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11 Harv. Negot. L. Rev. 295
Harvard Negotiation Law Review
Spring 2006
Article
DEBATING THE GLOBALIZATION OF U.S. MEDIATION: POLITICS, POWER, AND PRACTICE IN NEPAL
Amy J. Cohend1
Copyright (c) 2006 Harvard Negotiation Law Review; Amy J. Cohen
Introduction
The current debate about transnational alternative dispute resolution (ADR)1 is misframed. Those in favor of the global
exportation of ADR describe mediation as a cross-cultural, neutral, and apolitical practice of dispute resolution integral to the
development of third world countries. Those who are opposed contest this representation on social justice grounds, arguing
that mediation in various ways serves the interests of legal and social elites, diminishing opportunities for social change in
those countries. Mediation is cast either as *296 neutral and hence effective and worthwhile or as political and hence
oppressive and worth resisting.
Questions about the social and political impact of U.S. legal reform projects comprise familiar lines of argumentation in the
literature on law and development,2 but they have assumed new urgency in the field of ADR as the introduction of
“alternate” means of resolving disputes has become a key part of developing the rule of law in emerging democracies. 3 I will
argue that both sides of the current debate are mistaken and that their errors derive from a failure to examine how ADR is
practiced in developing countries. Briefly stated, both sides root their positions in a theory of mediation that is too abstract
and a set of justifications for or against mediation that is grounded in an analysis of methods rather than effects.
Abstraction first. While locked in contest over whether mediation is strengthening local capacity to resolve disputes or
harming the interests of those it purports to serve, both proponents and critics of global mediation share an assumption about
what mediation is. Specifically, that mediation is a fixed, bounded, and determinate set of institutional practices to resolve
conflict that are, at all times, informal (dissociated from the state), private, neutral, and non-coercive. An analysis of
mediation in developing countries, however, reveals a set of institutional practices that are far more complex than this
assumption allows. Mediation changes as it travels; its instantiation anywhere is subject to local variation and invention as it
makes contact with state and customary law, politics, and social struggles.
An example helps to illustrate. In spring 2003, I joined a small team4 researching a donor-funded mediation project in rural
Nepal. Our first field visit was to a village in the far-eastern part of the country where we observed a gathering of local
women and men complete with all the trappings of a mediation training: flip-chart paper, markers, and handouts featuring
images of people not-in-conflict shaking hands or sitting in circles.
The content of the training, however, was jarringly unfamiliar. Community mediation in the United States has a set of
standard aspirations: to engage disputants in a process of interpersonal inquiry; *297 to enable them to set the terms of their
own mutually satisfying resolutions; and to provide speedy, nonlegal, and inexpensive alternatives to litigation. The
facilitator in Nepal mentioned none of these objectives; he began his training instead by lighting three candles: the first
dedicated to the “martyrs of democracy,” the second to “fighters for human rights,” and the third to “victims of [state]
torture.” Voice rising, he continued to describe the desperate state of human rights in Nepal: “When will this end? We don’t
know. Even the government does not obey the Constitution. We must protect the human rights guaranteed in our
Constitution, especially women’s rights. We must not suppress women’s rights in the mediation process. This is what this
training is for.” And by this he meant using the dialogic practices of mediation to work towards the non-violent resolution of
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disputes--a classic ADR aspiration--yet, in so doing, deploying a range of interventionist strategies to push forward a
substantive--and classically non-ADR--human rights project.
What this example suggests is that the theory of ADR is out of sync with practices of ADR in developing countries.
Moreover, as a result of this gap, justifications for and against ADR interventions tend to rest on assessments of methods and
forms, rather than of practices and effects.
Proponents of global mediation, for example, argue that the exportation of mediation is justified because mediation operates
to resolve disputes and solve problems. Yet these terms--dispute resolution and problem-solving--are only, if ever, thinly
defined. Within the literature on transnational mediation, these terms eschew substantive goals (how the problem should get
solved) and hence substantive measures (whether this solution was good or bad for this or that group). Rather than measuring
effects in light of substantive goals, global practitioners instead translate their allegiance to problem-solving and dispute
resolution into a set of methodological commitments: third-party neutrality, party self-determination, and the resolution of
individual disputes through consensus rather than law. Measures of success, in turn, mirror these methodological
commitments: Did the parties perceive the mediator as neutral? Did their dispute settle? Were the parties satisfied that the
process was consensual and non-coercive?5 Put differently, these deeply entrenched *298 methodological commitments have
themselves come to define both the function and purpose of mediation. Efforts to justify these methods through an
examination of what social interests mediation does or should help or harm is represented as making mediation something
other than what it (really) is.
If proponents root their support for the global exportation of mediation in a set of methods they are confident can achieve
social consensus across contexts, critics start from a position that is concerned with results. Critics argue that mediation’s
ability to resolve disputes is not a sufficient justification for mediation’s use, but rather that mediation must be justified by its
ability to achieve social justice. But here is the irony: like proponents, critics maintain a stable definition of what mediation
is, and critics are so firmly committed to their belief that private, informal, and consensual modes of dispute resolution
necessarily disadvantage marginalized groups that their overarching cause is to replace mediation with state law for the sake
of social justice.
Critics thus ground their claims in an abstract analysis of methods rather than effects, in exactly the same way as the field’s
methodological defenders. Yet a year’s worth of fieldwork in Nepal challenges presumptions on both sides of this debate.
Rather than private and consensual, donor-funded mediation in Nepal is often public and coercive, as villagers who practice
mediation enunciate collective demands and desires that invoke rights, power, and cultural change. Moreover, mediation’s
dissociation from the state is precisely what allows it to function as an important space for the public negotiation of social,
legal, and cultural norms, invoking, challenging, and possibly even generating law.
In sum, neither position in the current debate has done enough to justify itself in terms relevant to local practice. This is a
critical oversight. The success or failure of transnational ADR depends not on an abstract assessment of the institutional
methods and forms used to mediate disputes, but rather on how well--and to what ends--they function in the lives of
disputants who use them. By *299 drawing on a case study of Nepal, I will argue that the global exportation of ADR is
neither simply a good, private, and cross-cultural technique of conflict resolution and peace-building (as its defenders
imagine), nor simply an instrument of Western capital and state hegemony (as its critics fear). Rather it is--like many other
development interventions--a site at which Nepali villagers negotiate, intervene, and dispute the changing conditions of their
existence and a technology producing an emerging set of social costs and benefits that should foreground and refocus our
analysis. As I attempt here to reveal these effects, my guide will be Paul Kahn’s maxim, “there is no general truth apart from
. . . ongoing practice . . . and there is no practice apart from particular acts and events.”6
I begin in Part I by setting forth the debates about ADR’s globalization in greater detail, tracing each position to its genesis in
the debates surrounding ADR in the United States. In Part II, I describe some of the social, legal, and political factors that
give rise to the distinctive forms of mediation in Nepal in order to situate the case analysis that follows. I then turn in Part III
to the proponents’ central claim that the global export of mediation is an effective and neutral technique of dispute
management. Proponents, recognizing that the spread of ADR to developing countries raises new tensions and questions,
have made recourse to the concept of culture in an effort to resolve these tensions. I provide a sketch of three primary
approaches to reconciling ADR with cultural difference, arguing that each approach is insufficient to engage the complexity
of practice on the ground. Through an analysis of a USAID-funded mediation training, I also suggest that the desire “not to
intervene” or to “respect local culture” often strengthens methodological commitments to concepts such as neutrality and
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self-determination, but without attention to the biases and blind spots of such commitments. This inattention to effects, in
turn, limits our imagination of the possibilities that ADR can achieve.
One possibility that has escaped the current debate is that mediation can promote projects of social justice, particularly in
developing countries with weak judicial systems. In Part IV, I tackle the critics’ central claim that exporting ADR works
against social justice. Drawing on a second mediation project in Nepal, I offer an alternative narrative of mediation that
combines methods of dispute resolution with local development discourses of rights and self-governance in order to *300
achieve, as its founders maintain, social transformation. I use this example to argue that the global transfer of mediation to
third world states can contribute to local shifts in power relations and persistent, if inconsistent, challenges to the hegemony
(and injustices) of state law, depending on background social conditions and the ends to which mediation is deployed. I
conclude by suggesting that for those of us who desire to link global ADR to the ends of progressive social change, there is
much yet to learn from the study of mediation in developing countries.
I. The Domestic and Global Debates
In an essay on globalization and western law, David Delaney suggests that “[w]hat has been ‘globalized’ . . . are the tensions
and contradictions of liberal legalism itself. Not the least important of these is that between law as an instrument of
(someone’s idea of) order and law as the means for the realization of justice.”7 The debate accompanying the
internationalization of U.S. ADR abroad is, in fact, quite germane to both horns of the dilemma Delaney poses, but its lines
of argumentation are cast as foregone and flat conclusions rather than elements of a discourse in critical tension. As described
above, the first line largely defends mediation as a modest yet effective mechanism of dispute management, and the second
largely rejects mediation as against the interests of social justice.
The first line of argumentation is put forth by proponents of ADR--scholars and practitioners who accept the adequacy of
mediation as a mechanism to resolve social conflict, yet dissent from a simple model that does not attend to cultural
difference. On the domestic front, many hope to sensitize mediation’s users and facilitators to the fact that conflict might
reflect cultural differences among disputing parties.8 On the international front, where I will focus, a growing number of
scholars and practitioners now argue that culture engages processes of disputation differently across contexts, and thus for
mediation to work effectively abroad, it must build in space for cultural adaptation. 9
The second set of arguments is put forth by scholars who claim that the structural forms of mediation--its private,
conversational modes of dispute resolution steeped in a language of interests rather *301 than rights-- deflect public attention
away from debates about rights and values and hence maintain status quo distributions of resources and power. 10 Although
this critique has focused principally on domestic mediation, scholars such as anthropologists Laura Nader and Elisabetta
Grande have applied its arguments to ADR’s internationalization.11 The global “spread of ADR . . . born of a contempt for
law,” they write, undercuts “the justice issues that should be foundational” in Africa and other parts of the developing
world.12
In making these claims, both positions are responding to a set of institutionalized representations of domestic ADR that
emerged in the United States in the 1970s and 1980s, particularly as a court reform project. A brief overview of the
development of U.S. ADR, focusing on mediation, helps explain how these debates are being framed as they track the export
of ADR across national borders.
A. The Domestic Debate: Social Empowerment Versus Social Control
Numerous scholars recount the founding of the ADR movement in the 1970s and 1980s 13 as a story of competing ideological
and professional visions.14 From within the legal establishment, reformers *302 called for innovations to conserve,
rationalize, and improve the efficient allocation of judicial resources. 15 Less mainstream voices from within the legal field
supported ADR as a supplement to the judicial system that would provide informal, prompt, and inexpensive forums that they
hoped would make justice more attainable for the socially disadvantaged. 16 Others invested in ADR as a mechanism to
address social and interpersonal dynamics underlying conflict and thus to achieve substantively better resolutions through
community forums than were possible through the court system. 17
Although different in their aims and direction, a common thread running through each of these visions is a commitment to
ADR as a local, democratic, consensual, and informal means of resolving disputes. 18 Judicial reformers within the legal
establishment such as *303 law professor Frank Sander and Chief Justice Warren Burger proposed that alternative
mechanisms of dispute processing would make the administration of justice more flexible, comprehensible, and accessible to
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meet the needs of “ordinary people.”19 Community justice advocates spoke similarly (albeit more radically) of devolving
control over dispute resolution to communities rather than courts, which they criticized as remote, elitist, and representing the
interests of the state and legal professionals.20 For example, Raymond Shonholtz, founder of the San Francisco Community
Board Program, described community mediation as a means to “transform the dormant power and responsibility of citizens”
and possibly to create “the foundation of public policy for justice.”21 Others such as Paul Wahrhaftig, director of the
Grassroots Citizen Dispute Resolution Clearinghouse, wrote about mediation as having “great potential for legitimating and
strengthening local problem-solving resources.”22
Supplementing this democratic and participatory image of ADR is its emphasis on “interest-based” dispute resolution.
Interest-based dispute resolution emerged out of the 1960s work of Norwegian sociologist Vilhelm Aubert, who reasoned
that resource-based conflicts (i.e., “conflicts of interest”) are amenable to resolution through a bargaining paradigm, 23 and
was popularized by books such as Roger Fisher, William Ury, and Bruce Patton’s international best seller Getting to Yes. 24
As applied to mediation, interest-based dispute resolution holds that disputes may be resolved through the working out of
*304 interpersonal and group needs rather than the top-down adjudication of legal rights.
As the contemporary ADR project evolved towards greater institutionalization within the legal field for legitimacy and
resources, however, some scholars questioned whether mediation would in fact achieve community or grassroots
empowerment.25 Early critics of ADR began to describe mediation’s informal, private, and interest-based modes of resolving
disputes as a form of social control rather than social transformation: a gradual extension of the state and the judicial system
into previously less accessible social spaces, hand in glove, through an illusion of voluntarism. The state, these critics
claimed, was acting through mediation not in the name of underlying class interests, but rather in the guise of participatory
and consensual processes to achieve alternate ends (i.e., to control and manage conflictual populations). Capturing this, law
professor Richard Abel described informal dispute resolution as “a mechanism by which the state extends its control [over
workers, the poor, ethnic minorities and women] so as to manage capital accumulation and defuse the resistance this
engenders.”26
*305 Others warned that rather than increasing access to justice for the poor, ADR would serve the interests of legal elites by
filtering “garbage cases” out of the courts.27 Critics thus approached mediation’s ideals of “harmony,” “community,” and
“consensus” with deep suspicion. They argued that mediation was replacing public concerns for rights with more implicit and
privatized standards of social conformity--“interests”--to resolve disputes. Moreover, they predicted that this shift in focus
from rights to interests would allow mediation to embody the inequalities embedded in social norms (such as patriarchy or
racism) without accountability to the state or explicit standards of justice, 28 and would diminish opportunities for disputants
to develop collective claims and identities.29 On this last point, Trina Grillo famously argued that mediation’s focus on
problem-solving and communication, which de-emphasizes fault and socio-legal entitlements, makes the process of claiming
rights particularly difficult for individuals or groups (e.g., women) socialized to suppress anger. 30 *306 Along these lines,
Nader represented ADR as an intentional “effort to quell the rights movements (civil rights, women’s rights, consumer rights,
environmental rights)”--groups who had only begun to use the courts to their advantage--by extolling an ideology of harmony
over conflict.31
Several voices from within the legal establishment--critical of mediation more for its inadequacies as a dispute resolution
process than as a form of social control--echoed Nader’s concern that informal processes would disadvantage marginalized
groups. As a matter of procedure, these scholars argued that mediation’s private and informal forums remove the safeguards
of equal protection before an adversary,32 lack the institutional expectations and procedural rules designed to deter
prejudice,33 and allow the process of story-telling to conform to negative cultural myths about marginalized groups. 34 As a
matter of substantive justice, they argued that mediation’s emphasis on settlement works against the articulation and
preservation of *307 public values,35 and its private and confidential forums diminish opportunities for citizens to effect
social change.36
Now, several decades after the founding of contemporary ADR in the United States, the extent to which the arguments set
forth in these critiques describe the effects of U.S. mediation remains a key debate within legal and social science
scholarship. Some empirical studies of mediated outcomes suggest that women and minorities may fare less well in
court-annexed mediation than they do in court,37 while other studies broadly document party satisfaction with mediation
processes.38 Political scientist and law professor Deborah Hensler suggests that court-related mediation programs
approximate *308 traditional judicial settlement conferences more than participant-driven and transformative processes.39
Into this mix, ADR proponents--many themselves acutely sensitive to concerns about fairness--have offered numerous
procedural reforms in an effort to ensure that mediation does not produce substantive injustice. 40 What is clear, however, is
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that only a minority of U.S. scholars continue to promote mediation as an instrument of progressive social change. 41 As this
debate stands, proponents of mediation almost always cast their concerns about justice in terms of procedural reform *309 or
defense; opponents almost always cast their arguments as political critique.
B. The Global Debate: Western Aid Versus Western Hegemony
1. The Proponents
The globalization of ADR shares many features in common with what has become institutionalized as ADR in the United
States. ADR is now routinely shipped abroad as part of international development projects intended to modernize and
rationalize state judicial systems. As one practitioner-scholar who implemented USAID-funded ADR programs in Bolivia,
Anthony Wanis-St. John, puts it:
The demands of global interaction, coupled with the inadequacies of internal institutions have helped fuel the search for
alternative mechanisms of conflict management... . Where judicial reforms and institution-building efforts are taking place,
model ADR programs are often a small though integral program component. In this sense, a judicial system, by employing
ADR efforts, seeks to create experimental but functional internal institutions that demonstrate new techniques in conflict
management and at the same time help to alleviate bureaucratic problems such as case backlog. 42
*310 Mediation programs are proliferating, just as Wanis-St. John describes, as part of first world donor-funded initiatives to
promote good governance and rule of law in developing and transitional states43 -- *311 legal reform projects that are now
central to mainstream development discourse.44 Both USAID and the World Bank, for instance, promote ADR as part of
their rule of law programs, emphasizing democratization and economic transition efforts, respectively. 45
Yet, as Wanis-St. John aptly states, there have been remarkably few attempts to measure mediation’s success in achieving
these or other goals.46 In setting forth benchmarks to evaluate the consequences of the global ADR, Wanis-St. John’s
proffered criteria, like those applied domestically, are largely methodological: “[Number of] cases resolved or settled by
ADR mechanisms”; “estimate[d] time and *312 money savings”; “[party] satisfaction with the process and outcome”; and
change in adversarial relationships.47
Another group, Scott Brown, Christine Cervenak, and David Fariman, uses a similar set of variables measuring process and
user satisfaction to examine several dozen ADR initiatives in developing countries.48 They loosely evaluate how these
projects reduce case processing delays and monetary costs, increase party satisfaction and access to dispute processing
mechanisms and (thus) justice, and create opportunities for experimentation in dispute resolution design. 49 Such measures
reflect what the authors propose as global ADR’s defining characteristics: (1) informality (which, they explain, enables the
accessible, timely, and cost-effective processing of disputes); (2) the resolution of disputes through the application of equity
rather than law; and (3) enhanced opportunity for dialogue and reconciliation. 50 This standard set of measures and forms, I
would argue, has largely captured the imagination of ADR’s global proponents. 51
*313 Proponents of transnational mediation do, however, wish to design a global practice that is culturally sensitive. 52 As
Wallace Warfield recently commented: “[I]t has come to the point where hearing about the ‘American style’ (of conflict
resolution), triggers visions of a parade of horrors trailing closely behind.”53 Practitioners, eager to correct such visions, are
now increasingly attentive to differences in the ways in which individuals and groups represent and resolve conflict. Yet
many tend nonetheless to offer a standard menu of techniques (informality, self-determination, consensus-based dialogue)
and corresponding measures (settlement rates, user satisfaction) precisely because, as a set of professedly neutral methods to
resolve conflict, these appear to map easily onto the “cultural” styles and norms of local communities.
