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134 Australian Journal of Law & Society Voi 1 No. 2} 1983

INFORMAL JUSTICE AND THE NEW SOUTH WALES COMMUNITY JUSTICE CENTRES PILOT PROJECT

THE POLITICS OF INFORMAL JUSTICEby Richard L. Abel

Volume 1: The American Experience, 335 + ix pp Volume 2: Comparative Studies, 338 + x pp

New York: Academic Press, 1982 $41.35 per volume ISBN 0120415022 (v.l)

012041502X (v.2)

NEIGHBORHOOD JUSTICE:ASSESSMENT OF AN EMERGING IDEA

by Roman Tomasic and Malcolm M. Feeley New York: Longman Inc., 1982

286 + xviii pp. $34.00.ISBN 0582282535

COMMUNITY JUSTICE CENTRES: A REPORT ON THE NEW SOUTH WALES PILOT PROJECT 1979-1981

by John Schwartzkoff and Jenny Morgan (with the assistance of Concetta Rizzo)

Sydney: Law Foundation of NSW, 1982 260 + viii pp. $10.00

ISBN 0909136211

In August 1979, the New South Wales Government resolved to establish three “Community Justice Centres” as a pilot program. The idea followed closely upon the range of alternative dispute processing mechanisms which had sprung up in the U.S. throughout the 1970s and which represented a shift away from formal legal processes to an embracing of informalism. By 1980, over 140 alternative dispute processing forums were operating in the U.S. The eclectic nature of these forums was highlighted in a recent editorial comment in the Yale Law Journal:

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j “ ‘Alternative dispute resolution’ is a label ascribed to an increasingly broad range of options that share few characteristics aside from their common departure from traditional courtroom procedures” (Yale Law Journal 1979:906). Accompanying this growing attraction to informal processes has been a plethora of literature from sources as diverse as are the different schemes operating. They range from highly theoretical writings, such as Spitzer’s “The Dialectics of Formal and Informal Control” (Abel, Vol 1:167) to government sponsored statutory evaluations of community, or, as they have been described in the U.S., ‘Neighborhood’ Justice Centers (NJCs). The Law Foundation’s study is an example of the latter, more empirically based work. The aim of this review is to consider the major contributions made to the debate about alternative, or informal justice by surveying some of the recently published material in the area.

1978 saw the publication of the four volume “magnum opus”, Access to Justice, edited by Mauro Cappelletti. The Florence Project, as it was colloquially known, surveyed an overwhelming range of legal, or quasi-legal institutions in a variety of countries. Contributors to the project considered the concept of access to justice as a phenomenon undergoing a radical transformation. Rights to legal representation and formal equality, responses to the liberal bourgeois ideology of the late 18th and 19th centuries were no longer sufficient (or indeed necessary) to the concept of access to justice. Instead, the authors outlined a “three wave” approach, which they maintain has occurred in chronological sequence since 1965. Legal aid for the poor is the first response to the problem of “access”. The second involves reforms directed towards providing legal representation for diffuse interests, specifically through private non-governmental innovations like class actions. This has been most notably the case in, for example, consumer and environmental matters, and into this category would fall the recent Australian initiative of the Public Interest Advocacy Centre, established in Sydney in 1982 under the aegis of the Law Foundation of New South Wales.

The third wave, of most interest for present purposes, called by Cappelletti and his collaborator Bryant Garth, “a new access-to-justice approach”, aims wider than the first two approaches outlined:

This “third wave” of reform includes but goes beyond advocacy, whether inside or outside of the courts, and whether through governmental or private advocates. Its focus is on the full panoply of institutions and devices, personnel and procedures, used to process, and even prevent, disputes in modern societies. [They] call it the “access-to-justice” approach because of its over-all scope; its method is not to abandon the techniques of the first two waves of reform, but rather to treat those reforms as only several of a number of possibilities for improving access, (Cappelletti and Garth 1978:222-223).

Cappelletti and Garth were not the first legal reformists to look beyond traditional representation as a means of facilitating access to justice. In the U.S., Jean and Edgar Cahn, pioneers of the Office of Equal Opportunity legal services program (Cahn and Cahn, 1964), moved rapidly from advocating neighborhood law offices to calling for the “creation on a neighborhood level, of mechanisms for settling disputes, dispensing remedies and enunciating norms of conduct” (Cahn and Cahn 1966:950).

136 Australian Journal of Law & Society Vol. 1 No. 2, 1983

It might be thought that informal alternatives to traditional adjudication were attractive to legal reformers, especially those concerned with the plight of the disadvantaged, as they were perceived as a logical next step from achieving access through the development of legal aid services. Perhaps one of the most significant contributions made by the recent literature has been to highlight how simplistic that supposition in fact proves to be.

