and mediation: where a single …influx of middle-class or affluent people into deteriorating areas...

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GENTRIFICATION \jen-tr -f -ka-sh n\ ANDMEDIATION: WHERE A SINGLE

PRONUNCIATION AND DIFFERINGPERCEPTIONS CONVERGE

Tiffany Ansley*

I. INTRODUCTION

This Note seeks to establish that mediation, when gentrifica-tion is involved, is the most suitable form of dispute resolution.Mediation, a form of Alternative Dispute Resolution (“ADR”), isthe most well equipped method of dispute resolution to handle theemotional, legal, and community-based issues that arise as a resultof gentrification.1 I argue in this Note that the effects of gentrifica-tion can be significantly reduced or remedied through mediation.The sources from which I draw to support my argument are re-

* J.D. Candidate, 2010, Benjamin N. Cardozo School of Law. B.A. Linguistics & Criminol-ogy, University of Florida 2007. Tiffany participates in the Kukin Dispute Resolution Programat Cardozo and is involved in community mediations as well as civil court mediations.

1 The Department of Justice’s ADA Mediation Program website provides a comprehensivedefinition for Mediation:

Mediation is an informal process where an impartial third party helps disputingparties to find mutually satisfactory solutions to their differences. Mediation can re-solve disputes quickly and satisfactorily, without the expense and delay of formalinvestigation and litigation.

Mediation proceedings are confidential and voluntary for all parties. Mediationtypically involves one or more meetings between the disputing parties and the media-tor. It may also involve one or more confidential sessions between individual partiesand the mediator.

Mediation is neither therapy nor a “day in court.” Rather, mediation shouldprovide a safe environment for the parties to air their differences and reach a mutu-ally agreeable resolution. Mediators are NOT judges. Their role is to manage theprocess through which parties resolve their conflict, not to decide how the conflictshould be resolved. They do this by assuring the fairness of the mediation process,facilitating communication, and maintaining the balance of power between theparties.

Representation by an attorney is permitted, but not required, in mediation.While mediators may not give legal advice or interpret the law, they will refer partiesto impartial outside experts within the disability and legal communities when ques-tions or issues needing clarification arise.

A successful mediation results in a binding agreement between the parties. Ifmediation is unsuccessful and an agreement can not be reached, parties may stillpursue legal remedies . . . including private lawsuits.

U.S. Dep’t of Justice, ADA Mediation Program, http://www.ada.gov/mediate.htm (last visitedApr. 15, 2009).

585


586 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 11:585

search on case law dealing specifically with gentrification, researchon the perspectives of persons negatively affected by gentrification,commentary and interviews with persons who have moved to gen-trified neighborhoods, and samples of cities that have used media-tion as a form of dispute resolution for gentrification related issues.

Part II of this Note will introduce the reader to what gentrifi-cation is and how different perceptions of the phenomenon can in-fluence how it is defined. Part III will give a background on courtdealings with gentrification, and Part IV will introduce the proposi-tion that ADR is not an alternative, but the preferred method forameliorating the effects of gentrification. Part V will discuss medi-ation and the role it can play in gentrification disputes. Part VI willpresent a general discussion of why ADR should be concernedwith gentrification. Part VII gives examples of city and state deal-ings with gentrification through mediations and mediation-type ini-tiatives, and illustrates local desires for mediation in gentrificationrelated disputes. Finally, Part VIII will introduce some barriers toimplementing a gentrification mediation program.

II. WHAT IS GENTRIFICATION?

A crucial step in determining how to ameliorate gentrificationis to understand what it is. There is no one, all-encompassing defi-nition of gentrification.2 Gentrification may be defined as “pro-gress” or “beautification” to one person, but simultaneouslydefined as “destruction” or “loss” to another; the definition of gen-trification varies according to the source.

The Merriam-Webster Online Dictionary defines gentrifica-tion as: “the process of renewal and rebuilding accompanying theinflux of middle-class or affluent people into deteriorating areasthat often displaces poorer residents.”3 Another dictionary definesthe process as: “the buying and renovation of houses and stores indeteriorated urban neighborhoods by upper- or middle-income

2 Jorge O. Elorza, Absentee Landlords, Rent Control and Healthy Gentrification: A PolicyProposal to Deconcentrate the Poor in Urban America, 17 CORNELL J.L. & PUB. POL’Y 1, 37(2007) (pointing out that there is no agreed upon definition of gentrification, but there are com-mon features that many definitions of gentrification contain). Part of the dilemma with deter-mining an all-encompassing definition of gentrification also lies in a person’s perception of thephenomenon. Gentrification is perceived differently according to the effect it has on the individ-ual that is attempting to define it.

3 Merriam-Webster’s Online Dictionary, gentrification, http://www.merriam-webster.com/dictionary/gentrification (last visited Apr. 16, 2010).


2010] GENTRIFICATION AND MEDIATION 587

families or individuals, thus improving property values but oftendisplacing low-income families and small businesses.”4 When look-ing at the meaning of gentrification through the eyes of those nega-tively affected by the phenomenon, such as by those who havebecome displaced, gentrification is generally seen as a phenome-non by which a community is systematically driven out of a city,town, community, or neighborhood, by way of the “‘rede-velop[ment]’ [of] entire neighborhoods.”5 Many people experienc-ing gentrification associate it with a purposeful displacement ofpeople of color.6 Developers, on the other hand, see gentrificationas an economic opportunity to take advantage of low cost housing,redevelop the area, and sell the homes for high profits.7 Gentrifi-cation is almost seen by developers as an unfortunate, yet lucrativeconsequence of a good business venture.8

4 Dictionary.com, gentrification, http://dictionary.reference.com/browse/gentrification (lastvisited Apr. 16, 2010).

5 Lacei Amodei, Protest Says ‘No’ to Racist Gentrification, PSLWEB.ORG, Oct. 22, 2006,http://www.pslweb.org/site/News2?page=NewsArticle&id=5888. San Francisco has seen anongoing struggle against gentrification. Many African-Americans have expressed a belief thatthe recent San Francisco redevelopments have targeted African-American communities as wellas other diverse persons. As a result of the sense of being “targeted,” there is tension betweenthe African-American residents of San Francisco and the government agencies that are carryingout the gentrification. Id. This Note will talk about specific incidents in cities and towns acrossthe nation where gentrification has caused a similar conflict among community members andthose pushing for redevelopment and gentrification.

