Rob
Gelblum
RobB.Gelblumrecently received his Juris
Doc-torateand MasterofCity and Regional Planning from the University of NorthCarolinaatChapel
Hill.Gelblumgained
ex-perience in community justiceplanningthrough
hisassociationwith
var-ious progressivepolitical
organizations throughout theUnitedStates.
Effectivedispute resolutionisan importantattributeofstable
community
relations. Inmany
westernsocie-ties, however, traditionalcourtsystems
have
proven incapableof handlingthe increasingnumbers
ofcasesbeforethem.
The
costsof formaladjudicationhave
also beenprohibitive formany
groupsand
individuals. Inan
attempttoadvance
amore
equitableand more
responsivemeans
ofresolvingcommunity
and
interper-sonal conflicts, mediation
and
arbitration strategieshave
been developed inmany
communities.Gelblum'sarticledescribesthe roleof disputecenters asan institutionalsource ofconflict resolution. These
organizationsprovidea
framework
for cooperative, negotiated dispute settlement.The Chapel
HillDisputeSettlement Center is presented as a case study ofeffective
community
conflict mitigation.mediationversus adjudication
alienationfrom the
traditional courtsystem
Disputes
seem
inevitable, bothat theintergroupand
interpersonallevels. Conflict hasbeen
with us since "timeimmemorial"
and shows
no
signs of abating as ahuman
activity. AnthropologistsLauraNader
and
H.F. Todd, Jr. (pp. x-xi) list the follow-ing as thecomponents
of a dispute: thatwhich
is disputed, theparties tothe dispute, presentation of thedispute,procedureormanner
ofhandling,termi-nation of the grievance
and
enforcement of the decision.The
desire to resolve conflict is a naturalfunc-tionofsocialorganization.Mediationisan
embodi-ment
of thatdesire; itsculturaland
historicalroots are deep. Itis a practice, moreover,which
hasbe-come
increasingly important formany
American
communities
in theireffortsto create cooperative,productive
and
healthy social environments.In
most
developedsocietiesthereisastateappara-tusfor handlingdisputes: aformal
and
hierarchiallegalsystemisitsusualform.
The
common
lawtra-dition followed in the United States
employs an
adversarialsystemofadjudication.Two
champions
(thelawyers)
meet
on
thefield ofbattle (thecourt-room), with
one
sideemerging victoriousand
the othervanquished.The
winner
ischosenby
ajudge orjurywith thedecisionbased, theoretically, onlyon
theletterofthe law. Despiterisksand
complexi-ties of the legal process, increasing
numbers
ofAmericans
areusing the courts toresolvetheir dis-putes. This heighteneddemand
hascreateda severebacklogof casesateverylevelofthejudicialsystem.
Compounding
theproblem
isthefactthatcases inprogress
sometimes
takeyears to settle; costshaverisen proportionately.
Indefense of thelegaledifice,
one
institution de-servesat leastqualifiedpraise—
smallclaimscourt.It is used
by
many
asmeans
of redress forminor
civilgrievances. Smallclaims courts feature
"infor-mality, the willingness to mediate
and
to concede, thewaivingofformalrulesof evidence,and, aboveall, thewillingnesstosubstitutegoodwill
and
com-promisefor theadversary process"(Alper
&
Nich-ols, p. xvi). Unfortunately, its limitations
—
the restriction tocivilcases, theminimal
amounts
thatmay
be suedfor, thefrequentdifficultyofenforcingjudgments
and
the specter ofdelay—
leavemany
of its users dissatisfied.Alienation
from
the traditionalcourtsystem hasbecome
widespread.Many
feel thatthecourtsdis-penseanythingbutjustice,
and
thatonlyinthemost
cumbersome
and
convolutedmanner.
Into thisbreachhave rushed
new community modes
ofjus-tice,
which
"donotreston
afoundationofinnocent-guilty, right-wrong, win-lose, victor-vanquished.
The
foundationhereisoneofhealing, ofreconcilia-tionofdefendantwithcomplainantaswell aswith
the
community"
(Alper&
Nichols, p. xii). It is asif
many
are saying "justice is too important to beleft to the justices."
victim assistance
and
compensation,and
citizenpanels
which
adviseon
sentencing.Community
par-ticipationinthe disputeresolutionprocessprovides perhapsanegative
commentary on
ourlegalsystem.At
thesame
time, itmay
beviewed
as a positivereflection
on
the concernand
resourcefulness ofmany
citizensnationwide.Thisisnottoimplythatgrassrootsjusticehasarisenovernight.
