The Arc

  Strengthening Communities: Mediation in Crown Heights The Brooklyn neighborhood of Crown Heights is home to an Orthodox Jews, African-Americans, and Caribbean-Americans. Unfortunately, these communities have not always co-existed peacefully. In addition to occasional misunderstandings among residents, the community endured several days of well-documented unrest in the early 1990s. Since then, Crown Heights has become a national symbol of a community struggling with issues of cultural diversity. In an effort to create a lasting infrastructure for resolving neighborhood conflicts, the City of New York asked the Center for Court Innovation to create the Crown Heights Community Mediation Center. “Community members didn’t want to be force-fed co-existence,” said James Kornbluh, a member of the Center for Court Innovation’s planning team. Instead, they were looking for something more concrete and more modest—something that would address their pressing everyday concerns and disputes. The result was the Crown Heights Community Mediation Center, which opened its doors in 1998. Why Mediation in Crown Heights? The Crown Heights Community Mediation Center follows a model of community-based mediation and uses it to address community conflict in Crown Heights. “Having a forum where [community members] can go to air their differences can relieve a lot of the tension that might otherwise build up,” Maureen O’Connor, a volunteer mediator, explained. “Even when the mediation session doesn’t end in a reconciliation, … it can diffuse a lot of antagonism.” In community-based mediation, community volunteers help parties in dispute reach mutually acceptable agreements. The entire process is voluntary; both parties must agree to meet and one party cannot compel the other to come. Accepting an agreement is also voluntary. The mediator has no authority to enforce an agreement or to impose sanctions. For individuals that don’t want to go to the court or the police, mediation offers a viable alternative. “Mediation is much more inviting [because] there are no guards and no officials,” Kornbluh explained. “Because there is no coercion involved, many people who might otherwise never seek outside intervention are open to the idea of mediation.”  A mediation session typically involves one or two mediators. Paper and pencils are available for parties to take notes, although no record of the mediation is kept for confidentiality reasons. The mediator begins by explaining her role and reminding the parties that the entire process is both voluntary and confidential. Parties are then asked to respect each person’s turn in speaking and not to interrupt. The party that brought the dispute to mediation goes first, and the respondent goes second. After that, the mediator acts as a facilitator. If she feels it necessary, she may pull aside individuals to have one-on-one private discussions during the session. The goal is to have both sides come up with an agreement. It may include specific tasks, like paying a set sum of money or returning a borrowed good, or it may include more intangible resolutions, like promising to communicate more often. A typical session lasts about two hours, and a dispute may take several sessions to be resolved. Solving Problems An early case in Crown Heights involving three households that shared a common landing demonstrates how mediation can relieve tensions. An African-American woman was complaining that the children of her two Jewish neighbors had been littering and making noise while playing on the landing. Meanwhile, her Jewish neighbors accused her of insulting them and using “unfortunate” language during the Passover holiday. With tensions mounting, the three heads of households decided to give mediation a try. At the mediation session, the two sides were able to identify the core issues and talk more openly about their feelings. When the African-American woman revealed that her children played on the landing as well, the mediator was able to shift the focus of the conversation from noise and litter to the children of the three families. The woman mentioned that sometimes she felt hurt by the fact that her neighbors would not let their children play with hers. It was clear that the issue was not so much about noise as it was about kids playing together, and once the parents began to understand that the children were at the heart of their dispute, the dynamic of the conversation changed. “It was a cathartic moment,” says Chris Watler, who mediated the dispute. “Everyone started saying, ‘You know, we can do things differently,’ and they started making proposals.”  In the end, the three families agreed to supervise their children more closely and to consult each other on an ongoing basis about problems. Most of the cases at the Crown Heights Community Mediation Center do not involve cross-cultural disputes, however. When a 10-year-old boy started skipping school and acting out, for example, his mother arranged for a mediation session. At the mediation, the boy expressed frustration at the fact that his father was incarcerated. His mother, in turn, admitted that she sometimes scolded him unfairly. Through mediation, the mother and son were able to reach a new level of understanding. In the end, they agreed to communicate more often and even commit to having Sunday morning breakfasts together.   Those most familiar with the Crown Heights Community Mediation Center—the volunteer mediators—say it is a great alternative to turning to the police for help. “Calling 911 can be a long process,” Jackie Drayton, a volunteer mediator, explains. “[With mediation], I can help solve a problem. [We] sit down and talk about it. … There are no guns, no arrests, no jail.”  Since 1998, the Mediation Center has handled more than 2,000 mediation cases. Over 1,500 youth and adults have received conflict resolution training from the Mediation Center, including over 150 residents trained to be community mediators. Over 20,000 people have been served through the Mediation Center’s services, including a free summer recreation program for neighborhood youth, in-school leadership programs, resource referrals and mediation services.