Both the Tomasic and Feeley book and Abel’s two volumes provide valuable insights into the motivation of “alternatives” proponents. Just as the process of mediation, as a dispute processing technique, purports to deal with the underlying causes as well as manifestations of disputes, so these collections (and particularly Abel’s contribution) draw out and elucidate the “underlying causes” of what has essentially become an “alternatives movement”. Before considering their contents in any detail some general comments need to be made about what can almost be described as a new socio-legal discipline, ie the study of informalism, particularly as manifested by alternative forms of dispute settlement.

It is remarkable that in a space of time spanning less than ten years, so much has been written in this area. In 1979, Sander and Snyder, of Harvard Law School, published a bibliography on the subject for the American Bar Association. That modest work contained approximately 750 entries — it would be no exaggeration to say that were a second edition to be published in 1983, that number would double, if not treble. In 1981, the Law and Society Review published a special, double issue on “Dispute Processing and Civil Litigation”, much of which is devoted to the Wisconsin-based Civil Litigation Research Program. Well known anthropologist Laura Nader (Nader, 1980) has joined the debate with a consumer oriented book entitled “No Access to Law”. In it, she and the other authors surveyed alternative consumer grievance procedures. Nader’s own approach is not dissimilar to the access-to-justice philosophy of the Florence Project and the Cahns, but that is by no means the most common perspective and, if one considers some of the earlier (relatively speaking) writings, some very contradictory themes emerge.

Essentially, the literature falls into two broad categories. The first contains works concerned with advocating the development of alternative dispute processing structures, eg the material by people like McGillis and Mullen (1977) describing a variety of possible project models for informal justice techniques. The Tomasic and Feeley collection contains some of this — articles are reproduced there which though less than ten years old, now fall into the “classics” category. The earlier literature is almost uniformly exhortatory — indeed it is occasionally reminiscent of a revival meeting. After all, what concerned legal reformist would not agree that the formal justice system fails to provide “justice” for all, is inaccessible to many, is costly, time consuming and, by focussing upon or restricting its range of remedies largely to all or nothing verdicts, benefits one party to dyadic litigation at the expense of the other? Clearly these are the concerns which provoked the expedition “down memory lane” (Abel 1979:29) by some authors, most notably Danzig (Tomasic and Feeley:2). Danzig’s view was that tribal institutions, specifically the Liberian Kpelle Moot described by anthropologist James Gibbs (Gibbs 1963) could be reproduced successfully in modern California. He suggested transposing the structures used by the Kpelle tribe for dealing with disputes into urban neighbourhoods in California as a means of dealing with criminal conduct, claiming that this would be more

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humane and effective than the “justice” currently meted out by the ailing criminal justice system.

By contrast, much of the more recent literature, exemplified by the Abel collection but also represented to some degree in Part III of Tomasic and Feeley, is of a different nature. It is more critical in tone and more reflective, more theoretical and less concerned with expounding the virtues of any particular process over any other. The reflective tone results to some degree from the realization that the rationales and justifications for the development of “neighborhood”, “community” or otherwise informal mechanisms for dealing with disputes are not as clearcut as they might earlier have appeared. Indeed, they are diverse and at times, highly contradictory.

Perhaps the most significant contribution to the critical literature has been by Abel himself. He is certainly prolific. Prior to co-ordinating the Politics of Informal Justice he had himself published an article on “delegalization” where he explored what he saw to be its ideology, manifestations and social consequences. (Abel 1979). The theme of that article was that there is a cyclical relationship between legalization and delegalization and he described in some detail aspects of that process, giving as examples the development of no-fault divorce law with the corresponding development of court remedies for de facto spouses. No-fault remedies for work injuries and road accidents in his view led to attempts to regain full tort recovery through, for example, products liability law. This latter development he has called “relegalization”. It was in this article that Abel first unravelled the threads of the arguments made by proponents of informalism, at that stage inextricably tangled together through exhortation of common-sounding ends. He attempted to separate the strands, revealing, in the process, a motley assortment of “strange bedfellows” (Abel 1979:31). This miscegenetic theme has been echoed by others (eg Merry, in Tomasic and Feeley:181) and was refined by Abel in his concluding article to volume 1 of the Politics of Informal Justice. There he reiterated that “alternatives” proponents “are often unusually strange bedfellows, even by the promiscuous standards of politics” (Abel Vol 1:268).