6 Id. People gathering in protest have found a racist undertone in the process of gentrifica-tion. The protestors describe the redevelopments surrounding the phenomenon as a “systematicdisplacement of people of color.” See, e.g., William Yardley, Racial Shift in a Progressive CitySpurs Talks, N.Y. TIMES, May 29, 2008, available at http://www.nytimes.com/2008/05/29/us/29portland.html (suggesting that the word gentrification, along with tension between new residentsand old residents, has racial overtones that make gentrification appear to be a dirty word).

7 Richard Schaffer & Neil Smith, The Gentrification of Harlem?, 76 ANNALS ASS’N AM.GEOGRAPHERS 347, 347 (1986). Redevelopment and building up the neighborhoods which willeventually become gentrified is seen as an economic opportunity for developers who initiategentrification. One can see the difficulty attached to placing a blanket statement of negativityregarding the effects of gentrification. Some people do prosper from the gentrification of citiesand neighborhoods. Id. A question that this Note does not posit, but which should be consid-ered when thinking about gentrification, is whether the economic benefits of gentrification out-weigh the personal interests of community members opposed to gentrification and, if so, howone measures whether those economic benefits outweigh those personal interests. See, e.g., Yar-dley, supra note 6. The City of Portland has engaged in activities that indicate gentrification,such as highway development, sidewalk improvement, and improvement of transportation inminority neighborhoods in the namesake of economic development. Id.

8 NEIL SMITH, THE NEW URBAN FRONTIER: GENTRIFICATION AND THE REVANCHIST CITY

68 (1996). Gentrification occurs when developers can purchase structures cheaply, pay thebuilder’s costs and profit for rehabilitation, pay interest on mortgage and construction loans, andsell the end products for sale prices that generate a satisfactory return for the developer. Id.



Another perspective on gentrification comes from the peoplewho are flowing into the gentrified neighborhoods and communi-ties. These individuals see the effects of gentrification as simplyproviding an opportunity to purchase a nice and affordable placeto live and to experience a neighborhood that is racially diverse.9

Peter Marcuse supplies a definition of gentrification that isfairly technical, yet exceptionally useful for the purposes of takinginto account the socioeconomic and racial issues involved withgentrification:

[Gentrification] occurs when new residents—who dispropor-tionately are young, white, professional, technical, and manage-rial workers with higher education and income levels—replaceolder residents—who disproportionately are low-income, work-ing-class and poor, minority and ethnic group members, and eld-erly—from older and previously deteriorated inner-city housingin a spatially concentrated manner, that is, to a degree differingsubstantially from the general level of change in the communityor region as a whole.10

Regardless of the definition used, the results of gentrification,or urban gentrification (terms I will be using interchangeably) arethe same: the median income of the community increases; the num-ber of racial minorities, who once thrived in the area, decreases;11

there is a reduction in household size;12 and there is an influx ofamenities, such as valet parking, serving higher incomes.13

9 Compare City of Portland, Office of Neighborhood Involvement, What is the RestorativeListening Project on Gentrification?, http://www.portlandonline.com/ONI/index.cfm?c=45627&a=186281 (Newcomers to neighborhoods undergoing gentrification look to live in racially diverseneighborhoods but end up confused and bewildered trying to build new relationships with peo-ple who lived in the neighborhoods prior to the gentrification.), with, Yardley, supra note 6.Some have even conceded that prior to moving into neighborhoods undergoing gentrification,the only thing that mattered at the moment was that the cost of the home and the reason behindthe move into the gentrified neighborhood was that “the price was right.” Id.

10 Elorza, supra note 2, at 37 (quoting Peter Marcuse, Gentrification, Abandonment, andDisplacement: Connections, Causes, and Policy Responses in New York City, 28 J. URB. & CON-

TEMP. L. 195, 198–99 (1985)).11 Id. The definition of gentrification given by Marcuse encompasses these characteristics of

gentrification.12 CITY OF AUSTIN NEIGHBORHOOD HOUSING AND COMMUNITY DEVELOPMENT, GENTRIFI-

CATION COMMITTEE REPORT (2001), http://www.ci.austin.tx.us/housing/downloads/gentrifica-tion.pdf (outlining some of the trends that indicate when gentrification is in progress)[hereinafter Gentrification Committee Report].

13 Id.



Gentrification is not a recent development.14 Sociologist RuthGlass described the process of gentrification and the effects of theprocess in 1960’s London, when she observed that, “[o]nce thisprocess of ‘gentrification’ starts in a district it goes on rapidly untilall or most of the original working class occupiers are displaced,and the whole social character of the district is lost.”15

Gentrification is occurring across the nation.16 I have person-ally witnessed the effects of gentrification in South Florida, specifi-cally Delray Beach. The area has been improved at the expense of,“the taxpayers of Delray, but also the livelihood and housing of . . .nearly 18,000 non-white citizens,”17 due to the simultaneous de-concentration of affordable housing and the rise in market value ofnew homes springing up in the area.18 The city refers to this “excit-ing trend” of gentrification as “revitalization.”19 There is a conse-quential decrease in affordable real estate occurringsimultaneously with a rise in the market because the urban areas ofthe city are continually being beautified.20

Gentrification has also had a startling impact on New YorkCity. Brooklyn’s Bedford-Stuyvesant was once a neighborhoodwith one of the highest African-American populations in the

14 Schaffer & Smith, supra note 7, at 347–48. Authors suggest contemporary gentrificationcan be equated with urban redevelopment which has been happening since the nineteenth cen-tury throughout European cities. Though there is a difference between nineteenth century rede-velopment and contemporary gentrification, the latter is far more systematic, widespread and isnot just a national concern but an international phenomenon that has links with economic, politi-cal, and social change.