From Can Innovation be Institutionalized? Problem-Solving in Mainstream Courts by Don Farole, Nora Puffett, Michael Rempel and Francine Byrne   As specialized problem-solving courts continue to proliferate throughout the U.S., interest has begun to surface in applying problem-solving court practices outside the specialized court setting. The question is: can the core principles and practices of problem-solving courts be productively applied throughout court systems? In a 2004 study, Center for Court Innovation researchers partnered with the California Administrative Office of the Courts to conduct focus groups and interviews with judges in California in New York, two states at the forefront of testing new problem-solving court models. The research team worked with the California court system and the New York State Office of Court Drug Treatment Programs to identify judges with experience serving in both a problem-solving court and in conventional courtrooms. A total of 35 judges participated in the research.  Among the questions participants attempted to answer was: Which problem-solving principles and practices are more easily applied in conventional courts and which are less easily applied? Five principles and practices emerged as easiest and/or most appropriate to apply to general court calendars. 1. Problem-Solving Orientation of the Judge Focus group participants generally agreed that the proactive role of the judge in problem-solving courts could be applied to other cases and calendars in various ways—asking more questions, seeking more information about each case, and exploring a greater range of possible solutions. The information gained might lead judges to craft highly individualized, unconventional court orders—one judge gave the example of mandating an offender to visit the morgue and write an essay on what he saw. The proactive, problem-solving orientation was deemed widely helpful outside of the problem-solving court setting, particularly in negotiation situations. Judges mentioned Matrimonial Court, Family Court, or other civil assignments as particularly appropriate venues. One judge claimed to have become known, after leaving a problem-solving court, for “thinking outside the box” in civil negotiations. 2. Direct Interaction with the Defendant/Litigant Direct interaction with the defendant/litigant was deemed a prerequisite for effective behavior modification, enabling the judge to motivate individuals to make progress in treatment, bringing to light the most crucial needs of parties in civil cases, and laying the groundwork for positive solutions. Judges regarded this as one of the easiest practices to apply in conventional courts, perhaps because it requires no additional resources. While some expressed concern that, in criminal cases, defense attorneys would not allow such interactions for fear clients would incriminate themselves, several judges reported that they routinely address defendants directly, with few objections from the defense bar.  Several judges drew attention to specific aspects of their interaction with defendants that were deemed to have value both inside and outside the problem-solving court context—treating defendants with respect, showing compassion, having faith in their ability to improve, and seeing them as potentially law-abiding citizens. 3. Ongoing Judicial Supervision Requiring defendants, particularly probationers, to report back to court for treatment updates and judicial interaction was identified as one of the least controversial and most effective practices that could be applied in conventional criminal courts. Judges in all focus groups, however, expressed concern about the limited time available to devote to supervision in conventional courts. Time limitations may force judges to select only a subset of cases for supervision. And the lack of clinical staff means that judges often cannot obtain the kinds of thorough treatment reports that could better inform their interactions with defendants. Nonetheless, many judges acknowledged that they had instituted enhanced supervision in their conventional court with at least some cases. 4. Integration of Social Services Many judges reported that service coordination was a valuable tool in any court—especially for litigants with addiction, mental illness, or vocational/educational needs. However, referring parties to treatment or other services was seen as more difficult in conventional courts, because they lack the additional staff/case management resources typically available in specialized problem-solving courts. 5. Team-Based, Non-Adversarial Approach Judges discussed the extent to which they could adopt a team-based, non-adversarial approach in general court calendars. While there was less consensus and greater skepticism about this than other practices, judges identified opportunities to adopt such an approach, particularly in juvenile or family law settings, where rules often explicitly foster a problem-solving approach—seeking the “best interests of the child.” Most focus group participants believed the judge plays a critical role in determining the extent to which an individual courtroom can and will adopt a non-adversarial approach. However, most also stressed that others—particularly attorneys—can enable or derail that approach, and gaining the trust and participation of attorneys greatly facilitates judges’ ability to practice problem solving. It was generally agreed that the players tend not to act as a team until they develop trust, and that takes time. As suggested above, focus group discussion extended to particular types of cases and calendars most ripe for problem-solving solutions. Appropriate case types were characterized in part as those in which a problem that can be resolved by court intervention and lack of services contributed to the defendant’s criminal behavior. Unsurprisingly, problems identified as appropriate included drug addiction, domestic violence, mental illness, DUI—all issues for which specialized problem-solving courts have been created. Criminal cases involving younger defendants were also cited. Crimes of serious violence were virtually the only matters that a significant number of judges suggested as inappropriate for problem solving; yet it was also observed that violent offenses are staples of some problem-solving courts (primarily domestic violence but sometimes mental health courts as well). In fact, some judges conceded that if violence were tied to an underlying problem such as substance abuse, a problem-solving response might be appropriate. Judges also identified specific stages in the criminal justice process—most notably bail and sentencing—as points at which problem solving was both appropriate and easy to implement. Although judges in several groups extended that to include plea negotiations, at least one judge objected on the grounds that plea bargaining is “a negotiation for what kind of punishment … they are going to receive, which is not a [problem-solving] court model and is probably inappropriate.” Criminal trials were also generally seen as inappropriate for problem solving. In addition to criminal matters, other court calendars were also discussed extensively. Juvenile Delinquency and Dependency courts were widely cited as appropriate venues for problem solving, particularly for practices such as addressing the problems that contribute to recidivism, using a team-based approach, and interacting directly with all parties.  In the California focus groups, Family Court—like juvenile courts—was perceived as inherently more problem-oriented, and as allowing greater flexibility and discretion than other courts. Judges in California also cited the Substance Abuse and Crime Prevention Act (commonly known as Proposition 36) Courts, which administer court-mandated treatment programs for a wide range of drug possession offenders, as particularly appropriate for problem-solving approaches. Finally, probation—not a court calendar, but a court-imposed sentence—was widely regarded as an excellent vehicle for problem solving. Setting probation conditions, monitoring compliance, and responding to violations were all activities in which judges reported using problem-solving techniques.