So who is in bed with whom?Turning to Tomasic and Feeley, we find in Part I, entitled “Rationales”, Danzig’s

anthropologically based nostalgia, reflecting the views of those who unquestioningly believe (perhaps hope is more accurate) that tribal pre-industrial structures can be replicated in a highly urban, post-industrial society. Next is the paper presented by Sander at the so-called second Pound Conference on the Causes of Popular Dissatisfaction with the Administration of Justice. In it he proposed the endorsement of a “variety of dispute processing”, ranging from adjudication to “avoidance” (Tomasic and Feeley:25) . He commenced his article by referring to an article by Barton, entitled “The Legal Explosion” containing dire predictions of the exponential growth of litigation. Sander’s article represents the institutional viewpoint, depicted in other articles with titles like “Hyperlexis: Our National Disease” (Manning 1977), “Let’s Everybody Litigate?” (Rosenberg 1972) and “Our Vicious Legal Spiral” (Burger 1977). The common theme of the Chief Justice of the United States, the A.B.A. and these other prophets of doom is that courts are overloaded and “something must be done” to ease court congestion. So Sander notes:


Not only has there been a waning of traditional dispute resolution mechanisms, but with the complexity of modern society, many new potential sources of controversy have emerged as a result of the immense growth of government at all levels, and the rising expectations that have been created. (Tomasic and Feeley:27)

In a footnote, Sander refers specifically to the newly expanded statutory causes of action (eg civil rights actions, social security claims etc) as the area of largest civil litigation growth (id n. 11:39). As Abel has lucidly commented (1979:30) these “legalistic delegalizers are saying ... that hitherto unrepresented, oppressed and inchoate interests, by attemping to use the legal system in the same way that business has been using it, are making it more difficult for business to use the system”. The types of litigation mentioned by Sander are exactly those assisted by participants in the first wave of access to justice — ie legal aid service providers. So what is their response to these institutional suggestions that it is these cases which are causing the court explosion? Linda Singer has addressed these issues in a thoughtful article where she at least raised the potential contradiction of aspirations between the legal services program (the making rights effective approach) and the development of informal mechanisms for dispute settlement (Singer 1979). It is somewhat disappointing not to see this critical brake on the enthusiasm of the access-to-justice movement included in this volume, if only because it is a very rare contribution to the debate from the legal services perspective. Perhaps even more illuminating might have been some reference to other, historical material (though some of this has been touched upon by both Harrington and Garlock in Abel’s volume 1). Many of the sentiments being expressed in the 1970’s and 1980’s about the “festering sores” which erupt if minor grievances are not properly dealt with have their parallels early this century. The work of Reginald Heber Smith, the early 20th century legal aid pioneer and proponent of conciliation and small claims courts for minor disputes, is particularly revealing.

Writing immediately after the Russian Revolution he expressed concern at the potential volatility of a large class of people denied access to justice. “[W]hen the law recognizes and enforces a distinction between classes, revolution ensues or democracy is at an end”. In his opinion, a “... feeling of injustice ... produces a sense of helplessness, then bitterness. It is brooded over. It leads directly to contempt for law, disloyalty to the government, and plants the seeds of anarchy” (Smith 1919:15). For all these concerns, he was nonetheless convinced that the substantive law was quite adequate, but procedural injustice was rife. Indeed, he went so far as to suggest that the “body of the substantive law, as a whole, is remarkably free from any taint of partiality ... [and] deserves to be recognized as a remarkably satisfactory human achievement” (/tf:13). This emphasis on process as the cure-all for injustice is really at the core of each of the rationales put forward in the first section of the Tomasic and Feeley collection and might more usefully have been highlighted by the inclusion of either some historical material or more recent writings which focus directly on that issue, such as William Simon’s discussion of “procedural fetishism” (Simon 1978).

Part II, “case studies” contains extracts or summaries of several of the larger evaluation studies of mediation programs in the U.S., including that commissioned

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by the Department of Justice into the three pilot NJCs, Roehl & Cook’s “The Neighborhood Justice Centers’ Field Test” (Tomasic and Feeley:91). Of these, the study by Felstiner and Williams of the Dorchester Urban Court Program will be of particular interest to those concerned with the N.S.W. experiment, since both the mediation training program and the process used in dealing with cases in Dorchester have been closely followed here. The Dorchester evaluators were somewhat critical of the training and the almost ritualized system of “shuttle diplomacy” used by mediators, which, they suggest, is not always the most appropriate means to employ.

