Acknowledgements
Executive Summary

Introduction to Community Mediation

Community mediation is the most widespread, and potentially the most promising, solution to reducing the burdens on court systems and delivering effective justice outside of traditional court processes. Created out of two separate movements in the 1960’s, one to tackle the widespread inefficiencies and delays already present in the court system in 1965, and the other to moderate the rising urban violence that arose in the heat of the civil rights movement, an estimated 400 community mediation centers now mediate over 400,000 cases per year in the United States.43

Community mediation is one of the least structured approaches to conflict resolution, with few formal rules. Mediation cases span the spectrum from entirely voluntary, where community members bring their disputes directly to community mediators, to entirely mandatory, where courts order mediation before a formal court process can be initiated. However, mediations generally follow four phases. First, the mediator will contact both parties and arrange a mediation to hear both sides out. Secondly, the mediator will set an informal, non-confrontational tone and explain the process. Next, the mediator will hear the stories of both participants and try to find some common ground. Finally, the process usually ends with an agreement between the parties to remedy the situation. The National Association for Community Mediation (NAFCM) has 9 hallmarks for community mediation centers that also include being accessible, low-cost, inclusive, and timely.44

Mediation presents one of the most promising solutions to court backlogs, with studies indicating it can significantly reduce case times and somewhat reduce processing costs, while increasing the satisfaction of all involved over traditional court processes. Some drawbacks, however, include concern over how mediation handles power dynamics and lack of public transparency in this approach. Many scholars argue that in situations with significant power dynamics, like domestic violence, mediation could ultimately continue the harm being caused instead of resolving the dispute. The lack of due process protections in mediation may also make it unsuitable for crimes in which the accused claims innocence.

History of Community Mediation

Community mediation in the United States arose out of two generally agreed upon, but separate, concerns. The first concern was with the overall efficiency of the judicial system. In 1965, the Johnson Administration’s Commission on Law Enforcement and the Administration of Justice identified problems in court scheduling, management, and organization that resulted in some cases taking 3 months to reach a grand jury decision, with some serious crimes taking up to a year to go to trial. The commission did not mince words about these cases, saying they “made a mockery of bail decisions, were “unfair to the defendant,” and “unfair to the community.”45

Out of this commission, and a further report in 1976 by the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, rose a government-focused reform movement to bring formal mediation into the court system. Early efforts included the Philadelphia Municipal Court Arbitration Tribunal in 1969, the Columbus Night Prosecutors Program in 1971, which used law students to mediate cases in 30-minute time slots, the Institute for Mediation and Conflict Resolution in Manhattan, and the Miami Citizen Dispute Settlement Program in 1975.46

The second concern, which also developed in the early 1960’s, was rising urban violence. In the heat of the civil rights movement, violent, racially-motivated confrontations at protests and marches were common, and members of Congress hoped that a community mediation approach could reduce the damage. In the 1964 Civil Rights Act, Congress created a little-known agency under the Department of Justice called the Community Relations Service (CRS).

The CRS was charged “to provide assistance to communities…in resolving [the] disputes, disagreements or difficulties relating to discriminatory practices based on race, color or national origin….”47 According to oral histories of the CRS, agency mediators did just that, responding to thousands of civil rights disputes over the past 50 years, including the famous “Bloody Sunday” civil rights march in Selma, Alabama, the assassination of Martin Luther King Jr., and the riots following the 1992 Rodney King verdict.48

As the CRS focused on mediating racially-motivated conflicts from a federal level, organizations sprung up in communities across the country to help mediate all manner of disputes at a local level. Early organizations included the Rochester American Arbitration Association Community Dispute Service Project, an organization dedicated to helping the community deal with changing racial balances, the Boston (Dorchester) Urban Court Program, a court-connected program in a rapidly integrating Irish-American neighborhood; and the San Francisco Community Board Program,49 which still exists today.50

The biggest difference between these community mediation programs and the court-focused community mediation movement is that these community mediators saw mediation’s role outside of the court system, not merely as an augment to it. This second movement of mediators saw mediation as a tool to create greater understanding among individuals and communities, help people take their power back from the government, and decentralize dispute resolution, and other forms of decision-making, back to the community.