*314 Mediation is thus often presented as an example of what James Ferguson has called an “anti-politics machine.”54
However, as I explore in detail in Part III, imagining mediation as a machine--that is, as a set of prefabricated,
methodological, and cross-cultural solutions to resolve social conflict--erases from view the normative commitments
embodied in disputes over resources, labor, and familial relations at mediation’s center. Moreover, it occludes how contextual
(and political) the application of a new dispute resolution project turns out to be.
If proponents of global ADR package and implement a model of mediation driven largely by a stable set of features,
methods, and measures to achieve social consensus across contexts, critics of global ADR tend quite similarly to undervalue
the possibilities of local innovation in their insistent focus on ADR’s structural shortcomings. Although few in number,
critics have attacked the global transfer of ADR in strident and totalizing terms; their arguments require careful evaluation.
2. The Critics
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With the export of U.S.-based ADR has come the export of U.S.-based critiques. Spearheading this effort, in 1995, Laura
Nader argued that the global practice of ADR functions, just as its domestic counterpart, to “hold the line on power
redistribution.”55 “[T]he [international] scene,” she claims, “is striking in its similarity to that of the U.S. Alternative Dispute
Resolution (ADR) movement of the 1970s and 1980s.”56 Nader and others57 describe the export of ADR *315 by first world
states and international development agencies as “reminiscent of . . . neo-colonialist attempts to maintain and increase
hegemony by means of civilizing (or development) missions” in the guise of dispute resolution and problem-solving.58
Nader begins her critique of global ADR with an analysis of rhetoric: “Just as ADR in the United States moved the rhetoric
from justice to harmony, so too at the international level the notion of ‘mature’ negotiation has been replacing the World
Court” as a more civilized standard to resolve disputes.59 This rhetorical shift from justice to harmony also coincided, Nader
argues, with a change in the composition of the World Court, which, in the second half of the twentieth century, began to
include greater numbers of judges from post-colonial states “sympathetic to the causes of the newer ‘Third World’
nations.”60 Thus, she concludes, a move from adjudication (when adjudication appeared against the interests of the West) to
harmony rhetoric or ADR, allows the West to maintain “flexible positional superiority” or the “relative upper hand.”61
As her case in point, Nader examines international river disputes. In arguing that justice demands the adjudication (or
arbitration) rather than the negotiation of international river disputes, she begins by citing one of the few arbitrated river
disputes--the Lake Lanoux case--that was resolved in the 1950s. In that case, Spain, the downstream user and the weaker
party, prevailed over France.62 Nader then proceeds over several pages to illustrate that in the decades that followed, both
international experts and national representatives of powerful states preferred bilateral negotiations rather than public or
private adjudication to resolve international river disputes.63
At bottom, Nader’s proposition is that bad (hegemonic) intentions underlie this turn by strong states to negotiation and
problem-solving ADR.64 At times, she proposes the conceptual limitations of *316 this argument; she suggests, for example,
that a preference for a specific forum often “conflate[s] process and outcome.”65 However, the persuasiveness with which she
proceeds to indict negotiation’s consequences for justice rests on evidence (i.e., the repeated documentation of a preference
for negotiation by the strong66) that at best supports a claim that certain processes and structures will affect outcomes in
certain predictable ways, or perhaps more accurately, a description that there is a widespread perception that they do. Nader
summarizes her argument, in a later essay co-authored with Elisabetta Grande, as follows:
The most serious illusions and delusions [of global ADR] appear when we examine the history of what really happens when
disputes are mediated or negotiated... . A review of the role of adjudication and negotiation in international river disputes (the
Ganges, Jordan, Colorado, Duoro, and Danube Rivers) characterized by power asymmetry and upstream-downstream issues
reveals preference by the less powerful nations for World Court adjudication, while the more powerful countries prefer
negotiation (Nader 1994). In light of the skewing effects of power asymmetries on informally negotiated outcomes, it is
understandable why powerful parties have preferred negotiation and ADR over the International Court of Justice. 67
In equating a preference for ADR by powerful nations with conclusions about what “really happens” when such nations use
ADR, Nader collapses intention and consequence, method and effect. In this later essay, Nader and Grande discuss the export
of ADR to the “inside” of developing countries. They offer a rich description of the multiplicity of legal ideologies in the
Horn of Africa, including legal arrangements that reflect the collective organization of social life and that have persisted
despite several “failed attempts to ‘modernize’ the law.”68 Modernity, they suggest, involves the relinquishing of group *317
protection in exchange for the state’s protection of individual rights within and outside of groups.69 ADR, they assert, is a
device through which the state justifies a retreat from protecting such rights through the establishment of private and
consensual modes of resolving disputes.70
This conclusion--that states use ADR to relinquish their responsibility to uphold the rights of their citizenry--relies on a
central assertion that there is a gap between the rhetoric through which ADR is legitimated and promoted and its effects on
the ground. However, Nader and Grande’s unidirectional description of this gap, which always runs from good rhetoric to
bad practice, both replaces and belies an actual examination of what is, again, a prediction about effects. ADR, whether in the
“United States or in the Horn,” they assert, “becomes in practice a complete loss of protection for poor litigants,” lacking
both the protection of a group and the market. 71 This loss for disadvantaged groups is only deepened in weak states, they
argue, where “ADR diffusion is not the diffusion of alternative mechanisms of dispute resolution ... [but] ... is merely the
diffusion of a Western harmony ideology.”72 In making these claims, Nader and Grande do not, however, examine instances
of ADR programs--in the Horn of Africa or elsewhere.
To be clear, the strength of Nader and Grande’s critique of global ADR rests on: (1) a set of prefigured, stable, and
predictable forms (in particular, informality, privacy, and individuated and consensual modes of resolving conflicts); (2) their
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opposition to these forms based on a (decontextualized) analysis of methods rather than effects; and (3) a contextualized, yet
partial, reading of the intentions and values of those who support these methods. 73 This remains the case even as Nader and
Grande call for greater attention to local contexts through *318 which to understand and evaluate the global proliferation of
ADR.74 “ADR ideology is intact and diffusing worldwide,” they insist, “in hegemonic splendor.”75
Although Nader and Grande justifiably call on ADR’s “‘soldiers”’ to widen their frames of analyses,76 their own indictment
of ADR’s forms and of the (presumed) intentions of ADR’s planners at best backgrounds, and at worst makes invisible, the
complex innovations that ADR may produce on the ground. For example, as I will argue below, ADR in Nepal is often public
and coercive rather than private and consensual. Moreover, contrary to Nader and Grande’s presumption, 77 ADR’s
dissociation from a weak state is often what enables it to create spaces for the public negotiation of rights and social
norms--spaces that are currently far less penetrable within formal state apparatus. I will thus suggest, in response to Nader
and Grande, that ADR is not always what it seems, and sometimes produces unexpected (and progressive) ends.
Thus, in summary, if Nader and other field critics argue that ADR’s informal methods necessarily work against social justice,
the majority of field defenders accept these methods as socially desirable, and dissent simply from ADR’s cultural formalism,
its tendency to propagate highly particularized practices of representing and resolving conflict. Yet, in so doing, both
positions tend to assume that ADR *319 should, or simply that it does, travel with its signature methodological features (e.g.,
neutrality, privacy, and consensus-based processes) intact. And both leave too little space to apprehend the emergent costs
and benefits that ADR may achieve in new social contexts.
Returning now to an ethnographic analysis of two mediation projects currently operating in Nepal, I hope to expand the
contours of this debate. Taking mediation’s consequences for justice as the focus of my case studies, I will argue that ADR
interventions in third world states, as they develop and change in a variety of unexpected directions, pose important--and as
of yet unanswered--questions about mediation’s potential for progressive social change. What I observed in Nepal strongly
suggests that, on the one hand, current efforts to “accommodate culture” themselves do little to ensure that mediation
expresses the interests of marginalized groups in weak states. On the other hand, the emergence of locally-driven and hybrid
ADR programs have enabled users to gain access to new collective claims, entitlements, and methods (be they “formal” or
“informal”) to resist the kinds of state and social hierarchies that oppress them. As the descriptions of mediation in Nepal that
follow illustrate, neither the defense nor critique of transnational ADR can fully account for what is emerging there.
II. Contemporary Mediation in Nepal
Anthropologists have long studied the complex political, social, and economic impact of international development projects
in the third world.78 Among these development projects, many anthropologists have analyzed dispute resolution, 79 including
forms of dispute resolution in Nepal.80 What has been less attempted, however, is an *320 analysis by ADR scholars
themselves of the implications of development for the design and structure of dispute resolution projects. A short description
of some of Nepal’s political conditions helps explain the distinctive forms that mediation in Nepal is achieving.
Whereas ADR in the United States emerged in the context of a strong and pervasive state order, ADR in Nepal is perhaps
best understood as part of the international and national projects of development in their aim to amend the ineffective state.
Unlike the United States, where ADR developed largely in response to a particular perception of failings within the legal
system--the overly bureaucratic nature of the law and the limitations of adjudication as an optimal means of representing and
resolving a range of disputes81-- modern mediation in Nepal, as in many developing countries, is emerging out of an entirely
different kind of perception of failure. In particular, it is emerging out of the failure of the state legal system to penetrate and
regulate the villages of rural Nepal, on the one hand, and the increasing inability of “informal” structures (i.e., existing village
or kinship-based networks) to address social conflict, on the other.82 Local Nepali proponents of ADR attempt to use
mediation to supplement and correct for gaps in (centralized) state governance, which are particularly evident in rural Nepal,
and to protect against the abuses of local representatives of the state in the rural districts, particularly the police and other
local law enforcement.83
Contemporary ADR in Nepal is also developing from above as part of new national efforts to reform the state bureaucracy of
local governance and administration. These efforts began in 1990 as the *321 country shifted from a monarchy to a
parliamentary democracy. In 1999, after the Constitution replaced the local partyless system of government with a
representative structure in which village development committees (VDCs) comprised the basic administrative unit, 84
Parliament drafted the Local Self-Governance Act (LSGA) to govern village-level affairs. The LSGA enables a VDC-level
board of three mediators and/or arbitrators to settle a wide range of noncriminal cases through a hybrid mediation/arbitration
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process and to oversee the enforcement of agreements. 85
Momentum for the inclusion of ADR provisions within the LSGA coincided with a push by international donor agencies in
Nepal to utilize ADR as part of a broader development agenda dedicated to judicial strengthening and court reform. For
example, USAID recommended the creation of national ADR capacity to make the Nepali judicial system more effective and
accessible.86 To that end, it proposed to “operationalize ADR, to include community arbitration boards, in selected
conflict/dispute prone communities.”87 In 2002, USAID entered into a four-year, $14.3 million grant agreement with the
government of Nepal to “Promot[e] Peace through Improved Governance.” Among the grant’s stated objectives was to “seek
and pursue means to bring accessible, affordable justice under the rule of law to rural Nepalis, by actualizing the provisions
of [the LSGA’s chapter on arbitration] . . . [and to] support the provision of training in alternative dispute resolution skills,
e.g., conciliation, mediation, and arbitration, to large numbers of people in rural areas.”88
*322 Although many of USAID’s goals for ADR in Nepal mimic the reformist visions of ADR in the United States in the
1970s and 1980s--to “relieve court congestion and promote peaceful resolution of disputes outside the costly and delay prone
formal system”89--many of ADR’s users are nonetheless responding to a very different set of social and institutional
problems within the state judiciary and law enforcement: corruption, inconsistent precedent, under-enforcement of
progressive laws, gender and caste discrimination. 90 Moreover, the political situation has been in serious crisis for the last
several years as the Maoist People’s War has interrupted even modest operation of the existing judicial system. 91 In 2002, a
series of attempts first by the Prime Minister and then by the King to consolidate state control, they claimed, in the face of an
escalating security crisis has also left Nepal without any currently functioning democratically elected organs, including local
representative bodies.92 As a result, ADR often functions in place of, rather than in addition to, the *323 district courts. In
addition, the VDCs are now run by bureaucratic rather than elected representatives, leaving villagers in Nepal without a
democratic means for inclusion in government.93 This, in turn, significantly enhances the role of international donor agencies
and NGOs in the regulation and negotiation of everyday life, including the provision of dispute resolution forums and
community justice.
Currently, USAID and the British government’s Department for International Development (DFID) provide primary sources
of financial assistance for ADR projects in Nepal. 94 In the fall of 2002, USAID contracted with The Asia Foundation (TAF),
an international NGO, which in turn partnered with five national NGOs as well as the Ministry of Local Development to
provide mediation services in sixty-four VDCs and eleven municipalities in eleven districts.95 Like many ADR programs in
developing countries, the USAID/TAF program combines a formal enabling authority, the LSGA, 96 with processes that are
professedly informal and non-legal.
The method and approach USAID/TAF has adopted to train its mediators stem from classic U.S. mediation techniques
designed to *324 allow parties to resolve disputes through communication and dialogue, outside the purview of the law and
through mediator neutrality and party self-determination.97 Its training manual describes mediation as private or community
decisionmaking, based on consensus rather than rights, and suggests that rights signify the point at which the “community
ends” and “law begins.”98 Its measures of evaluation focus primarily on process and user satisfaction. 99
Conversely, the Centre for Victims of Torture (CVICT)’s mediation program (which is funded directly by the Department for
International Development) emerged out of a somewhat more complex relationship with the Nepali state. Grassroots in its
origins, if not its funding, CVICT was formed in the aftermath of the People’s Revolution of 1990 to provide counseling and
other services to victims of state torture. Over the course of his work, CVICT director Bhogendra Sharma discovered that
community disputes were a major source of police harassment and violence. 100 Thus, he initially conceived of community
mediation centers as preemptive measures to evade state violence, and only later developed an interest in mediation as a fully
independent program. Significantly, the project’s founders opted not to coordinate their efforts with the drafting process of
the LSGA, preferring the “informal feel” of operating as a grassroots project not beholden to centralized legislative authority.
However, CVICT also rooted its mediation boards within local-level state bureaucracy by *325 inviting the participation and
oversight of VDCs, and by housing mediation meetings and office space within village administration offices. As Sharma
himself noted, this provided mediation with a kind of government legitimacy, which made it an effective vehicle for
community dispute resolution and a reasonable alternative to the police. 101
Beginning in March of 2001, CVICT instituted forty-five pilot mediation programs in VDCs located in the districts of Ilam,
Jhapa, and Saptari. Under the guidance of three local partner human rights NGOs, potential mediators attend a one-week
training in human rights, domestic law, and mediation processes and then become members of “human rights and mediation
committees.” Like the USAID/TAF facilitative model, the CVICT mediation project stresses egalitarian procedural norms
(everyone should get a fair chance to speak and listen, no shouting, and no insulting) and aims to include women, dalits
(“untouchables”), and ethnic minorities among village mediators. Yet, unlike the USAID/TAF model, CVICT mediators are
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expressly concerned with the substantive outcomes of disputes. As one NGO director explained to our research team, when
mediation does not produce seemingly equitable outcomes for poor, lower castes, or women, CVICT “mediators are trained
to bring the concepts of international human rights to villages, through social pressures and influence.”102 CVICT’s measures
of evaluation include criteria such as upholding basic laws, protecting and promoting human rights, decreasing domestic
violence and discrimination based on gender, caste, class, or occupation, and “reducing adherence to traditional practices and
superstitious beliefs that are anti-human rights.”103
*326 These two mediation initiatives, the USAID/TAF and CVICT projects, respectively, will form the basis of comparison
for Parts III and IV, which follow.
III. The USAID/TAF Project: Culture Matters, But How?
In describing the export of ADR, I suggested that field proponents, despite their fealty to a basic set of methodological
commitments, are eager to develop a global practice that is culturally sensitive. Tellingly, the mantra “culture matters” is now
a stock phrase of the global ADR practitioner and scholar. 104 Underlying this turn to cultural analysis is a desire to reconcile
the methodological commitments of ADR with local practices of disputation. Just how this balance between “culture” and
“method” might be struck, however, remains an open question within the field.
A. Incorporating Tradition
Some scholars and practitioners propose that ADR should make space for traditional or indigenous methods of dispute
resolution. For example, law professor Douglass Yarn, in a recent essay considering best practices for global conflict
resolution, endorses the creation of “transferable models” that are “culturally and structurally adaptable” and are exemplified
by efforts to combine North American methods with “elements of indigenous conflict resolution practices and culture.”105
Good transnational practitioners, he suggests, do their “homework on history, tradition, and culture,” include “indigenous or
traditional methods and institutions of conflict resolution” where they “exist[ ],” and engage “local partners to the greatest
extent possible,” and, in this way, may “transcend the cultural bias of the North American models.”106
This suggestion that a culturally sensitive ADR practice might operate to preserve and incorporate tradition, although perhaps
initially compelling, is made problematic by critical investigation into the concept of tradition itself. What social scientists
like Terence Ranger and Eric Hobsbawm have argued is that there is no such thing as an immutable, stable, and ahistorical
set of practices one might call tradition.107 Cultural traditions, which Yarn implicitly *327 represents as shared, personal,
unconscious, and (relatively) equitable spaces of value, may instead be understood as practices that are invented and
deployed for competing social, political, and ideological ends. As Nader and Grande, quoting Peter Worsley, put it: “What is
mistakenly often seen as tradition--attachment to the past as a value in itself--is better viewed as a way of maintaining title to
power, wealth and status in the present, or as a nostalgic spiritual contrast to present disprivilege.”108
In other words, an approach to cultural accommodation that simply carves out a space to accommodate “traditional” forms of
speech or trust risks eliding the ways in which cultural practices are often themselves the (disputed) sites of social
conflict--the very set of value-laden practices and effects that one may wish to examine and engage rather than simply
“respect.” In addition, this approach provides little guidance on how ADR might accommodate tradition when, for example,
tradition dictates status-based determinants rather than liberal self-determinants to resolve conflict. Simply incorporating or
respecting culture or tradition, as Yarn proposes, 109 is illusory; it always has distributional effects.
