Source: Bahá'í Library Online (bahai-library.com), curated by Jonah Winters. Used by permission of the curator. Original citation: Steven Gonzales, The Conflict Resolution Movement, bahai-library.com.
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The Conflict Resolution Movement
Steven Gonzales

Abstract
The study and practice of conflict resolution has become a remarkabl
worldwide social movement in recent years. Legislation creating cOI\f7ic
resolution programs-writing into law nevi! forll1s of resolving conJli(
fundamentally difFerent from existing models centuries old-has been en({cted i
virtually every nation in the world in the decade since the late 1980s. What I
the reason for conflict resolution's unparalleled proliferation in th
comparatively slow-moving field of law, cUlting across so many natiofla
cultural, racial, ethnic, and political lines ? What e:ulctly is conFlict resolution
Why do so many different disciplines lay elairll /0 il? Where did il originate
What are its implications for the jitture of handling social conflict? nle authe
addresses these questions in the course of providing (1/7 introduction to thefieh
a review of conflict resolution in history, Clnd a survey of contemporCli
legislation worldwide in an appendix to the article. Analysis of/he con/lit
resolution movement reveals that its strength results from a steael
dissemination of ~piritual principles designed for the forging of world unity b
Balu]'u'1l6h, the prophetJounder of the Baluf'! Poith, 1I10re than 0 century ago.

Resume
L' etude, comme la pratique, de la resolution de con/fits est de venue, cc
dernieres annees, un mouvement social rnondial rem(/rqu(/ble. La legislatio
creant des programmes de resolution de cOJ1flits - seloll lesquels sont enterilU
de nouveaux modeles de resolution de cOJ4lits fondament{{lement differents dt
formes actuelles qui datent de plusieurs siecles - a ete promulguce da"
quasiment toutes les nations du monele, dan:\' lu decen.ie de/ntfant vers lei/in de
annees 1980. Pourquoi y-a-t'il une proliferation sans precedent de resolutio
de COJ1/lits dans Ie clomaine relativement slcible elL! elroit, ct ce, quelque soif I
nation, la culture, la race, l'ethnie etle nWU1'em£n.t politiqlle? Au fail; qu'est-c
que la resolution de conflits? POUl"quoi tUllt de disciplines se I' approprienl
Quelles en sont les origines? Quelle en est la portee dOllS 10 maniere de traitt
les cOJ1/lits sociaux futurs? L'auteur repond aces qllestions en prcsentunt I
domaine, revoyant Ie role de la resolution de cOllfli/s dOllS l'histoire }Juis, t;
annexe, en passant en revue la legislation contell7jJorain.e a travers le mond,
L'analyse elu I1wuvement de resolution de con/lits rel'ele que sa force resi(,
dans Ie fait qu' elle dissr!Jnine constamment des principes ,Ipirituels con~:lIs pm
forger ['unite moneliale annoncee par Bah6'u'lldh, Ie propheteJondateur de I
F oi balul' fe, et ce, if y a plus el' lin sieele.
2 THE JOURNAL OF BAHA'i STUDIES 9.2.1999

Resumen
El estudio y practica de la resoluci6n de conflictos en alios recientes se ha
convertido en un notable movimiento social de esfera planetaria. En los ultimos
alios de la decada de 1980, en casi todas las naciones del mundo se han
legislado programas de resoluci6n de conflictos que dan nuevas formas a la
resoluci6n de conflictos fundamentalmente diferentes a los modelos existentes
desde hace siglos. ~ Cual es el argumento para el avance inigualado que gom el
concepto de resoluci6n de conflictos en el campo de tan lento movimiento como
es la ley a la vez que atraviesa tantas barreras nacionales, culturales, raciales,
etnicas y po[{ticas? ~ Y como precisar en que consiste la resolucion de
conflictos? ~ Por que se aduelian de ella tantas otras disciplinas? ~ De donde
origino? ~ Cuales son sus inferencias a considerar para efectos del manejo de
conflictos sociales en elfuturo? El autor hace alocucion a estas preguntas en el
transcurso de presentar un prefacio sobre ef tema, acompaliado de una revista
de fa resofucion de con/lictos en la historia, y un reconocimiento de legislacion
mundial en la actualidad en un apendice al articulo. Un antilisis del
movimiento sobre resolucion de conflictos demuestra que su fuerza nace de la
constante difusion de principios espirituales diseftados para forjar la unidad
mundial por Bahti'u'lltih, el Profeta-Fundador de la Fe Baha'f.

n recent years, the field of conflict resolution has blossomed into a
I remaTkable worldwide movement. Although clearly focused upon the legal
community from conception, 1 conflict resolution has a multidisciplinary and
international ancestry, befitting its newly global appeal.

1. For example, in 1977, no United States state bar association and only two law schools had
dispute resolution programs. In 1987, the number of such programs grew to 110 and 100
respectively. Even more remarkable was the expansion from zero to 4,500 jurisdictions providing
child custody and visitation dispute resolution, and the number of conununity mediators from 5,000
to 20,500 in that same ten-year period (Kelly, "No Room to Dispute ADR's Promise" 11). The
movement in United States courts has progressed from a few conferences and mediation programs
in the 1970s to the Judicial Improvements and Access to Justice Act of November, 1988,
Pub.L.No.100-702, 102 Stat. 4644, pursuant to which the United States Congress created a
committee to study its use in the federal courts, to the committee's April 2, 1990, report to Congress
reconunending six forms of conflict resolution for the courts, to the October 7, 1998, passage by
Congress, by a vote of 405-2, of the Alternative Dispute Resolution Act of 1998, signed into law by
United States President William Clinton, October 30, 1998. This new legislation requires every
federal distIict court in the nation to establish its own altemative dispute resolution program. For a
review of the growth of ADR in United States administrative agencies, see Mester, "The
Administrative Dispute Resolution Act of 1966: Will the New Era of ADR in Federal
Administrative Agencies Occur at the Expense of Public Accountability?" 169-73. An outstanding
general research tool is the Ohio State University's Journal of Dispute Resolution 13.4 (1998), an
entire joumal edition dedicated to a bibliography of dispute resolution.
The Conflict Resolution Movement 3

Many questions arise when reflecting upon conflict resolution's phenomenal
growth. What exactly is conflict resolution? How did the movement originate?
How can scholars and practitioners from so many seemingJy disconnected fields
claim to be engaged in its practice? Is itreally a worldwide movement, and if
so, why? What explains the widespread interest from so many fields? What are
its implications for future community life? This article seeks to (1) consider
these questions while providing an introduction to the field; (2) examine the
field's historical roots and worldwide proliferatioll; and (3) analyze i 1s
popularity in light of what the teachings of the Bahcl'f Faith have to say about
conflict, unity, and a world in the throes of convulsive transition.

An Introduction to Conflict Resolution
Given the persistent confusion of terminology, this introduction begins with a
definition of terms. The phrase "conflict resolution" is a general term,
embracing a variety of practices and procedures that resolve disputes using an
intermediary other than a court. Alternative dispute resolution, dispute
resolution, or just the initials ADR, are similarly general expressions, used
principally by lawyers, judges, court personnel, scholars, and practitioners
familiar with the field through the legal community. A few programs use the
phrase "conflict management." Although some make fine distinctions between
the management and the resolution of conflict, the programs are essentially the
same.
In this article, these terms are used interchangeably, although ADR is slightly
more applicable to court programs (known as court-connected or court-annexed
programs). Mention should also be made of the limited scope represented by the
term ADR. It is as if the trial is seen as the normative standard for dispute
resolution. Apart from the disruptive consequences awaiting a society fixated Oil
lawsuits, the fact is that litigation seldom ends with trial, verdict, and judgment.
In the United States, for example, most jurisdictions have pretrial settlement
rates of 90-95% of civil cases. Thus, a vast, complex, expensive, inaccessible,
and fearecllegal system exists for a relatively small number of displltes.

Moore's Continuum of Conflict Resolution
One of the best-known theoretical frameworks of conflict resolution was
formulated by Christopher W. Moore, who viewedmethocls of intervening into
conflict as falling along a continuum expressed as a horizontal line (Moore, The
Mediation Process 7). At the left side of the continuum line are conflict
resolution procedures that permit the parties (called disputants) to retain
decision-making authority. An example is simple amicable resolution. At the
right side of the continuum line are procedures in which disputants have lost
control of decision-making authority. Examples are litigation, where a judge or
jury decides the outcome, or even violence and war.
4 THE JOURNAL OF BAHA'i STUDIES 9.2.1999

Other undesirable consequences arise in moving from the left to the right side
of the line. Decision making becomes vested in parties who are very likely
s'trangers to the disputants and who know less about the problem, the
relationships, and the case history than do the disputants themselves. The
viability of the relationship between the parties and the probability of that
relationship surviving the conflict lessens. This is particularly undesirable for
disputants having interests in continuing the relationship, or at least ending it on
amicable terms, such as divorcing parents of minor children, next-door
neighbors, or some business partners. Equally troublesome in moving to the
right side of the line is the shift from win/win to winllose outcomes. This
terminology, now in connnon usage, was developed by mediators to depict the
difference between resolutions requiring a "winner" and a "loser" (win/lose),
and resolutions satisfying the underlying interests of all disputants (win/win).
Lastly, with procedures on the right side of the continuum, the likelihood of the
decision becoming final and the dispute concluding shlinks, while the chance of
irreparable damage to health, safety, welfare, and financial well-being expands.

The Practice of Conflict Resolution
A variety of practices are associated with the conflict resolution movement. One
example in North America is conciliation, a term often used in connection with
labor-management negotiation or family law court programs designed to
counsel divorcing couples. 2 In Europe and European-based legal systems,
conciliation refers to a process arising during arbitration when a disputant seeks
settlement. As noted below, conciliation and mediation are often confused.
Other practices include group-facilitated decision making,3 often used in
public policy controversies, and some forms of consultant training, particularly
concerning race and ethnic relations, cultural diversity, or sexual harassment.
Some universities and practitioners focus on negotiation as a discrete discipline.
Although a related skill, negotiation is narrower than conflict resolution.
Moreover, negotiation is as relevant to advocacy, that is, representing a
particular point of view or disputant, as it is to conflict resolution.
Some other court-related procedures are early neutral evaluation, with a
court-appointed expert analyzing a case and informing litigants of its strengths
and weaknesses; settlement conferences where litigants and judge discuss
settlement; mini-trials and summary jury trials, which are abbreviated trials;
and settlement weeks, where the court selects cases to bring before a panel of
volunteer lawyers for settlement talks.

2. For example, 29 U.S.c. 172(a) creates the "Federal Mediation and Conciliation Service" to
minimize labor strife, and Ariz. Rev. Stat. 25-38l.07 et seq. creates a "Director of Conciliation" to
manage divorce case activity. For the term's use in arbitration, see appendix-discussion on
arbitration in Europe.
3. See, for example, "Public Policy Disputes: Special Cases, Special Challenges."
The Conflict Resolution Movement 5

After World War II, a number of uni versities founded peace studies
programs, such as those at Colnmbia University, the University of Toronto, and
Wayne State University. In recent years, most of these peace studies programs
were in decline, losing student enrollment, funding, and influence. Today, many
are moving toward conflict resolution and showing signs of rejuvenation.
Because of this ill-defined scope of activities, people in many disciplines
such as law, human resources, business and management, counseling, therapy,
corporate consulting, teaching, administration, facilitation, and ombudsman
programs may claim to be practitioners in conflict resolutioll. Many hear the
phrase "conflict resolution" and conclude that since they occasionally settle
disputes, they practice conflict resolution. However, a fundamental
understanding of neutrality is often missing with such claims.
The term third-party neutral, employing neutral as a nOUIl, has two meanings.
In one sense, it refers to a person with no relationships producing in fact, or
giving the appearance of, bias. It also denotes one with no decision-making
authority. This concept partly distinguishes conflict resolution. For example, a
middle manager trying to settle a conflict between disputing employees, all of
whom are employed by the same entity, is not a third-party neutral aud is
unlikely to utilize the procedures and strategies that mediators or arbitrators use.
Moreover, there are no professional associations, ethical codes, professional
journals, or other indicia of a discrete field connected with the manager's
actions.
There was a time, a few years ago, when many judges or lawyers claimed
experience in conflict resolution from participation in judicial settlement
conferences. Professionals in the conflict resolution field were duly chagrined.
They see lawyers as experienced in advocacy or negotiation and judges as
skilled in decision making. This view has prevailed, and the typical North
American lawyer today acknowledges the differences among advocacy,
decision making, opinion giving, and neutrality.
Notwithstanding the many types of conflict resolution, the most important
forms of conflict resolution are clearly mediation and arbitration. As such, they
require closer analysis.