15 RUTH GLASS, LONDON: ASPECTS OF CHANGE xvii (Ctr. for Urban Studies, Macgibbon &Kee 1964).

16 See MAUREEN KENNEDY & PAUL LEONARD, DEALING WITH NEIGHBORHOOD CHANGE:A PRIMER ON GENTRIFICATION AND POLICY CHANGES (Brookings Institution 2001), available athttp://www.brookings.edu/reports/2001/04metropolitanpolicy.aspx (“Additionally, th[is] papershows the wide range in the way gentrification pressures play out in three very different citiesand one multi-city region—Atlanta, Cleveland, Washington, D.C., and the San Francisco BayArea . . . .”).

17 Michael Demers, Living in Delray Beach, Z MAG., Feb. 1, 2000, at 2, 9–10, available athttp://www.zmag.org/living-in-delray-beach-by-michael-demers. (“[T]here is, ‘a restored andrevitalized Atlantic Avenue, the gateway to Delray Beach . . . a magnet for residents and touristswho like to stroll, browse, dine, and shop. The avenue teems with people caught up in itsvitality.’”).

18 Id.19 Rana M. Gorzeck, 2005 Snapshot of Florida Real Estate, 14 ADVISOR 3 (2005), available at

http://www.bdblaw.com/new/August2005printerversion.asp. The city of Delray Beach, Floridaactively participates in, “revitalization of the downtown area, business centers and industrialdevelopments.” As a result of the revitalization efforts, gentrification of the areas of the citythat were blighted is on a steady increase.

20 Id.



United States.21 Today, with the influx of money, artists, bohemi-ans, and “young professionals,”22 the African-American commu-nity has become nothing more than a quaint historical footnote.23

III. COURT DEALINGS WITH GENTRIFICATION

Case law on the specific topic of gentrification is scant,24

whereas discussion of the topic in legal scholarship is not uncom-mon.25 The larger legal issues of gentrification include property,predatory lending, and land zoning issues that have not necessarilybeen addressed by the courts. At least one court, however, hascome up with a working legal definition for gentrification. NewYork’s district court has defined gentrification as:

[A] term used in land development to describe a trend wherebypreviously “underdeveloped” areas become “revitalized” as per-sons of relative affluence invest in homes and begin to “up-grade” the neighborhood economically . . . . [G]entrification is adeceptive term which masks the dire consequences that “up-grading” of a neighborhood causes when the neighborhood be-comes too expensive for either rental or purchase by the lessaffluent residents who bear the brunt of the change.26

In United States v. J.A.J.,27 the 8th Circuit suggests that gen-trification is merely a process of cleaning up deteriorating neigh-

21 See HAROLD X. CONNOLLY, A GHETTO GROWS IN BROOKLYN 44 (N.Y. Univ. Press 1977)(chronicling an African-American history of Brooklyn that details the emergence of Bedford-Stuyvesant as one of the largest African-American communities in the country); WILHELMENA

RHODES KELLY, BEDFORD-STUYVESANT (IMAGES OF AMERICA SERIES) 7 (Arcadia Publ’g,2007) (detailing Bedford-Stuyvesant as one of the two largest African-American communities inthe United States, with the other being Manhattan’s “Harlem USA”).

22 See Elorza, supra note 2, at 52 n.128 and accompanying text.23 See generally Wikipedia, Gentrification, supra note 16.24 A search conducted on April 16, 2010 on Westlaw for “gentrif!” through all state and

federal decisions (“ALLCASES” database) only retrieved ninety-six cases.25 A Westlaw search on April 16, 2010 of journals and law reviews (“JLR” database) for

“gentrif!” returned 1,083 results.26 Dep’t. of Hous. Pres. & Dev. of N.Y. v. St. Thomas Equities Corp., 128 Misc. 2d 645, 646

n.1 (N.Y. App. Term 1985) (quoting Bus. Ass’n of Univ. City v. Landrieu, 660 F.2d 867, 874 (3dCir. 1981)). This particular definition encompasses a variety of angles involved in the gentrifica-tion dispute. The relevant parties are identified, and the advantages of gentrification, as well asthe adverse effects of the phenomenon, are present. The deception the court speaks of also ringstrue of gentrification in practice, as the economic benefits that are experienced by some whoparticipate in the process masks what ends up being, to others, a detrimental and life-changingexperience.

27 134 F.3d 905, 906 (8th Cir. 1998).



borhoods so that “other folks” (a class of people the court does notattempt to define) may have the opportunity to live in these areas.More importantly, the court seems to suggest that the issue of gen-trification “seems to be a city problem, a local problem.”28 NewJersey has some case law on the subject matter, but it does not lendmuch focus on the overall effects of gentrification. In In Re Adop-tion of the 2003 Low Income Housing Tax Credit Qualified Alloca-tion Plan,29 the court spoke of “[a]ttractive and safe new housing,combined with the demolition of old, high-rise public housing andthe incorporation of commercial uses,” in combination with “com-mercial endeavors,” with the hope of “eventual gentrification andthe return to the cities of higher-economic people of all races.”30

This particular case casts aside the full probable effects of gentrifi-cation by not acknowledging the impact on “white flight or en-courage[ment] [of] persons of greater means to return to thecities.”31