B. Revealing ADR Methods as Products of Culture
A second approach to culture in the field of ADR aims to examine the ways in which ADR methods are embedded within
culturally specific assumptions about representing and resolving conflict, often with an emphasis on language and
communication. Authors such as Carrie Menkel-Meadow and John Paul Lederach argue that U.S. forms of mediation
privilege some types of communication to resolve conflict and, accordingly, discredit others. Menkel-Meadow, for example,
suggests that mediation’s “difficult communication issues,” such as “information sharing, trust, empowerment, problem
solving, active listening, [and] reframing,” combined with “the complexities of ‘culture’ ... [make] export of American
models likely to be somewhat problematic.”110 She proposes that “[t]alking cultures like Argentina, Paraguay, and other
Latin American cultures, ... may ... be more amenable to ‘exportation’ and assimilation of our forms of dispute *328
resolution than some other places, including those whose legal systems appear closer to our own.”111 Elsewhere she writes
that “American mediation can be seen as an ethnocentrically biased approach which privileges talk and psychological and
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interpersonal problem solving over reticence or other forms of dispute resolution.”112 John Paul Lederach argues similarly
that “the incoming [North American] model is embedded with culture,”113 and his rich ethnographic writing reveals both
subtle and stark differences among language, patterns of speech, and perceptions of relationships. 114
Menkel-Meadow’s and Lederach’s points are, of course, descriptively correct. U.S. mediation emerges out of a particular
context with a set of dominant communicative and behavioral practices that are not the norms nor context everywhere. A
primary insight that Menkel-Meadow and Lederach thus offer is that mediation’s methodological techniques, although they
may claim universal application, are really the products of specific cultural origins. This insight is important. Both
Menkel-Meadow and Lederach use it to draw critical attention to the fact that how (and in what voices) individuals negotiate
and resolve disputes operate against a backdrop of cultural, social, and legal relations and reflect and reproduce relations of
power.115
Yet, the revelation that what we thought was method is in fact culture says little about whether the culturally specific
methods of U.S.-based ADR are desirable or harmful in the sites to which they *329 travel.116 For that we would need to
articulate separate measures of evaluation that reflect a separate set of methodological or substantive commitments. For
example, we might oppose the introduction of therapeutic and confessional forms of speaking because we think they produce
particular forms of (“western”) expression that crowd out alternative forms of consciousness that we wish to support. Or, we
might oppose these forms of speaking because we think that among individuals who disclaim self-referential criteria for
dispute resolution, these forms are less likely to achieve an expedient reconciliation of the dispute at hand, which is our aim.
Or, we might prefer these methods for inverse reasons. This is simply to say that although both Menkel-Meadow and
Lederach help place “methodological” and “cultural” commitments in tension, neither seeks to articulate standards by which
difficult choices might be mediated.
C. Adjusting ADR for Cultural Difference
Other scholars and practitioners, attentive to the idea that ADR is culturally specific, have tried to develop processes or
methods to adjust ADR to new cultural homes. Picture, for example, an electronic socket adapter or converter designed to
allow a computer manufactured in the United States to function abroad.117 In the ADR context, this approach is similarly an
effort to ensure that mediation will continue to “work” as it is fed new cultural currents. If mediation is considered a set of
techniques, some of which reflect or encode cultural variations in behavior or communication, the process I intend to describe
is one in which one cultural variant is replaced with the next without disrupting the integrity of mediation’s composite
techniques.
In making these adjustments, practitioners and scholars often rely on the organization of data about the behavioral and
cognitive traits of social groups along axes such as individualism versus *330 collectivism118 and high-context versus
low-context119 styles of communication.120 For example, there is research suggesting that high-context communicative
styles, which are indirect and implicit, are associated with “national cultures” such as those of the Chinese and Japanese,
whereas low-context communication styles, which are direct and explicit, are associated with “national cultures” such as
those of North Americans, Swiss-Germans, and Scandinavians.121 By locating social groups as points along these
continuums, scholars who utilize these dimensions can offer prescriptions to tailor dispute resolution methods to different
behavioral, cognitive, or communicative preferences.122
*331 Although conceivably providing a shared vocabulary to discuss points of cultural difference, these dimensions are
problematic as a basis for cross-cultural prescription. Reliance on these dimensions often promotes the simple adjustment of
mediation techniques to a standard and circumscribed set of variants. For instance, global practitioners schooled in this
approach are likely to allow parties to speak circuitously rather than linearly as an example of cultural adjustment. Yet, they
are just as likely to insist that the parties, rather than the mediator, generate options for resolution, without attending to the
ways in which such choices reflect a fealty to methodological commitments over (other) cultural or social goals. This is
rather inevitable: it is much easier to accommodate standardized variations in how individuals communicate or negotiate as a
product of culture than to understand that why individuals negotiate in the fist place--that is, the substantive or symbolic ends
they desire to achieve (peace, justice, publicity, status, equality)--are equally products of *332 culture.123 This is because the
latter may be cultural products directly in tension with mediation’s methodological commitments to self-determination,
privacy, or neutrality; moreover, they are products that defy readily available techniques to offer off-the-shelf solutions or
prescriptions.
As a result of this technical approach to cultural adjustment, global practitioners may also easily ignore larger contextual
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differences in practices of dispute resolution in the United States and elsewhere, where ADR does not necessarily act in
addition to a functioning legal system, but often in its place. They may similarly assume that the beneficiaries of ADR
interventions experience the precise problems--for example, a backlogged judicial system or inability to access the formal
courts--that U.S. expertise is most suited to address. As the following case example illustrates, by treating mediation as a
stable set of techniques to address private, interpersonal problems, applicable upon adjustment to private, interpersonal
problems anywhere, those of us involved in the TAF/USAID mediation training under-attended to problems like political
instability, social hierarchy, and severe forms of economic inequality--social variables that might produce desires for a very
different model of dispute system design. We adapted exercises from U.S. sources, added Nepali linguistic expressions,
aimed to include customary village mediators among those who would be professionally trained, and asked questions about
body language and eye contact. That is, we attended to the question of culture during our mediation training, yet we collapsed
its weight into mere “programmatic or technical” insights--gesturing to our Nepali colleagues to critique our framework for
mediation more than to build their own.124
*333 D. The USAID/TAF Mediation Training
At the invitation of USAID in September of 2002, I joined a group comprised of The Asia Foundation, the Nepali
government, and local NGOs developing a countrywide rural mediation program. In May 2003, USAID invited two
consultants from the United States to Nepal to facilitate a series of mediation trainings. Along with five Nepali “master
trainers,” the consultants and I spent two weeks in a hotel in Dhulikhel in the hills outside Kathmandu preparing
approximately sixty-two Nepali “trainers”--government and NGO workers who would travel to pilot village sites where they
would in turn train thousands of village-level mediators.125 Trainers were taught to follow a multi-phase process that spanned
the familiar U.S. mediator tasks of setting ground-rules, eliciting stories, identifying interests and issues, brainstorming
options, and drafting agreements. Desirous of cultural sensitivity, the consultants worked with the Nepali master trainers to
write village-based scenarios that involved disputes over cutting trees or polygamous marriages. More than that, they worked
hard and with a great deal of care, to imagine how they might teach skills and values such as active and empathic listening,
interest-based negotiation, and “assumption-testing” in ways relevant to a foreign audience. Yet, at the same time, they left
little room for participants to negotiate among the social goals and consequences to which mediation might contribute.
For example, trainees who in a role-play agreed that a second wife would stay married to her husband in exchange for large
maintenance payments were cautioned that they violated state law that makes polygamy illegal.126 A requirement to uphold
state law is one of the few substantive limitations that U.S. mediation imposes on mutually-agreed upon settlements.
However, the first wife in another role-play who was willing to accept less than her legal share of her husband’s property in a
divorce settlement, and the day laborer who lost his hand in a work accident and yet was willing to settle for a very small
amount of monetary compensation were described as exercising self-determination. In the United States, allowing parties the
“freedom” to bargain without regard to or without knowledge of *334 the law is a standard, if oft-critiqued,127 compromise
between mediation’s commitment to neutrality, on the one hand, and self-determination, on the other.
Thus, despite, or perhaps because of, a desire to be culturally sensitive and to not intervene, the consultants kept intact the
integrity of concepts such as neutrality, self-determination, and consensus-based dispute resolution. There was no discussion
of the ways in which U.S. forms of self-determination and neutrality might be implicated by the absence of applicable labor
law,128 or the presence, yet under-enforcement, of progressive marital property laws.129 Nor was there examination of the
ways in which the local realities of polygamous marriages and cultural (but also political and economic) gender inequalities
might interact with domestic law making polygamy illegal, on the one hand, and consensus-based processes requiring the
illicit couple to agree to a division of resources, on the other.
Demonstrating the depth of his fealty to U.S. methodological commitments, one consultant explained to participants that
although a party may be unaware that a settlement is less than what the law would allow, when mediators offer legal
information they “step over the line” of neutrality and thus unravel the mediation process. The consultant’s instruction was
duly heeded. In an evaluation of the training, one master trainer and NGO director commented that, “[Our] preoccupation
[with mediation as a legal notion] got virtually demolished in the training ... mediation does not have anything to do with
legal knowledge and practice. Mediation is essentially a search for the solution by the parties themselves.”130
Accommodations were, however, aptly made for variances in patterns of communication, behavior, and traditions. For
example, in *335 eliciting mediation ground rules, the consultants modified the typical list of western-style conversational
norms (speak in turn, no interrupting, etc.) and included injunctions such as “no staring” or “a wife must not stare at another’s
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husband.” When soliciting ideas to resolve a dispute in a mock mediation, because the proposal that a “sister should sacrifice
herself for the sake of peace” was described as a “cultural norm,” the consultants named it as “one option” to place on the
table. Similarly, in a hypothetical case about domestic violence, one consultant described “her interest” in having “her
husband stop beating her,” and “his interest” in having “her behave differently.”
Whether an injunction against cross-sex staring should be a mediation ground rule, a proposal to sacrifice oneself for
harmony should be an option to problem-solve, or a desire to stop physical abuse should be described as an interest is not my
concern here--figuring that out would require a separate set of substantive commitments. What I want to illustrate instead are
simply the ways in which the consultants attended to culture as perfunctory questions of communicative and behavioral
difference (a ground rule against staring) rather than as a set of substantive values (who should defer to whom, who should
not look at whom) and a set of strategies to give play and power to such values. Thus conceived, culture--at least for the
duration of our training--became its own technocratic form, disconnected from normative goals, politics, and social conflict.
E. Lessons from the TAF/USAID Mediation Training
In the aftermath of this training, sixty-two Nepali trainees themselves trained 1327 village mediators who, between January
2004 and September 2004, jointly mediated 1473 cases, settling approximately eighty percent--an overall “efficiency” score
that TAF notes far surpasses that of CVICT.131 TAF’s self-assessment report observes the project’s success in establishing
“the interest-based facilitated model of community mediation as an effective alternative for dispute resolution.”132 At the
same time, however, based on its project evaluations, TAF quite candidly recommends that “[s]pecial attention should be . . .
directed towards expansion of training modules on basic legal rights and human rights conventions” as the project evolves.133
*336 Although I have been unable to return to Nepal to observe resulting mediations, I would suspect to find a good deal of
invention and variation as mediation spreads through the villages of rural Nepal. In fact, although the USAID/TAF project
has retained its emphasis on interpersonal and interest-based dispute resolution, in the summer of 2004, in part as a result of
conversations between TAF and CVICT mediators, TAF began designing provisions for legal aid and legal rights awareness
to accompany its mediation trainings.134
Thus as gaps in our inaugural training demonstrate, there are costs to granting the theory and practice of U.S.-based ADR an
ideal and authorizing vocabulary. By limiting inquiry of cultural difference to the (purportedly) shared behaviors of disputing
parties and answering that inquiry with standardized and formulaic modifications, the consultants: (1) presumed the stability
of a set of methodological commitments as the best means to promote dispute resolution in Nepal; and (2) failed to consider
the possible effects that choices about cultural accommodation might, in practice, produce. If this example is a reliable
indicator of cross-cultural mediation trainings, and I suspect that it is, given the international experience and profile of the
consultants135 and the array of literature espousing similar approaches, 136 current attempts to adjust for culture themselves do
little to link global ADR processes to the complexity of local realities.
But what does this example suggest for ADR proponents about how culture might matter? Often, as Nader and Grande
correctly imply, accommodating culture has the effect of privileging existing social relations and, in so privileging,
strengthening existing forms of domination. Of course, the inverse is also true. The invocation of culture can be a strategy
through which individuals and groups struggle, examine, and resist domination.137
*337 If culture matters as an object of analysis for the proponent of global ADR, it might matter as a means of engaging with
a project’s particular set of commitments. It might also matter as a means of fostering local definition and debate about such
commitments. Put a bit differently, we might think of culture as one terrain on which goals get articulated and effects get
measured.
What I am thus proposing is an explicitly interventionist model of mediation; one in which procedural design flows from the
social, political, and cultural goals a dispute resolution project aims to achieve. To be sure, such an approach would create a
new set of problems. Mediation projects may have multiple, even conflicting, goals and commitments. Commitments may be
unstable, hard to define, and legitimate stakeholders may disagree. There may be no obvious or necessary congruence among
process, cultural practices, and substantive ends. The congruence we predict may be wrong, or, even when it is correct, it may
produce unintended effects.
At most then, my suggestion is a strategy to act--that is, to manage the conflict that arises when the cultural or social goals of
a dispute resolution intervention clash with the methodological conventions of U.S. mediation by making both transparent
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and purposeful the balance we decide to strike and thus both forcing and granting responsibility for the consequences that
result.138 The case example of CVICT mediation that follows illustrates such an approach. I offer it, perhaps, as a way out of
the polarity of the debate.
IV. The CVICT Project: Mediation as Social Intervention and Cultural Change
In this section, I explore CVICT’s public, rights-based, and, at times, coercive practices of mediation in order to both present
an alternative narrative of cultural engagement and reveal the limits of the social justice critiques to explain mediation’s
effects on the ground. It is worth noting at the outset that CVICT’s literature makes no mention of the term culture (other
than the occasional reference to one of Nepal’s myriad ethnic groups) and offers no analysis *338 of the cultural content of
the concepts it utilizes. To the extent that culture appears as a relevant category for CVICT mediators, it is not in the form of
an injunction to respect any particular set of social norms or group behavior. Rather, culture is a strategy to remake individual
and social consciousnesses in the service of a particular social justice project, and it is a battlefield at which some values are
challenged, others are valorized, and new ideas of the self and social life are created and rewarded.
A. CVICT Mediation: Its Forms and Functions139
CVICT describes its model of mediation as “collective,” “organized,” “informal,” and “rights-based.”140 By “informal,”
CVICT implies that there are few procedures with which parties must comply; by “collective” and “organized” it refers to the
fact that a group of nine to twenty-seven facilitators jointly aim to achieve a resolution to the dispute before them. 141
Parsing what CVICT means by “rights-based” is more challenging. Its self-styled approach to mediation steeped in a
vocabulary of individual and group entitlements certainly provides a counterpoint to the “interest-based” model of mediation
popular in the United States.142 It also, however, reflects a larger trend towards “rights-based development”--that is, an effort
to subject the state and, in fact, “the entire range of development and market reform policies to an overarching set of human
rights and public and international law norms.”143 Yet, in practice, CVICT’s commitment to use mediation to strengthen
domestic law and uphold international human rights is often a strategy to advance particular groups: “small farmers, landless,
occupational group[s], [and] women.”144 Mediators are, for example, encouraged to pressure the more powerful party to
make concessions that favor the weaker party, even if the weaker party has “no right” to such concessions (such as when the
mediation committee *339 persuaded a landlord not to sell his land and displace his tenant sharecroppers).145
CVICT also adopts an activist approach in relation to the kinds of cases it will mediate. Officially, it does not permit
village-level mediation in cases where parties have broken domestic law.146 Nonetheless, in invoking transnational principles
of human rights as barometers of local justice, mediation committees frequently intervene to correct what they perceive as
gaps in domestic law, the judiciary, and the provision of social services. For example, rather than referring polygamists to
state authorities, CVICT mediation committees commonly mediate second and third wife agreements, often arranging for the
husband to divide equitably his resources among his wives. 147 Similarly, committees mediate cases with criminal
implications such as cases that involve cross-border sex trafficking (e.g., negotiating the return of a girl to her family),148
cases that implicate inter-caste battery,149 and cases of domestic violence, citing the ineffectiveness (and substantive
unfairness) of the national court system and police. 150
Concepts such as self-determination and neutrality are similarly adapted to serve the ends of CVICT’s vision of social justice
and stand in contrast to the more standardized versions imported into the USAID/TAF project.151 Self-determination, which
in the United States generally indicates a broad deference to parties’ wishes as they are expressed, here requires that a party
must first publicly renounce her legal rights if she wants to settle for less than what she is entitled by law. Similarly,
neutrality is defined less as an absence of preference for one outcome versus another and more as the absence of familial,
class, caste, or political biases;152 hence CVICT leaves open the possibility both in theory and in practice that “parties may
*340 . . . find themselves under social pressure to participate and settle.”153
Finally, CVICT mediation operates far more within the space of traditional NGO development activity than does the
USAID/TAF mediation project and, as such, it is more concerned with questions of social change, community empowerment,
and local self-governance than purely dispute resolution. The CVICT mediation trainings that I have observed and researched
employ the stock elements of “awareness” trainings--common development strategies in Nepal whereby local villagers
discuss the problems of the state, problems in their communities, and “gain consciousness” of their own rights and
responsibilities.154 Mediation trainings are, in fact, explicitly conceived as consciousness-raising meetings; as one local NGO
director, DN Parajuli put it: “[E]veryone brings their voice to talk about rights ... this [project] is also about raising awareness
among the general population.”155
Thus, in sum, CVICT mediation combines select ADR methods with a locally-invoked vocabulary of human rights in order
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to enhance social justice for women, ethnic minorities, dalits, and the economically poor. It represents a hybrid model of
dispute system design, experienced as mediation by those who use it and funded as mediation by the agencies that support it.
Yet, it is outside the cognizable range of mediation practice by most U.S. accounts. In the following section, I describe some
of the effects that CVICT mediation is producing, paying particular attention to the ways in which they advance CVICT’s
social justice goals. Moreover, to the extent that CVICT is achieving social justice on its own terms, I aim also to examine
what projects, interests, and groups are benefiting, and at the expense of what others.
*341 B. Mediation and Justice156
Through CVICT’s mediation program, socially disadvantaged groups, particularly women, have organized to challenge
social hierarchy and to seek social recognition through power and pressure tactics. In 2001, during the first year of the
program’s operation, separate women’s committees were formed 157 to handle sensitive sex-related cases that could not be
aired in an open session.158 By 2003, however, these committees had transformed and splintered. While women’s
committees continued to meet and mediate in lieu of the regular committee for sex-sensitive cases, women’s pressure groups
acted to supplement the work of mediation to rally, advocate, and shame men on behalf of women--a hardnosed tactic that
emerged out of the failure of both rights and rationality to achieve gender equality in Nepal.159 As the chair of the women’s
committee in one village suggested, “women would not receive a fair hearing before mediation committees without the
assistance of the [women’s] committee.”160 However, rather than advocate that women go to court in place of mediation, she
instead described the critical benefit of mediation as *342 “the opportunity to exert pressure through the formation and
presence of these committees.”161
The idea, according to CVICT’s literature, is that through mediation, community and committee pressure can achieve and
enforce gender justice in ways that the court system cannot. 162 Cases in which the women’s committees typically intervene
include witchcraft cases, disputes involving alcohol and domestic violence, and matters related to property such as divorce
and inheritance. Members typically visit the home of the female disputant, often physically surrounding her while they
chastise male family members involved in the dispute. During the mediation, they may intervene on her behalf, “adding to
her voice.”163 Often when male offenders refuse to attend mediations, pressure group members will arrange for the mediation
committee to arrive at the offender’s home and, in this way, compel him to participate. 164
Unsurprisingly, the female mediators that spoke with our research team almost uniformly portrayed the benefits of mediation,
not in terms of its ability to resolve disputes, but rather its ability to grant women--as a collective group--public voice and
claims to authority. As one female mediator in Balawater VDC put it:
*343 Mediation is very effective because it gives women the chance to speak and be interested. Most of the time we cannot
speak. However, as part of a group your interests get bigger, and you can speak of your experience. Our independence and
self-confidence increase. After this program we know our rights and we won’t lose them. The more we can speak of women’s
rights, the more effective we can be, because now we can speak to all those behind us. But you can’t just address the problem
of a small village; it is about the class as a whole.