It is only in Part Three, entitled “Assessment”, that the first attempts are made in this book to move beyond the somewhat simplistic, celebratory tone of the “alternatives” proponents and the atheoretical mode of the evaluators to the more problematic issues that emerge from “informal justice”. Richard Hofrichter was one of the first to suggest that one side effect of the establishment of informal dispute settlement structures might be to expand the breadth of social control by the state, or its thinly veiled delegated instruments. Hofrichter (Tomasic and Feeley: 193) points out that “the accessibility of NJCs allows for an over-inclusion of cases and the institutionalization of conflicts that might never have entered the courts (Tomasic and Feeley: 198). He asks, “[h]ow far can a seemingly informal system go in limiting freedom without a legal determination of guilt?” (ibid.). These are concerns taken up by Tomasic in his own contribution, “Mediation as an Alternative to Adjudication: Rhetoric and Reality in the Neighborhood Justice Movement”. There he sets out 18 assumptions which he claims are reflected in the academic literature, (presumably of the kind represented in Part I of the book), and in the more institutional writings, such as evaluations and policy statements, and proceeds to question them in turn, suggesting that each is easily assailable. Though he himself concedes that his attack is incomplete and superficial (p 242), he nonetheless maintains that it highlights the gap between rhetoric and reality and concludes with a warning against “over-enthusiasm for untested or fad reforms” (p 245). His view is that informal justice initiatives represent minor tinkering with an essentially conservative system and have “the potential of producing a kind of Frankenstein monster” (ibid). Tomasic has directed his attention to this problem in relation to court reform, expressing the view that the abundance of attention focussed at alternatives deflects attention from and impedes overdue and essential modifications to the workings of the lower courts, which, though part of the “formal system”, are themselves dispensers of “rough justice” (Tomasic 1982).

First released in Australia in 1982, this collection to a large extent serves the function of a “selected documents” book — a brief sketch, in three parts, of the different kinds of material written about neighborhood justice.

While the Tomasic and Feeley collection attempts to scan the breadth of the entire debate, Abel’s Politics of Informal Justice is more cohesive, notwithstanding the broad sweep it makes of informal justice issues. Its genesis was a Conference on Critical Legal Studies in 1978 where many of the chapters were first delivered as papers (though substantial revisions have been made to them). It is this background which provides a connecting factor (albeit a loose one) that distinguishes the two volumes from Tomasic and Feeley’s more catholic collection.

The two books are subtitled “The American Experience” (Volume 1) and


“Comparative Studies” (Volume 2). There is a wealth of valuable material in these volumes which can scarcely be touched on in a review of this size, though some of the articles specifically complement or develop chapters of the “Neighborhood Justice” book. The article by Richard Hofrichter is an example (Vol 1:207). He develops a broader theoretical framework around the issues touched upon in the 1977 article. Entitled “Neighborhood Justice and the Social Control Problems of American Capitalism: A Perspective”, the chapter begins by establishing a Marxist framework of modern American capitalism in which he locates (if somewhat uneasily) his earlier expressed concerns about the “politics of accommodation” and the manner in which forums whose primary function is to promote harmony and consensus can restrict the scope of disputes so as to “conceal patterns of activity that extend beyond the immediate case” ( p 242). In this way Hofrichter believes that matters appropriate for collective political action are fragmented with a resultant dampening of class conflict (p 240).

The historical perspective which appears lacking in the Tomasic and Feeley collection is supplied in the chapter by Garlock on the Knights of Labor Courts, “a powerful experiment in popular justice” (Vol 1:29). Similarly, Christine Harrington considers the politics of delegalization from a historical standpoint, focussing on the relationship between judicial management and delegalization reforms. Her thesis is that:

The delegalization of minor dispute processing occurs within the context of a broader social reform: the construction and reconstruction of a rationality for judicial management of lower court organization and for intervention in everyday conflicts in capitalist society (Vol 1:37).

She points out that progressive reformers argued that lower courts required “business like” management in order to defuse criticism of the law by the public (Vol 1:39). With her discussion of “socialized courts” whose procedures and remedies focussed upon “diagnosis, prevention, cure and education” her work reveals the congruence in the concerns of early reformers and those who echo the same issues in the 1980s. Willard Hurst ascribed the label of “socialized courts” to those parts of the judicial system now considered somewhat peripheral — domestic tribunals (family and children’s courts) and small claims and consumer forums. Their common thread, then as now, was their own peculiar brand of informalism.