Some courts have focused on predatory lending in analyzingurban gentrification32 and have spoken about the effects of gen-trification on the stability of communities in combination withpredatory lending in communities prone to gentrification.33 Ulti-mately, the courts have yet to develop a cohesive solution to ame-liorate the effects of gentrification. Cities such as Oakland,California have looked to the courts for guidance, insight, andideas on how to combat the negative implications and effects ofgentrification; these attempts have been futile as cities are still ex-pressing a concern about “community degradation” in light of gen-trification.34 One of the concerns being voiced about remedies andstatutory regulations that are implemented by the courts is the fearthat “a one-size-fits-all solution is not always in the best interest ofthe residents of a particular community.”35 In other words, citieshave come to recognize that a statute that condemns gentrificationor a law that provides damages or some other type of remedy may

28 Id.29 In re Adoption of the 2003 Low Income Hous. Tax Credit Qualified Allocation Plan, 848

A.2d 1, 17 (N.J. 2004).30 Id. (emphasis added).31 Id.32 Am. Fin. Serv. Ass’n v. City of Oakland, 34 Cal. 4th 1239 (2005) (describing a financial

services association that filed an action for injunctive and declaratory relief; the financial servicesassociation challenged the City of Oakland’s anti-predatory lending ordinance).

33 Id. at 1261.34 Id. at 1270.35 Id. at 1271.



not be the one-stop solution to gentrification and its underlyingconcerns. But what is the solution?

IV. ALTERNATIVE DISPUTE RESOLUTION IS NOT AN

ALTERNATIVE FOR DEALING WITH AMELIORATING THE

EFFECTS OF GENTRIFICATION

Simply put, ADR is not just a method for dealing with gen-trification and its related issues; rather, it is the only method. Thecourts are not a resource to which people concerned with gentrifi-cation can turn,36 as courts have largely passed-the-buck in decid-ing whether to apply equitable remedies to the issues stemmingfrom gentrification.37 This outcome is due perhaps to the fact thatjudges are trained to resolve legal issues and craft remedies to ad-dress legal wrongs. Conversely, mediators often state in theiropening scripts, “I am not a judge; a judge would decide who wasright and wrong with respect to conduct that happened in thepast.” One organization that trains mediators to incorporate suchinformation in their opening statements is Safe Horizon.38 Somemediators include the fact that judges will render a decision thatmay or may not be likeable to one or both sides of the dispute.Resolving gentrification disputes is not merely an assessment of thelaw which can boil down to a determination of who is right andwho is wrong.39

36 See, e.g., United States v. J.A.J., 134 F.3d 905 at 906. Court proceedings have turned thefocus of gentrification matters into disputes about zoning and housing, which papers over theemotions and story-telling that gentrification disputes involve. Courts are not equipped to dealwith gentrification due to a focus on legal causes of action as well as the “right and wrong”dichotomy that prevails in the adversarial process.

37 Id. Some courts have explicitly stated that the concerns underlying gentrification might bebetter dealt with at a city or local level.

38 Safe Horizon, Mediation, http://www.safehorizon.org/page.php?nav=snb&page=legalser-vices (last visited Apr. 16, 2010):

Since 1981, Safe Horizon’s Mediation Program has been helping New Yorkersresolve their disputes instead of entering into lengthy and expensive court processes.The mediator, an impartial third party, assists participants in finding their own solu-tions. Mediation helps to prevent the escalation of disputes into violent assaults,offers more immediate solutions than the court process allows, and decreases thenumber of cases in the family and criminal courts.

39 As the various definitions suggest, gentrification deals not only with legal issues such aseminent domain, zoning, and lending schemes, but it also deals with racial, socioeconomic, com-munity, and neighborhood preservation issues. See Elorza, supra note 2, at 19–22.



Litigation is often criticized for its lack of ability to repair rela-tionships, as well as its inefficiency.40 The view that methodologyoutside of litigation is preferable has become increasingly morepopular in businesses, agencies, schools, and courthouses.41

One might suggest that arbitration is equipped to handle thecomplex issues involved in gentrification disputes, but arbitratorsare no better than judges.42 Though parties are able to seek out thearbitrators they would like to work with, arbitrators hear a set offacts, complaints, and allegations (from both sides of a dispute),and they alone determine what they believe to be the appropriaterelief, if any is appropriate.43 Arbitration is sought out as a “cost-effective” alternative to seeking out relief from the court system inthe form of extensive litigation.44 Arbitrators are in the business ofhanding out “awards,” which are essentially the aritrator’s impar-tial, final, and binding decision on the facts of the dispute submit-ted to the arbitrator.45

In sum, the arbitrator acts as a replacement to litigation’sjudge and jury in the decision-making process by deciding if awrong has occured.46 The arbitrator also determines the proper re-lief,47 “compensation,” or another method necessary to correct thewrong.48 In the event disputants that have been handed out arbi-

40 Ed Barna, Finding Success Through Mediation, 31 VT. BUS. MAG. 8 (2003), available athttp://www.vermontbiz.com/article/july/finding-success-through-mediation. Mediator and law-yer Michael Palmer offered his criticism: “Litigation has a legitimate and necessary role to playin deciding constitutional questions, handling class actions, establishing precedents, and resolv-ing conflicts involving severe power imbalances or physical abuse,” but there is an “untappedpotential for making life . . . more peaceful,” that can be found in mediation. Id.

41 Id.42 See Scott Topolski, Alternative Dispute Resolution: A True Alternative, 14 Advisor News-

letter 3 (Buckingham, Doolittle & Burroughs, LLP, Boca Raton, Fla.), Aug. 2005, available athttp://www.bdblaw.com/new/August2005Vol14Iss3.asp.

43 Oregon Courts: Oregon Judicial Department, What is Arbitration?, http://courts.oregon.gov/OJD/programs/adr/whatisarbitration.page? (last visited Oct. 2, 2008) [hereinafter OregonCourts—What is Arbitration?].

44 Id. (pointing out that arbitration and mediation cost less than litigation and that these twoparticular methods of alternative dipute resolution have been “time-tested” as an alternative tolitigation).