The fruits of both of these mediation movements exist in America today. In the court-focused movement, Neighborhood Justice Centers, stretching from New York to Las Vegas, provide alternatives, primarily to youth, to being sentenced in a criminal court. From the community-focused movement, an estimated 400 community mediation centers now provide mediation services, and mediate over 400,000 cases per year.51

How Community Mediation Works

Community mediation tends to be one of the least formal conflict resolution approaches. Some community mediation programs work directly with the courts, some work primarily outside of the courts, some deal with civil cases, some with criminal cases, and many take disputes directly from the community.

Cases taken by community mediators, depending on the laws involved, span the spectrum from entirely voluntary to entirely mandatory.

In entirely voluntary cases, where the parties are not legally obligated to participate in anyway, parties choose to work with a community mediation center of their own accord to settle disputes. Examples might include marital disputes, neighborhood disputes, and family quarrels, all of which are brought to the center before justice system involvement.

There are also mandatory cases. California mandates mediation for child custody cases.52 Iowa requires mediation for debts on agricultural property of $20,000 or more.53 In many states, including Alabama, a judge can require parties to go through a mediation process before continuing their case in court.54

From our research, the majority of mediation cases appear to fall into the category of mostly voluntary, i.e., both parties agree to mediate the dispute with a community mediator but may, if mediation fails, then seek remedies in court.

These cases fall into two categories. The first is diversion cases, where a ticket or citation has already been issued, and the parties are given the opportunity to divert from the court system and repair the harm in mediation. The second category consists of community cases, where the parties are attending mediation to resolve their conflict, but if it fails, the parties will seek court involvement. Examples of this second kind might include small claims, divorce proceedings, or even criminal activity that hasn’t yet been charged.

The mediation process varies by state, community meditation program, and individual mediator style. However, after referral, the process often follows Marje Burdine’s 4 stages of mediation:55

  1. Set an informal tone – The mediator welcomes parties to the mediation and explains the process to participants.
  2. Ask for accounts – The mediator asks each party, in turn, to relate their account of the events. The mediator asks questions to clarify and understand the difference between the various parties’ recounting of the events.
  3. Establish common ground – The mediator attempts to establish commonalities between the parties over the case, including their interests, goals, and understanding of the events.
  4. Reach agreement – Once the parties have all been heard and common ground established, the mediator works to create an agreement, usually legally binding, among the parties to resolve the dispute.

Some community mediation programs track the success of the agreement reached after a community mediation, and others simply rate the participants’ satisfaction after the mediation has concluded.

Benefits of Community Mediation Over Traditional Justice Approaches

Community mediation appears to be the most promising candidate for helping communities overcome court backlogs. Limited research shows significantly reduced case processing times, costs, and an increased satisfaction with the process by all parties. Some studies even show greater likelihood for fulfilled agreements and reduced use of police services when community mediation is used. However, the lack of due process protections, public transparency, and the power imbalances present in mediations may limit the kinds of cases it can address.

Short-term Benefits

Reduced Case Processing Times

The starkest potential benefit of mediation is a significant reduction of case processing time. A 1979 study of five projects sponsored by the Florida Supreme Court found an average case processing time of 18 days for mediated cases.56 In 2002, the Michigan Community Dispute Resolution program reported a case disposition time of 24 days. In 2003, New York community mediation centers reported an average case processing time of only 18 days.

Reduced Case Costs

The second potential benefit of mediation might be the same or lower processing costs per case, especially if the cases are being processed faster. Determining the exact costs of court processing is challenging, which makes comparing the direct costs of mediation to court difficult, and is an area which researchers agree requires further study.57 One 1985 study, which did make a direct comparison, found that the average case processing costs for the Durham, NC Court system were $186, while cases processed by the Durham Dispute Resolution Center only cost $72.58

Other studies have looked at potential cost savings, instead of direct comparative analysis of case processing costs. A 2004 California study estimated that the community mediation programs would save $1.4 million in San Diego, $395,000 in Los Angeles, and $9,770 in Sonoma based on averted judges’ salaries. The Task Force on Appellate Mediation in 2001 estimated a savings of $6.2 million total for all mediated cases in the sample size.59