The apparent but contradictory relation between legal aid services and informal justice noted earlier is also addressed specifically in this volume. Mark Lazerson, in what is one of the few empirical works in the book, graphically demonstrates this through his account of the development of the New York Housing Court. His contention is that informalism, as practised by the judges of the Landlord-Tenant Court, operates against the interests of tenants by dissipating the partisan advocacy strategy which had been used to pursue their legal entitlements (Vol. 1:121). Noting that the New York Housing Court was specifically referred to as an alternative to traditional adjudication in the Access to Justice volumes, he documents in fascinating detail the background to its creation and the effect it has had on the position of tenants (and their legal advisers — specifically, legal services attorneys). Its establishment followed upon the South Bronx Legal Services Program’s

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deliberate adoption of a policy of using every available procedural technically and objection as a defence against tenant eviction proceedings: a process he described as “a strategy of legal formalism” (Vol 1:128). Landlord interests responded with attacks on legal services lawyers, claiming that their activities were a “principal cause of urban blight” (Vol 1:135). After a long period of acrimonious lobbying, a new Housing Court Act was passed to “free New York City judges and courts from much of the burden of thousands of housing violation cases, and still assure a fair and judicious forum for resolving owner-tenant disputes” (Governor Rockefeller — cited, Vol 1:142). Lazerson notes that “the political and economic assumptions underlying the aggressive litigational strategy adopted by legal services were totally inconsistent with the ideology of conciliation and informality that inspired the Housing Court” (Vol 1:148). His conclusion, based on the experience of the New York Housing Court, is that

[a] legal system that encourages conciliation between landlords and tenants — two parties with vastly unequal resources — by curtailing the procedural rights of the weaker can only succeed in amplifying that inequality ... Procedural formalism [as practised by the legal services lawyers in this context] not only made the courts an arena of social conflict but also simultaneously created space for tenant organizations to mobilize rent strikes in favor of a different social order (Vol 1:159-160).

Lazerson’s thesis that procedural informalism deprives the disadvantaged of rights is echoed by many of the contributors to Volume 1. One seeming contradiction that emerges in the writings of Abel, for example, is the apparent endorsement of formality as a means of protecting rights, of due process as an

I empowerment mechanism.! As Abel rightly pointed out, “hitherto unrepresented oppressed and inchoate I interests” are successfully using the courts and this has resulted in significant i victories for eg social security recipients, tenants and others. The value of

Lazerson’s contribution is that it places the use of formal process into a political context and helps to dispel concern that critics of informal justice have (perhaps unwittingly) turned full circle toward endorsing a largely unsatisfactory legal system. It also highlights the fact that “strategies of legal formalism” are but one small (though often effective) part of a political process which must be viewed in

i a perspective of more comprehensive political struggle. In other words, a court victory which guarantees, for example, the right to a hearing before being rejected for social security is a significant symbol but does not of itself alter the distribution of wealth, or the control of the means of production.

Abel takes up this point of perpetuating existing inequality in his essay concluding volume 1, where he discusses the myth of the neutral advocate (p 282). Constructing a “scale of partisanship”, he points out that informal institutions are low on that scale and he contrasts them with supportive and partisan institutions such as unions, family, friends, fellow workers. “Informal institutions find it difficult to maintain an image of partisanship because they must simultaneously present themselves as neutral”. Here he draws an analogy with regulatory agencies whose role in the U.S. is plagued by just this contradiction between partisanship and neutrality. It is this


“scale of partisanship” factor which so dramatically differentiates the “access to justice” ideology from the phenomena of informalism. Neutrality is a key foundation of the mediation process — a third party role. Advocacy, on the other hand, as practised by the legal services lawyers of the South Bronx (and elsewhere) is a totally partisan activity, which necessarily involves taking sides.

Abel’s chapter is in a sense a synthesis of the various contributions. He is deliberately provocative, and like Tomasic he also lists the principal assumptions underlying the ’’movement”. In a sense, each of these questions raised by Abel is dealt with by one or more of the contributors, and for that reason they warrant reproduction here. He asks:

Why do we find these changes? Why are they occurring nowl Are they changes at all or have comparable phenomena always existed? If they are changes, are they part of a cycle, or a progression? (This is lucidly addressed by Boaventura de Souza Santos in his chapter entitled “Law and Community: The Changing Nature of State Power in late Capitalism” vol 1:249). And what do they signify for the central issues of contemporary capitalist society: the problems of democracy, liberty, oppression and exploitation? ... Does the growth of informal institutions represent an expansion or a contraction of the apparatus of state control? (See, on this, the excellent essays by Scull, Spitzer and Hofrichter in vol 1). Do they grant redress to more individual complaints or do they withdraw state support from grievants? Do they equalize the positions of disputing parties or do they aggravate existing inequalities? (Lazerson; Merry, vol 2). Do they provide greater opportunity for popular participation in handling disputes and redressing grievances or do they curtail citizen involvement? (See Wahrhaftig vol 1: 75 and cf Santos vol 1:249) ... Do they reduce conflict or stimulate it? Do they cut public expenditures or enlarge the state budget? Are the procedures truly informal or is a new formality insinuated? Do they close the gap between the promises of liberalism and the reality or do they widen it? Do they enhance or undermine the supremacy of the state? (See Santos vol 1). The answer to virtually every question will be — both (vol 1:269-270).