Mediation: The Heart of the Movement
Most of the excitement generated by conflict resolution concerns the North
American mediation model. This is not a bias in favor of North Americans, who
have generated their share of the world's heritage of connicl. H is simply a fact
that the rapid growth, refinement, and new applications of mediation arose in
North America. Further, the overwhelming majority of universities granting
degrees in conflict resolution, and of academic faculty, authors, journals,
publications, experienced practitioners, professional associations, conferences,
and programs, whether public or private, ~re in North America.
6 THE JOURNAL OF BAHA'f STUDIES 9.2.1999

Now that other regions of the globe are becoming interested in conflict
resolution as a field, there is reason to hope that other nations and cultures will
improve on existing models and develop new applications, further enriching the
field with breadth and insight. Indeed, one of the most striking characteristics of
mediation is its capacity to touch on methods of dispute resolution stretching far
back into familial and cultural traditions throughout the world.
There is extensive cooperation among North American practitioners, and the
model is substantially the same in Canada and the United States. This is
particularly noticeable when compared to other models such as European
conciliation, discussed below. The North American model typically defines
mediation as a voluntary, confidential process where an impartial third-party
neutral assists disputants to reach a mutually acceptable resolution. 4 These
words have become terms of the art with very specific meanings.
Voluntariness implies there should be no rules, orders, or procedures
compelling participation, at least in the ideal setting. Parties are to remain free
to use, continue, or discontinue mediation at all times, without any mandated
consequences. The phrase "mandatory mediation" is thus theoretically an
oxymoron. In reality, there are many mediation programs, particularly court-
annexed and in-house ones (within a single organization), imposing official or
unofficial sanctions for failure to participate.
Confidentiality is equally essential. Ethical standards for mediators require
the honoring of promises of confidentiality made to disputants. Mediators also
assure disputants that any information confidentially revealed to the mediator
will not be disclosed unless authorized by that disputant. 5 The mediator is most
likely to acquire confidential information in a process mediators call the caucus.
This term, despite its Latinate sound, has an Iroquois etymology, reflecting the
Iroquois tradition of consultative decision making. Mediators confer separately
with disputants for a variety of reasons. For example, a caucus may be used to

4. For a more detailed definition, see Moore, Mediation 15-20.
5. The Ethical Standards of the Society of Professionals in Dispute Resolution (hereinafter
"SPIDR" and "SPIDR Standards") and the Model Standards of Conduct for Mediators, developed
jointly by the American Bar Association (ABA), SPIDR, and the American Arbitration Association
(hereinafter "ABA Standards"), make mediator confidentiality a matter of ethics. SPIDR Standard 3
states "[mjaintaining confidentiality is critical to the dispute resolution process." ABA Standard,
Section V, reads "A Mediator shall Maintain the Reasonable Expectations of the Parties with
Regard to Confidentiality" and "[tlhe mediator shall not disclose any matter that a party expects to
be confidential unless given permission by all parties or unless required by law or other public
policy." Mediator confidentiality is variously protected by law. Most United States states have
legislation protecting confidentiality, but few court decisions interpreting the laws. See, for
example, Ariz. Rev. Stat. 12-2238(B); Cal. Evid. Code Sections 703.5,1152.5, Cal. Code Civ. Pro.
Sections 1775.10 and 1775.12; Conn. Gen. Stat. Ann. Section 46b-53 (West 1983); Fla. Stat. Ann.
Section 44.101 (West 1998); Mass. Gen. Laws Ann. Ch. 233 Section 23C (West 1995); Colo. Rev.
Stat. Section l3-22-307; Okla. Sta. An. tit. 12, 1805-1813 (West Supp. 1993); Iowa Code Ann.
Section 679.12 (West 1987); N.Y. Jud. Law Section 849-b (McKinney Supp. 1992); Tex. Civ. Prac.
& Rem. Code Ann. Section 154.073 (Vernon Supp. 1997).
The Conflict Resolution Movenunt 7

break an impasse, to assess the strength of a disputant's adherence Lo a position,
to assist a disputant to clarify a position, or to restore orderly communication.
The caucus, like the third-party neutral, is an important distinguishing feature of
mediation. In other procedures, such as litigation or arbitration, it is usually
unethical for the third party to confer separately with the disputants. 6
Impartiality refers to the absence of bias favoring one party or the other.
Academicians sometimes have difficulty with the notion of impartiality,
pointing out it is probably impossible to remain completely unbiased. But
practicing mediators seem to understand what is really meant is substantial or
functional impartiality leaving the outcome little influenced by the rnediator. 7
This can only be fully understood when considered with the concepts of
neutrality and mutually acceptable resolution:
The word neutral stems from the Latin !le, meaning "not" and uter, denoting
"either." This is complemented by the root of mediation, which is the Latin
medius, meaning "middle." The mediator's lack of decision-making authority
that could favor one disputant over another is the single most fundamental
component of mediation, imperative in understanding how mediators fUllction.
Like the neutral gear in a car, neutrality means incapable of making a decision
in one direction or the other. The disputants are therefore free to communicate
with the other disputant through the mediator, since the mediator will never
make a decision or reveal a confidence. Although the mediator does not make a
decision and avoids expressing any opinion tending to favor the positions of
either side, resolutions reached in mediation are generally upheld as binding
contracts by the courts.
The concepts of mutual acceptability and process specialist (illl expert in the
process of facilitating mutually acceptable resolutions) are related. This
contrasts with content specialist, an expert in knowledge of the matter in
controversy. For example, in a dispute between environmentalists and a lumber
company, a content specialist may have knowledge about old-growth forests,
the effects of lumbering on forest ecosyste}llS, or the economic, employment,
and wage conditions of a particular community. Process expertise concerns
negotiation, bargaining, impasse breaking, orderly communication, and
procedural matters.

6. For example, the American Bar Association Code of Judicial Conduct, Canon 3 (A) (4) provides
that a "judge should ... neither initiate nor consider ex jJarle or other communications concerning a
pending or impending" case (where ex parle means contact with only one party).
7. Both the SPIDR and ABA Standards require mediator impartiality. See SPIDR Stnndard
"Responsibilities to the Pm-ties, No. I" ("[tlhe neutral must maintain impartiality toward all parties.
Impartiality means freedom from favoritism or bias either by word or by action"). ABA Standarcl II
ancl accompanying comment is "A Mediator shall Conduct thc Mediation in an Impartial Manner.
The concept of mediator impartIality is central to the meciiation proccss." Whi Ie most mediators
eschew expressing opinions, a dwindling fcw believe disputants want an evaluation, sometimes
called evaluative, as distinguished from facilitative, mediation. See, [or example, Moberly,
"Mediator Gag Rules: Is it Ethical for Mediators to Evaluateor Advise?" 669.
8 THE JOURNAL OF BAHA'I STUDIES 9.2.1999

Why is the absence of power so important? To illustrate the power of
nonpower, consider the experience of one public school in Phoenix, Arizona. In
the mid-1990s, this school was suffering dangerous ethnic conflict among its
teenage students, who were primarily of White, Hispanic, and African-
American heritage. School authorities, rather than employing authoritarian
tactics and "ordering" unity, as if that were possible, used outside mediators to
work with the entire student body for many weeks.
Eventually, the students hammered out rules reflecting ingenuous principles,
such as "no ethnic jokes." The student-generated rules were nothing that any
rookie assistant principal could not have distributed to the students in a
handbook the first day of class. However, because the students had to produce
the principles, negotiate, ventilate emotions, and gain a sense of ownership, they
became the enforcers of their own rules, hanging them on banners in the school
and reminding fellow students when a rule was violated. Does any parent of a
teenager doubt that if school authorities had done all the work for the students,
distributing the same rules on the first day of school, the effectiveness would
have been far less?
Harvard Law School professor Frank E. A. Sander stated that it is this quality
that makes mediation the "sleeping giant of ADR."8 This aspect of mediation
has come to be known as "transformation," as in the well-known 1994 work
The Promise of Mediation by Bush and Folger. Mediators believe that
disputants permitted to 'reach their own resolutions are more likely to empathize
with other disputants and to honor their agreements. When disputants are
ordered to comply with a decision made by a stranger, human immaturity
unfortunately often produces a residual amount of resentment. Appeals,
resentment, attempts to undermine, reprisals, and retaliation are the norm.

The Stages of Mediation
Mediators generally follow a mediation model, taking disputants through a
series of stages. The number of stages vary, but essential procedures are
standard. Initially, the mediator may engage in some form of pre-mediation
research of the dispute and discuss issues with the disputants separately. Next,
the mediator brings the disputants together, explaining the process (known as
the "mediator's monologue"), and setting or negotiating ground rules 9

8. See Reuben, "The Lawyer Turns Peacemaker" 55.
9. The ground-rule stage is typically important yet simple. It can, however, be excruciatingly slow
and difficult. One memorable example was the eighteen-month-long negotiation at the Paris Peace
Talks in the early 1970s between the United States and Vietnam, over the shape of the meeting
table. To experienced mediators, this was not so unbelievable. The disputants were engaged in a
conflict of historic dimensions with grief, loss of life, political dogma, and countless social
ramifications. Negotiators were as concerned with their constituencies as with the other disputant.
They needed to look "tough," or political pressure could have forced an end to the talks. Also, a
mistake over the shape of the table had minimal consequences; a mistake over other issues could
echo tlu·ough generations. This experience also illustrates the role of patience in peacemaking.
The Conflict Resolution Movement 9

regulating communication, such as no interrupting, no profanity, and
commitment to the process. 10 At this stage, the communication is primarily
from the mediator to the disputant.
Third, disputants take turns making opening statements, explaining their
positions to the mediator. At this stage, communication flows from disputant to
mediator. The other disputant is asked to listen without interrupting. This allows
the mediator time to understand the dispute and to model active listening
(focused attention, no unnecessary interruplion, and body-language cues
indicating intense interest) to the other disputant. Often, it is the first time a
disputant has explained his or her views with the other disputant Jistening.
Fourth, the mediator clarifies positions, starts building an agenda, and may
start working with the disputants to generate options. There may be interim
stages of bargaining and negotiation. At these stages, the mediator tries to get
disputants to focus on an easel, blackboard, or piece of paper, which has the
beneficial effect of "objectifying" the issues into a mutual probJem the
disputants must together work on resolving. Eventually, but only if and when
the time is ripe, the mediator shifts disputants to bargain directly 'liith each
other. Lastly, the mediator works with the disputants to write an agreement
expressing a settlement that is mutually acceptable to the disputants.
During the entire process, the mediator utilizes a host of skills and tactics
designed to facilitate agreement and break impasses. The skills are too
numerous to detail here; however, mention should be made of a few key skills
with some theoretical foundation.
Mediators distinguish between position and interest. A position is a demand
for a specific outcome or behavior. Positions are usually expressed emotionally
as categorical imperatives such as "no," "never," "no way," and "must." To
illustrate, assume two neighbors are disputing over a dog barking incessantly at
night while the owner, neighbor A, is at work. A desires the clog for protection
of her house while she is working at night. Neighbor B cannot sleep at night
because of the barking. An example of a position A might take is ''There is no
way I'm getting rid of my dog." B might take a position such as "The clog goes,
orlsue."ll
An interest may be defined as the underlying motive or reason why a
disputant is making a specific positional demand. In this hypothetical scenario,
A's interest is in protecting her house. B's interest is in sleeping. Notice that at
the level of position, there is absolute conflict. The demands for outcomes that
the dog stay or go are utterly incompatible. At the deeper level of interest,

10. This process can get dangerous; a standard ground rule 0[' the City of Phoenix's mediation
program and of mediators at the Office of the Arizona Attorney General is "no weapons allow,~cl"!
11. This example is less humorous than it seems. The City of Phoenix, Arizona, receives an
average of 100 complaints a month, more than 1,200 a year, abont barking dogs-so many that it
lists an official phone number entitled "barking dogs."
10 THE JOURNAL OF BAHA'i STUDIES 9.2.1999

however, there is no conflict; the protection of A's house and B's sleep are not
opposing desires. Indeed, the disputants may even find they have common
interests such as neighborhood security.
The main tool mediators use to assist disputants to recognize their interests
and move off positions is reframing. This is a method where the mediator
recognizes a position being stated by a disputant and then restates the statement
in a manner expressing the interest, not the position.
Other tools are BATNA and WATNA. These acronyms respectively stand for
"best" and "worst" alternatives to a negotiated agreement. They are techniques
of questioning a disputant, usually in a caucus, to get the intransigent disputant
or one who has unrealistic expectations for the outcome, to understand the
consequences of a failure to reach an agreement in mediation.
To increase the likelihood of settlement, mediators sometimes negotiate
media blackouts or promises of no discussions with nondisputants during the
proceedings. Another tactic is the moving deadline, placing disputants on a
strict timeline and threatening to end the mediation, but gradually extending the
deadline as disputants edge toward settlement. 12 The mediator uses reframing,
the caucus, and other techniques to bring the disputants toward mutual
resolution. 13

The Many Applications of Mediation
One reason for mediation's appeal is its application beyond civil court. In
criminal cases, it has come to be known as restorative justice. Originating
primarily in Canada and now spreading throughout the United States,
restorative justice is found in court systems or prosecuting attorneys' offices
and is often titled Victim-Offender Mediation Programs (VOMP). The format
is substantially the same as that for other mediation, except it is generally
conducted after conviction. The sole issue is how the defendant can make
restitution to a victim. This method is often used in juvenile cases. 14

12. Striking examples of this technique were the United States-brokered 1995 Dayton Peace
Accord talks concerning Bosnia and the Israeli-Palestinian talks in Maryland, October, 1998. In
Dayton, the talks OCCUlTed over a weekend. United States officials publicly announced prior to the
negotiations that if agreement was not achieved by midday Sunday, they would call an end to the
talks and send the parties home, presumably to resume warfare. The United States diplomats
publicly mlliounced extensions stm·ting Sunday afternoon, then throughout the day and into Monday
until an accord was reached. In the 1998 set of talks, United States officials issued a similar
statement. The talks were repeatedly extended until they nearly reached a fuII week. Another arena
where this often occurs is United States labor-management collective bargaining where Federal
Mediation and Conciliation Service mediators extend talks through nights into subsequent days.
13. For additional impasse-breaking techniques, see Chang, untitled chapter in ADR Personalities
and Practice Tips.
14. There are two models of juvenile mediation. One is the combined juvenile-parent model
developed in the 1980s by the Children's Hemings Project of Camblidge, Massachusetts. There are
now more than sixty such programs in the United States. That model uses a family-oriented process
involving structured "daily living agreements" between parent and teen. The other, more
widespread model, is the VaMP model, bringing juvenile offenders together with victims who
agree to participate, to negotiate restitution. See Smith, "Using Mediation in Juvenile Justice
Settings" 10-11.
The Conflict Resolution M overnent 11