And another in Kanyam VDC explained:
There are improvements. Our women’s committee met with women from other wards to give suggestions and help each
other. But you must get women from lower castes because they haven’t come. I will speak with the women who don’t
speak--those who can’t talk, can’t go, and are ashamed. We should bring these people. . . . Her husband will give her
problems to go and the first time she speaks he will yell at her, but if I go and keep them they will both be lucky. The first
time she wants to go to a meeting and her husband wants her to give him a biscuit it will be hard, but she can figure out how
to do it. . . . Now we can speak to all those behind us; still, for those with low consciousness, it is hard.
U.S. critiques of mediation hold that through individuated and conversational norms, mediation, as compared to “law,”
encourages marginalized groups to de-articulate their experiences of injury and inhibits collective action. 165 However, it is
precisely this (arguably modern) process of speaking--of making interior representations on behalf of one’s self in public and
cognizable terms--that female participants here collectively find empowering. 166 As the mediator in Balawater VDC told us,
“as part of a group your interests get bigger, and you can speak of your experience; I will speak with [for] the women who
don’t speak.” The process of telling one’s story before the entire community in an attempt at social persuasion, or the idea,
for *344 example, that women can complain publicly and bring abusers to the table, is what mediation’s participants
understand as changing social and legal relations.
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Thus in the context of a weak state unable (or unwilling) to police social inequality, CVICT’s mediation program is creating
social and cultural spaces for dialogue about norms and values that are currently unavailable within the spaces occupied by
the domestic legal system. To borrow from Patricia Ewick and Susan Silbey, “[l]egality is not inserted into situations; rather,
through repeated invocations of the law and legal concepts and terminology, as well as through imaginative and unusual
associations between legality and other social structures, legality is constituted through everyday actions and practices.”167
And as legality is here constructed through everyday mediation practice, culture is increasingly understood as both a source
of inequality and a conduit for new forms of self and social consciousness--that is, both the practices and beliefs to be
transformed and the method through which to do so. “Local people,” trainers argue, “tend to be unaware about the law [and]
human rights standards,”168 and may give “[c]redence . . . to superstitious causes of misfortune.”169 Trainers thus openly
challenge locally-instilled beliefs about topics such as dowries, ritual impurity (gender and caste), miscarriage, and witchcraft
as “superstitious,” “traditional,” and “anti-human rights” (a good example of how the simplifying traditional versus modern
dichotomy constructs local as much as global realities170). In place of such beliefs, they aim to instill a “democratic attitude
and an attitude of legality.”171 In short, CVICT is deploying culture as a means to recast local oppression as a source of
injustice rather than a source of misfortune--that things might be other than they are, or that non-harms might become harms,
cognizable in culture and then, possibly, in law.172
*345 CVICT’s ultimate vision is one of bottom-up social and cultural change: that the local invocation of a transnational
vocabulary of human rights will over time have constitutive effects not only among local users, but through such users, on the
state.173 Nader and Grande have argued that through ADR states relinquish accountability to their citizenry,174 yet what is
emerging in Nepal may be better described as a desire to use ADR from below to compel the state to live up to its
demands.175 Certainly, it is not the case that CVICT mediation is, as many of mediation’s critics in the United States suggest,
a means of making “conflict . . . private, often excluded from public scrutiny, and [without] any of its public interest
features.”176 Nor does it rely on the methods and values of interest-based dispute resolution to advance, as Susan Silbey and
Austin Sarat propose, “a non-rights based conception of the juridical subject.”177 To the contrary, CVICT mediation offers an
explicit and public site for struggles about social justice.
Yet, to conclude here would also be to tell only part of a story. CVICT’s effects on the ground are, if anything, complex.
Indeed, part of the problem I am proposing is that the polarity of the current debate, both for and against ADR, offers too few
frames of inquiry to perceive and evaluate such effects, particularly in terms relevant to its intended users. Up until now I
have described CVICT mediation as an example of local innovation, resistance, and political and social struggle. And while it
is all of these things, it is also a narrative of globalization--albeit one that is locally invoked--that links the social struggles of
Nepali villages to an (at least imagined) international community bound by a transnational vocabulary of human rights. By
transforming local disputes into subjects of global significance, this narrative brings with it new spatial and cultural
hierarchies and *346 modes of self-comprehension in relation to, and displacement from, what is (now to become) “local.”
For example, in remaking legal and social consciousness in ways that privilege modern (global) discourses of empowerment,
rationality, and dispute resolution, CVICT mediation positions particular cultural forms as disfavored ways of being (“low
consciousness”) or as disfavored geographical spaces (“the village,” “behind”). As the quotes of the female mediators above
suggest, mediation, like other development projects in Nepal, is experienced as a process of gaining consciousness in
distinction to those who have yet to become developed. “Now we can speak to all those behind us,” the female mediator in
Kanyam VDC asserted, “still, for those with low consciousness, it is hard.” As another female mediator put it: “Our eyes
have been open; mediation training should really be for low-caste women and disadvantaged classes, people who are missing
training are falling further behind.” “You,” she chastised our research team, “must go to farmers in the villages selling milk.”
This is not an unfamiliar trope; anthropologists of Nepal have repeatedly noted that Nepali villagers, particularly women, are
quick to “embrace[ ] the ‘underdeveloped’ identity ascribed to them by the state and other development discourses.”178 The
language of development thus becomes a map on which rural Nepalis orient themselves spatially and ideologically in relation
to the “center” and in distinction to the “village,” and, in so doing, talk about “their neighbors, residents of the same village,
mind you, as people who do not understand.”179 Thus at the same time that CVICT mediation is empowering women as
right-holders to advocate collectively and publicly on behalf of social change and in this way is distributing power to women
and away from men, it is also introducing (or strengthening) alternate forms of social stratifications--e.g., less “developed”
women in distinction to women who are more “empowered.”180
*347 CVICT mediation is also contributing to a particular (liberal) configuration of rights and values among village
participants. Efforts to achieve formal gender equality and to stop violence against women rank at the top of CVICT’s
agenda. Few examples of “rights-based” mediations implicate class or labor; some concern the rights of sharecroppers (and
female sharecroppers) to invest and profit from the land on which they work, 181 and some deal with issues at the intersection
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of caste and economic poverty.182 Other recorded mediations, however, explicitly foster privatization, encouraging the
community to rely on themselves rather than village-level administrators for services such as potable wells and well-kept
public easements.183
What is thus emerging as a result of CVICT’s mediation trainings is not simply a shift from status to rights or from hierarchy
to equality, but a shift in individuals’ comprehension of the self and social life; a “constitution of the subject itself.”184 By
prioritizing rationality and individual desires rather than external forms of control as a means to achieve a resolution of
differences, villagers are describing themselves in relation to ideas about autonomy, equality, and self-discipline, and through
narratives of personal transformation.185
*348 The following exchange in Naya Bazar VDC serves to illustrate: “We brought the two parties together,” one mediator
told our team as he recounted a border dispute between neighbors that involved the cutting of a tree, “to try and give them
advice, to investigate the location of the tree, and to try and get one person to apologize and give compensation.” “But this is
the traditional model!” responded the then-deputy minister of Local Development. “What teaching did you give them in
human rights? Did their inner stuff come out? What were the speaking terms? Did you say now your turn, now your turn?
What process did you use? What is the difference!”
In response to this demand by the Government, as it were, to distinguish CVICT’s mediation process from traditional village
dispute processing mechanisms through reference to law (“what training do you give them in human rights?”), process
(“what were the speaking terms?”), and therapy (“did their inner stuff come out?”), village mediators offered a chorus of
ideas about voluntarism, tolerance, and equality. “Before there would have been a lot of insulting, yelling to get them to
observe,” offered one mediator, “but now with training, rather than yell, we tell them that they must come to their own
agreement and give them a chance to speak. We are supposed to explain how one person should understand the other
person--this is the most important thing.” And another added, “in inter-caste disputes, we no longer pressure the two sides,
we improve their consciousness and teach them to respect human rights... . I remember that I cannot force parties into
agreement, everyone must speak in turn... . The point of mediation is to get what is in, out.” And according to a third, “before
there used to be fights; now we make people solve their own problems and raise their consciousness... . Now because people
are more educated and their consciousness is raised we have the mediation committee... . Before most disputes got solved
locally, people didn’t go before a council.”
Before disputes got solved locally, now ideas about conflict and its mechanisms of resolution are aired as part of a public,
enlightened, modern, and national--or, in fact, international--project. And a project governed by village-wide notions of
rights-consciousness, intersubjectivity, and, indeed, self-determination. How might we evaluate such effects? Do they
represent successes of mediation--as *349 community dispute resolution? as development? as social justice?--or are they, in
fact, failures? Lauren Leve has argued that development projects in Nepal serve as “conduits whereby new technologies of
the self ... gain . . . access to women and previously less accessible ‘private’ space.”186 But it is just as true that mediation
serves as sites where individuals gain access to such technologies, and for self-interested ends.
As the examples here illustrate, modernity as a cultural form is invoked from below just as much as it is introduced from
above.187 An indictment of global ADR as simply a conduit of western hegemony renders its subjects doubly oppressed: first
by ADR’s proponents and second by ADR’s critics. Moreover, it misses the invention and innovation, costs and benefits shot
through the spaces in between.
C. Lessons from CVICT
What I hope this description of CVICT’s mediation program serves to suggest is that mediation in Nepal is not being
co-opted by the state--or for that matter, international development interests or the West--against the interests of those it
purports to serve. Nor, however, does it necessarily operate against these things in the service of a coherent set of class
interests. Certainly, then, to represent mediation in Nepal as simply a form of political resistance is to obscure the ways in
which village-based dispute resolution in Nepal is already an aspect of governance, if from below or from above, with its
own politics and contradictions. Yet, to claim, as critics of ADR such as Nader do, that donor-funded mediation in
developing countries should be replaced by state law188 is to misunderstand the fact that *350 mediation is often powerful,
particularly at the local level, precisely because of the weakness of the state and its judicial systems.
One could rightly argue that my description of CVICT’s mediation program affirms as much as it inverts many of the
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arguments that Nader and others have devoted significant amounts of scholarship to impress--that mediation is political and
ideological,189 that there is no such meaningful thing as preserving culture or tradition, 190 and that mobilizing language and
rhetoric is itself a means of social coercion.191 These are the critiques of ADR with which many field proponents have yet to
fully grapple.
Yet an analysis of CVICT’s effects also suggests that if one’s mission is social justice, at times hybrid forms of informal
dispute resolution may be superior to the fixity of state law. 192 Based on my research of CVICT’s mediation program, there
is good reason to think that the creation of locally-driven, decentered, public dispute resolution institutions provide rural
Nepalis with methods to use against the kind of social hierarchies that oppress them, even as these methods reconfigure local
relationships and prioritize rights and values in the service of ends which are not always predictable and perhaps not always
progressive.
Whether CVICT will remain able to appropriate and reconstruct hybrid forms of dispute resolution with appeals to and
invocations of state, international, and local authority in the interests of the groups it aims to advance is, of course, an open
question. There are costs as *351 well as benefits for justice in extending the reach of rights-talk beyond its formal,
institutional grounding in the legal code or the state. 193 Yet, it simply is not now the case that those in Nepal can
meaningfully choose between the state and ADR--a choice that is itself grounded in conditional (i.e., Western, liberal)
assumptions about the state as the site of formal law, justice, and regulatory power. 194 What this holds for our understanding
of the purpose and possibilities of transnational ADR is the subject of my conclusion.
Conclusion
The current debate about transnational ADR is misframed. Although both blanket endorsements of mediation as resolving
conflict and solving problems and blanket critiques of mediation as undermining social justice may be compelling in the
abstract, when read through a description of mediation in practice, neither provides a frame capable of capturing the complex
reality on the ground.
Proponents of global mediation have allowed professional fealty to methods such as neutrality or self-determination to define
both the function and purpose of their interventions. Through an examination of a USAID-supported mediation training effort
in Nepal, I highlighted ways in which global practitioners represent mediation as a standardized and apolitical execution. I
suggested that they replace a technocratic approach to cultural adjustment with a political exploration of the goals that ADR’s
users in Nepal may aim to achieve. This, in turn, might require a transparent, if incremental and uncertain, analysis of how
the inclusion of cultural practices engages with these ends.
Critics of ADR have pointed to these problems of ADR: to ignore its own political consequences, its own power; and to
transform social *352 and cultural struggles into technical applications. Yet, in their insistent critique of ADR’s methods and
planners, they too have missed what ADR may produce in its wake--what actually happens, intended and unintended.
When I share these Nepali case studies with ADR colleagues in the United States, I am often asked what we might do
differently. What might we do if we aim to work in Bangladesh or in Liberia? These are important and understandable
inquiries. We are a field dedicated to fixing problems, not least of all our own. Yet in our desire to articulate certain methods,
and in our subsequent critiques of these methods, we have produced an academic debate that has become so tightly locked
that we are, I fear, missing a breathtaking amount of complexity on the ground--complexity that often amounts to nothing
less than struggles over justice. To borrow from David Kennedy, “[i]f we set aside our preoccupation with the suitability of
formal or informal legal structures, substantive or procedural legal rules ... we might find our way to asking how we wish to
transform the distribution of power, status, and authority in society to humanitarian ends.”195
For those of us who wish to link the mediated resolution of disputes to outcomes that are more fair and egalitarian for social
groups who share less in society’s resources and power, we still know little about what possibilities, variations, costs, and
benefits mediation is producing in developing countries. We might therefore begin with a research agenda and with a method
of analysis that proceeds through case studies similar to those presented here. Questions we ask might examine both the
forms and effects of ADR in the lives and practices of those who utilize it; what larger social narratives these are
strengthening and subverting; and how culture is used and to what distributional ends. Culture as it features in the CVICT
mediation project is a site at which villagers deploy and contest visions of dispute resolution as it links to social change.
Finally, if we are willing to re-orient our understanding of ADR interventions as sources of norm-generation and of social
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and cultural change, we might also become willing to articulate the normative goals that motivate our interventions and to
examine the effects, both procedural and substantive, that result in light of those goals. I offer here a description of an actual
practice of a mediation--its hybrid methods and complex effects--as one example of an expressly *353 interventionist model
of mediation driven by shared commitments to evolving visions of social justice. 196
In 1984, Nader, not unlike Kennedy, wrote: “A debate that is limited to the choice of legal or non-legal alternatives divorced
from the political, social, and ideological background of the problem is of limited value.”197 She called instead for “an
approach that considers disputing in the context in which it is embedded” and that “unites the different fields involved [so]
that we can hope finally to provide meaningful analysis of the justice problem.”198 Guided in my description of mediation in
Nepal by Kahn’s maxim that truths are always contextual, I would like to conclude with a strategy for action that is borrowed
from Michel Foucault--one that every CVICT mediator already knows. “The point, in brief,” he writes, “is to transform the
critique conducted in the form of necessary limitation into a practical critique that takes the form of a possible
transgression.”199 That culture is unstable, dialogue is coercive, and mediation is political--in the hands of actors willing to
stake bold, purposeful, and responsible interventions--are sources of power as much as of constraint.
Footnotes
d1
Assistant Professor of Law, The Ohio State University Moritz College of Law (as of Fall 2006); J.D., Harvard Law School, 2002;
B.A., Rutgers University, 1998. I wish to thank Bob Bordone, Ruth Colker, Tommy Crocker, Ellen Deason, Janet Halley, Garry
Jenkins, Michael Moffitt, Debby Merritt, Nancy Rogers, Boghendra Sharma, Marc Spindelman, Jean Sternlight, Peter Swire, and
George Varughese for their insight and comments on drafts of this article, and to thank Ben Leffler, Genevieve Ranier, and
Sandra Sutter for biographical assistance. My special thanks to Genevieve Lakier who accompanied me on many field visits as a
teacher and translator and continued to guide me in this work. I also gratefully acknowledge the Fulbright Commission of Nepal,
the Harvard University Frederick Sheldon Traveling Fellowship, and Rotary International for funding this research. Finally, I am
indebted to USAID, The Asia Foundation, and the Centre for Victims of Torture for generously engaging me in their work in
Nepal.
1
Alternative dispute resolution and its acronym ADR refer to dispute resolution mechanisms such as negotiation, mediation,
arbitration, conciliation, early neutral evaluation, and mini-trials. See Stephen Goldberg et al., Dispute Resolution: Negotiation,
Mediation, and Other Processes 3-9 (4th ed. 2003). In this paper, I primarily analyze practices of third-party facilitation, i.e.,
mediation. However, because many of the scholarly debates about exporting U.S. techniques of dispute processing are framed
generally in terms of ADR, at times I refer to ADR rather than mediation. It is also worth noting that in the United States, the
acronym ADR is increasingly used to refer to “appropriate” rather than “alternative” dispute resolution, on the theory that
out-of-court dispute resolution is much more the convention than it is an the alternative to trial. See, e.g., Carrie Menkel-Meadow,
Mothers and Fathers of Invention: The Intellectual Founders of ADR, 16 Ohio St. J. on Disp. Resol. 1, 2 n.6 (2000) (citing Albie
Davis & Howard Gadlin, Mediators Gain Trust the Old-Fashioned Way--We Earn It!, 4 Negot. J. 55, 62 (1988), as renaming the
term).
2
See, e.g., Matthew C. Stephenson, A Trojan Horse Behind Chinese Walls? Problems and Prospects of U.S.-Sponsored ‘Rule of
Law’ Reform Projects in the People’s Republic of China, 18 UCLA Pac. Basin L.J. 64, 64-66 (2000) (summarizing critiques of
the Law and Development Movement of the 1960s and 1970s).
3
See infra notes 43-45 and accompanying text.
4
The team was comprised of a U.S. anthropologist from the University of Chicago, the then-deputy-minister of Nepal’s
Department of Local Governance, and a Nepali sociologist.