Abel’s writing at times appears contradictory — his Delegalization article (Abel 1979) used the terminology of shifting cycles of legality in which informalism appeared as a “phase”. Here, by contrast, he suggests that the process is not so much cyclical but rather cumulative — that informal institutions perform a necessary but supplementary role — they do not displace their formal counterparts but instead enhance them (Vol 1:5). His critique is at times devastating but in the main, posits no solutions. Yet, perhaps paradoxically, he ends the volume on an optimistic note: the ideals and values of informal justice “must, and will, continue to inspire the struggle to create the institutions — and the society — that can realize them” (Vol 1:310).

This residual optimism re-emerges in Volume 2. Somewhat ironically for a book purporting to be comparative (ie to provide a non-U.S. perspective) the first chapter is an account of one of the rare anthropological forays into contemporary urban U.S. society. Sally Engle Merry looks at the role of disputing in six primitive

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societies and contrasts that with her findings about the way a small U.S. society handles its disputes. The significance of her work in this area is that it puts an authoritative dampener on the romanticized anthropological model adopted by the “memory lane” advocates and demonstrates convincingly (and hopefully, conclusively) the inappropriateness of attempting to transpose such structures into highly urbanized post-industrial settings. While her contribution, though drawing upon other societies, is essentially an “American perspective”, the remainder of volume 2 contains an eclectic gathering of material on different aspects of informalism. As Volume 1 is for the large part concerned with the processes of informal dispute resolution — the neighborhood justice program, mediation, conciliation etc., Volume 2, by contrast, looks beyond this tinkering, all of which has occurred within the context of the traditional adversary juridical system of first world capitalism. While many of the essays are particularly interesting, as a whole the volume is less cohesive than its companion. Like Volume 1, it is divided into sections, though these sections are by no means clear and discrete. Internal consistency appears lacking. So we find, in the section labelled “The Drift Towards Fascism”, three quite unrelated pieces dealing with Germany, Japan and Argentina.

Section III, “Liberal Capitalism” contains only one contribution, Bryant Garth’s survey of “The Movement Toward Procedural Informalism in North America and Western Europe”. Here Garth moves beyond his “Access to Justice” background and considers critically the effects of procedural informalism on the aspirations of that movement. His stated objective is “to show how informal procedures that purport to promote access can have very different political effects”. Like Garlock and Harrington in Volume 1, he looks back to earlier, so called “access-to-justice” initiatives, such as the development of legal aid and small claims courts in the U.S. (Vol 2:204-205), drawing lessons from these, pre-welfare state initiatives towards procedural informalism. He suggests that they illustrate a tendency for informalism “to evolve away from a concern with rights, even if that motivated the original reform”. Like Hofrichter and Santos in Volume 1, he notes the way in which informalism enables the state to extend its social control mechanisms, pointing out (here echoing Abel) that like administrative agencies, informal institutions are easily susceptible to capture by the powerful. Without the creation of constituencies by and for the disadvantaged, he argues, procedural informalism will, like diversion and conciliation, retard the access to justice struggle even more (Vol 2:206).

Santos’ second contribution to the collection, an account of popular justice in Portugal after the 1974 revolution is interesting in an anecdotal sense, but lacks the rigour of the analysis contained in his volume 1 essay. In common with the discussion of popular justice in Chile and Mozambique, it provides an international political perspective which, while comparative, is refreshing for its divergence from the inapposite anthropological models which have for so long dominated the discourse.

Overall, Abel’s collection is perhaps the major contribution yet made to the debate surrounding the shift towards informalism. Though its inspiration lies in the critical legal studies movement, there is no uniform theme which unites the individual chapters. But while it may not provide a definitive response to the dilemmas of informalism, it expands the depth of critical discourse, in that way adding some attempt at formulating theory to what has been, at least in some, most

notably governmental, quarters, a remarkably atheoretical and purportedly “value free” debate.

Perhaps this is the explanation for the marked difference between the Law Foundation’s evaluation of the New South Wales Community Justice Centre Pilot Program and the earlier, similar empirical work, such as Cook et aVs Department of Justice report on Neighborhood Justice Centers in the U.S. Schwartzkoff and Morgan (interestingly, a legally trained social planner and a social scientist) have produced an impressive empirical study, notable for its detailed attention to process (they favour participant observation) and its meticulous recording of data on clientele and on the matters dealt with by the centres. (The third member of their team, Concetta Rizzo, is a statistician). But the highlight of their work, and the aspect that distinguishes it from its predecessors is their evident familiarity with the more recent, more critical writings. They marry their empirical, data analysis approach with a sensitive demonstration of their recognition of the contradictions inherent in so-called “community” justice, though they do not go so far as several of the critics in rejecting the concept out of hand. On the contrary, they endorse the pilot project, and recommend that it be modestly expanded.