School-based peer mediation programs have increasingly been established in
public schools in what has become a major movement by itself. The programs
date to the early beginnings of the modern conflict resolution movement,
starting in the 1970s in San Francisco, Cleveland, and Cambridge.
These peer mediation programs teach basic mediation principles to children
and youth from elementary through secondary schools. Some school districts
employ full- or part-time peer mediation coordinators. The model is very
similar to adult mediation, except confidentiality is not necessarily protected,
and there is always an adult with the student mediators. Most peer mediators
work in teams of two, in a process known as co-mediation. Sometimes student
disputants are given the incentive of avoiding or lessening impending discipline
if they are able to work out a resolution. IS
Mediation has been applied to domestic relations cases such as divorce and
child custody, securities broker disputes,16 business contracts,17 environmental
cases,I8 public and private employment,I9 Americans with Disabilities Act
cases, employment discrimination charges with the United States Equal
Employment Opportunity Commission under the Civil Rights Act of 1964:20 and
other disputes. A number of religious groups have become noted for "faith-
based" practice. Best known are members of the Baha' f Faith,21 the Friends
(Quakers), and the Mennonites.
Tn the United States, there are several national professional associations and
organizations. Foremost are the American Bar Association Section of Dispute
Resolution, with legal professionals <md judicial membership; the Society of
Professionals in Dispute Resolution (SPIDR), a general association of

15. The first successful comprehensive peer mediation program was the "playground projecC'
started in 1976 with the founding of the San Francisco Community Board Program by a Bay Area
lawyer, Raymond Shonholtz. Cleveland's program started in 1980 when the Clcvelancl State
University Law School faculty designecl a truancy mediation program for Cleveland Magnet High
School. For a general source, see Moriarty and McDonald, "Theoretical Dimensions of Schoot-
Based Mediation" 176.
16. See, for example, Coakley and Bedikian, "De-mystifying Securities ADR: Reform and
Resurgence after McMahon" 176. For an article on Canadian securities arbitration, scc Rogers,
"Securities Arbitration in B.C.: A Solution in Search of a Problem" 53.
17. For example, the Center for Public Resources ill New York City maintains a registry of
"Corporate Policy Statements," signeci by corporate oftlcers pleclging that in the event of il dispute
with another: company making the same or similar pledge, it will first explore ADR before litigation.
18. For example, see Harrison, "Environmental Mediation: The Ethical and Constitutional
Dimension" 79.
19. See, for example, Dibble, "Alternative Dispute Resolution of Employment Confhcts: The
Search for Standards" 73, and Wittenberg et al., "ADR Flexibility in Employment Disputes" ISS.
20. Pub.L. 88-352, tit VII, 78 Stat. 241, 42 U.S,c. Sect. 20000e, et seq, The United States Equal
Employment Opportunity Commission started meciiating ADA and employment discrimination
cases nationwicie in the late 1990s.
21. For example, of the approximately 300 programs offered at the j 997 National Conference on
Peacemaking and Conflict Resolution, about 10 percent were presented by members of tile BaIH]' i Faith.
12 THE JOURNAL OF BAHA'I STUDIES 9.2.1999

practitioners and scholars; the Academy of Family Mediators (AFM),
specializing in divorce and family law; the National Institute of Dispute
Resolution (NIDR), promoting research and public policy; and the National
Association for Community Mediators (NAFCOM), representing nonprofit
community mediation centers. The former National Association of Mediators in
Education (NAME), with membership mostly drawn from educators in peer
mediation programs, recently merged with NIDR. In July, 1998, NIDR, SPIDR,
and NAFCOM signed a memorandum of understanding expressing intent to
merge. In early 1999, they began meeting regularly under the loose affiliation
name known as the National Council of Dispute Resolution Organizations
(NCDRO).
The National Conference on Peacemaking and Conflict Resolution (NCPCR),
affiliated with George Mason University's Institute for Conflict Analysis and
Resolution, sponsors the world's largest conflict resolution conference. NCPCR
is not a membership organization, and its events, held every two years, are
remarkable for their size, diversity, and representation from scores of nations.

Arbitration
Arbitration, in contrast with mediation, is more formal. In arbitration, disputants
submit their dispute to private decision-makers who generally follow
professional rules, such as those of the American Arbitration Association
(AAA), in rendering binding awards. Frequently, arbitration is as complex as
litigation, typically including lawyers, rules of procedure and of evidence, and
pretrial discovery (court procedures such as depositions and interrogatories
permitting litigants to obtain information from each other before trial). Since
arbitrators issue awards, there is little opportunity for transformation.
So why use arbitration? Although it is much more formal than mediation, it is
nevertheless generally swifter than litigation. Further, arbitrators are considered
more predictable than juries, which, in turn, may aid settlement talks. It is
harder to win appeals of arbitration awards compared to court judgments, since
appeals are restricted to a few issues, such as whether the arbitrator exceeded
the scope of authority or whether there was fraud. Arbitration also affords
greater privacy and control to disputants than does litigation.
Arbitration is traditionally used in North America in certain fields such as
construction, labor-management relations, sports and entertainment law,
employee grievances, and some consumer services such as health care. In
Europe and countries with systems based upon European legal traditions,
arbitration is often the dispute resolution format of choice, particularly in
consumer and commercial disputes.
There are arbitration provisions in international law and supporting
institutions. The United Nations Commission on International Trade Law
(known as UNCITRAL) supports interuational arbitration of trade disputes and
has rules of arbitration and conciliation. The Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (the "New York Convention") of
The Conflict Resolution Movement 13

1958, is an international standard for recognition of arbitration awards. The
International Commerce Commission (ICC) publishes arbitration and
conciliation rules. The World Intellectual Property Organization in Geneva has
arbitration, expedited arbitration, and mediation rules. The AAA supplements
its domestic rules with Rules of International Arbitration.

Conflict Resolution in History
Conflict resolution, in the broad sense of social practices, procedures, or
institutions dedicated to resolving conflict, is ancient. The following examples
of procedures, selected from a variety of cultures and ages, are not intended to
be a comprehensive historical survey, but rather a brief illustration of how long
civilization has coped with the task of efficiently settling human conflict
through alternatives to existing official structures and through facilitated
discussions. What is most striking about these examples is how little matters
have changed through the ages.

Colonial North America
In colonial North America, for example, arbitration flourished:

Arbitration in Connecticut before 1700 was a consensual process. Noone
compelled disputants to submit their ditJerences to the judgment of arbilralors, whose
only authority came from the parties themselves and whose awards were legally
unenforceable. Arbitration was also a community affair. Dispulants and arbilralors
alike tended to come from the same town. People chose arbitration over law when
they knew one another and trusted each other lo treal as final an award lhal had no
legal effect. They also chose arbitration for ils relative speed, inexpensiveness, and
informality ....
By submitting to arbitration, disputanls expressed a willingness to compromise that
was absent ii·om litigation. They came to arbilration logether, rather lhall as a plaintiff
and defendant, without the heighlened sense of being adversaries that such labels
imply. These qualilies made arbitration attraclive in situalions where the parlies, for
whatever reasons had to be able lo conlinue lo deal with one anolher, as was the case
in tightly knil communi lies where disputes arose. . .. (Mann, "Law, Legalism and
Community Before the American Revolution" 1428-29)

The Aboriginal New World
The European colonists were not the first to practice structured negotiation and
facilitated conflict resolution in the New World. Centuries before the colonial
era, the Great Peacemaker, Deganawideh, founded the famed Iroquois League of
Six Nations 22 in the aboriginal Americas, based on "The Great Law of Peace":

22. The Iroquois League was a confederation of five nations, the Mohawk, Oneida, Onondaga,
Cayuga, and Seneca, until the late eighteenth century when the Tuscarora nation's petition to be
annexed was accepted.
14 THE JOURNAL OF BAHA'I STUDIES 9.2.1999

With the statesmen of the League of Five Nations, I plant the Tree of Great
Peace ....
The first party is to listen only to the discussion of the second and third parties and
if an error is made, or the proceeding irregular, they are to call attention to it and
when the case is right and properly decided by the two parties they shall confirm the
decision of the two parties and refer the case to the Seneca statesmen for their
decision. When the Seneca statesmen have decided, in accord with the Mohawk
statesmen, the case shall be referred to the Cayuga and the Oneida statesmen on the
opposite side of the house ....
[W]hen the Mohawk and Seneca statesmen have unanimously agreed upon a
question, they shall report their decision to the Cayuga and Oneida statesmen, who
shall deliberate upon the question and report a unanimous decision to the Mohawk
statesmen. The Mohawk statesmen will then report the ... case to the Firekeepers,
who shall render a decision as they see fit in case of a disagreement by the two bodies
if they are identical. The Firekeepers shall report the decision to the Mohawk
statesmen who shall announce it to the open Council. ...
I [Deganawideh], and the United Chiefs now uproot the tallest tree ... and into the
hole thereby made we cast all weapons of war. Into the depths of the
earth ... flowing to unknown regions we cast all the weapons of strife. We bury them
from sight and we plant again the tree. Thus shall the great Peace be established and
hostilities shall no longer be known between the Five Nations, but peace to the United
People. The Great Creator has made us of one blood, and of the same soil he made us,
and as only different tongues constitute different nations, he established different
hunting grounds and territories and made boundary lines between them. 23

23. "The Great Law of Peace of the Longhouse People," White Roots of Peace. If the reader will
permit a digression, in the 1980s and early 1990s I visited Iroquois communities in western New
York State with the United States Baha'i National Committee on Women. I had the memorable
experiences of witnessing Iroquois consultation in the famed "Longhouse" and visiting the grave of
Handsome Lake, the great Iroquois spilitual leader of the early nineteenth century, who spoke to
United States President Thomas Jefferson on spiIitual matters and who had visions of a coming
unity of all people. The Iroquois Great Law of Peace established a model of federal governance, the
pIinciple of gender equality in North America before European settlement, and influenced framers
of the United States Constitution, including Benjamin Franklin, and founders of the Women's
Movement, including Elizabeth Cady Stanton. Congress acknowledged this in conCUlTent resolution
S.Con.Res.76, September 16, 1987 (the anniversary date of the United States Constitution),
referring, inter alia, to "the contribution of the Iroquois Confederacy of N alions to the development
of the United States Constitution" and noting Franklin's and George Washington's admiration of the
Iroquois system. See Johansen, Forgotten Founders, concerning the Iroquois influence on the
Constitution. An absorbing source on Handsome Lake is Wallace, The Death and Rebirth of the
Seneca. Stanton and other figures of the Women's Movement such as Susan B. Anthony lived in the
former Iroquois territory. It is hardly chance that the world's first women's rights conference
occulTed in 1848 in Seneca Falls, New York, on land named after and rich with Iroquois tradition of
women's lights. Stanton often acknowledged her inspiration by the Iroquois. Another remarkable
aspect of the Movement's origin was its occurrence the same year the Baha'i heroine Tahirih
publicly discarded her face veil in Persia, dramatically rejecting oppression of women. In 1989,
memOlializing this synchronism of history, the Baha'i Conunittee on Women presented the Village
of Seneca Falls an exquisitely beautiful tapestry portraying TahiIih removing her veil while, on the
other side of the planet, Stanton spoke at the Seneca Falls conference, on land with a history of
equality of the sexes based on the Great Law of Peace. The tapestry, created by artist Vickie Hu
Poirier, hangs today on the wall in the room where the town council sits.
The Conflict Resolution Movcm.ent 15

Classical Islam
One of the titles attributed to the seventh century prophet-founder of Islam,
Mul;tammad, was arbitrator (hakam). This stemmed from Mul:J.ammad's
arbitration (takhim) of conflicts in the early Muslim community. Examples of
the use of arbitration and creative administrative efforts to design effective
dispute resolution procedures can be found throughout lslamic history:

Islamic law recognized the legality of arbitration as a peaceful means or settling
disputes both in civil and public law. Prophet Muhammad was appointed by the tribal
chiefs of Mecca to settle the dispute which arose between them .... This event
occurred around the beginning of the seventh century A.D . . . . After the aclvent of
Islam, the Prophet resorted to arbitration in his dispute with the Jewish tribe of
Quraiza. Another important historical example of arbitration was that to which the
partisans of the Fourth Caliph ... and those of [the] Governor of Syria, resorted. The
agreement signed in the year 37 A.H. (A.D. 657), in which the Caliph appointed Abu
Musa ... and Mu'awiyab appointed 'Amr ... as arbitrators empowered to settle their
dispute according to the rules of the Koran and the Traclition.
Islamic law recognizes the validity of arbitration, whetiJer belweell two Mlislim
parties or between Muslim and non-Muslim groups. Apart from arbitration, Islamic
law recommends mediation, particularly between Musllm groups, as a preliminary
peaceful step before resorting to war. The following Koranic verse is relevant in this
connection:
If two groups of the Believers fight with one anothcl', then make peace between
them. And if two of them oppress the other then fight againsl the oppressor until
he yields, then make peace between them justly, ane! act equitably, (Jod loves
those who are equitable. 24
This verse ... applies to rebels. But its international connotation is of capital
importance, because it promotes cooperation for the caLise of intemational justice,
enjoins mecliation and conciliation as a preventive measure, and finally imposes the
use of sanctions in aiel of the oppressed party against the aggressor. (Mahmassani,
"TIle Principles 0[" International Law in the Light ofIslamic Doctrine" 272-73)