45 Id.46 Oregon Courts — What is Arbitration?, supra note 43, http://courts.oregon.gov/OJD/pro-

grams/adr/whatisarbitration.page? (last visited Jan. 29, 2009). (“Arbitration is like a trial but lessformal. In arbitration, two sides present their evidence to an arbitrator. The arbitrator decideswho wins and who loses. An arbitrator does the job that a judge or jury would normally do incourt.”).

47 U.S. Sec. & Exch. Comm’n, Arbitration, http://www.sec.gov/answers/arbproc.htm (last vis-ited Apr. 16, 2010) [hereinafter SEC — Arbitration].

48 Id.



trators’ awards are not pleased with the award, they are affordedthe opportunity, in most cases, to sulk about it in the comfort oftheir homes. Unhappy disputants cannot go to the courts and “tryagain”49 merely because the result is not in their favor; however,under limited circumstances, an arbitrator’s decision can be chal-lenged.50 But is arbitration the gateway method of resolving gen-trification issues? There is an impartial person51 deciding the rightand wrongdoings of a dispute and giving relief as deemed neces-sary.52 Furthermore, arbitration proceedings are less expensivethan litigation, as previously mentioned.53 What makes gentrifica-tion related disputes so different as to need something more than adetermination of who is right and who is wrong?

In a nutshell, gentrification disputes are complex.54 Due tothis complexity, litigation involving judges and juries has notproven to be very beneficial,55 and ultimately might not be the bestway to resolve a dispute. Arbitration, though less expensive thanlitigation, still advantages who is right or wrong and one or bothdisputants may end up with an “award”56 that is not as fulfilling aswas hoped.57

49 Id.50 Id. A disputant can, under certain circumstances, challenge the arbitrator’s award. For

example, when arbitrator bias is in question, a disputant can challenge the arbitrator’s award.51 Oregon Courts—What is Arbitration?, supra note 43 (The arbitrator can be one impartial

person or there can be a panel of impartial persons serving the same function as a singlearbitrator.).

52 SEC—Arbitration, supra note 47.53 Id.54 The inability of people to develop a definition of gentrification that everyone can agree

upon speaks to the complexity of the matter. See Elorza, supra note 2, at 19; see also Merriam-Webster, supra note 3 and accompanying text; see also Dictionary.com, supra note 4 and accom-panying text. This Note seeks to establish that, though litigation is equipped to handle complexissues, they are not designed to handle the complex non-legal aspects of gentrification, whichinclude underlying feelings of resentment, lack of community ties, disrespect, distrust, and vic-timization. Mediation, however, is capable of addressing these issues.

55 Bob Egelko, Court Removes Hurdle for Bayview Project, Jan. 29, 2009, SFGATE.COM,available at http://articles.sfgate.com/2009-01-29/bay-area/17196797_1_affordable-housing-bayview-hunters-point-redevelopment-agency. In January 2009, the California Supreme Courtgave the “green light” to redevelop San Francisco’s last black neighborhood in Defend BayviewHunters Point Committee v. City and County of San Francisco, 84 Cal. Rptr. 3d 486 (Cal. Ct.App. 2008), appeal denied 2009 Cal. LEXIS 1130 (Cal. Jan. 28, 2009). Id.

56 Oregon Courts—What is Arbitration?, supra note 43.57 Lela P. Love & Joseph B. Stulberg, Understanding Dispute Resolution Processes, in CAR-

RIE MENKEL-MEADOW, LELA PORTER LOVE & ANDREA KUPFER SCHNEIDER, MEDIATION:PRACTICE, POLICY, AND ETHICS 16 (Aspen Publisher 2006) (Arbitration still has an adversarialelement because it involves determining past rights and wrongs and the award given could be“bad” and non-appealable unless certain narrow circumstances are shown).



V. MEDIATION IN THE REALM OF GENTRIFICATION

Mediation is the tool that landlords, tenants, people who arebeing dispersed by gentrification, people who are moving into gen-trified neighborhoods, developers, and local governments need tohelp ameliorate the effects of gentrification. Mediation is more in-formal than litigation and arbitration.58 As opposed to arbitratorsor judges, mediators do not generally have decision-making au-thority;59 therefore, the mediator is not in a position to tell the par-ties who is right or wrong, nor is it the mediator’s job to render afinal decision.60 Mediation allows disputants to get to the heart oftheir disputes rather than focus solely on the legal issues.61 Media-tion sessions allow for storytelling and for venting the emotionsunderlying the dispute.62 A mediation session can also be steeredtoward an “interest focus:” by focusing on the interests of the par-ties, a mediator is able to gain a more thorough understanding ofthe underlying reasons for the dispute.63 Mediators are trained, forthe most part, to spot an issue and its associated interest when lis-tening to disputants relay their stories. What usually happens in acourtroom setting is a demand only for legal rights.64

The goals of mediation are similar, if not the same, as the goalsdesired by community members experiencing gentrification.65 Thegoals of mediation are conducive to the overall compromise de-

58 Topolski, supra note 42.59 Love & Stulberg, supra note 57, at 17. The disputants retain control over the dispute itself

as well as the outcome of the dispute. In the mediation session the power to eventually deter-mine the outcome is given to the parties—that power is ceded to a judge, jury, or arbiter inlitigation or arbitration.

60 Topolski, supra note 42. The mediator is a neutral third person whose functions are tofacilitate or encourage settlement of a dispute. The mediator’s authority is to make a decision onthe merits of the case are not roles that the mediator can fulfill or is meant to fulfill. Id.

61 Love & Stulberg, supra note 57 (one of litigation’s disadvantages is that it is only equippedto deal with issues that can be “translated into legal causes of action.”). Id.

