# The Conflict Resolution Movement *Exported from [Holy-Writings.com](https://www.holy-writings.com/) on 2026-06-19 — 1 clipping.* --- > 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. > ────────────────────────────────────────────────────────────────────── > > 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 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 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 > > Works Cited > > 'Abdu'l-Baha. The Promulgation of Universal Peace: Talks Delivered by > 'Abdu'l-Bahti during His Visit to the United States and Canada in 1912. > Compo Howard MacNutt. 2d ed. Wilmette, Ill.: Baha'i Publishing Trust, > 1982. > Aboul-Enein, M. I. M. 'The New Trends in the Field of Dispute Resolution in > the Middle East." In Resolving Disputes in the Global Marketplace. > Washington D.C.: American Bar Association Section of Dispute Resolution, > 1998. 132-54. > Alvarez, Gladys Stella. "The Americas." In Resolving Disputes in the Global > Marketplace. Washington. D.C.: American Bar Association, 1998.297-305. > Bridge, Caroline. "Family Mediation and the Legal Process: An Unresolved > Dilemma." New Zealand Law Review 17.3 (1997): 231-53. > Bush, Robert Baruch A., and Joseph P. Folger. The Promise of Mediation. San > Francisco: Jossey-Bass, 1994. > Chang, Louis. Untitled chapter. In ADR Personalities and Practice Tips. Ed. > James J. A1fini and Eric R. Galton. Washington, D.C.: American Bar > Association, 1998.29-41. > Coakley, Michael P., and Mary A. Bedikian. "De-mystifying Securities ADR: > Reform and Resurgence after McMahon." Michigan Bar Journal 76.2 > (1997): 176-82. > Consultation: A Compilation. Compo Research Dept. of the Universal House of > Justice. Rev. ed. Wilmette, Ill: Baha'i Publishing Trust, 1995. > Dibble, Richard E. "Alternative Dispute Resolution of Employment Conflicts: > The Search for Standards." Journal of Collective Negotiations in the Public > Sector 26.1 (1997): 73-84. > Gout, Michel. "Trade Pacts, Regional Organizations and Dispute Resolution > Systems Regarding the European Union." In Resolving Disputes in the > Global Marketplace. Washington, D.C.: Amelican Bar Association Section > of Dispute Resolution, 1998.23-52. > The Great Law of Peace of the Longhouse People. Rooseveltown, N.Y.: White > Roots of Peace Mohawk Nation at Akwasasne, 1971. > Hamel-Smith, Christopher. "Resolving Commercial Disputes in Trinidad and > Tobago." In World Dispute Resolution Handbook. Ed. David Samuels. > London: Euromoney Publications, 1997. 148-51. > Harrison, John. "Environmental Mediation: The Ethical and Constitutional > Dimension." Journal of Environmental Law 9.1 (1997): 79-102. > Horvath, Eva. "The New Arbitration Act in Hungary." Journal of 1nternational > Arbitration 12.3 (1995): 159-72. > Johansen, Bruce E. Forgotten Founders: Benjamin Franklin, the Iroquois and > the Rationale for the American Revolution. Ofiswich, Mass.: Gambit > Publishers, 1982. > Kaplan, Neil. "Dispute Resolution in Hong Kong." In Resolving Disputes in the > Global Marketplace. Washington D.C.: American Bar Association Section > of Dispute Resolution, 1998. 118-31. > The Conflict Resolution M ovem.ent 45 > > Kelly, Helen. "No Room to Dispute ADR's Promise." Bar Lemler 14.2 (1988): 10-13. > The Koran Interpreted. Trans. A. J. Arberry. New York: Macmillan, 1955. > The Koran. Trans. J. M. Rodwell. London: J. M. Dent & Sons, 1909. > "Law of the Russian Federation on the International Commercial Arbitration > Tribunal." In Resolving Disputes in the Global Marketplace. Washington > D.C.: American Bar Association Section of Dispute Resolution, 1998. 155-58. > Lawson, Milton. "Vietnam-Enforcement." In World Dispule Resolution > Handbook. Ed. David Samuels. London: Eurollloney Publicalions, 1997. > 180-8l. > Levy, Reuben. The Social Structure of Isl({m. Cambridge: Cambridge > University Press, 1971. > Mackie, Karl. "The Use of Commercial Mediation in Europe." In Resolving > Disputes in the Global Marketplace. Washington D.C.: American Bar > Association Section of Dispute Resolution, 1998. 232--42. > Mahmassani, Sobhi Rajab. The Principles of InterrwtiOlwl Law in the Lighl of > Islamic Doctrine. Recueil des COUl's. Vol. l. Leyde: A.W. Sijlhoff, 1966. > 201-328. > Mann, Bruce E. "Law, Legalism and Community Before the American > Revolution." Michigall L(/1-11 Review 84 (1986): 1415-39. > Melis, Werner. A Guide /0 Commerci({/ Arbitration ill Austria. Vienna: Federal > Economic Chamber, 1983. > Mester, Jonathan D. "The Administrative Dispute Resolution Act of 1966: Will > the New Era of ADR in Federal Administrative Agencies OCClll' at the > Expense of Public Accountability?" Ohio State JOllrnal 011 Dispute > Resolution 13(1997): 167-97. > Moberly, Robert B. "Mediator Gag Rules: Is It Ethical for Mediators to > Evaluate or Advise?" Southern Texas Law Review 38.8 (1997): 669-79. > Montagu-Smith, Nina. "South Korea." In World Di.sputc Resolution Handbook. > Ed. David Samuels. London: Euromoney Publications, 1997. 