation, both mothers embraced the officer and told him he had saved their daughters’ lives. Personally, I heartily encourage this sort of police participation. The relationship this officer had with the families made it clear that his heart was engaged as well as his badge.

The center’s restorative justice program created a partnership among the community, the judiciary, and law enforcement in responding to crime in the community. The center‘s program was a diversionary program for first- or second-time youthful offenders charged with a nonviolent misdemeanor. Referrals were approved through the state attorney’s office. We relied heavily upon members of the faith community trained as panel members in this process. The panel’s role was to meet with the offender and parent (or guardian) to gain better understanding of both the offense and the family situation. Through this interaction, the panelists then made a determination about sanctions. This process created a transformation among those involved as well as within the traditional judicial processes.

One of our cases involved a shoplifting teen mom who was a marijuana user. She was disconnected from her family, wasn’t interested in school, and came to the panel meeting with a hostile attitude. During the course of the meeting, one of the elderly panel members pointedly told her that her attitude would easily lead her to having her child taken from her and possibly losing parental rights, that employers would not welcome a person with her attitude, and that she had this moment to decide which way she wanted her life to go. The elderly member, it seems, reminded the young woman of her own grandmother. The emotions that engulfed these women filled the room. What happened over the next three months was a heartfelt

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metamorphosis. The young woman blossomed! She completed her education and later came back to the program to talk with younger women about not getting pregnant or using drugs. As Kay Pranis (the restorative justice planner for the Minnesota Department of Corrections) likes to say, “YOU cannot make people change their behavior; but you can reach them through their heart” (personal communication, June 1999).

Our relationship with the police department and the judiciary resulted in a transfer of power by way of these restorative justice processes. Currently, a community courts program is being created through the collaboration of the court, the police department, and the center. In 1998, the center sponsored a reception for members of our clergy in the Tallahassee Interdenominational Ministerial Alliance. In attendance were the incoming and outgoing chief justices of the Florida Supreme Court, the sheriff, circuit and county judges, and court administration staff. I was in awe as our chief of police (our first African American chief) told the audience that participating with the center in our restorative justice processes might have an impact on the disposition of cases of their young (African American) congregants-it might mean restorative justice, not jail.

The obvious is worthy of note: the center’s social justice stance initially was not understood, trusted, or applauded by many. At times we drew private criticism from the circuit court. We were met with cool skepticism by the African American ministers. We were at times rebuked by law enforcement. Yet, over time, that has changed. In the fall of 2000, Joe Folger conducted an evaluation of mediation programs in the state for the Florida Dispute Resolution Center (Folger, Della Noce, and Antes, 2001).

The anecdotal information on the center revealed that officials from the city and county, law enforcement agencies, mediators, parties to mediation, and members of the clergy believed that the center had transcended houndaries, was a safe setting for volatile discussion on culture clashes, and gave people a sense they were involved in the practice of democracy.

Community mediation programs truly are change agents. If we begin to examine those changes, determine the processes used to create them, and measure their depth, we can develop a better appreciation for our work. Yet have we gone far enough in our own self-examination to broaden our cultural scope of practice?

A question posed by Lynne Hurdle-Price (former chair of the New York Metro chapters for SPIDR) is, “Have we created a mediation model which allows for free communication, or one that is only comfortable for the dominant culture?” We must begin to explore a broader worldview.

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Regardless of the forum for continuing this dialogue, more voices must be included to educate those of us in the dominant culture so that what we inculcate is better informed.

In our global village and laboratory of life, we have a tremendous amount to learn from one another as humans, practitioners, researchers, and social scientists. There is no doubt that community mediation can lead to societal transformation and creation of peaceable communities. It is in sharing our stories, evaluating the lessons learned, and measuring the depth of our achievements that we can acknowledge the deeper value of community mediation as a conduit for societal justice.

References Bush, R., and Folger, J. I? The Promise of Mediation. San Francisco: Jossey-Bass, 1994.

Cloke, K. Mediation: Revenge and the Magic of Forgiveness. Santa Monica, Calif.: Center for Dispute Resolution, 1994.

Cooper, C. Mediation and Arbitration by Patrol Police Oficers. Lanham, Md.: University Press of America, 1999.

Fisher, R., Ury, W., and Patton, B. (ed.) Getting to Yes: NegotiatingAgreement Without Giving In. (2nd ed.) Boston: Houghton Mifflin, 1991.

Folger, J. I?, Della Noce, D. J., and Antes, J. R. A Benchmarking Study of Family, Civil and Citizen Dispute Mediation Programs in Floriah. New York: Institute for the Study of Conflict Transformation, 2001.

Jones, W. R. An Anatomy of ESP Oppression. (Series of papers on oppression theory.) Tallahassee: Black Studies Program, Florida State University, 1990.

McGillis, Dan.U.S. Dept. of Justice, Office of Justice Programs, National Institute of Justice. Community Mediation Programs: Developments and Chalkxges.

Orlando: Harcourt Brace, 1997.

Moore, I? “Building Partnerships: Police, Mediators Work Together to Promote Public Safety.” Dispute Resolution Magazine, 2000, 7 (l),14-16.

Thurman, H. With Headand Heart. Orlando: Harcourt Brace, 1979.

Weinstein, M. “Mediation: Fulfilling the Promise of Democracy.” Florih Bar Journal, 2000, 74 (l), 35-37.

Martha Weinstein is the founding and former executive director of the Neighborhood Justice Center in Tallahassee, Florida; she serves on the board of directors for the National Association for Community Mediation.