62 See Barna, supra note 39; see also Janice Francis-Smith, Joseph Paulk Marks a Decade ofDispute Resolution, J. REC., (THE OKLA. CITY), Feb. 10, 2004, available at http://findarticle.com/p/articles/mi_qn4182/is_20042010/ai_n10160349/ (exploring how, oftentimes, unresolved emo-tional elements are at play with disputes and how these unresolved issues and emotions preventthe resolution of many lawsuits).

63 Oregon Courts: Oregon Judicial Department, What is Mediation?, http://courts.oregon.gov/OJD/programs/adr/whatismediation.page? (last visited Oct. 2, 2008).

64 See Barna, supra note 39. As previously mentioned, the idea of using mediation instead oflitigation has captured the attention of private businesses as well as courthouses.

65 CARRIE MENKEL-MEADOW, LELA PORTER LOVE & ANDREA KUPFER SCHNEIDER, MEDI-

ATION: PRACTICE, POLICY, AND ETHICS 96 (Aspen Publisher 2006). Society has an interest in“healing broken relationships” and mediation fosters the ability to mend these relationships byallowing people a time and space to recognize each other’s perspectives. Id.



sired between residents and developers, as well as the relationshipsbetween old community members and new residents.66 Mediationseems especially well equipped to deal with gentrification, as theprocess is future oriented.67 Conversely, courts focus on past ori-ented inquiries of a perceived injustice or wrong.68 There is an ad-versarial undertone inherent in litigation69 due to a party seekingpunishment to some degree.70 Mediation seeks out what can bedone at that moment.71 This approach combats some of the ten-sions that accompany gentrification because many complaintsabout the phenomenon take place after there has already beensome negative impact.72 In other words, people have already beenhurt by gentrification and attach past wrongs to gentrification. In-stead of only focusing on the harm done, mediations allow for for-ward progress and eventually healing.73

Mediation may be the proper forum not just because it doesnot look to legal wrongs or entitlements, but because many gen-trification complaints are not even legally actionable.74 Court-rooms simply are not the proper forum for gentrification relateddisputes. At the most basic level, being able to bring a claim tocourt is the essential element of standing, which is not necessarilyfulfilled when dealing with gentrification disputes.75 To bringabout an actionable claim in court, one must be able to show thatthey have been injured, that they have a right not to be injured,

66 NCCD Learning Exchange, supra note 9.67 Barna, supra note 40. (“Mediation[ ] look[s] forward to what can be done from that point

on, rather than looking backward at what supposedly happened.”).68 Id.; Love & Stulberg, supra note 56.69 Love & Stulberg, supra note 56, at 16–17. The adversarial nature of litigation acts as a

barrier to understanding and cooperation, and can eventually sever future relationships betweenthe parties involved.

70 Id. This can be seen as an advantage or a disadvantage to litigation, which is that a personwho seeks to punish the other party and discourage further communication is able to do so.However, punishment seeking is disadvantageous because it terminates the ability to actuallyfoster cooperation, understanding, and an ongoing relationship. Id.

71 See Barna, supra note 66 and accompanying text.72 Many of the gentrification disputes are over buildings or land that have already been pur-

chased or sold, shops that have already been built, neighbors who have already moved in, minor-ity displacement that has already occurred, or redevelopment which has already begun.

73 See Barna, supra note 66 and accompanying text.74 The disputes underlying gentrification matters can not be cured in a courthouse. Disputes

do not have to have an underlying legal claim to be mediated. Instead, mediation is available toresolve a variety of disputes that may or may not be admissible in a court of law.

75 Allen v. Wright, 468 U.S. 737, 752 n.30 (1984) (“‘The Judicial Power shall extend to allCases . . . [and] to Controversies . . . .’ The requirement that a plaintiff have standing to sue is alimit on the role of the judiciary and the law of Article III standing is built on the idea ofseparation of powers . . . .”) (quoting U.S. Const. art. III).



and that they are the right person to bring to claim.76 Often, alle-gations of mistreatment and injury that deal with gentrification fo-cus on fairness, a feeling of inequality, or a general allegation ofracial disparity.77 Courts are established to address legal claims,not claims of unhappiness or unfairness that lack a legal basis.78

Residents are not necessarily seeking an answer to “why gen-trification,” but an answer to “now what” for dealing with the phe-nomenon and its effects.79 Mediation sessions can open upconversation between developers and residents so they can worktogether and plan on what to do with land that either is or soon willbe undergoing redevelopment.80 By involving the communitymembers in the process of what happens to their community, someof the discontent with gentrification may be dispelled.81 The act ofallowing community members and developers to work with eachother can prove successful in gentrification matters because bothparties will benefit from the open dialogue and brainstorming thatcan occur during a mediation session. The community memberswill begin to feel involved in the future use of the land, which canquiet the fears of complete loss of the diverse membership of thecommunity, as well as potentially make redevelopment planners’jobs easier by enlisting the support, instead of opposition that theplans are met with.82 This opposition may involve picketing, peti-tions, or bringing lawsuits against developers, which could end upbeing costly and eventually slow the process of redevelopment.

Mediation focuses on the preservation of relationships andtherefore is especially suitable as a dispute resolution process forthose striving to build up their communities.83 Mediation sits peo-

76 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).77 See Elorza, supra note 2; see also Barna, supra note 39.78 Love & Stulberg, supra note 56 (expressing that a disadvantage to litigation is that courts

are set up to address legal causes of action and not the underlying concerns (non-legal) that maybe at the heart of many disputes).

79 See, e.g., City of Portland, supra note 9. Attempts to reach the heart of gentrificationdisputes center around repairing the harms resulting from gentrification; those attempts useproblem solving, collaborative action and preventing further harm.

80 Sam Hedenberg, Howard Co. Wants Mediation for Residents, Developers, THE EXAMINER,June 16, 2006, http://www.examiner.com/a-153799~Howard_Co__wants_mediation_for_residents__developers.html.

81 Id.82 The ability of parties to come together to face the perceived harms due to gentrification in

a mediation setting will allow for a degree of preventative protection against communityopposition.