Increased Perception of Fairness

The impact of perceptions of fairness cannot be understated. There are not enough police to enforce all of the laws, so it is the belief that the justice system is impartial and fair that realistically gives judgements their power. A study of community mediation in Brooklyn found that both complainants (77%) and respondents (79%) found mediation outcomes a fairer process for all involved, as opposed to only 56-59% of complainants and respondents who went through a standard court process.60 In a comparative study of three small claims courts in Maine, parties thought the judgment was fair in only 23.5% of adjudicated cases, while 44% thought it was fair in mediated cases.61

Increased Party Satisfaction

Perhaps because of the quicker dispositions of justice, greater perceptions of fairness, or simply the ability to have one’s story heard in a safe environment, party satisfaction after mediation is also starkly better than that for traditional adjudication.

Several studies have compared participant satisfaction with the courts as opposed to community mediation. In the 1980 field test of Neighborhood Justice Centers in Atlanta and Kansas City, only 33% and 42%, respectively, of parties indicated that the courts had handled their case well. In contrast, 80% of participants in Neighborhood Justice Center mediations indicated they were satisfied with their mediation.62 Similar studies in North Carolina (90%+ satisfaction rate),63 Nebraska (89% satisfaction rate)64 and New York, which found that 95% of those who reached agreement and even 63% of those who did not thought “mediation was a good way to attempt to resolve their dispute.”65

Long-term Benefits

Increased Fulfillment of Judgments

Mediation also has some interesting longer-term benefits over traditional court processes. First, and somewhat surprising given the coercive nature of court agreements, is that mediation agreements can be more likely to be fulfilled. In the same small-claims study in Maine, only 34% of judgements reached through adjudication were paid in full, compared to 71% of mediated cases.66 In a study of divorce mediation, only 6% of participants in mediation reported having serious disagreements about their settlement, while 34% of participants in traditional court processes had serious disagreements.67

Community Benefits

Reduced Use of Police Services

The second is that mediations appear to reduce future reliance on police resources. An unpublished 1995 study found that, after mediation, calls for police service in Harrisburg, Pennsylvania decreased sharply.68 Harrisburg’s police chief corroborated this study in testimony before the Pennsylvania House of Representatives:

“Through the NDSC referral network [a network of community mediation centers], dealing with interpersonal and neighborhood problems has benefited the Harrisburg Police Bureau by fewer calls to the same persons; fewer prosecutions at the district justice courts; more available patrol time for emergencies; and an increased rapport between the police and the community for the utilization of this new, community-oriented solution to an old problem.”69

An even more recent, 2005, study found that future calls to the Baltimore Police Department dropped by an average of 9% in the six months after mediation for the group that had their cases mediated, compared to the control group.70

Drawbacks of Community Mediation

There are three criticisms of mediation worth considering before implementing this solution in your community: the lack of due process protections for the accused, the lack of public transparency, and the limitations of mediations with regards to conflicts where there is a significant power differential.

Lack of Due Process Protections

The American judicial system, in contrast to many other judicial systems around the world, gives precedence to the innocence and rights of the accused. William Blackstone summed up the aims of the American judicial system well when he said “the law holds that it is better that 10 guilty persons escape, than that 1 innocent suffer.”71 The Bill of Rights guarantees specific protections, such as the right to face your accuser, the right to see the evidence against you, and that you cannot be compelled to self-incriminate, and others have been interpreted by the courts throughout the years, such as the right to an attorney in many proceedings. Federal and state sentencing guidelines that lay out detailed processes for protecting the rights of each party in traditional court processes run into the hundreds of pages.72

Few of these protections, and often only those imposed by individual state laws, exist in mediation. Critics argue that this lack of protections “allows more powerful interactants to gain the upper hand, and allows the powers that be to define and impose community norms and moral standards” in the mediation process.73

Lack of Public Transparency

A second criticism to consider is that mediations are private proceedings with little, if any public transparency. In contrast to court cases, resolutions from mediation are confidential, and therefore do not create court precedents.74 This may reduce the viability of mediation for addressing disputes in which there is a significant public interest, such as constitutional challenges, class action lawsuits, and conflicts between individuals and governments.