5
For example, although the vast majority of fifty-eight empirical studies of court-related mediation programs in the United States
and Canada compiled in a bibliographic summary measured party/attorney perception of the process and/or outcome, only a
handful used an external indicator to measure the equity of outcomes such as monetary results for the parties. Jennifer E. Shack,
Bibliographic Summary of Cost, Pace, and Satisfaction Studies of Court-Related Mediation Programs (Center for Analysis of
Alterative Dispute Resolution Systems 2003). See also Joshua D. Rosenberg & H. Jay Folberg, Alternative Dispute Resolution:
An Empirical Analysis, 46 Stan. L. Rev. 1487, 1487-89 (1994) (measuring factors such as cost and time savings and user
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satisfaction to evaluate a court-annexed ADR program); Cynthia F. Cohen & Murray E. Cohen, Relative Satisfaction with ADR:
Some Empirical Evidence, 57 Disp. Resol. J. 37, 37 (2003) (measuring various ADR processes for user satisfaction).
6
Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship 37 (1999).
7
David Delaney, Introduction: Globalization and Law, in The Legal Geographies Reader 252, 253 (Nicholas Bromley et al. eds.,
2001).
8
For a review of much of this literature, see generally Michelle LeBaron, Conflict and Culture, A Literature Review and
Bibliography (2001).
9
See infra Part III.A.
10
See infra Part II.A.
11
Laura Nader & Elisabetta Grande, Current Illusions and Delusions About Conflict Management--in Africa and Elsewhere, 27
Law & Soc. Inquiry 573, 582 (2002).
12
Id.
13
Although the majority of scholars begin the story of domestic ADR in the court-reform movements of the 1970s, some trace the
historical antecedents of the ADR movement over centuries. Perhaps providing the most ambitious historical account, Jerold
Auerbach chronicles a “counter-tradition to legalism” that spans 350 years--embodied first in seventeenth-century colonial
communities, then early nineteenth-century utopian communities, and renewed by twentieth-century immigrant communities. See
Jerold S. Auerbach, Justice Without Law? 4-5, 19-95 (1983). For other historical accounts of the development of ADR practices,
see generally Christine B. Harrington, Shadow Justice: The Ideology and Institutionalization of Alternatives to Court (1985)
(tracing the rise of judicial informalism from the late nineteenth century onwards); see also Deborah R. Hensler, Our Courts,
Ourselves: How the Alternative Dispute Resolution Movement Is Re-Shaping Our Legal System, 108 Penn St. L. Rev. 165,
167-81 (2004); Jerome T. Barrett, A History of Alternative Dispute Resolution: The Story of a Political, Cultural, and Social
Movement (2004); Carrie Menkel-Meadow, Introduction: What Will We Do When Adjudication Ends? A Brief Intellectual
History of ADR, 44 UCLA L. Rev. 1613, 1613-19 (1997).
14
See, e.g., Susan Silbey & Austin Sarat, Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the
Reconstruction of the Juridical Subject, 66 Denv. U. L. Rev. 437, 445-46, 450, 452 (1989) (describing the development of
contemporary ADR as divided among: (1) “the establishment bar and legal elites”; (2) “access to justice proponents”; and (3)
“quality proponents”).
15
Paradigmatic of this effort, law professor Frank E. A. Sander, in an oft-referenced speech at the 1976 Roscoe Pound Conference
on the Causes of Popular Dissatisfaction with the Administration of Justice, described his vision of a “dispute resolution center”
in which a screening clerk would channel cases into a “diverse panoply of dispute resolution processes” (mediation, arbitration,
ombudsman, fact-finding, court) depending on the needs and interests of particular disputants. Frank E. A. Sander, Varieties of
Dispute Processing, 70 F.R.D. 111, 130-31 (1976). Such an innovation would advance the effective handling of disputes in terms
of “cost, speed, accuracy, credibility (to the public and the parties), and workability,” id. at 113 & 113 n.7, by “fitting,” as Sander
later wrote with Stephen B. Goldberg, “the forum to the fuss.” Frank E. A. Sander & Stephen B. Goldberg, Fitting the Forum to
the Fuss: A User-Friendly Guide to Selecting an ADR Procedure, 10 Negot. J. 49, 66 (1994). The Pound Conference at which
Sander delivered his speech is often described, to borrow from Auerbach, as “[t]he decisive moment” in the contemporary ADR
project. Auerbach, supra note 13, at 123.
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16
Silbey & Sarat, supra note 14, at 446-48, 450.
17
Id. at 452-53. Other scholars propose similar typologies to explain the contemporary development of mediation in the United
States. For example, Christine Harrington and Sally Engle Merry describe the purposes of community mediation programs as
divided among: (1) improving the efficient delivery of legal services; (2) empowering communities through grassroots justice
initiatives that are not dependent on courts; and (3) fostering personal growth by empowering individuals to handle conflict
productively. Christine Harrington & Sally Engle Merry, Ideological Production: The Making of Community Mediation, 22 Law
& Soc’y Rev. 709, 714-16 (1988). In a parallel conceptualization, Robert Baruch Bush and Joseph Folger describe competition
among the “satisfaction story,” focused on joint-gain problem-solving, efficient settlements, and party satisfaction; the “social
justice story,” focused on community mobilization and empowerment; and the “transformation story,” focused on transforming
individual consciousness through dispute-processing techniques that foster self-reliance, personal empowerment, and
interpersonal recognition. Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation: Responding to Conflict
Through Empowerment and Recognition 15-22 (1994).
18
See Richard L. Abel, Introduction, in 2 The Politics of Informal Justice: Comparative Studies 1, 2 (Richard L. Abel ed., 1982).
Abel makes this point well. He suggests that ADR is “less a positive ideal than a set of loosely associated aversions to
characteristics attributed to formal justice ... unofficial (dissociated from state power), non-coercive (dependent on rhetoric rather
than force), nonbureaucratic, decentralized, relatively undifferentiated, and nonprofessional; its substantive and procedural rules
are imprecise, unwritten, democratic, flexible, ad hoc, and particularistic.” Id.
19
Auerbach, supra note 13, at 123-24 (quoting Justice Burger); see also Sander, supra note 15, at 121 (describing mediation’s
potential to improve individuals’ capacity to resolve conflicts and to restructure long-term relationships in mutually satisfying
ways).
20
See Auerbach, supra note 13, at 144.
21
Raymond Shonholtz, Justice from Another Perspective: The Ideology and Development History of the Community Boards
Program, in The Possibility of Popular Justice: A Case Study of Community Mediation in the United States 207, 236 (Sally Engle
Merry & Neal Milner eds., 1995); see also Raymond Shonholtz, The Citizens’ Role in Justice: Building a Primary Justice and
Prevention System at the Neighborhood Level, 494 Annals Am. Acad. Pol. & Soc. Sci. 42 (1987).
22
Paul Wahrhaftig, An Overview of Community-Oriented Citizen Dispute Resolution Programs in the United States, in 1 The
Politics of Informal Justice: The American Experience 75, 95 (Richard L. Abel ed., 1982).
23
Vilhelm Aubert, Competition and Dissensus: Two Types of Conflict and Conflict Resolution, 7 J. Conflict Resol. 26, 27, 30-33
(1963).
24
Roger Fisher, William Ury & Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In (Penguin Books 1991)
(1981). Getting to Yes has sold more than two million copies and has been published in more than twenty languages. See
http://www.amazon.co.uk (find “Getting to Yes” page through “Search our Shop” feature) (last visited Jan. 14, 2006).
25
See, e.g., Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-Opted or the “Law of
ADR”, 19 Fla. St. U. L. Rev. 1, 1-3 (1991) (arguing that the legal establishment’s use of ADR to manage caseloads and increase
efficiency co-opted a competing vision of ADR as an innovative or transformative movement); Silbey & Sarat, supra note 14, at
457 (“ADR is now firmly within the domain of the legal field and has been effectively made to service the professional projects of
practicing lawyers.”); Sally Engle Merry, Disputing Without Culture, 100 Harv. L. Rev. 2057, 2059 (1987) (reviewing Stephen B.
Goldberg, Eric D. Green & Frank E. A. Sander, Dispute Resolution (1985)) (“Ironically, as ADR expands, the alternatives are
gradually becoming more closely tied to the courts and to legal professionals, and the programs themselves are becoming
professionalized.”).
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26
Richard L. Abel, Introduction, in 1 The Politics of Informal Justice, supra note 22, at 1, 6. Several other scholars describe ADR as
a form of social control. See, e.g., Harrington, supra note 13, at 170 (portraying the ideology of ADR as “an
administrative-technocratic rationale for judicial intervention to maintain public order”); Sally Engle Merry, Getting Justice and
Getting Even: Legal Consciousness Among Working-Class Americans (1990), cited in Sally Falk Moore, Certainties Undone:
Fifty Turbulent Years of Legal Anthropology, 1949-1999, 7 J. Royal Anthropological Inst. 95, 104 (2001) (likening ADR to “a
process of cultural domination exercised by the law over people who bring their personal problems to the lower courts”);
Auerbach, supra note 13, at 144 (“Alternatives are designed to provide a safety valve, to siphon discontent from courts. With the
danger of political confrontation reduced, the ruling power of legal institutions is preserved, and the stability of the social system
reinforced.”). For a critique of the social control thesis see generally, Stuart Henry, Community Justice, Capitalist Society, and
Human Agency: The Dialectics of Collective Law in the Cooperative, 19 Law & Soc’y Rev. 303, 307 (1985) (“In suggesting that
capitalist society inevitably shapes systems of community justice to serve its ends and maintain the existing social order ... critics
[such as Abel] overemphasize social structural influences and underplay the degree of autonomy that community justice
institutions can have.”) (citations omitted).
27
Laura Nader, From Legal Processing to Mind Processing, 30 Fam. & Conciliation Cts. Rev. 468 (1992); Laura Nader, Controlling
Processes in the Practice of Law: Hierarchy and Pacification in the Movement to Re-Form Dispute Ideology, 9 Ohio St. J. on
Disp. Resol. 1, 3 (1993); see also Auerbach, supra note 13, at 144 (suggesting that ADR may “create a two-track justice system
that dispenses informal ‘justice’ to poor people with ‘small’ claims and ‘minor’ disputes, who cannot afford legal services, and
who are denied access to courts”).
28
See, e.g., Laura Nader, Harmony Models and the Construction of Law, in Conflict Resolution: Cross-Cultural Perspectives 41, 53
(Kevin Avruch et al. eds., 1991) (“[A] notion of conflict [as dysfunctional and threatening to the social order] presumes societal
consensus about rights and values, which leads to the operation of mediation forums that have no explicit standards of justice.”);
Roger Matthews, Reassessing Informal Justice, in Informal Justice? 1, 12 (Roger Matthews ed., 1988) (“[I]nformal courts can,
behind a mask of neutrality, serve to enforce the existing inequalities and produce ‘compromises’ which will invariably favour the
more powerful.”).
29
Judy H. Rothschild, Dispute Transformation, the Influence of a Communication Paradigm of Disputing, and the San Francisco
Community Boards Program, in The Possibility of Popular Justice, supra note 21, at 265, 319-320 (characterizing informal
dispute resolution as “a process of communication, rather than a process of justice” that ultimately erodes the “opportunity for
disputants to develop a ‘class’ consciousness, in the sense of a collective identity with others who have, are, or might voice
similar complaints”); see also Nader, From Legal Processing to Mind Processing, supra note 27, at 471-72; Trina Grillo, The
Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545, 1567 (1991).
30
See Grillo, supra note 29, at 1565-68, 1572-81. Many authors have argued that women are particularly harmed by mediation’s
private and interest-based processes. See, e.g., C. Quince Hopkins et al., Applying Restorative Justice to Ongoing Intimate
Violence: Problems and Possibilities, 23 St. Louis U. Pub. L. Rev. 289, 295 (2004) (arguing that “mediation’s conceptual
foundation is inappropriate for application to crimes against women because it fails to acknowledge the structural inequalities
between the victim and offender”); Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics of Power, 40 Buff.
L. Rev. 441, 441-46 (1992) (arguing that divorce mediation entrenches male dominance over women); Barbara Whittington,
Mediation, Power, and Gender: A Critical Review of Selected Readings (1990) (reviewing articles suggesting that mediation
disadvantages women in disputes involving divorce, domestic violence, and sexual harassment); Martha Shaffer, Divorce
Mediation: A Feminist Perspective, 46 Univ. Toronto Fac. L. Rev. 162, 167 (1988) (arguing that divorce mediation is not in the
interest of women); Lisa Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on
Women, 7 Harv. Women’s L.J. 54, 61 (1984) (arguing that mediation of domestic violence disputes perpetuates the victimization
of women).
31
Nader, From Legal Processing to Mind Processing, supra note 27, at 468; see also Auerbach, supra note 13, at 121-29 (suggesting
that informal processes were encouraged as a result of victories in the courts by disadvantaged groups; “[n]othing, it seemed,
propelled enthusiasm for alternative dispute settlement like a few legal victories that unsettled an equilibrium of privilege”);
Merry, Disputing Without Culture, supra note 25, at 2072 (suggesting that ADR may be a response to “new users in the courts,”
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bringing undesirable claims about “domestic violence, neighborhood harassment, sexual harassment on the job, discrimination,
faulty goods, shoddy medical services, and deteriorated rental housing”); Harrington, supra note 13, at 96-99 (characterizing the
application of mediation techniques, designed to preserve ongoing relations, to resolve consumer, family, and minor criminal
disputes as a “response to the rights movement”).
32
Grillo, supra note 29, at 1567, 1608-10.
33
Richard Delgado et al., Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 Wis. L.
Rev. 1359, 1374 (1985).
34
Isabelle R. Gunning, Diversity Issues in Mediation: Controlling Negative Cultural Myths, 1995 J. Disp. Resol. 55, 68-80 (1995).
35
Owen M. Fiss, Against Settlement, 93 Yale L.J. 1073, 1083-86 (1984); see also Harry T. Edwards, Alternative Dispute
Resolution: Panacea or Anathema?, 99 Harv. L. Rev. 668, 676-77 (1986).
36
Hensler, supra note 13, at 196 (arguing that citizens “shepherded outside the courthouse to confidential conferences presided over
by private neutrals in private venues” will have diminished opportunities and abilities to effect social change through the justice
system).
37
See, e.g., Gary LaFree & Christine Rack, The Effects of Participants’ Ethnicity and Gender on Monetary Outcomes in Mediated
and Adjudicated Civil Cases, 30 Law & Soc’y Rev. 767, 788-94 (1996); see also Carol Bohmer & Marilyn Ray, Effects of
Different Dispute Resolution Methods on Women and Children After Divorce, 28 Fam. L.Q. 222, 232, 244 (1994) (finding that,
in New York, women who mediated divorce disputes “were economically disadvantaged to a greater degree” than women who
achieved attorney-negotiated or judicially-assisted settlements, yet in Georgia women were not adversely affected by choosing
mediation over other dispute resolution mechanisms).
38
See, e.g., Elizabeth E. Gordon, What Role Does Gender Play in Mediation of Domestic Relations Cases?, 86 Judicature 134,
138-39 (2002) (finding few significant differences between men and women in their perception of mediation processes and
outcomes); Michele Herman et al., The MetroCourt Project Final Report: A Study of the Effects of Ethnicity and Gender in
Mediated and Adjudicated Small Claim Cases at the Metropolitan Court Mediation Center, Bernalillo County, Albuquerque, New
Mexico 116-17 (Jan. 1993) (finding that minority claimants and respondents reported higher satisfaction with mediation than
adjudication, yet received less favorable monetary outcomes in mediation than in adjudication); Michael Fix & Philip J. Harter,
Hard Cases, Vulnerable People: An Analysis of Mediation Programs at the Multi-Door Courthouse of the Superior Court of the
District of Columbia, The Urban Institute 70-73 (1996) (finding that women were more likely than men to be satisfied with
mediation outcomes and blacks were more likely than whites to be satisfied with mediation outcomes); see also Craig A. McEwen
& Richard J. Maiman, Small Claims Mediation in Maine: An Empirical Assessment, 33 Me. L. Rev. 237, 256-57 (1981) (finding
parties were somewhat more likely to evaluate outcomes as fair in small claims court mediation than in adjudication). But see
Chris Guthrie & James Levin, A “Party Satisfaction” Perspective on a Comprehensive Mediation Statute, 13 Ohio St. J. on Disp.
Resol. 885, 894-95 (1998) (“While parties regularly rate the mediation process highly, their evaluations of mediation outcomes,
though generally favorable, are mixed.”). See also Nancy A. Welsh, Disputants’ Decision Control in Court-Connected Mediation:
A Hollow Promise Without Procedural Justice, 2002 J. Disp. Resol. 179, 179 n.1 (2002). Welsh summarizes several studies
suggesting that litigants prefer mediation over trial or arbitration. These studies include: Debra L. Shapiro & Jeanne M. Brett,
Comparing Three Processes Underlying Judgments of Procedural Justice: A Field Study of Mediation and Arbitration, 65 J.
Personality & Soc. Psychol. 1167, 1175-76 (1993); and Roselle L. Wissler, Mediation and Adjudication in Small Claims Court:
The Effects of Process and Case Characteristics, 29 Law & Soc’y Rev. 323, 341, 343 (1995). Welsh, however, also summarizes
studies that document party preference for non-consensual processes on procedural grounds. Welsh, supra at 181 n.8, 185 n.32.
These studies include: E. Allan Lind et al., The Perception of Justice: Tort Litigants’ Views of Trial, Court-Annexed Arbitration,
and Judicial Settlement Conferences 82 (RAND 1989); Stephan LaTour et al., Procedure: Transnational Perspectives and
Preferences, 86 Yale L. J. 258, 281 (1976); Pauline Holden et al., Preference for Modes of Dispute Resolution as a Function of
Process and Decision Control, 14 J. Experimental Soc. Psychol. 13, 26 (1978).
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39
Hensler, supra note 13, at 192. See also Nancy A. Welsh, The Place of Court-Connected Mediation in a Democratic Justice
System, 5 Cardozo J. Conflict Resol. 117, 138 (2004) (“In sum, court-connected mediation has evolved from a process that
focused on enhancing individual citizens’ voice, control and assurance of accountability into a mechanism that resolves cases by
reconciling these citizens to the institutional reality ... of the courts and litigation.”).
40
See, e.g., Craig McEwen et al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce
Mediation, 79 Minn. L. Rev. 1317, 1322-23 (1995) (arguing that regular lawyer participation in mediation processes can promote
fairness); Goldberg et al., supra note 1, at 9 (describing state statutory provisions excluding categories of cases from ADR
programs such as cases involving important public policy issues); Sarah R. Cole, Craig A. McEwen & Nancy H. Rogers,
Mediation: Law, Policy & Practice § 11 (2nd ed. 2001) (describing state regulatory provisions to promote fairness in mediation
such as mediator qualifications and certification, case-selection procedures, and requirements that parties be permitted to bring
counsel to mediation); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48
Hastings L.J. 703, 765-66 (1997) (describing professional codes exhorting mediators to consider whether mediated settlements are
fair). See also Welsh, supra note 39, at 142-43 (calling for court oversight to ensure the fairness of mediated outcomes).