In Chapter Eight of their report, entitled “Evaluation”, they set out the perceived objectives of the project and attempt to assess the centres’ ’’success” in five discrete ways. The questions they pose are related to the centres’ effectiveness, their performance as a “community mechanism”, their cost (and relative cost), their speed and the fairness of the process and outcomes.

Agreements made in the mediation sessions were found to have a two thirds chance of lasting through the period between mediation and the researchers’ follow up (between four and six months). The “prima facie successful” rate virtually mirrored that of the U.S. NJC project, though the discussion reflects a degree of scepticism about the ability of the centres to address effectively the “underlying causes” of disputes (p 157), thus questioning the use of enduring agreements as the determinant of “success”.

Moving on to “community”, they note the recent description of the concept as “the aerosol word of the 1970s ... because of the hopeful way it [has been] sprayed over deteriorating institutions” (p 161, citing Bryson and Mowbray, 1981). After considering the variety of connotations carried by the word “community” they conclude that “the CJCs do not represent a community program in the strict sense of the term”, being government sponsored and funded, operating in a “non- localised fashion” and providing no direct means of “community” participation in decision-making (p 162).

The section on cost acknowledges the inappropriateness of attempting to carry out any clear cut comparison between court costs and those of mediation at CJCs. This is partly because as the evaluators have already noted, the CJCs are not actually alternatives to courts since many of the matters dealt with would not, in their absence, go to court at all. Nonetheless, they point out that whatever comparisons are made, CJCs cannot be considered a particularly cheap mechanism, though the cost per case ratio is likely to diminish when caseloads (presently quite modest) increase as the centres become better known and better utilized (p 167).

This raises an issue dealt with by Abel in his concluding chapter of volume 1 (p 272) that will almost certainly surface in any future implementation of CJCs. One


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of the chief arguments used in favour of informal justice is its supposed relative cheapness, but economies of scale can be achieved only with a large caseload. And if the clientele is not self-referring, (and here it must be noted that the New South Wales figures showed that 30% of CJC users were not referred by other agencies — a larger proportion than that of most of the American projects), some degree of coercion will be required to maintain caseloads. If that is the case, an important premise upon which the New South Wales program is based will be seriously questioned.

It is on the issue of “fairness” that the evaluators go somewhat further — while noting the high degree of satisfaction expressed by clients, they conclude that in many cases the outcome of a “CJC case could in fact best be described simply as a compromise” (p 170). Noting that compromise may well be a legitimate and satisfactory outcome, they also demonstrate an appreciation of one significant concern of many critics — viz, that disputes may centre on “defined rights which do not readily lend themselves to compromise, but only to enforcement or nonenforcement” (p 171). This clear recognition of the reservations expressed by Garth, Abel and others is purportedly resolved by the evaluators in their suggestion that the work of the CJCs should be concentrated at the personal rather than at the political/economic end of the disputing spectrum (ibid) (though some might query whether the two are as discrete as the evaluators seem to suggest).

A further aspect of “fairness” is the problem raised by mediations occurring between parties of unequal bargaining power. Pointing out that the vast majority of CJC cases were disputes between private individuals or households, they suggest that gross inequality of economic or political power was rarely an issue. Feminists might disagree. Anticipating this, they devote a section to “men and women” — specifically, family violence (p 172). The evaluators concede that this problem does not sit easily within the general claim that the centres have largely managed to avoid situations of potential or manifest inequality. Rather, in the case of family violence, they conclude that the centres bear a particularly heavy onus for organising suitable protection for abused women and for advising them of all available options (p 174).

The evaluation chapter has a separate section devoted to “Critics” (p 179 et seq.). The rationale is that “acknowledgement of contrary points of view is especially important in the case of an undertaking like the Community Justice Centres Project ... which has to date attracted largely favourable attention, and which has been the subject of relatively little serious public debate” (p 179). The critics discussed are both conservatives and “nervous radicals”, as they are described by the evaluators. Abel is put forward as the major spokesperson of the latter group. Several pages are devoted to an analysis of Abel’s “creative contradiction” and four major themes of criticism isolated. In common with Tomasic and Abel, the evaluators then pose a list of questions (though they are more modest, choosing only six), which they proceed to address. These are (p 182):

Are the pilot CJCs really coercive in nature, and thus unjust in the way they operate for their users?Are their users the disadvantaged of the community? If so, what does this signify?Do the CJCs reinforce social and political disadvantage?Do they represent an objectionable extension of government power?


Do they hobble dissent and criticism in any general way?Do they divert attention and resources from reform of law and legal system?