As
Alperand
Nichols (p. xvi) note, "the idea of
community
in-volvementin the settlement of disputesisasold as the first families of
humans
who
came
together toform
aclan.Responsibilityfor theresolution of con-flictand
thedispensationofjusticeisthecornerstone ofany
society."Even segmentsof thelegalprofessionhaverallied
around
alternativedisputeresolution.Out
of a1976conference
on
the"CausesofPopularDissatisfactionwiththeAdministrationofJustice,"
commemorating
a 1906 address
by
eminentAmerican
jurist RoscoePound
on
thesame
theme,1emerged an American
Bar Association Special
Committee on
AlternativeDisputeResolution.
Promotion
of "disputeresolu-tion centers" throughout thenationis the
commit-tee's charge,and
it seeks to accomplish that by:•maintainingaclearinghouse of
informa-tion
on
dispute resolutionwhich
iseasily accessible;•producing
publications including the quarterlynewsletter, abibliography,and
a directory,and
•providingtechnicalassistance
on
request(Ray 1981).
Examples
of specificactions takenby
thecommit-tee are:
assisting the UnitedStates Justice
Department
in the development ofthe
Neighborhood
Jus-ticeCenterDemonstrationProgram and
Exper-imental Grant-inAid
legislation tostimulatefur-therefforts;presentation ofa
major
National Conferenceon
ResolutionofMinor
Disputes(Columbia
Law
School,May
1977); mainte-nance of contact with almost everyopera-tionaldisputeresolution projectinthecountry,
withinformational datafilesoneach;assisting in the
development
of theproposed
FederalDispute Resolution
Act
(PL96-190) [which passedon
February12, 1980.Though
not di-rectlyfunded, undertheAct, theDepartment
ofJusticeis assisting18states in formulating
dispute resolutionlegislation (id., Foreward)}
(id.).
Of
course theadministration ofjustice ishardly the only frontwhich
has seen a recent resurgence of citizeninvolvementand
participation. Commu-nitydevelopment
hasremained
vital, even duringthe
"dormant
70s," through the establishment ofneighborhoodassociations, citizencrime-prevention
programs, healthcenters,
community
schools, foodcooperatives
and
community
corporations for the rehabilitation of deteriorated housing (Alper&
Nichols, p. xviii).
Though
abroad
scalecommunity
justicemove-ment
isonlynow
discerniblein the United States,examples of such
abound
throughout the world. Forinstance, layjudgesnow
participateinthe courtsofmany
European
countries, includingsocialist nations. For
many
years now, theScandinavian countries
have
entrusted the hearingand
adjudication ofchildren's casestochild-welfare boards
composed
ofelected laypersons
from
thecommunity, which
take the place of the juvenile court aswe know
it.The
British magistrate'scourtscontinue tooperate
in a fashion similar in
many
respects to ourAmerican
Justices of the Peace.We
see theemergence ofspecialcourts for labordisputes,
as in Israel.
The approach
ofcommunity-justicebodiesis also being used
on
an increasing scale infamily courts
and
in thejuvenile courtsnow
found
in everymajor
country of the world.Housing
courtsand
special tribunals for thehearing of
consumer
complaintsaretwo
addi-tionalspecialized tribunals
coming
into theirown.