83 MENKEL-MEADOW ET AL., supra note 56, at 96.



ple down in an effort to build community ties and relationships,84

which are assuredly lacking in gentrified neighborhoods. Essen-tially gentrified neighborhoods are composed of people who haveeither not had the opportunity to establish relationships and ties tothe community at large or, to some degree, may not want to enter-tain the idea of mixing the old and the new community members.85

Mediation allows for the dialogue necessary to at least start creat-ing a sense of community.86

Mediation’s voluntary nature, an essential difference betweenmediation and other forms of dispute resolution,87 makes it a for-midable process for gentrification dispute resolution.88 Many per-sons with lower socioeconomic status avoid litigation and courtsdue to intimidation,89 and because they lack the financial means tosupport lengthy trials and, at the bare minimum, may even lack alegal claim to get into court.90 On the other hand, the informalityof mediation allows for disputants to vent their feelings and to telltheir story.91 Where heated issues, such as losing one’s home, com-munity, and neighborhood are involved, the feelings and emotionsattached can be intense.92 The formal setting of a courtroom, inand of itself, can block the creativity needed to come up with ideas

84 Id. at 255. Mediation encourages American values such as connectedness and communityand “consciously nurtures . . . [those] values.” Id.

85 BRETT WILLIAMS, UPSCALING DOWNTOWN: STALLED GENTRIFICATION IN WASHINGTON

D.C. 1 (1988). A large underlying issue of the phenomenon of gentrification is that “the mostunlikely groups of people,” are trying “to live together as neighbors” and this unlikelihoodbreeds for difficulties in achieving racial, ethnic, and economic integration. Id.

86 This Note suggests that the necessary dialogue that must occur in order to ameliorate pastharms caused by gentrification, as well as future harms that may occur as a result of gentrifica-tion, will consist of brainstorming and problem-solving techniques to begin establishing a senseof community and to understand the perspectives of those involved in gentrified areas. Neitherthe dialogue of those undergoing gentrification or those entering into gentrified neighborhoodsis suggested to be more important than the other.

87 See Love & Stulberg, supra note 56, at 14–15. An essential point to pull out of the volun-tary nature of mediations is that the voluntariness makes the process available to everyone. Theordinary funding issues involved with an involuntary or voluntary court proceeding are not aproblem.

88 Id. at 14.89 Barna, supra note 39.90 See Love & Stulberg, supra note 57, at 16.91 Barna, supra note 40.92 Sarah Terry-Cobo, Gentrification Debate Gets Heated, OAKLAND TRIB., Oct. 23, 2007,

available at http://findarticles.com/p/articles/mi_qn4176/is_20071023/ai_n21060946 (“Demo-graphic changes and a wave of residential development have prompted some concerned citizensand advocacy groups to speak out against what they believe is systematic racism that forcesAfrican-American residents to leave Oakland,” which led to “heated conversation.”).



and solutions to gentrification that might otherwise be tapped intoin the mediation setting.93

Furthermore, mediation fosters understanding and listening:key factors in working toward what parties would like the future tobe.94 For some, mediation may be the only outlet that will notbreed more anger.95 One cannot forget that there is often an un-derlying emotional element at play when dealing with gentrifica-tion-related disputes that cannot be rooted out in a lawsuit.Mediation is the economical, efficient, and private option to deal-ing with these emotions.96 Mediation also allows for the preserva-tion of business relationships, whereas litigation may jeopardizesuch relations.97 Much dispute regarding gentrification surroundsthe influx of new businesses that are geared toward a population ofresidents that are of a higher socioeconomic status than those thatlived in neighborhoods before gentrification began.98

93 Love & Stulberg, supra note 57, at 16. Courtroom formalities may be detrimental to theprocess of resolving the emotional issues at the heart of many, if not all, gentrification disputes.When a person is able to feel comfortable communicating their emotions and feelings, they aremore willing to be creative. The informality of mediation fosters creative output. Part of media-tion’s mission is to help the parties themselves brainstorm ideas that will solve the issues broughtto the mediation session. This characteristic is unique to mediation. Mediation sessions can beset up at the convenience of both parties involved in the dispute at community centers that arealready equipped with trained mediators, or, mediation programs can be implemented in thecommunities affected by gentrification.

94 See generally LELA P. LOVE & JOSEPH B. STULBERG, THE MIDDLE VOICE: MEDIATING

CONFLICT SUCCESSFULLY (Carolina Acad. Press 2008). This Note seeks to establish that a focuson the future is an essential part of what gentrification disputes require in order to come toresolutions amenable to the parties involved.

95 One must remember that due to financial constraints, not everyone can go to court, andeven if they could, they might often end up with a verdict that is not pleasing to them, therebyadding to the feeling of discontent and government distrust.

96 Racial disputes fuel many of the gentrification disputes. Alongside racial tensions, socio-economic differences among classes of citizens that now live in the same neighborhood addanother element of unrest between the parties. The socioeconomic divide leaves many of theincoming residents unable to relate, for the most part, to the older community members becausethe groups come from different backgrounds, have differing occupations, and look substantiallydifferent than those of the community into which they are moving.

97 Barna, supra note 40.98 See, e.g., GENTRIFICATION COMMITTEE REPORT, supra note 12 (outlining some of the

trends indicating that gentrification is in progress).



VI. WHY SHOULD ADR BE CONCERNED

WITH GENTRIFICATION?

Gentrification is a nationwide issue;99 large and small citiesalike are feeling the detrimental effects of gentrification.100 Whilesome effects of gentrification can be positive,101 the negative impli-cations still require resolution. The core of neighborhoods andcommunities are being torn apart. Old residents and new residentsin gentrified neighborhoods are not getting along.102 The unrest isagitated in part by the fact that many of these neighborhoods un-dergoing gentrification have never been exposed to such diversityand economic disparity103 between the old neighborhood membersand the newcomers.104 When such issues are present, the “love thyneighbor” maxim becomes difficult to heed.