Professor Reuben Levy of Cambridge Universily described the differences
between ajudge (qadi) and the newly created office of the court of"T he Reviewer
of Wrongs" in the Abbasid Era (ca. A.D. 750-91 01132A.H.-A.D. 910/297 A.H.):

24. Arberry's 1955 translation of Qur'an 49:9 was: "If two parties of the believers righl, pUl lhings
right between them; then, if one of them is insolent against the other, fight the insolent one till it
reverts to God's commandmcnt. If it revcrts, set things right between them equitably, and he just"
(231). Rodwell's '1909lranslation was: "[I' two bodies of the faithi"ui are al war, lhen make ye peace
between them: and if the one of them wrong the other, fight against that parly which doth the
wrong, until they come back to the precepts of Gael: if they come back. make peace bdween lhcm
with fairness, and act impartially; God loveth those who acl wilh impartialily"' (469).
16 THE JOURNAL OF BAHA'I STUDIES 9.2.1999

The difference between the qadi and the reviewer of maza1im was that the latter had
much wider powers. He could check unsupported denials on the part of litigants and
restrain acts of violence on the part of wrongdoers ... [and] take time to investigate
evidence and consider all sides of a case-action not permitted to ordinary judges,
who are compelled to settle cases out of hand; he could refer litigants to persons oj
responsibility who would act as arbitrators-a proceeding not open to the qadi,
except by consent of both parties. . .. (Emphasis added) (Levy, The Social Structure
of Islam 349)

Ancient Rome
Rome had proceedings similar to pretrial and court-connected proceedings,
most prominently early neutral evaluation, in the contemporary United States
ADR movement:

The surprising amount of discretion allowed to the magistrate is explained by the
nature of his role within the organization of justice under the republican constitution.
He was not a judge pronouncing final judgment, but an official who undertook a
preliminary examination of the claims and defenses advanced on either side. The aim
of this preliminary examination (proceedings in iure) was to determine whether such
claims and defenses involved in any right or interest worthy of protection and
therefore warranting trial. The trial itself (iudecium, or proceedings apud iudicem)
was held by a private citizen, the iudex privatus (private judge), who rendered final
judgment under the authority and instructions of the magistrate. (Wolf, Roman Law
72-73)

The Roots of the Contemporary Conflict Resolution Movement
Notwithstanding the history of attempts to devise sound peacemaking
procedures, there are more immediate causes of the contemporary conflict
resolution movement. First, a yearning has grown for personal empowerment in
the United States. 25 The post-World War II "baby-boom" generation is likely
the best educated and most affluent in history. It is a generation seeking more
control over personal decisions, trusting expert opinions less and challenging
them more, whether those opinions come from lawyers, physicians, professors,
financial advisors, or military commanders.
The social change and turmoil associated with that same generation-the
civil rights, 1960s counterculture, environmental, and other movements-have
directly contributed to the conflict resolution movement. Especially noteworthy
are the neighborhood legal centers started in the 1960s. The greater accessibility
to legal services served as an incubator for the movement.
The most frequently cited causes of the movement by far are frustration with
the cost, perceived bias, delay, and role of money in the courts. Added to this is
disdain for lawyers. This reason requires further analysis.

25. See the passage of the Universal House of Justice's statement on peace concerning personal
empowerment discussed below.
The Conflict Resolution Movement [7

A Crisis in the Courts?
It may be surprising to learn that similar complaints have been registered over
the centUlies, for example, by Voltaire in 1745. 26 Most criticism originates from
the perception that moneyed classes in business and political quarters have
vested interests in preventing lawsuits, narrowing grounds for civil liability, and
quashing class actions.
By assailing lawsuits and lawyers without thoughtful analysis, one
presupposes most litigation is unfounded, defendanls and their allies innocent,
and defense lawyers just. 1t is at least equally plausible to believe that there is
rampant social injustice and that defendants and their lawyers-most of whom
represent insurance companies, corporations, governments agencies anel
employers-operate out of narrowly defined economic and political self-interest
at the expense of consumers, taxpayers, the environment, laborers, and the
average individual. In the U.S., and many other countries, this disunity is further
aggravated because litigants who usually defend civil lawsuits are strongly
associated with one political party, while those litigants associated with the
filing of lawsuits are generally associated with a different political patty. What
is likely going on here at the psychological level is that the typical person lends
to identify with one side or the other, thus spawning a prejudice. But, often
overlooked in analyzing controversial issues is the underlying and aggravating
roles of the adversary system of law and.public discourse, both medieval
legacies. By habitually pitting one side against the other, lhe adversary system
and public debate process aggravate lesser disputes into greater ones, force
parties to invest in winning at all costs, and treat all disputes in a one··size- fits-
all fashion. In effect, our dis unified view of society, which is at the core of the
problem, has codified the disunity, causing further and often unnecessary or
exaggerated conflict.
This is more than an obscure debate. Several leaders in the ADR field,
including Laura Nader, professor at the University of Caljfornia at Berkeley (an
anthropologist who was an early figure in the movement), and her brother,
consumer advocate Ralph Nader, have warned of dangers posed by ADR,
whether inadvertent or intentional, in denying access to courts, thus limiting
legal representation and precluding legal precedent.
Few would disagree, despite ample failures, that the courts have played a
crucial role in United States history by protecting minority rights. Included in this
formula are the civil rights, women's rights, and environmental movements.
Would the United States be better, for example, if the decjsion of Brown 1'. Board
of Education of Topeka, el aI.,27 desegregating public schools, had been settled
by mediation between the parties, rather than becoming a landmark precedent?

26. See Voltaire's leller of t 745 reprinted in Gout, "Trade Pacls, Regional Organizations anel
Dispute Resolution Syslems Regarding the European Union" 42.
27. 347 US 483, 74 S.Cl.686, 98 L.Ed. 873 (1954). This was the lopic of the annual Frank E.A.
Sander Lecture at the annual convention of the American Bar AssoicatiOll in August 1999 in Atlanta
in which the author participated.
18 THE JOURNAL OF BAHA'f STUDIES 9.2.1999

While those cautioning against cutting off access to the courts have made a
legitimate point, there is more at stake than an interminable debate between
narrow political outlooks. If it is the adversarial system itself that is the
problem, not simply the voraciousness of plaintiffs or the greed of defendants,
then we must look far deeper than court dockets or lawyers to find root causes
of social disunity.
Support for this analysis is found in a 1967 message of the Universal House
of Justice, the supreme governing body of the Baha'i Faith, concerning the
relationship of Baha'is to politics. The House explained "the first step essential
for the peace and progress of mankind was its unification." Unfortunately,
"most people take the opposite point of view: they look upon unity as an
ultimate, almost unattainable goal and concentrate first on remedying all the
other ills of mankind." If humanity knew better, it would understand "these
other ills are but various symptoms and side effects of the basic disease-
disunity" (Universal House of Justice, Wellspring of Guidance 131).
Accordingly, it is the practice of deliberately pitting parties against one another,
whether in litigation, the media, political life, or elsewhere, that is a source of
dis unifying attitudes in the first place.
The problem is aggravated when the only acceptable forum provided to
disputants is litigation. This one-size-fits-all remedy itself aggravates disputes
into more complicated, costlier, and slower affairs. It is this problem Sander
identified in 1976 at a watershed event in the ADR movement. Addressing the
American Bar Association National Conference on the Causes of Popular
Dissatisfaction with the Administration of Justice (which has come to be known
as the "Pound conference"), and in subsequent efforts, he advocated ADR and
visualized a future "multi-door courthouse." The courthouse of the future
should provide, he said, not just an arena for warring litigants, but arbitration,
mediation, and other services to which disputes can be triaged, depending on
the facts. Different options, symbolized by a court with many doors and
expressed in the phrase "fit the forum to the fuss," would be available to
disputants. 28
Some people have difficulty reconciling an overarching principle of "justice"
with process-centered conflict resolution. Such difficulty is rooted in equating
justice solely with outcome. The process, that is, how justice is administered
and achieved, is as important as the results. Fairness must be experienced, not
simply decreed. Justice is not simply a fair result, it is also connected to social
order. For example, laws typically state that red traffic lights signify "stop" and
green lights mean "go." There is nothing inherently heinous in driving past a
red light. If the world had decided differently on the choice of colors, no vast
social catastrophe would have resulted. It is the order or unity created by
acceptance of the color scheme that matters. Justice emerges from order.

28. Sander, "Varieties of Dispute Processing" in The Pound Conference: Perspectives on Justice
in the Future, the Proceedings of the National COl,ference on the Causes of Popular Dissatisfaction
with the Administration of Justice 65.
The Conflict Resolution Movement 19

Similarly, in the countless disagreements of life, many disputes do not call
into question grand universal principles. For example, a dispute between an
insurer and a motorist over a damaged vehicle may have a range of outcomes
acceptable to both disputants. There is no single just figure, and the process is
as important to social order as the resolution.
The old common law rule in the criminal law acknowledged this point in
distinguishing between maluIn in se and malum prohibitum. 29 Acts rnalum in se,
such as murder, were recognized as universally contemptible, however
variously defined and punished. In contrast, wrongs designated as criminal
merely because society found them necessary to prohibit were m.alum
prohibitum.

Conflict Resolution Worldwide
An extraordinary gathering in the history of the conflict resolution movement
occurred in April, 1998. Representatives of scores of nations gathered in
Washington, DC, for the first American Bar Association Section of Dispute
Resolution conference dedicated exclusively to conflict resolution worldwide.
In the 1980s, ADR conferences and articles were often sprinkled with phrases
like "the wave of the future."30 It was now apparent that ADR and, in
particular, mediation, had truly become a movement of global proportions. A
new level of zeal was also being infused into older programs like arbitration,
with a swelling number of disciplines "getting into the action."
Consideration of legislation the world over confirms the movement's appeal
and effect on existing programs, particularly in the 1990s. The survey in this
article's appendix is an introductory review of selected programs from around
the world, demonstrating ADR's advance. It is not intended as a comprehensive
analysis of every national ADR program, which, indeed, would be impossible in
an article of this length. Commercial ADR is highlighted, since it has
experienced the fastest growth. Nations uncertain about ADR in family or
criminal law may still be eager to facilitate international commerce.
Conciliation and mediation provisions are similarly stressed, since that is Otle of
the most important areas where the North American mediation model and
prevailing systems elsewhere in the world intersect and convergence seems
probable.

Summary of Conflict Resolution Worldwide
The survey (appended to this article) of recent developments around the globe,
as cursory as it must be in an article of this length, nevertheless demonstrates
that conflict resolution has indeed become a worldwide phenomenon. The vast

29. See, for example, Slate v. Horton 139 N.C. 588, 51 S.E. 945 (1905).
30 See, for example, Schavrien, "ADR No Longer the Wave of the Future" I~OS.
20 THE JOURNAL OF BAHA'I STUDIES 9.2.1999

proliferation in the 1990s of legislation, funding, conferences, and academic
attention concerning mediation worldwide, as well as the rejuvenation of
arbitration programs and the efforts, sometimes strained, to portray conciliation
as mediation, leads ineluctably to the conclusion that this is one of the most
remarkable developments in contemporary legal history.
Could overcrowded court dockets alone have given rise to such a
phenomenon? If so, why, given the long history of mediation and arbitration,
did this movement not arise sooner? Why is there such an interest in personal
transformation if the paramount goal is getting rid of cases? Perhaps the
movement is more symptom than cause. Perhaps there is something greater
astir. For consideration of this possibility, the reader is invited to consider some
of the fundamental principles of the BaM'i Faith.

Analysis of Conflict Resolution and the Baha'i Teachings
Analysis of how the conflict resolution movement may be related to the Baha'i
Faith requires consideration of four great aspects of Baha'i teachings:
arbitration, consultation, an age of transition, and grassroots communication.

Arbitration
We begin with consideration of a few writings and utterances of the central
figures of the BaM'i Faith. Nearly a century ago, 'Abdu'l-BaM, the duly
authorized head of the Baha'i Faith, directly refened to arbitration, noting that
in the nineteenth century BaM'u'llah 31 "wrote Epistles to all the kings and
rulers of nations, summoning them to arbitration and universal peace" (,Abdu'l-
BaM, The Promulgation of Universal Peace 27) and that in order to establish
"peace and international agreement" it is "incumbent upon them to establish a
board of international arbitration ... " (,Abdu'l-Baha, Promulgation 203). He
specifically urged the establishment of "[a]n arbitral court of justice ... by
which international disputes are to be settled" (,Abdu'l-BaM, Promulgation
317).
Although in these and other passages and talks, 'Abdu'l-Baha linked
arbitration to international disputes, his endorsement of the process draws
attention to its usefulness. Moreover, arbitration of private disputes was
expressly endorsed by Shoghi Effendi (the Guardian of the BaM'i Faith). He
explained to the National Spiritual Assembly of the Baha'is of the United States
(the elected national administrative body of the Baha'i Faith in the United
States) that a local spiritual assembly (the elected local BaM'i governing
administrative body) may function as a board of arbitration. The National

31. The prophet-founder of the Baha'i Faith, 1817-1892. 'Abdu'l-Baha (1844-1921) was
Baha'u'llah's son. 'Abdu'l-Baha's grandson, Shoghi Effendi (1897-1957) in turn became leader
(called "Guardian") after 'Abdu'I-BaM's death.
The Conflict Resolution Movernent 21

Spiritual Assembly subsequently published this principle in 1956, noting "[t]he
local Assembly, as the Guardian has stated, can act as a board of arbitration if
the couple disagrees about the terms and conditions of divorce, and when it so
acts the couple are to abide by its decision."32 Thus, there is direct guidance in
the teachings of the Baha'i Faith endorsing the use of a major form of conflict
resolution in public, international, and private affairs. It should also be notcd
that the term "mediation" has become widely used only in the past few dccades.
"Arbitration" has been widely used since the nineteenth century.