In various ethnic groups
we
findmodern
application ofaprocedurethat dates
back
to biblical times—
for instance, the BethDin
found
in Jewishcommunities
in the UnitedStates,
whose
rootsgo back
tothe Sanhedrincourts. Today's Gypsies,
whose
originsarelost inantiquity, continuetopractice theirancientprocedures for resolving disagreements
be-tweenindividual
members
oftheirgroup.The
Panchayat
courtsofIndia,supplanted duringthe centuries of British colonial rule by the
common-law
procedures ofthehome
country, aregradually replacing this alien impositionon
their historicways
ofadministeringjustice.The
socialist countries,none
ofwhich
has acommon-law
precedent, especiallythosewhose
courtproceduresaremore
likely tobederivedfrom
Roman
orNapoleonic
people's courts,grassrootsjustice
legalprofessionsupport
foralternativedispute resolution models
impedimentsto
community-based justice
wherelay persons, whetherasprosecutors,
de-fense counselsorjudges, supplant the legally
schooled professionals
who
administer the courts inour
country (Alper&
Nichols, pp. xvii-xviii).As
appealing ascommunity-based
modes
ofjustice are, there are
impediments
to theirgrowth.The
above-citedwork
of theAmerican
BarAssocia-tionnot withstanding, the institutional barriersare, in large part, reinforced
by
the legal profession.Thereare, of course,
many
attorneyssupportiveoffessionalsarevirtually
uninformed
abouttherangeand
consequencesofthe legalproblemsthatplague ordinary citizens" (id.),and
themagnitude
of the obstaclesbecomes
clear.Impediments(e.g.,thelegalestablishment),
which
can be confronted directly are sufficiently formi-dable.
Beyond them
lies thearguablymore
funda-mentalproblem
posedby
a societythathas evolvedfrom one
consisting of stable,cohesivecommunities withsharedvalues, tooneevidencing great mobilityand
adisparity ofnorms
within communities.Com-a lCom-ack of incentiveto createanew legal institution
informal dispute resolutionmethods.
On
thewhole, though, the professionhas"littleincentive'tocreatenew
legal institutionsto facilitatethe resolution of disputesoutside thecourtrooms' "(Nader&
Singer,pp. 314-315, inAlper
&
Nichols, p.243).These
are times ofeconomic
scarcity. Itisdifficult tofindex-amplesof
economic
altruisminany
occupation,es-peciallyperhaps
when
thenumber
of practitionershasincreased as dramaticallyasinlaw.
Lawyers
arealsodisproportionately representedatboththe state
and
national legislative levels,where
much
can bedone
toretardorfoster alternativestothelegalpro-cess.
Add
to this the fact that "the social distancebetweenthe legalprofession
and
themass
ofmiddle-income Americans
has increased so thatmost
pro-munities displaying strong consensusaroundnotions
of fairness
and
justice have givenway
to polarized groupingsbonded
tenuouslybya highly sophisticated legalculture.Thisstateofaffairscomplicates thepro-cess fora transition to grassroots
forms
ofjustice.Aside
from
thefactorsmilitatingagainst thepre-dominance
ofcommunity
dispute resolution, there isanaspect of thephenomenon
which
createscause for concern. Wholesale use of thenew
schemes couldbringmany
individualstothe"bar ofjustice"who
might nototherwisehave beenensnared. Thatis, ifgrassrootsjusticeis
made
widelyavailableand
unqualifiedly promoted,numerous
complainantshandling
mechanism
couldbecome
overburdened;just conflict resolution
would
remain illusive.The
pitfalls notwithstanding, the potential ofcommunity-based
justice isgreat.Throughout
the country, people are organizing to effect thisgoal; theirsuccessbodes
wellforall ofus. Clearly, ifin-dividualconflictresolutionsareto
command
greater respect, theymust
be the product ofan
"organic" processembodying community
values.Mediation
Inmediation, a thirdparty facilitatesagreement betweenor
among
disputingparties.'"[TJhirdpartieshave, orshouldhave, the objective ofchangingthe
relationshipbetweenthe partiesfromadestructively
competitivewin-lose orientation to a cooperative, collaborativeproblem-solvingorientation" (Fisher, p. 81).
A
requisiteelementof theprocessisthedis-putants'acceptance ofthe mediator's intervention. Together, the contendingparties
and
the mediatorresolve theparties'differences
and
attempt toformu-lateamutuallyagreeable settlement.