41
For examples of some who appear to continue to actively pursue social justice through mediation, see Paul Wahrhaftig,
Community Dispute Resolution, Empowerment and Social Justice: The Origins, History And Future of a Movement 1 (2004)
(“As the field expanded the sense of [community dispute resolution] programs being a part of a social movement appears to have
become diluted. That social change orientation needs to be revisited.”); John Paul Lederach & Ron Kraybill, The Paradox of
Popular Justice: A Practitioner’s View, in The Possibility of Popular Justice, supra note 21, at 377 (maintaining that mediation can
make modest advances towards popular justice when its planners are seriously committed to the values of participation,
restoration of relationships, community integration, and substantive as well as procedural justice); Isabelle Gunning, Know
Justice, Know Peace: Further Reflections on Justice, Equality and Impartiality in Settlement Oriented and Transformative
Mediation, 5 Cardozo J. Conflict Resol. 87, 89 (2004) (arguing for an activist or interventionist form of mediation that seeks to
promote justice in “form and outcome”); Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformations of
Traditions, Ideologies, Paradigms and Practices, 11 Negot. J. 217, 220 (1995) (describing herself as continuing “to hold a
commitment to mediation as a progressive means for socially transformative ends”); Howard Gadlin, Conflict Resolution,
Cultural Differences, and the Culture of Racism, 10 Negot. J. 33, 45-46 (1994) (proposing that dispute resolution practitioners use
their skills to promote social justice rather than acting as “neutral mediators and settling a specific dispute”); see also Partners for
Democratic Change, http://www.partnersglobal.org (last visited Feb. 13, 2006) (a non-profit organization founded by Raymond
Shonholtz that seeks to use conflict resolution tools to foster social change). Of course, many U.S. ADR scholars continue to
question and examine the relationship between justice and ADR. As just one example, a recent symposium held at the Benjamin
N. Cardozo School of Law brought together law professors--Harold Abramson, James Coben, Clark Freshman, Isabelle Gunning,
Jonathan Hyman, Lela Love, Carrie Menkel-Meadow, Jacqueline Nolan-Haley, Joseph Stulberg, Ellen Waldman, and Nancy
Welsh--to debate the role of justice in mediation. Symposium, Justice in Mediation, 5 Cardozo J. Conflict Resol. 59
(2004),available athttp:// www.cojcr.org/vol5no1/symposium.html.
42
Anthony Wanis-St. John, Implementing ADR in Transitioning States: Lessons Learned from Practice, 5 Harv. Negot. L. Rev.
339, 343 (2000).
43
For examples, see generally Wanis-St. John, supra note 42, at 347-72 (discussing USAID-sponsored ADR interventions in
Bolivia); Staff Reporters, State Department Seeks Proposals to Promote ADR Overseas, ADRWorld.com, July 18, 2002,
http://adrworld.com (last visited Feb. 13, 2006) (select “news archive” and insert title), cited in Carrie Menkel-Meadow,
Correspondences and Contradictions in International and Domestic Conflict Resolution: Lessons from General Theory and Varied
Contexts, 2003 J. Disp. Resol. 319, 323 n.13 (2003); Douglas Yarn, Transnational Conflict Resolution Practice: A Brief
Introduction to the Context, Issues, and Search for Best Practice in Exporting Conflict Resolution, 19 Conflict Resol. Q. 303,
309-10 (2002) (describing instances of North American conflict resolution practitioners working abroad at the behest of agencies
such as the Asia Foundation, the United Nations Development Programme, and the World Bank); Stephan Golub, From the
Village to the University: Legal Activism in Bangladesh, in Many Roads to Justice: The Law Related Work of Ford Foundation
Grantees Around the World 127, 136-41 (Mary McClymont & Stephan Golub eds., 2000) (examining Ford Foundation-funded
ADR initiatives in Bangladesh); Andrew J. Pirie, Alternative Dispute Resolution in Thailand and Cambodia: Making Common
Sense on (Un)Common Ground, in Asia-Pacific Legal Development 501, 517 (Douglas M. Johnston & Gerry Ferguson eds.,
1998) (examining ADR initiatives sponsored by the Canadian Uvic Institute for Dispute Resolution in Thailand and Cambodia);
Christian Duve, Dispute Resolution in Globalization Context, N.Y. L.J., Apr. 12, 1999, at 9 (“The growth of ADR all over the
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world suggests that the 21st century will see an increasing use of non-binding forms of dispute resolution.”); Scott Brown et al.,
Alternative
Dispute
Resolution
Programs:
A
Guide
for
USAID
app.
B
(1997),
available
at
http://www.usaid.gov/our_work/democracy_and_ governance/publications/pdfs/pnacp335.pdf (describing and analyzing
USAID-funded ADR interventions in Bangladesh, Bolivia, South Africa, Sri Lanka, and the Ukraine); Raymond Shonholtz,
Conflict Management Training: A Transformative Vehicle for Transitional Democracies, 2 Int’l Negot. J. 437, 437 (1997)
(describing the introduction of conflict management techniques to foster democracy and stable market economies in several
post-communist Central and Eastern European states); Maria Dakolias, A Strategy for Judicial Reform: The Experience in Latin
America, Va. J. Int’l L. 167, 200-06 (1995) (describing the influx of ADR mechanisms in Latin American countries); Alice M.
Price, Editor’s Notes, 9 Conciliation Q. 1, 1 (1990) (“More and more North American mediators and trainers are ‘globetrotting’
these days--setting down in foreign cultures for one to three week stints of training seminars, program development consultations,
and even actual conflict intervention work.”). Other scholars have argued for greater adoption of ADR processes in developing
and transitional states. See, e.g., Chief Justice Thomas J. Moyer & Emily Stewart Haynes, Mediation as a Catalyst for Judicial
Reform in Latin America, 18 Ohio St. J. on Disp. Resol. 619, 650, 654 (2003) (proposing the adoption of mediation in Latin
American countries to correct “the corruption, inefficiency, and damage to most Latin courts”); Emily Stewart Haynes, Note,
Mediation as an Alternative to Emerging Postsocialist Legal Institutions in Central and Eastern Europe, 15 Ohio St. J. on Disp.
Resol. 257, 258-59 (1999) (arguing in support of mediation programs in central and eastern European countries); Hiram Chodosh
et al., Indian Civil Justice System Reform: Limitation and Preservation of the Adversarial Process, 30 N.Y.U. J. Int’l L. & Pol. 1,
5-10 (1998) (proposing that India adopt a mechanism of consensual dispute resolution as an alternative to civil litigation to help
correct backlog and delay in the judicial system).
44
See, e.g., Rosa Ehrenreich Brooks, The New Imperialism: Violence, Norms, and the “Rule of Law,” 101 Mich. L. Rev. 2275,
2276-83, 2284-85 (2003) (documenting an “explosion in ‘rule of law’ promotion” in the past decade by international aid agencies,
government institutions and philanthropic foundations, particularly in post-crisis and transitional societies); Bryant Garth,
Building Strong and Independent Judiciaries Through the New Law and Development: Behind the Paradox of Consensus
Programs and Perpetually Disappointing Results, 52 Depaul L. Rev. 383, 383 (2002) (“[L]aw and development programs are now
at the forefront of the agendas of development agencies in the United States and Europe.... Judicial reform is at the heart of
today’s foreign aid programs.”); Kerry Rittich, Who’s Afraid of the Critique of Adjudication?: Tracing the Discourse of Law in
Development, 22 Cardozo L. Rev. 929, 932 (2001) (“[T]hat the rule of law and good governance could now appear on the top of
the list of development concerns, sitting alongside, if not displacing in priority, such traditional objects of concern as investment
in health, education, and infrastructure, marks an important shift in the way in which development is conceptualized.”); Thomas
Carothers, Aiding Democracy Abroad: The Learning Curve 40-53 (1999) (describing the mushrooming of U.S. democracy
assistance abroad in the 1990s).
45
Wanis-St. John, supra note 42, at 345; Cynthia Alkon, The Cookie Cutter Syndrome: Legal Reform Assistance Under
Post-Communist Democratization Programs, 2002 J. Disp. Resol. 327, 346 (2002). As just two examples, as part of its democracy
and governance work, USAID has established sixty-one mediation centers in eight Latin American countries and plans to
establish fifteen more by the end of fiscal year 2006. USAID, Latin America and the Caribbean Budget Summary,
http://www.usaid.gov/policy/budget/cbj2006/lac/ (last visited Feb. 13, 2006). The World Bank Group’s private sector arm, the
International Finance Corporation, is currently establishing twenty “pilot mediation projects in Albania, Bosnia and Herzegovina,
FYR Macedonia and Serbia and Montenegro over the next four years with a possible extension to other countries in the region” as
part of its Southeast Europe Enterprise Development program. IFC, Southeast Europe Enterprise Development, News and Media,
http://www2.ifc.org/seed/news_ archive.html (last visited Feb. 13, 2006).
46
Wanis-St. John, supra note 42, at 340 (“While ADR programs have proliferated on a global scale, few efforts have been made to
assess such programs and discern patterns of development, innovations, and challenges.”). See also Hiram Chodesh, Local
Mediation in Advance of Armed Conflict, 19 Ohio St. J. on Disp. Resol. 213, 223 (2003) (discussing the globalization of
mediation and noting that there is very little empirical evidence supporting mediation’s link to the reduction of court backlog and
delay).
47
Wanis-St. John, supra note 42, at 347. He also flags the problem of power asymmetry as an area for evaluation and concern. Id.
48
Brown et al., supra note 43, at app. D. For other examples, see Ellen Yamshon & Daniel Yamshon, Transfer, Adaptation, and
Success of the CRI Mediation Model in Post-Communist Russia, 3 Harv. Negot. L. Rev. 123, 134 (1998) (supporting a model of
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mediation exported to post-communist Russia in which “success in mediation is synonymous with the parties’ satisfaction”);
Yarn, supra note 43, at 316 (proposing incremental measures of evaluation such as “a change in attitude or acquisitions of skills”
among local beneficiaries of global ADR).
49
Brown et al., supra note 43, at app. D. Some of the case studies examined in this guide include user-generated goals that deviate
from the measures proposed by the authors. For example, one of the USAID-funded projects in Bangladesh aims to use ADR to
promote “better access to and use of family planning.” Id. at app. B.
50
Brown et al., supra note 43, at 6-7. They are also careful to note what ADR is not: “ADR systems cannot be expected to ...
implement changes in legal and social norms,” “[e]stablish [b]road [c]ommunity or [n]ational [s]tandards,” or “establish rights in
order to reduce power imbalances.” Id. at 6, 23, 15. Instead ADR may function to “resolve relatively minor, routine, and local
disputes for which equity is a large measure of justice, and for which local and cultural norms may be more appropriate than
national legal standards.” Id. at 23.
51
There are proponents of global ADR who place particular emphasis on mediation processes as a means of enhancing democracy,
particularly in post-Soviet countries. See, e.g., Alkon, supra note 45, at 354 (describing mediation’s emphasis on self-reliant
problem-solving as a potential instrument of democratic change in the post-communist world); Shonholtz, supra note 43, at 449
(describing mediation as a means to educate citizens in post-totalitarian regimes about conflict’s democracy-producing effects);
Haynes, supra note 43, at 283 (“By structuring a neutral setting in which parties can creatively resolve their own disputes,
mediation can demonstrate through example the values of democracy and responsible decisionmaking” in central and eastern
European countries); Yamshon & Yamshon, supra note 48, at 147 (arguing that by “requiring people to think for themselves,
identify their interests, generate solutions, and be responsible for outcomes,” mediation in post-communist Russia, “educate[s]
people in the use of qualities that are helpful to sustaining a viable democracy”).
52
See, e.g., Jayne Seminare Docherty, Culture and Negotiation: Symmetrical Anthropology for Negotiators, 87 Marq. L. Rev. 711,
711 (2004) ( “[T]he debate of the 1980s over whether conflict resolution practitioners ... need to pay attention to culture seems to
have been won by those who answered, ‘Yes, culture matters.”’); Menkel-Meadow, Correspondences and Contradictions in
International and Domestic Conflict Resolution, supra note 43, at 325 (describing the influx of ADR professionals exporting ADR
techniques abroad; “[w]hat lessons have we learned? Culture matters.”); Morgan Brigg, Mediation, Power, and Cultural
Difference, 20 Conflict Resol. Q. 287, 298 (2003) (arguing that “because of predominance of Western cultural norms in the
operation of most mediation programs,” the failing of ADR proponents to come to terms with “cultural difference ... reinforces
Western values as universal, thereby disavowing and disrespecting other worldviews and lifeways”); Hiram E. Chodesh, Local
Mediation in Advance of Armed Conflict, 19 Ohio St. J. on Disp. Resol. 213, 222 (2003) (“For American experts engaged in
mediation reforms abroad, unfamiliarity with local conditions can be fatal to the benefits of their advice.”); Yarn, supra note 43, at
313 (2002) (likening the importance of culture in transnational conflict resolution to “the elephant in the room”); Paul E. Salem, A
Critique of Western Conflict Resolution from a Non-Western Perspective, 9 Negot. J. 361, 361 (1993) (providing “insights into
the macro-cultural framework to which Western conflict resolution approaches must adapt if they are to be used in the Arab
world”). There are still those, however, who remain faithful to a notion of mediation’s universal promise. See, e.g., Nancy Erbe,
The Global Popularity and Promise of Facilitative ADR, 18 Temp. Int’l & Comp. L.J. 343, 357 (2004) (“Crossing historic
boundaries of ethnic, class, religious, and regional distance with simple human contact, and, even more so, with communication
and relationship, is being embraced around the world through facilitated mediation and dialogue.”); see also Yarn, supra note 43,
at 313-14 (proposing that the North American concept of procedural justice might be “culturally transcendent”).
53
Wallace Warfield, Response to Carrie Menkel-Meadow’s “Correspondence and Contradictions in International and Domestic
Dispute Resolution: Lessons from General Theory and Varied Contexts”, 2003 J. Disp. Resol. 417, 418 (2003).
54
See James Ferguson, The Anti-Politics Machine: “Development,” Depoliticization, and Bureaucratic Power in Lesotho 251
(1990). Ferguson explains that: “‘development’ may also very effectively squash political challenges to the system--not only by
enhancing the powers of administration and repression, but by insistently reposing political questions of land, resources, jobs, or
wages as technical ‘problems’ responsive to the technical ‘development’ intervention.” Id. at 270.
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55
Laura Nader, Civilization and Its Negotiators, in Understanding Disputes: The Politics of Argument 39, 43 (Pat Caplan ed., 1995).
56
Id. at 40.
57
Sally Engle Merry, for example, echoes Nader’s description: “The global dissemination of alternative dispute resolution
technologies is only one of the many social reform endeavors, promoted by the global North for the alleged benefit of the global
South, that are reinforcing neoliberalism and capitalist expansion in the name of improving the lot of vulnerable populations such
as abused women or the illiterate poor.” Sally Engle Merry, Moving Beyond Ideology Critique to the Analysis of Practice, 27
Law & Soc. Inquiry 609, 609 (2002). Many other scholars have expressed similar concerns. For instance, at a recent symposium
held at Hamline University School of Law, presenters were invited to discuss the following question: “In what ways is this
globalization [of ADR] a new form of imperialism or political, intellectual, and cultural colonization?” Intentional Conversations
About the Globalization of ADR, 2005 Symposium on Advanced Issues in Dispute Resolution, Hamline University School of
Law (Oct. 29-30, 2005) (symposium brochure on file with author).
58
Nader, Civilization and Its Negotiators, supra note 55, at 43, 61.
59
Id. at 41.
60
Id. at 43 (citation omitted).
61
Id. at 42 (quotingEdward W. Said, Orientalism7 (1978)) (emphasis omitted).
62
Nader, Civilization and Its Negotiators, supra note 55, at 50-52, 54-55.
63
Id. at 52-60.
64
Id. at 61.
65
Nader, Civilization and Its Negotiators, supra note 55, at 41. Nader states similarly that “adjudication cannot simply be equated
with a better outcome for weaker parties.” Id. at 60.
66
We do not know the outcome of such negotiations. One possible exception involves Nader’s description of “‘secret negotiation”’
between Israel and Jordan over use of the Jordan River, mediated by the United States. Id. at 58 (quoting Thomas Naff & Ruth C.
Matson, Water in the Middle East: Conflict or Cooperation? 45 (1984)). There, Nader references statistics, compiled by Thomas
Naff and Ruth Watson, indicating “gross inequities” between the water consumption of Israel and that of Palestinians in the West
Bank (presumably an absent third-party to these negotiations). Id.
67
Nader & Grande, Current Illusions and Delusions, supra note 11, at 581 (emphasis added) (citing Nader, Civilization and Its
Negotiators, supra note 55).
68
Id. at 589.
69
Nader & Grande, Current Illusions and Delusions, supra note 11, at 589-90; Laura Nader & Elisabetta Grande, Reply, Current
Illusions and Delusions About Conflict Management--In Africa and Elsewhere, 27 Law & Soc. Inquiry 631, 632 (2002).
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70
Nader & Grande, Reply, supra note 69, at 632.
71
Nader & Grande, Current Illusions and Delusions, supra note 11, at 590 (emphasis added).
72
Nader & Grande, Reply, supra note 69, at 632.
73
See generally Ferguson, supra note 54. Ferguson states that “intentional plans are always important, but never in quite the way the
planners imagined ... intentional plans interact ... with unacknowledged structures and chance events to produce unintended
outcomes which turn out to be intelligible not only as the unforeseen effects of an intended intervention, but also as the unlikely
instruments of an unplotted strategy.” Id. at 20.
74
Nader & Grande, Current Illusions and Delusions, supra note 11, at 574 (arguing that “policy initiatives in [exporting ADR] must
proceed from a thorough understanding of conflict management in grounded contexts”).
75
Nader & Grande, Current Illusions and Delusions, supra note 11, at 585; see also Neal Milner, Illusions and Delusions About
Conflict Management in Africa and Elsewhere, 27 Law & Soc. Inquiry 621, 621-22 (2002) (arguing similarly that despite Nader
and Grande’s call for contextualization, they fail to justify their claims that ADR ideology is “‘intact,”’ “‘hegemonic,”’ and a
“‘universal paradigm”’).
76
Nader & Grande, Current Illusions and Delusions, supra note 11, at 585, 591.