113-14. > Moore, Christopher W. The Mediation Process. 2d ed. San Francisco: Jossey- > Bass, 1996. > Morimty, A. R., and S. McDonald. "Theoretical Dimensions of School-Based > Mediation." Journal of Social Work in Educalion 13 (1991): 176-84. > Nabil-i-A~'am. The Dmvnbreakers: Nabil's Nar}'[{tive of the Early Days of the > Bah6'[ Revelation. Trans. and ed. Shoghi Effendi. Wilmette, Ill.: Baha'i > Publishing Trust, 1932. > The National Spiritual Assembly of the Baha'is of the United States. "By-Laws > of a Local Spiritual Assembly." Guidelines for Loca1 SjJiritual Assemblies. > Wilmette, Ill.: Baha'i Publishing Trust, 1975. 1955-56. > - - - . Annual Report of the National Spiritual Assembly of the Balici'{,1' oj > United States. Wilmette, Ill.: Baha' f Publishing Trust, 1956. > North American Free Trade Agreem.ents. Ed. James Holbein and Donald J. > Musch. Dobbs Ferry, New York: Oceana Publications, 1999. > Ponieman, Alejandro. "ADR-The Tip of the fceberg." In Resolving Disputes > in the Global Marketplace. Washington, D.C.: American Bar Association > Section of Dispute Resolution, 1998. 76-86. > 46 THE JOURNAL OF BAHA'i STUDIES 9.2.1999 > > Prabhakaran, M. M. "Conciliation Gets Statutory Recognition." In World > Dispute Resolution Handbook. Ed. David Samuels. London: Euromoney > Publications, 1997. 93-97. > "Public Policy Disputes: Special Cases, Special Challenges." Dispute > Resolution Magazine 4.1 (1997): 4-17. > Reuben, Richard C. "The Lawyer Turns Peacemaker." American Bar > Association Journal 82 (August 1996): 54-62. > Rogers, John. "Securities Arbitration in B.C.: A Solution in Search of a > Problem." The Advocate 55.1 (1997): 53-62. > Rules of Arbitration and Conciliation of the International Arbitral Centre of the > Austrian Federal Economic Chamber. Vienna: International Arbitral Centre > of the Austrian Federal Economic Chamber, 1997. > "Rules of Proceedings of the Court of Arbitration Attached to the Hungarian > Chamber of Commerce and Industry." In Resolving Disputes in the Global > Marketplace. Washington, D.C.: American Bar Association Section of > Dispute Resolution, 1998. 1-45. > Samuels, David. "Sri Lanka." In World Dispute Resolution Handbook. Ed. > David Samuels. London: Euromoney Publications, 1997. 137-40. > Sander, Frank E. A. "Varieties of Dispute Processing." In The Pound > Conference: Perspectives on Justice in the Future, the Proceedings of the > National Conference on the Causes of Popular Dissatisfaction with the > Administration of Justice. Eds. A. Leo Levine and Russell L. Wheeler. St. > Paul: West Publishing Co., 1979.65-7. > Schavrien, Joel. "ADR No Longer the Wave of the Future." Michigan Bar > Journal 72.10 (1993): 1008-9. > Schemo, Diana J. "Peru and Ecuador Agree to Put Border Dispute in Outsiders' > Hands." The New York Times, 18 October 1998, p. 6, cols. 1-4. > Smith, Melinda. "Using Mediation in Juvenile Justice Settings." In Evelybody Wins: > Mediation in the Schools. Ed. Jack Wolowiec. Chicago: Ame11can Bar Association > Special Committee on Youth Education for Citizenship, 1994. 10-14. > The Universal House of Justice. The Promise of World Peace. Wilmette, Ill.: > Baha'i Publishing Trust, 1985. > - - - . Wellspring of Guidance: Messages from the Universal House of Justice > 1963-1968. Rev. ed. Wilmette, Ill.: Baha'i Publishing Trust, 1976. > The Universal House of Justice. A Wider Horizon: Selected Messages from the > Universal House of Justice 1983-1992. Riviera Beach, Fla.: Palabra > Publications, 1992. > Wallace, Anthony F. C. The Death and Rebirth of the Seneca. New York: > Vintage Books/Random House, 1972. > Wittenberg, Carol A., et al. "ADR Flexibility in Employment Disputes." > Journal of Collective Negotiations Public Sector 26.2 (1997): 155-60. > Wolf, Hans Julius. Roman Law. Norman: University of Oklahoma Press, 1951. > Woo, Kwang-Taeck. "A Comparison of Court-Connected Mediation in Florida > and Korea." Brooklyn Journal of International Law 22 (1997): 605-36. > World Dispute Resolution Handbook. Ed. David Samuels. London: Euromoney > Publications, 1997. > Wyss, Daniel R. "International Commercial Litigation in Switzerland." In World > Dispute Resolution Handbook. Ed. David Samuels. London: Euromoney > Publications, 1997. 143-47. > > — *The Conflict Resolution Movement (Used by permission of the curator)*