Though
medi-ated resolutions
do
notlegallybindthe disputants,itisanticipated that theprovisions ofany agreement
willbe
honored
by
virtueof theparties'mutual
in-terest in termination of the conflict.Mediation has
grown
increasingly popular overthepast
two
decades.Creativecitizensand
organiza-tionshavefound
ways
toapplyitsuccessfullyincon-textsasvariedasenvironmental,labor-management, budgetary
and
interpersonalconflicts (thelatterin-cludes domestic quarrels
and
squabbles involving landlordsand
tenants, merchantsand
consumers,and
neighbors).The
National Center for DisputeSettlementofthe
American
Arbitration Association, theUnitedStatesDepartment
ofJustice'sNeighbor-hood
JusticeCenterand
many
localgroupsaround
thecountryare activelypursuingtheuseofmedia-tion (Susskind
and
Ozawa,
p. 22).Mediation isanappealing
form
ofdispute resolu-tion.The
judicialsystemgainsinmany
ways. Staff (judges, police, prosecutorsand
therest)aresparedthetime
and
risksinvolvedincasesthatgotomedia-tion. Forexample, familyquarrels,
which
are oftenmediated
when
theoptionisavailable, account forapproximately
20%
of police deathsand
approxi-mately
40%
of police injuries (Alper&
Nichols,p. 131). Jails
become
lesscrowded and
theburden
of bail is eased. Perhapsmost
important is theheightened respect for the legal system that fair
mediationengenders.
Those
who
havebecome
alie-nated
from
thesystemmay
no
longerequatejusticewith harshness
and
inequality, butmay
come
toview
theconceptasconnotingfairness, restitution,peacemaking
and
themeetingofneeds(id.).Recidi-vism
is understandablylow
among
thosewhose
complaints are resolved through mediation.
The
disputants are the beneficiaries of loweredhostility, aggravation
and
tensionwhen
theirgriev-ancesare successfully resolved. In contrast, judicially settled conflicts tend to inspire sharpened
antag-onism. Mediation occursat theconvenience of the
participants, rather than at the behest of a court.
Lossesof
wages and
time are thereby avoided.Most
interpersonaldisputescanbesettledinone
to threesessions.
The
disputantsformulate theirown
deci-sion, rather than havingone
foistedon them by
judgesand
lawyers. Finally if thereisa loser, pen-ance is in theform
ofpayments
or constructivetasks, not in the
form
of a criminal record. Mediation'sgreatestbeneficiarymay
bethecom-munity. Forexample, thedemoralizationresulting
from
disputeswhich
have been ignoredor relegatedtothecourtsisameliorated. Mediationcanallay
ten-sions
and
possibleviolencewhich
couldresultfrom
unchecked
community
conflict. Indirectbenefitsin-clude
enhancement
of acommunity's
disputehan-dlingresources,
and
animprovement
incommunity
ambiance.
Mediation differs
from
arbitration.Though
thetwo
share thenegotiation process, thelatterentailsthe imposition of settlement.
Acording
toMeyer
(p.164): "Mediation
and
arbitrationhave nothingincommon
conceptually.One
involves helpingpeopleto decide for themselves while the other involves helping people
by
deciding for them."The
Chapel
Hill Dispute Settlement CenterChapel
Hill,North
Carolinaboastsanoutstand-ing
example
of acommunity-based
mediation ser-vice.Though
theChapel
Hill Dispute SettlementCenter did not
open
its doors to disputants untilsummer
of 1979, the need for acommunity-based
mediation center
was
first articulated in the early 1970s.The
centerwas
bom
from
acourtmonitoringprogram
initiatedbytwo
women
of the localchapter of theWomen's
InternationalLeagueforPeaceand
Freedom(WILPF), atthe instigation of the Interchurch
(now
Interfaith)Council.The
Center'sorganizers be-lieved there were betterways
than adjudication tohandleparticular types ofdisputes, especiallythose
the potentials of
community justice
accepting amediator's intervention
mediationand
fundingfora dispute center inChapelHill
staffingthe center
goals of the center
involvingpeopleinongoingrelationships.
They
feltthatcourtdisputants
were
shortchanged; they alsoarguedthatthere
were
betterusesforthejudiciary'stime.
Over
a period of several years, thewomen
amassed documentation
on
mediationand
assessed itsappropriateness for theChapel
Hillarea.An
im-portant event
was
aChapel
Hill visit, in 1973,by
a representative of theAmerican
ArbitrationAsso-ciation
(AAA)
who
had
been instrumentalinstart-ing the Dispute Settlement Center in Roxbury, Massachusetts. Interest
which
later bore fruitwas
piqued at that time.
Inthe
summer
of1976, afterthreeyearsofcourtwatching, another
AAA
representative visitedChapel
Hill.The
result of his well-attendedand
well-received talkwas
the successful funding of alocaldispute settlementcenter.
The
Orange
County
Board
ofCommissioners
allocatedmoney
in Octo-ber1976asdid theChapel
HillBoard
ofAldermen
inspring1977.