77
See supra note 72 and accompanying text. Others have taken similar views. For example, Carrie Menkel-Meadow, who argues
against both the wholesale support and opposition to the exportation of U.S. ADR, Menkel-Meadow, Correspondences and
Contradictions, supra note 43, at 325, is more hesitant about the introduction of ADR to weak states, although she does not fully
explain why. “[T]he absence of a legitimate and trusted legal system,” she writes, “prevents full assimilation and acceptance of a
supplementary set of institutions to offer different forms of conflict resolution.” Id. at 340 n.104. This statement may be read as an
alliance with Nader, who argues that in the absence of rule of law as a check on social inequality, ADR necessarily favors the
interests of the more powerful. It may also be meant to suggest more modestly that ADR can be an effective tool of bargaining
and private dispute resolution only against the backdrop of clear legal rights and responsibilities. See, e.g., Wanis-St. John, supra
note 42, at 376 (“Development resources should not be diverted to ADR at the expense of comprehensive judicial reform. The
inter-relationship between ADR and efficient courts, in terms of linkages, enforcement, and other areas, make this concern
self-evident.”).
78
See, e.g., Ferguson, supra note 54; William F. Fisher, Doing Good? The Politics and Antipolitics of NGO Practice, 26 Ann. Rev.
Anthropology 439 (1997); Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (1994);
Stacey Leigh Pigg, Inventing Social Categories Through Place: Social Representations and Development in Nepal, 34 Comp.
Stud. Soc’y & Hist. 491 (1992).
79
See, e.g., Mark Goodale, The Globalization of Sympathetic Law and its Consequences, 27 Law & Soc. Inquiry 595 (2002); Laurel
Rose, Are Alternative Dispute Resolution (ADR) Programs Suitable for Africa?, Africa Notes, Sep. 1996 at 5; Laura Nader,
Harmony Ideology: Justice And Control in a Zapotec Mountain Village (1990); Sally Engle Merry, The Social Organization of
Mediation in Nonindustrial Societies: Implications for Informal Community Justice in America, in 2 The Politics of Informal
Justice, supra note 18, at 17.
80
See, e.g., Lionel Caplan, The Milieu of Disputation: Managing Quarrels in East Nepal, in Understanding Disputes, supra note 55,
at 137; Donald A. Messerschmidt, S.E. Consortium for Int’l Dev., Gaun Sallah: The ‘Village Method’ for Local Planning in
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Nepal (1983); Rajendra Pradhan, Legal Anthropology and Traditional Disputing Process in Nepal (Aug. 4, 2005) (unpublished
manuscript, on file with author).
81
See, e.g., Oscar G. Chase, Law, Culture, and Ritual: Disputing Systems in Cross-Cultural Context 105-06 (2005) (describing the
“hyperlexis critique,” which is an argument put forth by proponents of domestic ADR suggesting that litigants, overreliant on
legal institutions to solve social problems, are flooding the courts with their cases). See also supra Part I.A.
82
Indeed, according to the Asia Foundation: “A study on local dispute resolution practices ... found that most Nepalis were unaware
of the law or their legal rights and that they preferred to resolve disputes at the community level. The study also revealed that
traditional dispute resolution mechanisms were breaking down as village society changed. In a country with growing competition
for scarce resources and widespread social unrest, this situation poses a threat not just to individual rights, but also to national
stability.” The Asia Foundation, Dispute Resolution Under the Local Self-Governance Act, 1999 1 (Oct. 2002) (project proposal
submitted to USAID) (on file with author). See also Pradhan, supra note 80, at 70, 48-50 (proposing that political and social
changes post-1990 have limited the effectiveness of traditional dispute settlement institutions).
83
See infra note 100 and accompanying text.
84
See generally Village Development Committee Act of 1992 (Nepal).
85
Local
Self-Governance
Act
of
1999,
ch.
5
§§
33-42
(Nepal),
available
at
http://nepalresearch.org/law/background/local_selfgovernance_act_2055_.htm (last visited July 5, 2005). VDC arbitrators, chosen
“from among the local persons and social workers,” are instructed to “the extent possible, [to] cause the concerned parties to
negotiate with each other ... and have the case compromised.” Id. at §§ 35, 37. If parties are unable to reach an agreement,
arbitrators may decide the case by a majority vote--a decision appealable to the District Court. Id. at §§ 37, 40. Non-governmental
organization (NGO) and legal practitioners who feel the LSGA has an undue focus on arbitration, either because they hope to
devolve more control to villagers to solve their own problems or because they prefer not to invest the VDC, a political body, with
adjudicatory authority, have introduced a series of draft regulations to make the process more “mediation friendly.” See, e.g., The
Asia Foundation, Dispute Resolution Under the Local Self-Governance Act, supra note 82, at 2.
86
USAID/Nepal, “DG Next Steps” Concept Paper, Draft Version 17 (Nov. 19, 2002) (on file with author).
87
Id.
88
Special Objective Agreement Grant for Promoting Peace Through Improved Governance and Incomes in Targeted Areas, USAID
Grant No. 367-008 (367-0176) (Sept. 22, 2002) quoted in Memorandum from the Senior Democracy Governance Advisor to the
Grant Officer (Oct. 24, 2002) (on file with author).
89
USAID/Nepal, “DG Next Steps” Concept Paper, supra note 86, at 17.
90
For a description of these and other problems within the Nepali court system, see generally Centre for Legal Research and
Research Development, Analysis and Reform of the Criminal Justice System in Nepal (1999); see also Jane Aiken, Lessons From
Nepal: Partnership, Privilege, and Potential, 2 Wash. U. Global Stud. L. Rev. 391, 395-413 (2003) (detailing the failures of the
Nepali legal system to ensure human rights and equality for women); Kate Gilbert, Women and Family Law in Modern Nepal:
Statutory Rights and Social Implications, 24 N.Y.U. J. Int’l L. & Pol. 729 (1992) (same).
91
See, e.g., Ram B. Chhetri & Shambhu P. Kattel, Dispute Resolution in Nepal: A Socio-Cultural Perspective 24 (2004), available
at http:// www.cvict.org.np/pub.html (explaining that “disturbances caused by the Maoist-government conflict is making it more
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difficult to resolve cases and fully staff the courts, especially in the hills”). In some areas under Maoist control, Maoists have
established “people’s courts” to replace state district courts. According to Chhetri and Kattel, these courts “have become an
important forum for resolving disputes and dealing with cases of law breaking.” Id. at 53. However, as one Nepali anthropologist
explains, “[v]ery little is known about how extensive and popular this forum is, the procedures used in settling disputes and the
types of disputes settled.” Pradhan, supra note 80, at 3.
92
In May 2002, Prime Minister Sher Bahadur Deuba suspended parliament and subsequently dissolved all local representative
bodies. See John Norris, How Not to Wage a Counter-Insurgency: Nepal, the Maoists and Human Rights, Hum. Rts. Brief, Winter
2004, at 13-14. He was then himself dismissed by King Gyanendra, who assumed full control of government on October 4 of that
year. Id. On February 1, 2005, the King declared emergency rule, suspending many fundamental rights in an effort to crush the
Maoist insurgency. See U.S. Department of State, Background Note: Nepal, http:// www.state.gov/r/pa/ei/bgn/5283.htm (last
visited Aug. 11, 2005). Most recently, on February 8, 2006, municipal elections were held in Nepal; however, these were widely
criticized by foreign governments as lacking public support. See, e.g., Press Statement, U.S. Department of State, Nepal
Municipal Elections Lack Public Support (Feb. 8, 2006), available at http:// www.state.gov/r/pa/prs/ps/2006/60805.htm; Press
Release, Foreign & Commonwealth Office, United Kingdom, Foreign Office Minister Responds to Elections in Nepal (Feb. 9,
2006), available at http://www.fco.gov.uk (select “news,” then select “archive” for Feb. 9, 2006); Press Release, Ministry of
External Affairs India, Statement by Official Spokesperson on the Municipal Elections in Nepal (Feb. 9, 2006), available at
http://meaindia.nic.in/pressrelease/2006/02/09pr01.htm; Press Release, The Ministry of Foreign Affairs of Japan, Statement by
the Press Secretary on the Local Elections in the Kingdom of Nepal (Feb. 9, 2006), available at
http://www.mofa.go.jp/announce/announce/2006/2/0209-2.html.
93
In addition to lacking popular support and legitimacy, the Feb. 8, 2006 municipal elections are reported not to have included
VDC-level positions. Dr. S. Chandrasekharan, Nepal: Municipal Elections: No Winners but Only Losers, Note No. 253, South
Asia Analysis Group (Feb. 13, 2006), http:// www.saag.org/%5Cnotes3%5Cnote295.html.
94
Other agencies supporting community mediation in Nepal include The Danish International Development Agency (DANIDA) and
the United Nations Development Programme (UNDP). See The Asia Foundation, Dispute Resolution Through Village
Development Committees and Municipalities Grant No. 367-G-00-03-00009-00 (2002-2004), Final Report to USAID 12-13 (Jan.
2005) (on file with author) [hereinafter The Asia Foundation, Final Report to USAID]. See also Pradhan, supra note 80, at 70.
95
This was later expanded to twenty-eight new VDCs/municipalities in an additional three districts. The Asia Foundation, Final
Report to USAID, supra note 94, at 1-2.
96
Although passed by Parliament in 1999, the section of the LSGA which delimits the (fourteen) kinds of cases which can be
handled by ADR has not been published in the Nepal Law Gazette and hence is not in force. Additionally, since the dissolution of
Parliament in 2002, no more legislation is being passed. This leaves mediation in Nepal in strange limbo, backed by a law--the
LSGA--which, although on the books, has not been fully enacted, in the context of a state unable to enforce its laws or indeed
regulate its institutions.
97
Horizon Partners, Community Mediation: Mediator Training Workbook 23-24 (May 2003) (unpublished manual, on file with
author)
98
Id. at 16.
99
These include: settlement rate, change in relationship among the parties, mediator neutrality, and party satisfaction with the
process (for example, that mediators are empathic, respectful, and allow parties time to tell their stories), absence of pressure to
settle, and party satisfaction with the outcome. The Asia Foundation, Final Report to USAID, supra note 94, at app. C.
100 “Many of the victims who came here were discussing [the fact] that the main reason for them to be tortured was when there were
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small disputes in the community and one of them went to the police. And then [that one] would bribe police and they arrest people
and torture them. So that was one of the things ... a lot of things brought this up. So we thought: Can we do something to stop
those people going to the police for a small dispute? We studied a lot of things and we found out that community mediation is one
of the things and we can proceed. Basically, the idea came out of directing people [not] to go to the police, that was the initial
idea. The idea was given by the torture victims themselves. So we just built in, we had to quickly build in a project. So that is
why, even in the media, this component--prevention torture component--is very strong. It is not completely seen, but it helps
[strengthen the mediation project].” Interview with Bhogendra Sharma, Director, Centre for Victims of Torture, in Kathmandu,
Nepal (May 19, 2003) (transcript on file with author).
101 “Q: You are in a delicate position because on one hand, you are working with victims of government but also working with the
VDCs? Is this ever difficult? Bhogendra Sharma: VDCs, fortunately or unfortunately, and these security agencies don’t like each
other, so when you work with the VDCs, they say ‘Yes, ok.’ I think there is conflict between [police and VDCs] because the
police abuse their power.” Id.
102 Interview with DN Parajuli, Director, Human Rights Forum, in Ilam, Nepal (Mar. 17, 2003) (transcript on file with author).
103 The Centre for Victims of Torture, Access to Justice Through Community Mediation: Analysis of Cases 5 (2004) [hereinafter
Analysis of Cases], available at http://www.cvict.org.np/pub.html. Other measures include: ensuring “equal access to justice” and
“timely justice delivery,” “promoting peaceful communities [and] empowering communities,” “strengthening democracy and
promoting good governance,” and “reducing [the] caseload of formal justice forums”--a variable that CVICT researchers
explained “was included to give a perspective on community acceptance of [the community mediation program].” Id. at 5-6.
104 See supra note 52.
105 Yarn, supra note 43, at 311-12.
106 Id. at 314.
107 See Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of Tradition 1, 1-4 (Eric Hobsbawm & Terence Ranger
eds., 1983, 1992).
108 See Nader & Grande, Current Illusions and Delusions, supra note 11, at 577 (quoting Peter Worsley, The Three Worlds: Culture
and World Development 249 (1984)).
109 See supra notes 105-06 and accompanying text.
110 Carrie Menkel-Meadow, Correspondences and Contradictions, supra note 43, at 339.
111 Carie Menkel-Meadow, Correspondences and Contradictions, supra note 43, at 325.
112 Menkel-Meadow, Mothers and Fathers of Invention, supra note 1, at 13 n.60 (citing Carrie Menkel-Meadow, The Many Ways of
Mediation: The Transformations of Traditions, Ideologies, Paradigms, and Practices, 11 Negot. J. 217, 224 (1995) (book review));
Carrie J. Menkel-Meadow, Remembrance of Things Past? The Relationship of Past to Future in Pursuing Justice in Mediation, 5
Cardozo J. Conflict Resol. 97, 103 n.29 (2004). See also Menkel-Meadow, The Many Ways of Mediation, supra at 234 (“[O]ne
wonders what new forms of ethnocentric imperialism are developing when such [highly formalistic] models [of mediation] are
‘shipped off’ to other countries and cultures.... Will the transformation consist of a new form of ‘process imperialism?”’).
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113 John Paul Lederach, Preparing for Peace: Conflict Transformation Across Cultures 66 (1995).
114 Id. at 73-83.
115 See, e.g., Menkel-Meadow, Mothers and Fathers of Invention, supra note 1, at 11-12 (highlighting the importance of interrogating
the purposes, values, power, and consequences of dispute resolution institutions); Lederach, supra note 114, at 6 (“Stated bluntly,
conflict resolution training in the dominant North American culture represents among other things the packaging, presentation,
and selling of social knowledge.”).
116 Although Lederach’s “elicitive” approach to mediation training places sophisticated emphasis on stakeholder participation and
preferences in shaping the methods to represent and resolve conflict, it does not appear to address questions of normative dissenus
within stakeholder groups about the methods or purposes of dispute resolution. Lederach, supra note 114, at 55-70, 109-18.
117 My thanks to Marc Spindelman for this image.
118 See Geert Hofstede, Cultures and Organizations: Software of the Mind 49-78 (1991). Based on research of IBM employees in
several different countries, Hofstede initially developed four cultural dimensions, including individualism versus collectivism, to
explain work-related values across national cultures. Kevin Avruch commends Hofstede as developing the cultural scheme “with
the most methodological authority.” Kevin Avruch, Culture & Conflict Resolution 66 (1998). Yet Avruch notes that Hofstede
himself disclaims that the “four [dimensions] together account for 49 percent of the country [national culture] differences in the
data, just about half. The remaining half is country [national culture] specific: it cannot be associated with any worldwide factor,
at least not in the data I had.” Id. at 67 (quoting Hofstede, supra at 252) (emphasis and brackets by Avruch).
119 This distinction is attributed to Edward T. Hall, Beyond Culture (2d ed. 1989); see also Avruch, supra note 118, at 64. Stella
Ting-Toomey, among others, links this distinction to an analysis of conflict and culture. See, e.g., Stella Ting-Toomey, Toward a
Theory of Conflict and Culture, in Communication, Culture, and Organization Processes 71, 75-82 (William B. Gudykunst et al.
eds., 1985) (offering a series of propositions to explain how individuals in low- and high-context cultures perceive, react, and
behave in conflict situations). See also Raymond Cohen, Negotiation Across Cultures, in Turbulent Peace: The Challenges of
Managing International Conflict 469, 471-75 (Chester A. Crocker et al. eds., 2001) (using high-context versus low-context as a
“fertile,” if limited, distinction to explain communication gaps in cross-cultural negotiation).
120 For an excellent description of these heuristics, see Avruch, supra note 118, at 63-68. See also Jacqueline Nolan-Haley, Harold
Abramson & Pat K. Chew, International Conflict Resolution: Consensual ADR Processes 70-72 (2005) (describing these social
science constructs as indicators of conflict behaviour).
121 See, e.g., Hall, supra note 119, at 39-40, 91-92; Avruch, supra note 118, at 65; Nolan-Haley et al., supra note 120, at 71.
122 See, e.g., Daniel Q. Posin, Mediating International Business Disputes, 9 Fordham J. Corp. & Fin. L. 449, 465-67, 471-73 (2004)
(using individualism versus collectivism, among other dimensions, to propose that mediators attend to cultural difference among
the attitudes and behaviors of disputing parties in international business mediations); William K. Slate, Paying Attention to
“Culture” in International Commercial Arbitration, 59 Disp. Resol. J. 96, 99 (2004) (using high-context versus low-context to
broadly contrast styles of negotiation in the United States versus Japan and “other Asian countries” in an effort to “improve the
process of resolving cross-cultural conflicts”); Dania A. Dialdin & James A. Wall, Jr., Third Parties and Culture, 15 Negot. J. 381,
382-83 (1999) (using individualism versus collectivism, among other dimensions, to predict styles of party interventions and their
acceptance by parties); Andrew Sagartz, Note, Resolution of International Commercial Disputes: Surmounting Barriers of Culture
Without Going to Court, 13 Ohio St. J. on Disp. Resol. 675, 682-91 (1998) (using individualism versus collectivism, among other
dimensions, as a basis for the selection of ADR methods that best suit parties’ “cultural backgrounds” in international commercial
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disputes); M. Kamil Kozan & Canan Ergin, Preference for Third Party Help in Conflict Management in the United States and
Turkey: An Experimental Study, 29 J. Cross-Cultural Psychol. 525, 527-31, 537 (1998) (using individualism versus collectivism
to compare U.S. and Turkish attitudes toward mediation and negotiation and to suggest that Western approaches that require
parties to openly air concerns and engage in direct communication may falter in collectivist cultures); Walter A. Wright,
Mediation of Private United States-Mexico Commercial Disputes: Will it Work?, 26 N.M. L. Rev. 57, 61-74 (1996) (using
individualism versus collectivism to explain differences in U.S. and Mexican attitudes toward dispute resolution and to propose
that the export of U.S. mediation may be successful among individualist (upper and middle class) Mexicans, but among
collectivist Mexicans, U.S. mediation should use familiar rather than professional mediators and private caucuses rather than
direct communication); Brishkai Lund et al., Conflict and Culture: Report of the Multiculturalism and Dispute Resolution Project
26-27 (1994) (“To be effective, cross-cultural interveners must understand the importance of individualist and collectivist
dimensions” in designing and providing conflict resolution programs or training); LeBaron, supra note 8, app. 1, at 117, 150-52
(offering suggestions to train interveners from individualist cultures to work in conflict situations with people from collectivist
cultures and vice versa); see also Pirie, supra note 43, at 524-25 (setting forth additional suggestions from LeBaron’s work, for
example: collectivists pay more attention “to the context of the communication, including verbal associations, gestures, body
postures, and ... facial muscles,” and collectivists experience different procedural needs such as “broad, leisurely discussion,”
rather than “a tight, controlled atmosphere”).