Consultation
A second consideration is one of the most fundamental laws of the BaM'i Faith,
the principle of spiritual consultation. Baha'i consultation is "the bedrock" and
"one of the basic laws" of Baha'i administration appLicable "to all Baha'i
activities" affecting "the collective interests of the Faith ... " (Consultation: It
Compilation 14, 13). A thorough analysis of consultation is outside the scope of
this article, which specifically concerns how the Baha' f Faith might be
connected to the conflict resolution movement. However, it is necessary to
examine consultation briefly.
Baha'u'llah linked consultation to "heaven," "wisdom," and "compassion,"
lauding it as a "lamp of guidance" bestowing "understanding" (Consultation 1).
In the process of consulting, Baha'is serving in administrative positions are
admonished to regard the interests of others "even as they regard their own
interests ... " (Consultation 2).

32. The National Spiritual Assembly of the Balui'is of the United States, Annual Reporl a/'
1955-1956, 7. This arose when a divorcing couple living in the United States requested a spiritual
assernbly to serve as an arbitrator, rather than in its more familiar roles as protector and unifier,
adjudicator, rule and policy maker, counselor, and guidance provider. The assembly declined,
resulting in Shoghi Effendi's explanation that an assembly is free to arbitrate. Allhough Bah,l'is are
encouraged to bring disputes to an assembly and abide by its decision. an assembly in the United
States does not assert jurisdiction over matters government has reserved for itself, such as divorce.
See "By-Laws of a Local Spiritual Assembly," Article IV (an assembly "shall rigorously abstain
from any action or influence, direct or indirect, that savors of intervention on the part of a Baha'i
body in matters of public politics and civil jurisdiction.") However, under certain circumstances
courts accept mediated settlement agreements or arbitration awards if disputants yolnntarily
submitted the dispute and other legal obligations are met. This is really nothing more tban the rule
that private parties may select their own arbitrators and Bah{l'i assemblies are as eligible as any
other body. Thus, in many contlicts Bahl\'is may voluntarily agree to submit their dispute to either
an assembly or others for arbitration or mediation. It should be noted that an assembly docs not have
jurisdiction over all matters, even within the Baha'i administrative order. Moreover, even if it has
jurisdiction it may decide not to rule. Further, unlike arbitration, its decision is subject to appeal to
higher administrative authorities on open-ended grounds. See "By-Laws" Article X. An interesting
instance of grassroots arbitration conducted by the Babis, forerunners of the Baha'i Faith, was noted
in the last century: "In a land which has for years so savagely persecnted the Faith, a man who for
forty years has been known throughout Persia as a Babi, has been made the sole arbitrator in a case
of dispute which involves, on the one hand, theZi11u's-Sultan, the tyrannical son of the ,2h,\h and a sworn
enemy of the Cause, and, on the other, Mimi Fath- 'Ali KMn, the ,%hib-i-Divan. It has been publicly
annonnced that whatsoever be the verdict of this Bubi, the same should be unreservedly accepted by
both pmties and should be unhesitatingly enforced" (Nabil-i-A~'all1 77,e Dawnbreokers 155).
22 THE JOURNAL OF BAHA'I STUDIES 9.2.1999

Baha'i consultation requires special "conditions" for successful group
deliberation, such as "love and harmony," freedom from "estrangement," and
manifesting "the Unity of God" (Consultation 4). A second condition is turning
to "the Kingdom on High," a reference not only to God but also to a spiritual
nature inherent in humans rendering them capable of reflecting divine qualities
and asking "aid from the Realm of Glory," seeking divine assistance
(Consultation 4). Third, one must "proceed with the utmost devotion, courtesy,
dignity, care and moderation" in expressing one's views. Truth must be sought,
not blind insistence on personal opinion, and Baha'is must refrain from
belittling the opinion of others and should submit to majority will (Consultation
4). Certain inner qualities are necessary for those taking counsel together,
including "purity of motive, radiance of spirit, detachment from all else save
God, attraction to His Divine Fragrances, humility and lowliness amongst His
loved ones, patience and long-suffering in difficulties and servitude to His
exalted Threshold" (Consultation 3).
Consultation has a major role in resolving conflicts, in finding truth, and in
future civilization. 'Abdu'l-Baha tells us "[t]he question of consultation is of the
utmost importance, and is one of the most potent instruments conducive to the
tranquility and felicity of the people." Consultation is "of the utmost
importance" and, if successful "will have its effect upon all the world"
(Consultation 5). Baha'u'llah wrote that "[n]o welfare and no well-being can be
attained except through consultation," and that, in human beings, the "maturity
of the gift of understanding is made manifest through consultation"
(Consultation 1).

The Age of Transition
The third principle connected to the growth of conflict resolution was explained
in 1967 by the Universal House of Justice when it described the process of
human progress toward world unity:

We are told by Shoghi Effendi that two great processes are at work in the world: the
great Plan of God, tumultuous in its progress, working through mankind as a whole,
tearing down barriers to world unity and forging humankind into a unified body in the
fires of suffering and experience. This process will produce, in God's due time, the
Lesser Peace, the political unification of the world. Mankind at that time can be
likened to a body that is unified but without life. The second process, the task of
breathing life into this unified body-of creating true unity and spirituality
culminating in the Most Great Peace-is that of the Baha'is, who are laboring
consciously, with detailed instructions and continuing Divine guidance, to erect the
fabric of the Kingdom of God on earth, into which they call their fellowmen, thus
conferring upon them eternal life. (Universal House of Justice, Wellspring oj
Guidance 133-34)
The Conflict Resolution Movement 23

The Grassroots and the World Stage
Fourth and finally, the Universal House of Justice expressly commented on the
relationship between grassroots communication anel world events, noting that
"[a]mong the favorable signs [of a coming world peace] ... are the spontaneous
spawning of widening networks of ordinary people seeking understanding
through personal communication" (Universal House of Justice, The Promise ()t
World Peace 13-14). The growth of conflict resolution seems to be a prime
example of this development.

Toward the Maturity of Humankind
How does all this relate to the conflict resolution movement? To begin with, we
note the parallelism between the growth of conflict resolution and the
fundamental Baha'i principles of arbitration, consultation, and unity beillg
preferred over the existing adversarial systems. There is a manifest convergence
of the world's legal systems and the BaM' f principles enunciated a century ago.
How is this being accomplished? The Universal House of Justice explained in
1992 that the "powers released by Baha'u'llah match the needs of the times"
(Universal House of Justice, A Wider Horizon 138). This is the fuel behind the
remarkable convergence. The teachings of the Faith of BaM'u'11ah, spreading
through the world's population and embodying powerful new concepts and
remedies directly relevant to the ills of contemporary social life, are steadily
reshaping and reformulating social institutions. The conflict resolution
movement, then, arising parallel with Baha'i consultation, is the early dawn of
the principle of consultation among the masses, working its way through
humanity and transforming outdated systems designed to cope with conflict in a
more brutish age. As civilization progresses toward maturity, notwithstanding
enormous setbacks, humans must become skilled in resolving and, ultimately,
transforming conflict into unity, calling to mind the words of the Universal
House of Justice in 1992:

The burgeoning influence of Baha'u'Jlah's Revelation seemed ... to have assumed
the character of an onrushing wind blowing through the archaic structures of the old
order, felling mighty pillars and clearing the ground for new conceptions of social
organization. The call for unity, for a new world order, is audible from many
directions. The change in world society is characterized by a phenomenal speed. A
feature of this change is a suddenness, or precipitateness, which appears to be the
consequence of some mysterious, rampant force. The positive aspects of this change
reveal an unaccustomed openness to global concepts, movement towards international
and regional collaboration, an inclination of warring parties to opt for peaceful
solutions, a search for spiritual values. Even the [Baha' [ community J is experiencing
the rigorous effects of this quickening wind as it ventilates the modes of thought of us
all, renewing, clarifying and amplifying our perspectives as to the purpose of the
Order of Bah3.'u'll<lh in the wake of humanity's suffering and turmoil. (Universal
House of Justice, Wider Horizon 137)
24 THE JOURNAL OF BAHA'I STUDIES 9.2.1999

Conclusion
Social movements often rise and fall. Although conflict resolution has spread
quickly, so have other movements. What distinguishes conflict resolution is not
its rapid rise and global interest, not even, as uncommon as it is, its swift
enactment into written law around the world. What distinguishes conflict
resolution is its parallel with the rise of Baha'i principles, set forth more than a
century ago by Baha'u'Wih for the healing of nations and unification of
humankind. If Baha'i principles truly are the source of the movement, once the
masses become involved in their own struggle for mature resolution of conflict,
understanding the potential for transformation, which is just another way of
expressing spiritual growth and unity, there may be no turning back. Conflict
resolution's continued growth seemed assured when, in 1997, on the occasion
of the first graduation ceremonies for students at Landegg Academy, an
international Swiss-based university inspired by Baha'i teachings, the Universal
House of Justice directed its Department of the Secretariat to comment on
conflict resolution:

The Universal House of Justice ... [expresses] its pleasure in learning of the
forthcoming launching of your new Master's Degree program. Such an initiative
holds the promise of contributing significantly to the Baha'i community's efforts to
promote an ever deeper understanding of the complementarity and inseparability of
the spiritual and material dimensions of reality. The House of Justice is encouraged
too, by the program's intention of focussing on [the] study [of] moral development
and conflict resolution, which must rank high on humanity's agenda in the decades
immediately ahead. (Letter written on behalf of the Universal House of Justice to
Landegg Academy, 5 September 1997)
APPENDIX

A Survey of Recent Conflict Resolution
Legislation Worldwide
Steven Gonzales

part from the undeniable enthusiasm of its supporters, one of the more far-
A reaching effects of the conflict resolution movement has been its
propensity to become written law in so many disparate lands. Whether within
countries with common law, civil (Napoleonic), religious, or tribal traditions,
alternative dispute resolution (ADR), particularly mediation, seems to evoke a
response of friendly recognition. Indeed, with the possible exception of the
rapid adoption of Western-style commercial codes by Mideastern and Asian
countries in the early twentieth century, the stunning promulgation of ADR
provisions in the world's legal systems may have no parallel in legal history.
The following survey is intended to demonstrate the remarkable breadth of
the new ADR legislation, particularly impressive in Latin America and eastern
Asia. In Europe to date, ADR has had the effect more of rejuvenating existing
arbitration practice and legislation. However, since the mid-1990s, there is
increasing evidence that mediation and court-connected ADR may soon sweep
across Europe as it has already in North and South America.

Europe Generally
Despite recent signs of change, Europe just began seriously talking about ADR
in the 1990s. This late interest may be due to less-crowded dockets and greater
satisfaction with lawyers than in North America, or the extensive use of
arbitration in Europe. In 1998, Professor Karl Mackie of the Centre for
European Dispute Resolution noted recent growth of ADR in Europe and the
United Kingdom:

The last five years have seen a remarkable transformation in attitudes in the UK to
mediation use, a transformation that is steadily working its way into practice and into
legal procedures. I believe we will see similar developments across mainland Europe
over the next five years, indeed we are already watch1l1g the birth of these
developments ....
In continental Europe, there was the launch of a Nelherlands Mediation Institule in
1993, and mini-trial rules have also been promulgated by the Netherlands Arbitration
Institute and Zurich Chamber of Commerce. The International Chamber of
Commerce of course has had long-standing Conciliiltion rules illld has made recent
efforts to streamline its dispute procedures. The ICC Research Instilule :mcl the
French Committee of the ICC have in the meantime been helping to ensure that
debate takes place on the nature of ADR and commercial mediation practice. Finally,
26 THE JOURNAL OF BAHA'I STUDIES 9.2.1999

there have also been changes to civil courts in France and Greece in 1995
encouraging court-annexed mediation although I believe limited practical experience
to date. ("The Use of Commercial Mediation in Europe" 234)

Mackie pointed out another reason often given for Europe's belated interest in
ADR: resistance from European professionals. European professionals often
claim the practice of conciliation in arbitration cases is essentially North
American mediation. To this claim, Mackie responds:

In my experience the statement 'we do it anyway' usually rests on some lack of
knowledge or experience of how a structured mediation adds value to current
negotiation or judicial settlement efforts. However it is true that already much
informal conciliation occurs in the civil law countries particularly. However, this is
generally not as structured or institutionalized as in recent common law
developments. (Non-commercial mediation in family, community and labour disputes
is often more structured.) ("Use of Commerical Mediation" 235-36)