The Orange County
BarAssociation,contrary to the
norm
elsewhere, helped complete plans for a Center.With
fundingstillaproblem, thenascent Centerwas
fortunate in procuring gratis the training ser-vicesof a retiringwoman
attorneyfrom
theCom-munity
Relations Service of the United StatesDe-partmentofJustice.
Of
thefifteenmediatorstrained then, twelve remain with the Center. In thesum-mer
of 1979, keysubsidieswere
obtainedfrom
theNorth
Carolina GeneralAssembly and
theUnited Fund.The
fundswere
used, inpart, tohirea direc-torwho
inturnprocuredgrantsfrom
theReynoldsand Babcock
Foundations.Though
hardlywell-endowed,
theCenterwas
abletohire anotherstaffperson,
and
recruitand
trainpeopleto staffdispute settlement centers across the state.These
efforts resulted in the establishment of ten additionalcenters, incities
and
countiesaround
thestate.New
center locations included Greensboro, Raleigh,
Durham,
Winston-Salem, Charlotteand
Chatham
County.
Three
more, inBurlington, Ashevilleand
Hendersonville,haveopened
theirdoorswithin the past year.At
theCenter's headquartersinChapelHill, three staff areemployed: a director, a caseworkerand
aclerical worker. Six fundingagencies subsidize the Center: the
towns
ofChapel
Hill,Carrboro
and
Hillsborough,
Orange
County,and
theChapelHill-Carrboro
and Orange
County
UnitedWays.
As
anindication of the
growing
demand
for the Center'sservices, in fiscal year 1983, 441 cases
were
pro-cessed; inthenextfiscalyear,650caseswere brought
to the Center.
The
Center divides its cases intotwo
sources,"Court"
and
"Community".The
formerincludescasesreferred
by
theDistrictAttorney(alongtimefriend of theCenter), private attorneys, "self", the police,judges, magistrates, theSheriff'soffice
and
"other."What
theyallhaveincommon
isthatawarrant has beenissued inthematter; ifitisresolved, allcharges are dropped. Cases referred rangefrom
assault(from simple assault to assault with a deadly
wea-pon), tocommunicating
threats, trespass, injurytoproperty, breaking
and
entering,and
larceny.The
court category accounted for
53%
of the Center's cases in the 1984 fiscal year."Community"
casesarethosebrought totheCen-terdirectly
by
localcitizens. Forty-sevenpercent,or 226 of fiscal 1984's cases, arose in such a manner.The
most
numerous
categories of such cases are"Domestic/Family," "Roommates,"
"Money
Claims,""Neighborhood," "Landlord/Tenant," "Customer/
Business"
and
"Miscellaneous."Withinthelast
two
years aHillsboroughsatellite officehasopened. Itscaseload currently representsabout
31%
of the Center's total. Interestinglyenough, Hillsborough's
Court/Community
mix
is the reverse of thatinChapel
Hill.Whereas
65%
of the caseshandledat theChapelHill officestemfromthe
community,
65%
of those in Hillsborough aresubsumed under
thecourtlabel.As
popularas theCenter has
become
with the authorities inChapel
Hill,inHillsboroughitiseven
more
so; there,many
ofthesame
defendantshabituallymove
throughthe judicialsystemon
chargessuchasdrunkennessand
barroom
brawls.The
Centers'servicesare offeredabsolutelyfree,though
most
disputantsheedthefact thatcontribu-tionsarewelcome.
The
onlyexceptiontotheno
fee ruleisfordivorceand
separation cases,where
$10 percouple is chargedfor the first sessionand
$20forany subsequentones.
The
averageannualincomeof the Center's disputants is under $10,000.
Fitting the overall mediator staff to the
demo-graphic profile of the
community,
and
each case'smediation team(Centermediators
work
inpairs)tothe disputants, is important to the organization.
Correspondingly,
29%
of the mediators areblackand
58%
arewomen,
withagesrangingfrom
early20's to 80. Three
male
mediatorswere
recentlyadded, bringingthetotal ofallmediators to 34(26 in
Chapel
Hill, 8 in Hillsborough).main
goals: help disputants find amutually agree-able solutionwhile maintainingtheirdignity;createa
more harmonious
relationshipbetween thedispu-tants; relievetensioninthecommunity.