May be Unsuitable for Certain Cases

Finally, while cases taken vary significantly from community mediation center to community mediation center, many observers oppose the use of mediation for cases where a significant power differential means one of the parties is unlikely to speak honestly and straightforwardly, or where it may continue a cycle of abuse, such as cases where one or more of the parties have a history of domestic violence.75 Many mediation centers have developed procedures to screen out these kinds of cases for this specific reason.76

In cases like these, it may be more valuable to have the due process safeguards of the tradition- al court system in place to ensure each party gets a fair hearing.

Case Studies

  1. Community Mediation Basics. Resolution Systems Institute. Accessed May 12, 2022. https://www.aboutrsi.org/special-topics/community-mediation-basics#:~:text=What%20Is%20Community%20Mediation%3F,confrontation%2C%20pro-longed%20litigation%20or%20violence
  2. 9 Hallmarks of Community Mediation Centers. NAFCM. Accessed May 12, 2022. https://www.nafcm.org/?page=9Hallmarks
  3. United States Government Printing Office. The challenge of crime in a free society: A report § (1967). 154. https://www.ojp.gov/sites/g/files/xyckuh241/files/archives/ncjrs/42.pdf
  4. Community Mediation Basics. Resolution Systems Institute. Accessed May 12, 2022. https://www.aboutrsi.org/special-topics/community-mediation-basics#:~:text=What%20Is%20Community%20Mediation%3F,confrontation%2C%20prolonged%20litigation%20or%20violence
  5. Public Law. Govinfo. Accessed May 12, 2022. https://www.govinfo.gov/content/pkg/STATUTE-78/pdf/STATUTE-78-Pg241.pdf#page=27
  6. Salem, Greta, and Richard Salem. Civil Rights Mediation in the United States. Civil Rights Mediation. Conflict Management Initiatives, 2007. http://civilrightsmediation.org/us_med.shtml
  7. Community Mediation Basics. Resolution Systems Institute. Accessed May 12, 2022. https://www.aboutrsi.org/special-topics/community-mediation-basics#:~:text=What%20Is%20Community%20Mediation%3F,confrontation%2C%20prolonged%20litigation%20or%20violence
  8. Community Boards. Accessed May 12, 2022. https://communityboards.org/
  9. Community Mediation Basics. Resolution Systems Institute. Accessed May 12, 2022. https://www.aboutrsi.org/special-topics/community-mediation-basics#:~:text=What%20Is%20Community%20Mediation%3F,confrontation%2C%20prolonged%20litigation%20or%20violence
  10. Winestone, Jennifer. Mandatory Mediation: A Comparative Review of How Legislatures in California and Ontario Are Mandating the Peacemaking Process in Their Adversarial Systems. Mediate, February 2015. https://www.mediate.com/articles/WinestoneJ4.cfm
  11. Tidgren, Kristine A. Mandatory Agricultural Mediation in Iowa. Center for Agricultural Law and Taxation. Iowa State University , July 27, 2016. https://www.calt.iastate.edu/article/mandatory-agricultural-mediation-iowa
  12. Alabama Mandatory Mediation Act. Alabama ADR. Alabama Center for Dispute Resolution, May 17, 1996. https://alabamaadr.org/web/roster-documents/med_Ala_Mand_Med_Act.php
  13. Burdine, Marje (1990) Mediation Skills Manual: “How to Mediate a Dispute.” Vancouver: The Centre for Conflict Resolution Training, Justice Institute of B.C.
  14. The Citizen Dispute Settlement Process In Florida: A Study of Five Programs. OJP. Florida Supreme Court. Accessed May 12, 2022. https://www.ojp.gov/pdffiles1/Digitization/58274NCJRS.pdf
  15. Charkoudian, L. and Bilick, M. (2015), State of Knowledge: Community Mediation at a Crossroads. Conflict Resolution Quarterly, 32: 233-276. https://doi.org/10.1002/crq.21112