Mackie is right. Conciliation is a feeble substitute for mediation. Insistence they
are the same only highlights a profound misunderstanding, not unlike the debate
between mediators and the dwindling numbers of North American lawyers and
scholars unfamiliar with mediation.
Conciliation is little more than an arbitrator determining if the parties will
settle. It is more formal by requiring positions (an anathema to mediators) and
adhering to rules, and it is less formal (again, completely out-of-step with North
American mediation) by requiring no skills training for the management of
conflict. Europeans have little or no training in mediation, and there is no sense
of a distinct discipline, with professional associations, stand-alone or court-
annexed programs, training standards, ethical schemes, conferences, texts,
journals, and advanced degrees distinct to the field. There is no profession of
"conciliator," just arbitrators occasionally assisting litigants to settle.
Conciliation in Europe resembles a North American judicial settlement
conference. The settlement judge does not hesitate to render an opinion, often
brutally assessing perceived weaknesses in the strength of the case presented by
each litigant. The concept of transformation seems as misplaced as therapy in
the courtroom.
Of course, Americans are in no position to gloat. The collapse of confidence
in the judicial system, frustration with overcrowded dockets, a disrespected
legal profession, and litigiousness-all causes for the inception and growth of
the American ADR movement-are hardly a source of national pride. It is
rather more like a disease. The site where the disease hits first is likely to be the
site of research on vaccines.
Another factor is Europe's tradition of arbitration. European lawmakers,
jurists, and lawyers struggle with the concepts of process specialist, facilitated
Recent Conflict Resolution Leg islat;on 27

decision-making, and an absence of third-party decision makers. Despite a long
history of negotiation, arbitration has dominated the twentieth-century European
ADR landscape. More recently, Europe has embraced the ombudsman, who
assists parties to reach agreement, but who freely expresses opinions and
sometimes renders decisions. As a result, professionals from Europe and regions
with systems based upon the European systems see less value in neutrality and
transformation. The notion of a nonprofit community mediation center existing
without being a court-annexed tool for "out-of-court settlements" is quite
unfamiliar to Europeans and most others outside the United States.
Traditionally, arbitration is well accepted in commercial and, more recently,
in consumer disputes, particularly in European Union (EU) countries. Not
surprisingly, it in is those areas that European ADR initiatives are arising.
Michel Gout, president of the European Council of Bars and Law Societies of
the European Community points to a November, 1993, "Green Paper," a
comparative study of EU nations on the acCess of consumers to justice and the
settlement of consumer disputes:

[1]n most of the Member States, out-of-court procedures are in a large majoriLY
specifically devoted to consumer disputes .. These procedures are sometimes an
alternative Lo going to court (arbitration of consumer disputes) but more oftcn they are
complementary or pre-litigalion procedures (mediation and/or concilialion) ....
[M]ost Member Stales have adopted a sector-related approach. Normally, inilialives
are taken in a specific economic sector (bank, insurance, telecommunications, etc.).
Sometimes it is the public administration (for instance in the United Kil1gLlom) thal
sets up the structure, sometimes they are established unilaterally, and sOllleti mes alkr
"negotiation" with consumer organisations.
In some Member Slates, the body responsible for dealing wiLh such alternative
dispute resolution is a public entity (for instance, the Consumer Complaints Board in
Denmark), but in most countries it is a private body (permancnl or temporary,
consisting in one or several members). The method used for the body's desigllalion
also varies from state to state, in the case of collegial bodies, C0l1S11l11el' and
professional organisations are normally represented, as well as 1l1e legal slalus or
professional associations' membership ....
Regarding the legal effects or such out-of-court procedures, there are also
significant differences, ranging from a simple recommendation (in the case or mosl
private ombudsmen), to a decision binding upon the professional party bUl not upon
the consumer (see for instance the bank ombudsman in most of the Member States).
to an arbitrator's decision binding upon bOlh parties. (Goul, "Trade Pacts" 24)

The European Commission's second report, issued in 1996, supported oUl-
of-court settlement and conciliation procedures for consumer disputes. it
found a need for "transparency" of procedures, independent bodies dealing
with the disputes, impartiality, effectiveness, accessible language, respect for
rules of the consumer's country, and strict applicability of contractual terms.
28 THE JOURNAL OF BAHA'i STUDIES 9.2.1999

Despite increased awareness of mediation, the report still found there should be
a decision binding on "professionals" but not on consumers.

Austria
Austria is well known for commercial arbitration legislation dating back to its
1895 Code of Civil Procedure. More recently:

[TJhe chamber of commerce in Austria have provided for arbitration which was at
first instance primarily designed for settlement of disputes between members. In the
early '70s Austria became increasingly used as a neutral venue for international
commercial disputes. As a result, in 1975 the Federal Economic Chamber of
Commerce of Austria set up an Arbitral Centre for the settlement of disputes of an
economic nature if at least one of the parties has its place of business outside of
Austria. This initiative has been well received by international business circles.
In 1980 a group of specialists in international arbitration from the United States,
Hungary and Austlia ... studied the Austrian law and practice of arbitration in order
to investigate whether they were workable for international arbitration. As a result of
this work the Federal Economic Chamber made a series of proposals for amendment
of provisions in the Code of Civil Procedure which have to the largest possible extent
been taken into consideration in the Federal Law of February 2, 1983 concerning
Provisions on Civil Procedures, in force since May 2, 1983. (Melis, A Guide to
Commercial Arbitration in Austria 2)

The Austrian arbitration rules of conciliation are similar to many other
European arbitration rules of conciliation. Either party may request conciliation.
Once a disputant requests conciliation, the other disputant has thirty days to
respond. If the latter rejects conciliation or fails to respond in a timely fashion,
the conciliation ends. If the responding disputant accepts the request, the
arbitration board nominates one of its members or another "qualified person" to
serve as conciliator. The conciliator studies the record and convenes a hearing
where disputants submit settlement proposals (Rules of Arbitration and
Conciliation of the International Arbitral Centre of the Austrian Federal
Economic Chamber, Articles 1-5). If resolution is reached, the disputants sign
an agreement. If no agreement is reached, the conciliation is considered to have
failed. In a provision reflecting heightened understanding of mediation,
statements made during the conciliation "shall not bind" disputants in
subsequent arbitrations (Rules of Arbitration, Article 5). The usefulness of this
scheme is questionable, however, since disputants must initiate proceedings.
This inhibits disputants from negotiation for fear of appearing weak or being on
shaky legal grounds. Systems permitting third-party neutrals to initiate
settlement talks avoid this problem altogether.
Recent Conflict Resolution Legislation 29

Belgium
As of the 1993 European Union Green Paper, Belgium had an arbitration
procedure established by consumer organizations and professional bodies in the
three commercial market sectors of travel agencies, laundries, and furniture
sales. The arbitrator's decision is binding on all parties, and a consumer electing
to go to arbitration must pay a sum based on the value of the dispute.
In banking and finance, several professional organizations have established
nonbinding ombudsman procedures. Public services such as mail, telephone,
and railway have ombudsman services through the Act of March 21, 1991. The
Royal Decree of December 12, 1991, created appeals to an arbitration
procedure.
On August 17, 1998, a new law came into effect reviving a form of
arbitration known as amiable compositeur .. Under this law, contracting parties
may agree that in the event of a dispute arising out of their contract, the
arbitrator may rule on fairness, not just written laws. Although not mediation,
the new law may permit arbitrators more flexibility in working toward
settlement.

Denmark
Denmark has a public Consumer Complaints Board for arbitrating consumer
disputes. Board decisions are not legally binding, but the business community
generally abides by its decisions. In November, 1997, a Board committee
recommended reforms eliminating lawyers in small claims cases.

France
According to Gout, France has only very recently "seen the development of an
alternative system of dispute resolution" ("Trade Pacts" 38). He speculates that
interest in ADR in France stems from a combination of factors, including the
"Anglo-Saxon influence," the delay and high cost of courts, [he unsuitability of
the courts for settling small claims, and the fact that legislatures do not want to
increase the number of judges.
It appears France, which has a very sophisticated legal system, now also has
one of Europe's most comprehensive, legislative ADR and local mediation
schemes. In the courts, there are two mediation provisions (Gout, "Trade Pacts"
40). The Code du Procedure de Penale, Article 41, enacted January, 1993,
provides for some limited mediation in criminal cases. In civil cases, France has
a new procedure that is perhaps Europe's closest example of court-annexed
ADR:

The provisions of Articles 131-1 et sequitur in the Code du Procedure Civi/ [Codc
on Civil Procedure] have more to offer on this subject. Once court proceedings have
been started, either before the Tribunal or a Court of Appeal, the judge handling a
30 THE JOURNAL OF BAHA'f STUDIES 9.2.1999

case can decide to send it for mediation. The parties must agree to this. The judge will
fix a time limit for the mediator and will also predetermine his fees. The mediator will
listen to both parties and third parties. It is the parties themselves who, under the
guidance of the mediator, will find a compromise, which the mediator will send to the
judge for endorsement. If the parties do not arrive at a solution, the mediator will
inform the judge and the court process will continue as before. This original
institution is in favor with the judicial establishment and just recently the Paris bar
has made its own contribution. There is no doubt that this process is likely to have a
great future. It combines all the advantages of mediation with the security of being
overseen by a judge within the court system. (Gout, "Trade Pacts" 40)

In consumer disputes, a French official "facilitate[s], to the exclusion of any
legal procedure, an amicable settlement of rights the interested parties" (Gout,
"Trade Pacts" 38). Conciliators are based in every canton and, like North
American mediators, emphasize informality (Decree of 2010211978, Article 1).
Since 1977, there has been a post office box for consumer complaints against
business in France, "BOlte Postale 5000." A government agency follows up with
a conciliation investigation. Similar to the format noted in other European
systems, there are also conciliation committees composed of consumer and
professional representatives.
Another consumer procedure is the "Overindebtedness Committee." These
committees assist debtors and creditors reach amicable resolutions. The
committees are composed of government and consumer representatives.
Support services are provided by the Bank of France. The committees assess the
degree of indebtedness, then facilitate and draft settlement agreements (Code de
Consommation, Act of 31112/1989, Article L 331-1). Also in commercial
matters, the Paris Chamber of Commerce and Industry sponsors a mediation
and arbitration center, Centre de Mediation et d'Arhitrage de Paris, available to
its more than 250,000 members.
In labor-management affairs, the Code du Travail, Article L 524-1, permits
the president of a Labor Law Tribunal hearing a collective bargaining dispute to
select a mediator. French labor mediators have investigatory powers and may
draft proposed resolutions, which, if disregarded, may be made public by the
Minister of Labor. Although this is dissimilar to North American community
mediation, United States labor-management mediators are also granted
extensive powers (Gout, "Trade Pacts" 38). This is largely due to national
security concerns historically associated in both nations with
labor-management legislation.

Germany
Germany's Chamber of Trade and Industry processes 10,000 complaints
annually. It is estimated that ninety percent of these complaints are settled
amicably. The Federal Association of German Banks established an
Recent Conflict Resolution Legislation 31

ombudsman procedure in 1992. Consumer complaints noL settled within one
month's time are referred to an ombudsman. Decisions on disputes concerning
amounts under 10,000 Deutsche Marks are binding 011 the banks, but not on the
consumer (Gout, "Trade Pacts" 27).

Greece
In addition to the 1995 court-connected mediation act mentioned by Mackie, a
Greek Government Act of September, 1991, created local three-member
conciliation committees composed of consumn, legal, and business
representatives. The committee renders a nonbinding opinion that must be
considered by any reviewing tribunal (Gout, "Trade Pacts" 28).

Hungary
Because of its anticipated application to domestic cases, the passage of a new
arbitration act may mark the beginning ofa Hungarian ADR movement. Act
No. 71 became effective on December 13, 1994. Commercial arbitration "has a
long tradition in Hungary [and its] legal basis was laid down for the first time in
Act No.1 of 1911 on Civil Procedure. This 1911 Civil Procedure
Code ... Chapter 17, contained twenty-two articles (Articles 767 and 788) on
arbitration" (Horvath, "The New Arbitration Act in Hungary" 1(0). The new
Hungarian act provides for conciliation rules similar to those in other European
arbitration codes. However, it appears to limit conciliation to instances where
"arbitral proceedings have not yet been instituted." Paradoxically, the arbitral
court is authorized under the act to "conduct proceedings in respect of those
cases which would belong to its jurisdiction even if the parties have not
concluded an arbitration agreement" ("Rules of Proceedings of the Court of
Arbitration Attached to the Hungarian Chamber of Commerce and Industry, ,.
Article 45[1]); hereafter "Hungarian Rules."
Also similar to other European codes, the conciliation rules are based on the
idea that one of the disputants will initiate conciliation with the arbitration
court. The court forwards the request to the opposing disputant who has thirty
days to respond. The opposing disputant may decline participation, fail to pay
its share of a conciliation fee, or simply not respond within thirty days. In such
cases, the conciliation ends ("Hungarian Rules," Article 45[2]).
If the disputants agree to conciliation, the president of the arbitration court
appoints a conciliator from the list of available arbitrators. The conciliator
considers the record, invites the disputants to present oral arguments, and then
proposes a "peaceful settlement of the dispute." ]f the disputants are able to
negotiate a settlement agreement, the resolution is recorded in the minutes. If no
agreement is achieved, the proceedings are terminated. Statements made in the
course of conciliation proceedings are "not binding" on the disputants and
inadmissible in subsequent arbitration proceedings. The conciliator is
32 THE JOURNAL OF BAHA'i STUDIES 9.2.1999

disqualified from later serving as an arbitrator, representative, or advisor in an
arbitration proceeding in the same case. This affords considerably more security
and incentive to the disputants to submit settlement offers ("Hungarian Rules, "
Article 45[3]-[5]).

Ireland
Insurance and credit claims smaller than designated amounts are eligible for
ombudsman assistance. Similar to other European Union nations and Better
Business Bureau organizations in the United States, membership in Irish
business arbitration is voluntary. Decisions of the ombudsman are binding on
the businesses using the system, but not on the consumer who may seek relief in
the courts (Gout, "Trade Pacts" 29).