The
Center'ssuccessistestimonyto theeffectivenessofmediated
dispute resolution. In a survey of mediations con-ducted4V2 years ago,
85%
of Center-facilitated resolu-tionswerestillintact. Also, of172casescommenced,
156 were successfully mediated to an agreement in fiscal 1984 through the first three quarters of this fiscal year.
Justice, of course, has
many
differentmeanings
to
many
different people.Most would
probablyagree,however, that
community
roots are desirableinasystemofdisputeresolution. Thisis
what
insti-tutionssuchas the
Chapel
HillDispute SettlementCenterhave to offer,
and
nurturingofsuch placesby
communities seemswell-advised aspart ofa planto
improve
moraleand
the quality of life.A
Role for PlannersThe
fact that there islittle recognition of aspe-cialtywithin thefieldcalled "justiceplanning" not-withstanding, it arguably
behooves
professionalsworking
in all aspectsofhuman
services to fosternon-adjudicative
modes
of dispute resolution. In1959, President
Dwight
Eisenhowersaid, "[Pjeoplewant
peacesomuch
thatone
ofthesedaysgovern-ment had
better get out oftheirway
and
letthem
haveit."
Though
peoplemay
wellwant
alternativestolitigationasbadly,planners should
do
more
thangetout of their way.
They
should, throughdemo-graphics,courtstatistics,
and
consultationwithlegalsystem personnel
and
community
representatives,endeavortoascertain a desirablealternativedispute resolution
mechanism
for thecommunity
inques-tion. Clearly, aplannedresponsetofrustrationwith
the judicial system
makes
farbettersense than anad
hoc
one.Postscript
Given
thecurrentfundingprioritiesand
political interestsoftheReagan
administration, itisclear thatcommunities
can expect little supportfrom
thefederal government. In the
name
of market-motivatedprosperity, townsand
citieshavebeenlefttodrift. There seems tobelittle
on
thehorizon, intermsoffederalinitiatives,thatpromisesto
amelio-rate the plight of those passed over
by
Reagan'smagic
wand.
These, arguably, are theones withthemost
togainfrom
theadvent ofcommunity-based
dispute resolution.
Not
that such aprogram
couldeverbea panacea for the
woes
of thosewho
have"fallen through the cracks," but dispute resolution
on
amore
human
scale might serve assome
sort oflightningrodforcommunity
tensions.One
sensesthat, in
some
quarters, asstraitenedconditions giverise to an escalatinglevel ofinterpersonal conflict,
alienation
from
the court systemmay
likewiseincrease.
NOTES
1.
Among
Pound's concernswerethe limited accesstojusticecaused
by
thedelay,highcosts,and
in-timidating character of thecourts; the failureto
achieve substantive justicecaused
by
the natureof theadversaryprocess
and
overridingconcern with theetiquette ofthe law;and
the inevitableinabilityofcourts, guided
by
generallegalprin-ciples, to
make
decisionsresponsivetothe subtle variationsamong
cases (Dubois, p. 61). 2. Todate,170communitiesinfortystateshaveestab-lished "dispute centers" (also
known
as"neighbor-hood
justice centers," "citizen's dispute settlement programs,"and
"nightprosecutor's programs"). In addition,more
than400privateagenciesand
citygovernment
entitiesareinvolvedinprovidingin-formal processes to resolve citizens'
problems
(Ray 1981, Foreword).
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&
Nichols, L.T. (1981).Beyond
theCourtroom.
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DC.
Heath
&
Co.Bacow, L.
&
Wheeler,M.
(1984). Environmental Dispute Resolution.New
York:Plenum
Press.Dubois, PL., ed. (1982).
The
Analysis ofJudicialReform. Lexington,
MA:
DC.
Health&
Co.Nader, L.
&
Todd, H.F., Jr. (1978).The
DisputingProcess
— Law
in Ten Societies.New
York,NY
Columbia
University Press.Ray, L. ed. (1981). Dispute Resolution
Program
Directory, SpecialCommittee
on
DisputeResolu-tion, Public Services Activities Division.
Washington,
DC:
American
Bar Association. Sander,F. (1977).ReportontheNational Conferenceon
Minor
Disputes Resolution. Washington,DC:
American
Bar Association.Susskind, L.
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Ozawa,
C. "MediatedNegotia-tioninthePublicSector:
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