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It can take many forms, but at its core, a community court is about partnership and problem-solving. What is a community court? It can take many forms, but at its core, a community court is about partnership and problem-solving.  It's about creating new relationships, both within the justice system and with outside stakeholders such as residents, merchants, churches and schools.  And it's about testing new and aggressive approaches to public safety rather than merely responding to crime after it has occurred.   Here are six principles, derived from the experience of the Midtown Community Court, to keep in mind as you plan a community court: Restoring the Community Bridging the Gap Between Communities and Courts Knitting Together a Fractured Criminal Justice System Helping Offenders Deal with Problems That Lead To Crime Providing Better Information Designing a Physical Space to Match the Court's Goals Restoring the Community Recognize that communities are victims, too. Quality-of-life crime damages communities, often more so than individuals. If left unaddressed, low-level offenses erode communal order, leading to disinvestment and neighborhood decay and creating an atmosphere where more serious crime can flourish. A community court acknowledges this reality. Use punishment to pay back the community. Standard sentences – jail, fines, probation – may punish offenders, but they do little to restore the damage caused by crime. A community court requires offenders to compensate neighborhoods through community service. Combine punishment with help. Encouraging offenders to deal with their individual problems honors a community's ethical obligation to people who break its laws because they have lost control of their lives. Social service programs also have practical crime control value as they can permanently alter the behavior of chronic offenders. Give the community a voice in shaping restorative sanctions. A community court can open a dialogue with its neighbors, enlisting them in the effort to develop appropriate community service projects. A community advisory board can offer residents an institutionalized mechanism for interacting with the judge and court administrators. Give the community a voice in shaping restorative sanctions. A community court can open a dialogue with its neighbors, enlisting them in the effort to develop appropriate community service projects. A community advisory board can offer residents an institutionalized mechanism for interacting with the judge and court administrators. Give the community a voice in shaping restorative sanctions. A community court can open a dialogue with its neighbors, enlisting them in the effort to develop appropriate community service projects. A community advisory board can offer residents an institutionalized mechanism for interacting with the judge and court administrators. Give the community a voice in shaping restorative sanctions. A community court can open a dialogue with its neighbors.  

In addition to books written by Center for Court Innovation authors, numerous books feature content about the Center for Court Innovation. Problem-Solving Courts: Justice for the Twenty-First Century? (Praeger) is a collection of essays about the movement toward problem-solving justice. Edited by Paul Higgins and Mitchell Mackinem, the book examines both the promise and potential perils of problem-solving courts. The book begins with an essay by Center for Court Innovation director Greg Berman and numerous Center publications and projects are referenced throughout the text. James Nolan, a professor at Williams College, has written several books on problem-solving courts. His latest, Legal Accents, Legal Borrowings (Princeton University Press) documents the spread of problem-solving justice internationally. Nolan’s book begins with a look at the Red Hook Community Justice Center and goes on to examine problem-solving courts in England, Canada, Australia, Scotland and Ireland – all countries where the Center for Court Innovation has provided consulting services. A Kind of Genius: Herb Sturz and Society’s Toughest Problems (Public Affairs) by Sam Roberts tells the story of Herb Sturz, one of New York’s leading social entrepreneurs. Over the course of five decades, Sturz has helped shape public policy in New York, playing a number of important, behind-the-scenes roles in government, the non-profit sector and the media. A Kind of Genius contains a chapter describing Sturz’s role in the creation of the Midtown Community Court and the subsequent development of the Center for Court Innovation.  Other books about the Center for Court Innovation include: The Improvement of the Administration of Justice (ABA Press) Resolving Family Conflicts (Ashgate) Judging in a Therapeutic Key (Carolina Academic Press) Judicial Politics (CQ Press) Peter F. Drucker's Next Management (Verlag Sordon)