Italy
Arbitration schemes exist for banking, telecommunication, and
government-citizen disputes. The telecommunication scheme was created in
1989 as a pilot project in Sicily and Lombardy. The consumer must first exhaust
the telecommunication company's complaint procedure. Consumers may refer
disputes to regional conciliation committees, composed of one company and
one consumer representative. This structure violates the "impartiality" aspect of
the North American mediation model and resembles labor-management fact-
finding systems in the United States and Canada (Gout, "Trade Pacts" 29-30).
The committee is authorized to file a statement of conciliation or
nonconciliation. After this stage, the system reverts to the familiar European
consumer arbitration model. If there is no conciliation, the consumer may take
the dispute to an arbitrator who has jurisdiction up to a specified amount of
damages claimed (Gout, "Trade Pacts" 30).
The Italian Banking Association has created an ombudsman body available to
consumers for disputes below a specified amount. Decisions are binding on
banks, but not on consumers. Similar systems exist for advertisement. (Guirdi
autodisciplina pubblicitaria) and citizen-government (Difensore Civico)
disputes, except for the decision of the ombudsman, the Difensori Civici, is not
binding on the government (Gout, "Trade Pacts" 30).

Luxembourg
The noteworthy ADR procedures in Luxembourg concern banking and
finance. An Act of April 5, 1993, permits the Luxembourg Monetary
Institute, which regulates banks, to help banks and consumers settle
disputes. The regulatory agency may not be in a position to be seen as a
true third-party neutral according to the North American mediation model
(Gout, "Trade Pacts" 30-31).
Recent Conflict Resollltion Legislation 33

The Netherlands
In addition to the 1993 Netherlands Mediation Institute noted by Mackie, the
Netherlands have instituted the Vernsneld Regime, a system to speed up court
actions, similar to summary jury trials in the United States. It applies only to
civil cases (Gout, ''Trade Pacts" 31).
Nonbinding ombudsman decisions are available in the life insurance and
banking industries. Binding arbitration is available to parties who elect to
submit a dispute to a body known as the Geschillencol17711issie. This body is
composed of one representative each from the consumer, business, and
"impartial" sectors. The consumer is first required to exhaust the company's
complaint procedures before submitting the dispute to the Geschillencommissie.
The legal, medical, notary, and real-estate professions have established
disciplinary boards authorized to issue binding decisions in disputes involving
clients, patients, and customers (Gout, "Trade Pacts" 30).

Portugal
The Portuguese have established a number of voluntary community arbitration
bodies to hear consumer cases. Several large companies, such as the Portuguese
Post and Telecommunication Company, have created ombudsman offices to
handle consumer complaints (Gout, "Trade Pacts" 32). The Lisbon municipal
government, the National Institute for Consumer Protection, and the Portuguese
Consumer Protection Association established an experimental community
arbitration center in 1990. The board first attempts conciliation. If successful, a
lawyer drafts an agreement. If not, the matter is submitted to an arbitrator for an
award that has the legal effect of a court judgment (Gout, ''Trade Pacts" 32).

The Russian Federation
Russian law creates an international commercial arbitration tribunal,
recognizing

the usefulness of arbitration tribunal (court of arbitratiol1) as a widely used way of
settling disputes arising in the practice of international trade, and for thc necessity for
comprehensive definition of an international commercial arbitration tribunal in the
legislative norms; takes into account statutes of such an arbitration tribunal contained
in international treaties of the Russian Federation as well as in the basic law passed in
j 985 by the United Nations Commission on rights in intcrnationaltracie and approved
by the UN General Assembly for possible LIse by states in their own legislation.
(Preamble, Law of the Russian Federation on [sic] International Commercial
Arbitration Tribunal)

Conciliation is provided for in Russian law in much the same fashion as in other
European arbitration codes:
34 THE JOURNAL OF BAHA'i STUDIES 9.2.1999

1. If in the course of the arbitration proceedings the parties settle their dispute, the
court of arbitration ceases proceedings and by request of the parties and in the
absence of its own objections formalizes this settlement as an arbitration
decision on the agreed conditions.

2. The arbitration decision on the agreed conditions must be taken in accordance
with the terms of Article 31 and must contain a mention of it being an
arbitration decision. Such an arbitration decision has the same validity and is
subject to implementation in the same way as any other arbitration decision on
the essence of the dispute. (Preamble, Law of the Russian Federation
on [sic] International Commercial Arbitration Tribunal, Section 6, Clause 30).

Spain
Article 51 of the Spanish Constitution requires the government to protect the
safety, health, and economic interests of consumers. Act 26 of 1984 created
consumer arbitration. Subsequent measures provide for arbitration by local
prelitigation bodies. The parties are free to write conciliation or mediation into
their agreement, and the arbitration committees (Colegios Arbitrales) issue
binding decisions. Businesses agreeing to this process attach official stickers to
their products for consumers to identify them. Similar to the German system,
Spanish banks refer any consumer dispute to arbitration if it is two months old
and has not reached settlement (Gout, "Trade Pacts" 28).

Switzerland
Swiss domestic law has elements of court-connected ADR built into the
procedures:

In most cantons, there are several courts of first instance and one court of second
instance hearing appeals and recourse on points of law and, depending on the canton,
on facts as well. In four cantons, commercial courts act as the sole cantonal instance
in commercial litigations. In many cantons, the submission of a case to either the
court of first instance or to the commercial court has to be preceding [sic] by a fOlmal
procedure, mainly for conciliatory purposes in front of a Justice of the Peace. (Wyss,
"International Commerical Litigation in Switzerland" 144)

On January 1, 1989, the new Swiss Private International Law came into
effect. It applies to international arbitration cases that involve at least one
disputant who is not a Swiss resident at the time of the arbitration
agreement, and provided a Swiss location for the arbitration is selected.
Disputants are given wide latitude under the act to write their own
arbitration rules. In the absence of contractual provisions, the act employs
canton codes, ICC, UNCITRAL, or other rules.
R e c e n teo nfli c t Res 0 l uti 0 n Leg is l a t ion 35

The United Kingdom
The Consumer Arbitration Agreement Act of 1988 permits consumers, instead
of the courts, to elect arbitration, without completely forfeiting access to court.
The closing off of access to the courts is one reason why arbitration fails to bold
the same attraction in the United States as it does in Europe. The United States
constitutional system and statutory tendency to analyze disputes from a
standpoint of individual rights, of which the judiciary is the historical protector,
particularly against government intrusion, makes arbitration appear to be a
dangerous gamble or a way ·for cunning opponents to cut off access to the
courts. The British Office of Fair Trading also authorizes trade associations to
develop arbitration procedures for member businesses.

Latin America
One writer recently described ADR in Latin America as "mushrooming with
force," and now a "powerful and stabilized trend," tied to a "crisis" in "legal
systems, with overloaded courts and dissatisfaction with judges, lawyers and
lawmakers";

In the last two years, in Argentina, centers for conflict [r]esolutioll and teaching
mediation mushroomed, while Brazil-after the Arbitration law was passed by
Congresss-is showing a similar boom. Ecuador, Peru, Chile, Uruguay, Bolivia anel
Paraguay are showing slower but steady growth. (Ponieman, "ADR-The Tip of the
Iceberg" 79)

In recent years, J enjoyed several ViSits to Latin America and trained
Venezuelan Justices of the Peace (Jueces de Paz) in mediation. Venezuela has
new legislation mandating the provision of mediation services throughout the
nation by justices of the peace who serve specific geographical districts.
Community disputes, not necessarily in litigation, may be referred to a justice.
The justice first tries conciliation. Failing that, the justice is empowered by law
to render a decision.
In North America, this procedure, known as Med-Arb, is generally seen as
bordering on unethical because it conflicts with the principles of mediator
confidentiality and neutrality. If the mediator may at some point become a
decision maker, this inhibits the disputant from talking for fear the information
may be used against the disputant by the ex-mediator, now arbitrator. Moreover,
the transformation goal that mediation holds for many is lost whcn the mediator
becomes the decision-making authority. Nevertheless, the systcm is probably an
improvement over inaccessible litigation, particularly where a society lacks
sufficient resources to train and maintain mediators and decision makers.
Several major ADR conferences have been held in Argentina, Bolivia, and
Costa Rica in recent years. Latin America, as elsewhere in the world, has
experienced both confusion and a steadily growing understanding:

In all Latin American cOLlntries the ADR movement and specially mediation is
growing at the full-fledged level now. (Alvarez, "The Americas" 304)
36 THE JOURNAL OF BAHA'i STUDIES 9.2.1999

[R]esearch calTied out in Latin America as well as in the USA, shows that there is
not one unique expression to distinguish different procedures, techniques and
institutes included under the name. of ADR. [T]heir [sic] is a certain interest in
making this diversity of concepts technically clear. ...
This is exactly what is happening with the terms mediation and conciliation, which
in some countries are being used as equivalents; and in other [sic] denote similar
though not identical procedures (e.g., the conciliator is able to propose a conciliatory
formula, the mediator is not allow[ed] ... to do so). Professor Pena Gonzalez
explains that some Latin American countries have followed the Colombian school,
more pragmatic than theoretical naming both two [sic] procedures as mediation. On
the contrary, Argentina has opted for Mediation to name mediation and Conciliation
to name conciliation, following a clear conceptualization of jUlidical ideas. (Alvarez,
"The Americas" 299)

Argentina
In 1991, Argentina developed a National Mediation Plan resulting in the
National Mediation and Conciliation Statute N 24.573, which came into effect
in Buenos Aires, April 23, 1996. The law establishes Argentina in the forefront
of Latin American ADR programs with a five-year program that compels
mediation before any lawsuit is filed. Eligible mediators must be listed on the
Ministry of Justice's list. To be eligible for the list, a mediator must be a lawyer
with at least two years' experience and have seventy-eight combined hours of
course work and training. Confidentiality is preserved, and any applicable
statute of limitations is tolled (suspended) during the mediation proceeding. The
compulsion is real; in a move certain to evoke honor among North American
mediators, there is a fine for failure to participate (Alvarez, "The Americas"
299-300).
The program has generated impressive figures. As of March, 1997, 75,010
cases were selected for mediation from the Civil Court of Appeals, with only 23
per cent returned to trial. From the Commercial C0U11 of Appeals, 29,986 (or
about 30 per cent) were returned to trial and similar success achieved in the
Federal Civil Courts. Another important development is Argentina's plan for
community mediation centers. Buenos Aires's constitution expressly endorses
community mediation. In 1993, Buenos Aires's neighborhood legal centers
began offering community mediation (Alvarez, "The Americas" 299-301).

Bolivia
Bolivia enacted arbitration and conciliation legislation (Act No. 1770) in
March, 1997. The Ministry of Justice administers "Institutional Conciliation
Centers" pursuant to the act. The chambers of commerce in La Paz, Santa Cruz,
and Cochabamba have also created arbitration and conciliation programs for
businesses (Alvarez, "The Americas" 303).
Recent Conflict Resolution Legislation 37

Brazil
Brazil enacted a new Arbitration Statute No. 9307, September 23, 1997. The
Act governs arbitration in Brazil but has incre.ased interest in ADR generally. ]n
November, 1997, the Corte Brasileira de Arbitagem. Comercial (commercial
arbitration court) was established in Brasilia. There are a number of other
commercial arbitration programs offered in Brazil's larger cities (Alvarez, "The
Americas" 303).

Chile
Chile's Ministry of Justice has established community mediation centers in
recent years. The Santiago Chamber of Commerce has a mediation, arbitration,
and conciliation program (Alvarez, "The Americas" 303).

Colombia
Colombia has established a remarkable 140 conciliation and arbitration centers.
Some are annexed to law schools; others are connected to chambers of
commerce; and still others are with nongovernmental organizations. Act No. 23
of 1991 was the enabling legislation of these centers (Alvarez, "The Americas"
303).

Costa Rica
Costa Rica enacted the "ADR and Social Peace Promotion Act," No. 7727, in
November, 1997. Unlike most other world programs, Costa Rica is
experimenting with the use of ADR in criminal cases. A three-year family
mediation project ended in San Jose in 1997, sponsored by the United States
Agency for International Development (Alvarez, "The Americas" 303-4). Any
published studies of this project were not available to this author.

Ecuador
Ecuador's Constitution of 1996 formally recognized ADR. Mediation is closely
connected to arbitration procedures in Ecuador. In a noteworthy example of
mediation's power to mobilize the grassroots, fifty mediators from forty
different communities have been trained to offer community mediation services.
One important development involved Ecuador and Peru. Both nations agreed to
submit South America's oldest extant running border dispute to arbitrations
from several other nations (Schemo, "Peru and Ecuador Agree to Put Border
Dispute in Outsiders' Hands").

Guatemala and Peru
Guatemala and Peru enacted conciliation legislation in October, 1997, ane! a
number of arbitration, mediation, and conciliation centers have since been
established in both countries (Alvarez, "The Americas" 304).
38 THE JOURNAL OF BAHA'f STUDIES 9.2.1999

A Word on NAFTA
An important development in the Americas advancing ADR is the North
American Free Trade Agreement (NAFTA) involving Canada, the United
States, and Mexico, signed on December 17, 1992. The U. S. Congressional Act
implementing the treaty as part of U.S. law is P.L. 103-182, 107 Stat. 100, 33
U.S. Sections 100 et. seq. The treaty can also found in its entirety with
annotated commentary, supplementary materials and case decisions rendered
under the treaty's Dispute Settlement chapter in a three volume set, North
American Free Trade Agreements. Chapters 19 and 20 of the NAFTA Treaty
provide for the creation of binational dispute resolution panels hearing
arguments and rendering decisions on disputes arising under the Treaty.
According to the statistics of the Mexican Trade Secretary (Secci6n Mexicana
del Secretariado de los Tratados de Libre Comercio), as of November, 1997,
there were thirty-five cases alleging that decisions of agencies of the signatory
nations had violated the Treaty.
Article 2022 of NAFT A establishes an Advisory Committee on Private
Commercial Disputes to promote ADR and arbitration for private disputes
arising under NAFTA. The committee is made up of public and private
representatives from the three NAFTA nations. Another development is the
Commercial Arbitration and Mediation Center for the Americas, jointly
established by the American Arbitration Association, the British Columbia
International Commercial Arbitration Center, the Mexico City National
Chamber of Commerce, and the Quebec National and International Commercial
Arbitration Center. Its goals are to handle disputes arising under NAFT A.