123 Cf. Pirie, supra note 43. Pirie, in a substantial review of current literature on ADR and culture, argues similarly that the vast
majority of scholarship employs a definition of culture cast in communicative or behavioral terms; i.e., “how disputants perceive,
approach, process and resolve conflict.” Id. at 527 (citing Lund et al., supra note 122, at 25). This approach to culture is bad, he
claims, because it requires only that ADR practitioners adapt ADR processes “in ways that accommodate and respect the behavior
that has been ‘discovered’ to be culturally appropriate in conflict settings.” Id. As a result, he concludes, the connections among
culture, conflict, and the politics of ADR “remain unexplored.” Id. at 528.
124 See Annelise Riles, User Friendly: Informality and Expertise, 27 Law & Soc. Inquiry 613, 617-18 (2002) (“The expert’s manual
becomes a kind of formal tool of its own--one can take it anywhere--but it acknowledges and even points to its own gaps; it
makes room for the inclusion of local conditions and specificities.... The particular becomes quite literally a gap in the expert
form, something imagined, prefigured by expert knowledge itself.”) (citing Annelise Riles, The Network Inside Out (2000)).
125 See The Asia Foundation, Final Report to USAID, supra note 94, at 6.
126 Under current Nepali law a polygamist may be sentenced from one to three years and/or fined. See Aiken, supra note 90, at 395.
127 See, e.g., Jacqueline M. Nolan-Haley, Informed Consent In Mediation: A Guiding Principle For Truly Educated Decisionmaking,
74 Notre Dame L. Rev. 775, 813 (1999) (arguing that informed decisionmaking based in part on an understanding of one’s legal
entitlements is a “prerequisite for the exercise of self-determination” in mediation); see also Jacqueline M. Nolan-Haley, Court
Mediation and the Search for Justice Through Law, 74 Wash. U. L.Q. 47, 91 (1996).
128 For an overview of Nepali labor law, see generally Labour Act of 1998, § 2048 (Nepal), available at http://
www.labournepal.org/labourlaws/labouract.html (last visited July 1, 2005).
129 In 2002, after years of debate, the Nepali Parliament passed a law (the 11th Amendment in the Civil Code-2020), which enhances
and encodes rights for women to inherit property, to divorce, and to claim property pursuant to a divorce. For a description of
Nepali laws related to women’s property rights, see Aiken, supra note 90, at 395-96; for laws related to women’s rights generally,
see Aiken, supra note 90, at 394-406.
130 Mukti Rijal, Mediation: Lawyers, Non-Lawyers Role Polemics (The Context of a Training) 3 (undated) (unpublished manuscript,
on file with author).
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131 The Asia Foundation, Final Report to USAID, supra note 94, at 9.
132 Id. at 8.
133 Id. at 19.
134 E-mail from George Varughese, then-Deputy Country Representative for Nepal, The Asia Foundation, to author (Jan. 20, 2006,
11:52:00 EST) (on file with author). In turn, TAF recommended that CVICT use fewer mediators to make the process less
coercive and adopt more rigorous procedural methodology.
135 The Consultants provided mediation training in the United States, Canada, South and Central America, Africa, and Asia. They
established mediation centers in Sri Lanka, Guatemala, and Southeast Asia. The Asia Foundation, Final Report to USAID, supra
note 94, at 14.
136 See supra note 122.
137 See, e.g., Nader, Harmony Ideology, supra note 79, at 291, 309-10 (describing how Zapotec-speaking villagers in Mexico
“construct their culture as a harmonious one” in order to preserve social and legal autonomy and minimize interference by
colonial authorities).
138 I am inspired here by David Kennedy’s work on international humanitarianism. Kennedy, although endorsing a pragmatic fealty
to the purposes and intentions driving humanitarian intervention as much as to a careful assessment of outcome in light of such
purposes, also recognizes an inevitable amount of uncertainty about both motives and results. David Kennedy, The Dark Side of
Virtue: Reassessing International Humanitarianism xx-xxvi (2004). The challenge, as he frames it, is “to develop professional
habits--a style or posture, if you like--for taking responsible action as a ruler where expertise cannot be perfected.” Id. at xxv.
139 This subheading is adapted from Lon Fuller’s pioneering work. Lon L. Fuller, Mediation--Its Forms and Functions, 44 S. Cal. L.
Rev. 305 (1971).
140 The Centre for Victims of Torture, Community Mediation Model, Draft Version 6-8 (2002) (unpublished manuscript, on file with
author).
141 Id. at 6-7.
142 See supra notes 23-24 and accompanying text.
143 Kerry Rittich, The Future of Law and Development: Second Generation Reforms and the Incorporation of the Social, 26 Mich. J.
Int’l L. 199, 223 (2004).
144 The Centre for Victims of Torture, Community Mediation Model, supra note 140, at 7.
145 Interview with Sharma, supra note 100.
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146 The Centre for Victims of Torture, Community Mediation Model, supra note 140, at 13.
147 Analysis of Cases, supra note 103, at 18.
148 Id. at 76.
149 Id. at 70.
150 Chhetri & Kattel, supra note 91, at 38 (describing a case of inter-caste battery, where after the mediation committee prevailed
upon the high-caste offender to apologize and pay for the medical expenses of his low-caste victim, it concluded by announcing
that “it would not help to resolve such discrimination cases in [the] future, [but would] forward such cases to the court where
guilty persons are liable for a 3,000 rupees fine and up to a year’s imprisonment”).
151 See text supra at Part III.D.
152 See generally Chhetri & Kattel, supra note 91, at 50.
153 Analysis of Cases, supra note 103, at 14. Compare with The Asia Foundation, Final Report to USAID, supra note 94, at 11 (“The
neutrality of mediators is critical to the process of training mediators and supporting mediation services, for neutrality determines
the quality of settlement, which, in turn, directly affects durability of settlement.”).
154 On awareness programs in Nepal, see generally Tatsuro Fujikura, Discourses of Awareness: Notes for a Criticism of
Development in Nepal, 6 Stud. in Nepali Hist. & Soc’y 271 (2001).
155 Interview with Parajuli, supra note 102.
156 This description draws on material written and published by CVICT as well as extensive interviews and participant observation.
All written materials and formal interviews are cited below. In March 2003, our research team, see supra note 4, visited the
village development committees of Balawater, Ilam Bazar, Kanyam, Somebeck, and Naya Bazar in the district of Ilam where we
observed mediation trainings and village-wide discussion forums convened on our behalf. On a second trip, I observed several
mediations in the district of Jhapa. All quotes of Nepali participants in mediation trainings and discussions forums, although not
individually cited, were recorded in a written transcript (on file with author) as accurately and faithfully as possible.
Anthropologist Genevieve Lakier translated from Nepali to English.
157 Shmabhu P. Kattel, Dispute Management through Community Mediation: A Sociological Perspective, 26 Voice, Mar. 2004, at
7-8.
158 Ward and Villages as Dispute Settlement Forums: Data from Four Wards in Jhapa and Saptari, 22 Voice, Dec. 2001, at 21
(quoting a woman from a focus discussion group on mediation in Jamuni Madhepura VDC in the district of Saptari (one of the
more “backward” districts in Nepal, I was told, and hence chosen as a test case for CVICT’s mediation program): “When the
husband gets information of the wife taking a dispute to a public forum, he tortures her as soon as she comes back home. That
ends the dispute and visit to [the] dispute resolution forum!”).
159 These “pressure groups” are not entirely uncommon, or restricted to mediation programs, in Nepal. In a variety of other women’s
protection campaigns--primarily those intended to stop male drinking and the domestic abuse it supports and precedes--women
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threaten violence against vendors who continue to sell liquor and, as a result, many shut down. See, e.g., Chhetri & Kattel, supra
note 91, at 53 (describing examples of women’s groups).
160 Interview with Women’s Committee Chair, in Ilam, Nepal (Mar. 17, 2003) (transcript on file with author).
161 Id.
162 See Analysis of Cases, supra note 103, at 123 (“The mediation process puts a fair amount of social pressure on perpetrators to
change their behaviour. The community [is] involved in the mediation process and can act as watchdogs afterwards to ensure that
the domestic violence does not continue. There is also some follow up and monitoring done by the HRMC [Human Rights and
Mediation Committee] members on an informal basis which helps to discourage domestic violence and also gives the women an
opportunity to speak up [if] the violence continues.”); see also Chhetri & Kattel, supra note 91, at 45 (“Better off and more
influential persons have easier access to the formal justice system than less well off people. This is because the better off can
influence officials to decide in their favour and can more easily afford to fight their cases.”). In some instances, CVICT mediation
committees will provide financial support to the lower-power party to file a court case if mediation appears likely to be
unsuccessful. See id. at 39 (describing a case in which a mediation committee decided to provide legal aid to an unwed
mother-to-be when the father-to-be refused to mediate or establish a legal relationship with the mother--this in turn persuaded the
father to marry the mother).
163 As one female participant in Sombeck VDC put it: “Men [on the mediation committee] do not listen if I speak alone, but they do
if I speak with other women. I was inspired to join the mediation committee to learn.”
164 See, e.g., Analysis of Cases, supra note 103, at 88 (describing how when a husband accused of domestic violence refused to
attend mediation, the “women of the community” along with mediation committee members intervened at his home); id. at 90
(describing a case of daughter-in-law abuse where the women’s committee attempted to intervene and mediate at the family’s
home prior to referring the case to the mediation committee).
165 See supra notes 29-30 and accompanying text; see also Richard Hofrichter, Neighborhood Justice and the Social Control
Problems of American Capitalism: A Perspective, in 1 The Politics of Informal Justice, supra note 22, at 207, 240; Auerbach,
supra note 13, at 144.
166 For reasons only partially apparent to me, it was much more difficult to hear from dalit mediators in the focus group meetings
convened by our research team. In Sombeck VDC, two dalit mediators echoed the sentiments of female mediators. According to
one, “mediation gives dalits a chance to talk with other dalits on the committee so they can be understood.” That same dalit
mediator later proposed the establishment of dalit-only mediation committees in the style of the women’s committee. This
proposal was soundly rejected by other members on the mediation committee as “anti-integrationist.”
167 Patricia Ewick & Susan S. Silbey, The Common Place of Law: Stories From Everyday Life 43 (1998).
168 Chhetri & Kattel, supra note 91, at 41.
169 Id. at 51.
170 See generally Stacy Leigh Pigg, The Credible and the Credulous: The Question of ‘Villagers’ Beliefs‘ in Nepal, 11 Cultural
Anthropology 160, 163-65 (1996).
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171 Analysis of Cases, supra note 103, at 1.
172 Cf. Brooks, supra note 44, at 2322. Brooks argues that nonlegal initiatives that “assign new cultural meaning to violence and
suffering” may, in some societies, be more effective at creating commitments to substantive values underlying the rule of law than
the introduction of formal legal structures. Id.
173 In CVICT’s words, the “aim” of community mediation is “to initiate a process of disseminating lesson learning from the project
to the national government ... in the hope of positively influencing policies and programmes.” Centre for Victims of Torture,
Community Mediation Project 11-12 (Feb. 2001) (project document submitted to Enabling State Programme, on file with author),
available at http://www.esp-nepal.com/download/cmp_doc.pdf.
174 Supra note 70 and accompanying text.
175 Participants, in fact, widely express a demand for, rather than a resistance to, greater centralized state interventions in the practice
of mediation. As one mediator in Kanyam VDC explained, “we want government assistance [to compel powerful parties to
mediate]....” In the words of another, “there are people who don’t obey decisions.... Mediation committees should be arranged as a
village form of a national legal system.”
176 Pirie, supra note 43, at 517.
177 Silbey & Sarat, supra note 14, at 479.
178 Lauren Leve, Between Jesse Helms and Ram Bahadur: Participation and Empowerment in Women’s Literacy Programming in
Nepal, 24 PoLAR 108, 118 (2001) (citation omitted); see also Fujikura, supra note 154, at 271 (“In the past five decades,
development discourses in Nepal have not only insistently labeled those identified as the ‘underdeveloped’ part of the population
as somehow lacking in consciousness, but have also helped create conditions in which variously positioned people speak in terms
of the state of their own and others’ consciousness.”).
179 See, e.g., Pigg, supra note 78, at 507. See also Pigg, supra note 170, at 163 (“Nepalis experience modernity through a
development ideology that insists that they are not modern, indeed, that they have a very long way to go to get there.”).
180 Cf. Goodale, supra note 79, at 606-07. Goodale examines the impact of Western human rights discourse and literate legality
projects in rural Bolivia, which he argues have in different ways empowered women as right-holders, yet also “hasten[ed] the
demise of indigenous languages and privileg [ed] people who are distinguished primarily by their swift embrace of the trappings
of modernity.” Id.
181 See Analysis of Cases, supra note 103, at 23-28.
182 See id. at 56-58.
183 See, e.g., id. at 55 (explaining that in resolving a case, the mediation committee reasoned that there “was no government funding
for the provision of drinking water nor was there any clear obligation on the VDC to provide drinking water or maintain the well.
It was really up to the community as a whole to work together to meet their own needs.”). Cf. Chase, supra note 81, at 111-12
(suggesting that broad cultural trends toward privatization underlie and help explain the ADR movement in the United States).
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184 Fujikura, supra note 154, at 301; cf. Leve, supra note 178, at 109 (“Despite many differences between development critics and the
industry’s mainstream, donor agencies and NGOs share the assumption that a transformation in consciousness or subjectivity is a
key part of empowerment.... [E]mpowerment advocates across the institutional spectrum agree that teaching people to
comprehend themselves differently is requisite for any truly ‘empowering’ change.”); Sally Engle Merry, Rights, Religion, and
Community: Approaches to Violence Against Women in the Context of Globalization, 35 Law & Soc’y Rev. 39, 40-43 (2001)
(tracing how three diverse approaches to reducing gender violence in a Hawaiian town (alternatively based on rights, religion, or
community) each employed similar technologies of personal transformation).
185 See Chhetri & Kattel, supra note 91, at 50-51. Chhetri and Kattel contrast CVICT’s “modern” forms of mediation with
“traditional” forms of dispute resolution to highlight, inter alia, the following indices of cultural change: mediators have
knowledge of the law, status-based relations do not influence mediated outcomes, “solutions are sought through community level
discussions” in which all members “should play an equal role in decisionmaking,” and parties recognize each other’s “problems
and feelings,” and reconcile voluntarily. See id. Their description invokes an ideal of consensus through popular participation and
dialogue--a constitutive feature of modern theories of political organization. See, e.g., Nancy Fraser, Reframing Justice in a
Globalizing World, 36 New Left Rev. Nov.-Dec. 2005, at 73, 86.
186 Leve, supra note 178, at 116. See also Nader & Grande, Reply, supra note 69, at 633 (referencing Merry, supra note 57, who in
turn relies on Leve: “[I]deology connected with visions of social justice is the hook,” Nader and Grande write, “while actual
intervention may have another purpose”).
187 Anthropologist Tatsuro Fujikura makes this point forcibly as he argues that development in Nepal, through “re-formation of
subjectivities,” is producing a set of aspirations, such as desires to make personal choices, desires for romantic love, and desires to
improve conditions for oneself and one’s family and one’s community (but not necessarily the state). See Fujikura, supra note
154, at 303-04. Such products of “development,” he argues, are not only unexplained, but are jeopardized by anthropological
criticisms of development that hold that the center ignores or gets wrong the needs of the periphery, misrepresents such needs in
order to serve dominant interests, or represents those needs as generic and technical, rather than political, problems responsive to
its own forms of expertise. See id. at 282-91, 301-08.
188 For example, Nader and Grande, in response to Neal Milner’s assertion that their central claim--that ADR is hegemonic--is
overstated, retort: “[T]he rhetoric of the rule of law, even if just rhetoric, gives more hope than the encapsulated harmony-law
model because the latter is often outside the law, is generally hidden from critical examination, eliminates choice of procedure,
and is less tied to the legitimating aspects of state law.” Nader & Grande, Reply, supra note 69, at 633.
189 Recently, Andrew Pirie has called for a re-description of ADR as ideology and has called on ADR proponents to interrogate its
“beliefs, values, and images.” Pirie, supra note 43, at 540-41.
190 See, e.g., Nader & Grande, Current Illusions and Delusions, supra note 11, at 577-78.
191 See, e.g., Richard L. Abel, Mediation in Pre-Capitalist Societies, 3 Windsor Y.B. Access to Just. 175, 176 (1983) (“Mediation
shapes conflict primarily by mobilizing rhetoric, in contrast to other dispute processes that rely more heavily on physical force or
economic power. This does not mean that mediation is non-coercive; rhetoric can be one of the most oppressive forms of
constraint.”).
192 Cf. Goodale, supra note 79, at 607 (“Nader and Grande do not discuss whether, when accompanied by a ‘careful study of social
conditions,’ sympathetic legalities like ADR might prove to be superior legal options for people given a choice between
hegemonic, preexisting state law and these alternatives. It is, for example, very difficult to say for certain that a rights-based
forum will always prove more effective for marginalized claimants than the interest-based methods of ADR, or whether the
informal invocation of formal law principles such as human rights discourse might in some cases by itself bring about positive
social change.”).
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193 For example, in a mediation that I observed in the district of Jhapa, a wife agreed to stop accusing her female neighbor of
seducing the wife’s husband on the condition that the husband agree to stop visiting the neighbor’s home. Rather than simply
refuse to be bound by the terms of this agreement, the husband persuaded a public gathering of mediation participants that any
contract to such effect would be a violation of his human rights. See also Goodale, supra note 79, at 605 (making a similar point,
suggesting that “an [informal] appeal to international legal principles” by marginalized people can be effective, yet “short of
actually using formal tribunals,” fraught with uncertainties).
194 See, e.g., Robert Van Krieken, Legal Informalism, Power and Liberal Governance, 10 Soc. & Legal Stud. 5, 6 (2001) (arguing
that predominant understandings of informal justice “include a resistance to seeing power as operating outside the state, and a
reluctance to give up the liberal distinction between ‘the state’ as the primary site of power and either ‘the individual’ or ‘the
community’ as opposing wellsprings of ‘freedom”’).
195 Kennedy, supra note 138, at 145.
196 Such a re-imagining of transnational ADR might include among its founders Laura Nader who, as she studied practices of dispute
resolution in developing countries, chastised the U.S. court system for failing to provide equal access for the economically
disadvantaged. See Moore, supra note 26, at 103 (describing some of Nader’s early work); see also Menkel-Meadow, Mothers
and Fathers of Invention, supra note 1, at 10.
197 Laura Nader, The Recurrent Dialectic Between Legality and Its Alternatives: The Limitations of Binary Thinking, 132 U. Pa. L.
Rev. 621, 644 (1984) (book review).
198 Id.
199 Michel Foucault, The Foucault Reader 45 (Paul Rabinow ed., 1984).
End of Document
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