Space precludes an examination of their treatment of each of these issues and though they remain unconvincing on some (see specifically the discussion surrounding “State Control”, 186-187), it is nonetheless clear that they have been persuaded of the validity of some of those criticisms.

This is reflected in Chapter 9, “Options and Recommendations” where after opting for the continuation of the program and proposing modest expansion, they set out the bases upon which the centres should operate as follows:

they should deal only with disputes between parties in ongoing personal relationships; [thereby recognising that mediation is inappropriate in many traditional “small claims” matters (e.g. retailer-consumer, landlord-tenant)]; they should not entertain disputes between parties manifestly unequal in power;they should operate in a non-coercive fashion; agreements should continue to be unenforceable;mediators should continue to be lay people who undergo an appropriate training course [the program, run by the Department of Technical and Further Education, is described in detail in Chapter 2];the centres should operate independently of any institution of the legal system [recognising the coercion potential of a community justice program which recruits directly from courts, and in particular the criminal courts]; both program administration and service delivery should preferably continue to be decentralised.

Whether the CJCs will survive their statutory sunset remains to be seen, as the New South Wales government has made no firm commitment at this stage. But it does seem clear that if the program continues (and there have been no indications to the contrary) it will be considerably enhanced by the unprecedented scrutiny devoted to informalism by such a broad range of commentators. Critics of the New South Wales program have been accused, at a seminar in early 1982, or being typical Australian “knockers” in expressing reservations about the process, but the richness of the discussion presented in these volumes has vindicated those whose concerns were expressed at the seminar. It is heartening to find that the “academic literature” has filtered through to the empirical work, given the atheoretical nature of the early United States material.

Even with the benefit of the valuable insights provided by these collections, many questions remain unanswered. If “community justice” is, as has been strongly argued by Lazerson, and (inter alia) Garth, Hofrichter and Abel, a means of diffusing collective action by the disadvantaged and a process that perpetuates inequalities between parties, why do we still find support for, for example the New South Wales program, from agencies and groups who line up with the disadvantaged on Abel’s scale of partisanship? (See Schwartzkoff and Morgan, Ch 7 for the views of some of these other agencies). If the response to claims that community justice is second class justice is to say that the lower courts provide less than first class justice (and the claim is frequently made), does that provide an

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answer? Is second class justice acceptable in either circumstance? And what about “first class justice”? If it is argued that the use of procedural formality as a strategy of social change has never found much place in our essentially non-activist court system, can that justify ignoring altogether the pressing need for court reform? In other words, can alternative forums be supported by reliance on the failure of the very institutions to which they claim to be alternative? And what of the overwhelmingly positive reaction of centre users found by the CJC evaluators? That is precisely the reaction we would have expected, given the fact that a key foundation of the centres’ existence is their humane approach in dealing with individuals, as compared with the alienating nature of the lower court process. But if the process of mediation really does impede the enforcement of individual and group rights and coerces parties into compromises that they would not in an ideal world be forced to make, should user satisfaction be given any weight, and if so, how much? These volumes will at least provide us with some framework from which to attempt to deal with questions that still remain unanswered. But their very existence illustrates a growing fascination with process which is replete with inherent contradictions. As Galanter has recently noted:

[L]aw is turned to increasingly to solve problems just when faith in law as an autonomous body of learning declines; judicial activism is most intense as we move away from adjudication as a typical way of doing business in courts; as there is increasing reliance on legal institutions, distinctive legal modes of decision-making give way to discretion and bargaining. (Galanter 1980: 19).

Regina Graycar

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(1979) American Bar Association, Division of Public Service Activities, Washington, D.C.Sheppard, D.I., et. al., Neighborhood Justice Centers' Field Test: Interim Evaluation Report (1979) Department of Justice, L.E.A.A., Washington, D.C.Simon, W., “The Ideology of Advocacy: Procedural Justice and Professional Ethics” (1978) Wisconsin Law Review, 29.Singer, L., “Non-Judicial Dispute Resolution Mechanisms: The Effects on Justice for the Poor” (1979) 13 Clearinghouse Review, 569.Smith, R.H., Justice and the Poor (1919) Carnegie Foundation for the Advancement of Teaching, New York (reprinted 1972 by Patterson Smith Publishing Corporation, Montclair, New Jersey).Snyder, F.E.,’’Crime and Community Mediation — The Boston Experience: A Preliminary Report on the Dorchester Urban Court Program” (1978) Wisconsin Law Review, 737.Tomasic, R., “Formalized ‘Informal’ Justice — A Critical Perspective on Mediation Centres” (1982) Paper presented at seminar on Community Justice Centres, Sydney University Institute of Criminology, March, 1982.

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