  16. Sheppard, B., Report to Durham Dispute Settlement Center on the Comparative Costs of Going to Court vs. Mediation. Durham, North Carolina. Duke University. 1985.
  17. Stufflebeem, Cory William, A New Method to Evaluate Community Based Mediation Programs: MultiAttribute Cost Utility Analysis (2013). Electronic Theses and Dissertations. 632. https://digitalcommons.du.edu/etd/632
  18. McGillis, Daniel. Community Mediation Programs: Developments and Challenges. New OJP Resources. U.S. Department of Justice , July 1997. https://www.ncjrs.gov/txtfiles/165698.txt
  19. McEwen, Craig A, and Richard J Maiman. Small Claims Mediation in Maine: An Empirical Assessment: RSI. Resolution Systems Institute. Main Law Review, January 1, 1981. https://www.aboutrsi.org/library/small-claims-mediation-in-maine-an-empirical-assessment
  20. McGillis, Daniel. Community Mediation Programs: Developments and Challenges. New OJP Resources. U.S. Department of Justice , July 1997. https://www.ncjrs.gov/txtfiles/165698.txt
  21. Clarke, S H, E Valente, and R R Mace. Mediation of Interpersonal Disputes: An Evaluation of North Carolina’s Programs. Office of Justice Programs, 1992. https://www.ojp.gov/ncjrs/virtual-library/abstracts/mediation-interpersonal-disputes-evaluation-north-carolinas
  22. Nebraska Office of Dispute Resolution Annual Report, July 1994-June 1995. OJP. Nebraska Office of Dispute Resolution, 1995. https://www.ojp.gov/ncjrs/virtual-library/abstracts/nebraska-office-dispute-resolution-annual-report-july-1994-june
  23. Community Dispute Resolution Centers Program. NyCourts. New York State Unified Court System, 2003. http://ww2.nycourts.gov/sites/default/files/document/files/2018-07/AR02-03.pdf
  24. McEwen, Craig A, and Richard J Maiman. Small Claims Mediation in Maine: An Empirical Assessment: RSI. Resolution Systems Institute. Main Law Review, January 1, 1981. https://www.aboutrsi.org/library/small-claims-mediation-in-maine-an-empirical-assessment
  25. Thoennes, Nancy A., and Jessica Pearson. Predicting Outcomes in Divorce Mediation: The Influence of People and Process. Journal of Social Issues 41, no. 2 (1985): 115–26. https://doi.org/10.1111/j.1540-4560.1985.tb00858.x
  26. Shepherd, R., Neighborhood Dispute Settlement: An Evaluation Report of the Neighborhood Dispute Settlement Center’s Program with the City of Harrisburg Bureau of Police, 1995.
  27. McGillis, Daniel. Community Mediation Programs: Developments and Challenges. New OJP Resources. U.S. Department of Justice , July 1997. https://www.ncjrs.gov/txtfiles/165698.txt
  28. Charkoudian, L. and Bilick, M. (2015), State of Knowledge: Community Mediation at a Crossroads. Conflict Resolution Quarterly, 32: 233-276. https://doi.org/10.1002/crq.21112
  29. Vidar Halvorsen (2004) Is it better that ten guilty persons go free than that one innocent person be convicted?, Criminal Justice Ethics, 23:2, 3-13, DOI: 10.1080/0731129X.2004.9992168
  30. United States Sentencing Commission, Guidelines Manual, §3E1.1 (Nov. 2018)
  31. Bottomley, A. (1985). What is Happening to Family Law? A Feminist Critique of Conciliation.
  32. Nader, L., Trading Justice for Harmony, NIDR Forum (Winter 1992).
  33. Mediation in Cases of Domestic Abuse: Helpful Option or Unacceptable Risk? The Final Report of the Domestic Abuse and Mediation Project, Maine Court Mediation Service, January 1992
  34. McGillis, Daniel. Community Mediation Programs: Developments and Challenges. New OJP Resources. U.S. Depart- ment of Justice, July 1997. https://www.ncjrs.gov/txtfiles/165698.txt