The Carib bean
Trinidad and Tobago
The Caribbean nations of Trinidad and Tobago use both arbitration and
mediation:

Commercial disputes in Trinidad and Tobago are usually resolved by negotiation or
by the judges of the Supreme Court. Parties, however, also have the option to refer
their dispute to arbitration or to use other forms of dispute resolution, such as
mediation, which are becoming more widely accepted. (Hamel-Smith, "Resolving
Commercial Disputes in Trinidad and Tobago" 148)

The Mideast and North Africa
At least some writers conclude the conflict resolution movement is begilming to
take hold in the Mideast:

The Middle East comprises different systems of dispute resolution in civil and
commercial matters. Some systems are witnessing a radical change and development
in the techniques and rules of dispute resolution, and some others are still at the
bottom line with a suspicious look to arbitration and other ADR techniques. (Aboul-
Enein, "The New Trends in the Field of Dispute Resolution in the Middle East" 133).
Recent Conflict Resolution Legislation 39

Egypt
Egypt first joined the New York Convention in 1959, just a year after the
Convention's promulgation. Subsequently, Egypt founded the Cairo Regional
Centre for International Commercial Arbitration.
A year later, an international arbitration agreement governing multinational
commercial transactions was signed. The agreement, known as the Asian
African Legal Consultative Committee (AALCC), included Bangladesh, China,
Cyprus, Gambia, Ghana, India, Indonesia, Iran, Iraq, Japan, Jordan, Kenya,
Kuwait, Libya, Malaysia, Mauritius, Mongolia, Myanmar, Nepal, Nigeria,
Oman, Palestine, Pakistan, Qatar, Saudi Arabia, Senegal, Sierra Leone,
Singapore, Somalia, South Korea, Sri Lanka, Sudan, Syria, Tanzania, Thailand,
Turkey, Uganda, the United Arab Emirates, and Yemen, with Botswana as an
associate member (Aboul-Enein, "The New Trends" 134).
In 1978, the AALCC decided to establish arbitration centers in member
states. The Cairo Centre was selected as one of the sites. The UNClTRAL Rules
are used by Egypt in administering AALCC cases. A new Egyptian Law for
International Commercial Arbitration, Act No. 27 of 1994, was enacted, similar
to the UNCITRAL model law, applying to private and public contracts (Aboul-
Enein, "The New Trends" 134-35).
Abu-Dhabi, Bahrain, Dubai, Egypt, Lebanon, Kuwait, Saudi Arabia, and
Yemen, as well as Morocco and Tunisia in North Africa, have established
arbitration centers. Bahrain also has a "Centre for the Gulf States" established
by the High Council of the Arab States of the Gulf in 1993, designed to bear
arbitration disputes between Gulf states and between Gulf and non-Gulf slates.
Its other arbitration program was created by Decree No.9, 1993, and is modeled
on the UNCITRAL rules (Aboul-Enein, "The New Trends" 142-44).
Dubai's Chamber of Commerce and Industry created its current arbitration
program in 1994. It provides both arbitration and conciliation procedures.
Similarly, programs in Abu-Dhabi, Kuwait, and Saudi Arabia were created by
their national chambers of commerce. Since 1995, Kuwait has had a system of
judicial arbitration in its Ministry of Justice, for domestic cases. The Lebanese
arbitration program of 1995 closely parallels the ICC Rules of Arbitration and
Conciliation. A second Lebanese center follows the UNCITRAL rules. They
have recently announced plans to unify (Aboul-Eneill, "The New Trends"
139-46).
There are no reported published international cases from the Bahrani, Dllbai,
Kuwaiti, Tunisian, Lebanese, Yemeni, or Moroccan programs, although several
have reported domestic decisions. This raises serious questions as to the
acceptance of Mideast arbitration and conciliation centers by international
business, commerce, and industry (Aboul-Enein, "The New Trends" 142-44).
40 THE JOURNAL OF BAHA'I STUDIES 9.2.1999

Sub-Saharan Africa
Recently, the American Bar Association's Dispute Resolution Section, Business
Law Section, and Executive Director's Office, together with the District of
Columbia's Superior Court, sponsored a month-long training program including
a dispute resolution curriculum for judges from Tanzania, Uganda, Malawi, and
Zambia. Nigeria and Ghana have a growing number of academic scholars
researching dispute resolution programs. The most extensive mediation efforts
in sub-Saharan Africa exist in South Africa. Indeed, it is probably fair to say
South Africa has been in the forefront since the 1980s, using mediation in a
wide variety of disputes.

Asia and the South Pacific
Both arbitration and conciliation experienced rapid growth in Asia in recent
years. "Arbitration ... flourishes in Korea, Malaysia, New Zealand and in
Thailand. Substantial interest in arbitration has been expressed in Vietnam and
less than a year ago the first ICC arbitration [was conducted] in Laos" (Kaplan,
"Dispute Resolution in Hong Kong" 122).

Hong Kong
Hong Kong, in particular, has embraced the dispute resolution movement:

It is a sobering thought that only 13 years ago the total number of international
arbitration cases handled by the Hong Kong International Arbitration Centre ... and
the China International Economic Trade and Arbitration Commission ... was only 46
cases in the year. However, by 1995 this total had become 1100 new cases in that
year-2.5 times the number of cases handled by the International Chamber of
Commerce in Paris and something like 10 times the number of cases handled in that
year by the London Court of International Arbitration. . .. (Kaplan, "Dispute
Resolution" 118)

Hong Kong enacted amendments to its arbitration law in 1996 in one of the
colonial Attorney General's last actions plior to the return of Hong Kong to the
People's Republic of China. Mediation is also obtaining more attention. The
1996 arbitration amendments declare in Section 2 that "conciliation" and
"mediation" are interchangeable terms. Despite an impressive Chinese tradition
of informal conciliation, formal conciliation has a more recent history in Hong
Kong:

[Iln 1982 the Arbitration Ordinance, for the first time, made reference to conciliation.
The provisions relating to conciliation were strengthened by amendments, which
came into force in 1990. Conciliation has, as is well known, always been a crucial
feature of dispute resolution within China. Prof. Tang Houzhi has frequently stated
that conciliation and arbitration are part of the same organic process. Indeed [China
Recent Conflict Re.w/ution Legislation 41

International Commission] arbitrators will frequently attempt to conciliate a case~
often right in the middle of the arbitral hearing. (Kaplan, "Dispute Resolution" 122)

Hong Kong lawyers seem to be gaining an awareness of the problem with
having mediators in the position of making rulings:

The combination of mediation and arbitration is known in this country through
Med-Arb. We made a provision in Hong Kong that enables an arbitrator, only with
the continuing consent of the parties, to act [as] a conciliator ane! to return to thc
arbitral role if the conciliation is unsuccessful. With regard to disclosures made to
him during the course of the conciliation, he is bound to keep those confidential, but
if the arbitration resumes, he must make such disclosure as he thinks it necessary in
the interest of justice. Although this combination of arbitration and conciliation,
brings shock and horror to the lips of mo~t common lawyers, nevertheless, [
emphasize that this provision is solely consensual and can work if both parties have
substantial confidence in the ... person. (Kaplan, "Dispute Resolution" 122)

Despite this confusion, mediation is obviously obtaining interest in Hong Kong.
One recent measure expressly included a comprehensive dispute-resolution
procedure:

A great boost for mediation came with the decision to build the new airport at Chek
Lap Kok. In order to get to the new airport from Hong Kong Island, it was necessary
for there to be a third harbour tunnel, a new rail and road link, two bridge., amI a
North Lantau Expressway ....
All these infrastructural projects ... came under the umbrella of the Airport Core
Program (ACP). All the main contracts were let by government. Four stages of
dispute resolution were provided for. Firstly, there was supervision and dccision of
the engineer. If that was not acceptable then the parties were mandated to attempt a
mediation process. The Mediation rules were scheduled to the contract. The rules
provided for mediation to be administered by [the I-long Kong Centre] ..Mediation was
a condition precedent before proceeding to the next tier of ciispute resolution. The
intent was that mediation wm: to be over within 45 clays. H one party reCused
participation in the mediation, the procedure was deemed over at the end of the 45
day period. (Kaplan, "Dispute Resolution" 123)

The third stage was adjudication by an expert appointed by the Hong Kong
Centre, followed finally by arbitration. And, in a change demonstrating
awareness of the elements of mediation:

We have found that in both ACP and non-ACP cases, the mediation procedure has
been successful. A case is not always settled c1uring the course of the mediation
procedure itself but many have scttled on the basis of the I'ecommendation made by
the mediator ... under the Mediation Rules, the parties can require the mediator in
cases where settlement is not agreed to give a recommendatioll. That recommendation
42 THE JOURNAL OF BAHA'i STUDIES 9.2.1999

then forms a basis of subsequent negotiations which then leads to a successful
conclusion. I believe that the requirement that the mediator gives a recommendation is
antithetical to the whole mediation process. Because the mediator knows that this is a
a possibility he starts the mediation in quasi-adversarial mode and the parties, who are
trying to get the best recommendation possible, also start off in adversarial mode.
This, I believe infects the whole process. I understand that this process is soon to be
deleted and I wholeheartedly concur in that approach. Mediation is mediation and it is
quite wrong to require a mediator to give a recommendation/decision. (Kaplan,
"Dispute Resolution" 124)

It is unclear how the return of Hong Kong to the People's Republic of China
will affect arbitration. Although early indications signal continuity in
commercial transactions, there is confusion. In a recent action to enforce a
CIETAC arbitral award, a Hong Kong court held that the CIETAC law
providing for enforcement of foreign awards did not apply to an award from the
People's Republic because the award was not domestic or international (Ng
Fung Hong v. ABC, 1 HKC 213 [1998]).

India
Recent legislation demonstrates Indian movement toward ADR, although there
is little appreciation for having a mediator refrain from decision making:

The Arbitration and Conciliation Act of 1996 has conferred statutory recognition on
conciliation as a mode of dispute resolution. The act incorporates the procedure for
conciliation and makes the decision of the conciliator binding on the parties. Not that
conciliation was wholly unknown to the Indian law. The Industrial Disputes Act
1947, Code of Civil Procedure 1908 and the Family Courts Act 1984 have provisions
relating to conciliation with a view to settling the disputes between the parties. If a
compromise is alTived at through conciliation or mediation, it will be honoured by the
court. (Prabhakaran, "Conciliation Gets Statutory Recognition" 93)

New Zealand
The Aotearoa-New Zealand Restorative Justice Project has begun several
initiatives. In 1989, New Zealand enacted the Aotearoa-New Zealand Children,
Young Persons and Their Families Act, emphasizing family-oriented problem
solving. In Auckland, two separate restorative justice efforts are functioning for
adult offenders. The Maori people have strongly supported this and other
restorative justice efforts. The family group conference brings offenders,
families, and victims together to decide how best to deal with an offense.

South Korea
South Korea is well advanced in the ADR movement. The 1966 Arbitration Act
created the Korea Commercial Arbitration Committee. Arbitral awards must be
issued within thirty days of the arbitration's closing. Moreover, South Korea
Recent Conflict Resolution Legislation 43

"has various provisions for alternative dispute resolution ... including ... [t]he
three types are compromise (negotiation), conciliation (mediation) and
arbitration" (Montagu-Smith, "South Korea" 114)

Sri Lanka
Sri Lanka may have one of Asia's most developed and extensive mediation
programs, largely based on the North American model. Christopher Moore was
the primary consultant in the Sri Lankan system. The program is associated with
the Sri Lankan Ministry of Justice and stresses mediator neutrality. In 1998, I
had the opportunity to consult at length with a senior official of the Sri Lankan
Department of Justice who advised me that her nation hopes to extend the scope
of its national mediation program substantially. Sri Lanka also has an
Arbitration Centre, founded in 1995 in Colombo and affiliated with the
Stockholm Chamber of Commerce. Sri Lanka adheres to the New York
Convention (Samuels, "Sri Lanka" 139).

Vietnam
Vietnam has shown interest in arbitration when, "[i]n 1993 Vietnam acceded to
the New York Convention. In theory, foreign arbitration awards are now
recognized in the Vietnamese court system" (Lawson, "Vietllam~
Enforcement" 180).

Conclusion
If the growth of arbitration at mid-century is seen as linked to the massive
proliferation of mediation in the century's closing decades, tbe conflict
resolution movement can be seen as a worldwide phenomenon of incredible
scope. In many ways, it may be the most significant secular development in
modern legal history, save perhaps the development of internatiollallaw. But
while the growth of international law is more visible and immediately crucial
to peace among the nations, the conflict resolution movement may prove to
have more far-ranging and lasting effects among the masses of humanity,
often removed from international law but facing conflict dai ly. In this sense,
the conflict resolution movement, now taking hold from Austria to Vietnam,
from Egypt to Argentina, and from Canada to Korea, may signal a
fundamental and historic shift to a qualitatively higher, yet remarkably
simpler way for human beings to communicate when ditlerellces arise. If true,
we will all be the better for it.
44 THE JOURNAL OF BAHA'i STUDIES 9.2.1999

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