99 Schaffer & Smith, supra note 7 and accompanying text. A notable facet of gentrification isthe impact that gentrification is having across the nation. Gentrification occurs in small neigh-borhoods, medium sized communities, large cities in the northern United States, in the southernstates, in the Midwest, and pretty much everywhere else. The phenomenon lacks selectivity;therefore, populations dealing with gentrification can be found across the nation. Additionally,gentrification not only affects the United States, but is also seen in other countries. See generallyGLASS, supra note 15 (discussing gentrification experienced and documented in London).

100 Kalima Rose, Combating Gentrification Through Equitable Development, 9 RACE POV-

ERTY & ENV’T 1, 5–8 (2002). Gentrification is being experienced in San Francisco, Los Angeles,New York, Oakland, Portland and other cities. Id. These are among the following effects ofgentrification in these cities: the displacement of residents and business, the blending of certaincultures, the threat of historically diverse communities, the phenomenon of senior citizens, eth-nic communities and low-income persons no longer being able to afford to pay taxes on theirhomes or their rents.

101 Elorza, supra note 2, at 44 (discussing what constitutes “Healthy Gentrification” and someof the positive effects that accompany “Healthy Gentrification,” including some persons remain-ing in gentrified neighborhoods to take advantage of the improved conditions experience, theoverall transformation of, “blighted communities into healthy and stable living environments,”as well as socializing the poor with the middle class’ ability to help with language skills, attitudeadjustments, educational outreach and job-related skills required for participation in the “main-stream society.”).

102 City of Portland, supra note 9 (notes that people are experiencing difficulty with building anew community of newcomers and old residents because of gentrification’s underlying issues (tosome) of racism, lack of cultural understanding and social injustice).

103 Id. The economic disparities between new residents moving into gentrified neighbor-hoods and old residents currently living there is an added element of conflict surrounding gen-trification. Matters such as economic disparity and the negative impact it has on therelationships between people is not an actionable claim for a courtroom proceeding or for anarbitration proceeding. This disparity breeds discontent amongst the gentrified residents thatneeds to be resolved so those affected by gentrification can move forward as neighbors andcommunity members. Mediation offers a venue where matters such as the feelings harboredfrom economic disparities can be focused on, and, hopefully, dealt with eventually.

104 GENTRIFICATION COMMITTEE REPORT, supra note 12; see also City of Portland, supranote 9.



Gentrification is relevant to ADR because there is an ever-increasing feeling of government distrust that is developing amongestablished members of gentrified neighborhoods.105 People haveattempted to take measures into their own hands106 as a result offeelings about government inefficiencies in dealing with gentrifica-tion.107 In some areas where gentrification is occurring, membersof the community have banded together in an effort to put a stopto gentrification, as their efforts to stop the phenomenon throughgovernment agencies have proved unfruitful.108 For example, sig-natures of petitioning community members have been deemed in-valid by government personnel,109 and, as a result, many peoplefeel that their concerns and complaints are falling on deaf ears.110

When 33,000 people unite to voice their opinions, with no appreci-able results, people become agitated and begin to assume responsi-bility for effectuating change.111 Government actions such as theinvalidating signatures are seen as one of many “arrogant” and “ra-cist tactics” used in an effort to displace minorities.112 Some feel as

105 Measures taken by those opposing gentrification will be discussed in this article. Some ofthese measures are being taken when government actors do not take steps the gentrification-opposed citizens deem necessary to combat the phenomenon.

106 Hedenberg, supra note 80. One can see the need of a mode of dispute resolution regard-ing gentrification matters, especially when people not only feel the need to, but do act upon aperceived need to take the law into their own hands. Though the measures previously discussed(nor any measures in the upcoming discussion) are not violent in nature, the possibility of violentacts cannot be ruled out. Mediation is an essential way of taking the law into one’s own handsbecause the parties to the dispute have the ability and the power to come up with ideas to solvethe specific issues they are experiencing.

107 Amodei, supra note 5. The city members’ response to gentrification suggests that suchacts were driven by a mistrust of government agencies due to their inaction.

108 Id. Neighborhood members had gathered an upwards of thirty-three thousand signaturesfor a petition calling for an end to a plan by the San Francisco Redevelopment Agency. Ifsuccessful, the agency would replace low cost housing in a predominantly African-Americancommunity with more expensive housing, which would ultimately be marketed to and only avail-able for purchase by wealthy people. The agency’s plan would look much like the gentrificationthat was already taking place in other areas of California.

109 Id. The City Attorney of San Francisco declared the petitioners’ signatures to be invalidwhen the signatures were gathered to stop the impending destruction of the Bay Viewneighborhood.

110 Id. The petitioners have voiced that these types of “tactics” promote long-standing gov-ernment distrust as the petition was not signaled by the city as a good enough sign of communityoutrage.

111 Id. (“The city community gathered over 33,000 petition signatures calling for an end to theagency’s plan [to redevelop the Bay View neighborhood] and for the issue to be included on nextyear’s ballot.”).

112 Id. Along with the invalidation of the petitioners’ signatures, other “racist tactics,” asdescribed by the displaced, include the inclusion of curfews in areas where there are high con-centrations of minorities, putting up cameras in the same areas, and police brutality. See



though the government has fallen far short of its responsibilities;one community’s adoption of the slogan “enough is enough” is in-dicative of this sentiment.113

When complaints of gentrification are not addressed by thegovernment, community members are finding alternative means tomake their viewpoints and objections known.114 For example,some citizen groups have launched economic boycotts in responseto new businesses that are being established in gentrified neighbor-hoods.115 In hopes of giving the new business owners the incentiveto go elsewhere, some communities are collectively deciding to notsupport new businesses.116 Economic boycotts have included citymembers urging visitors, conventions, and performers117 to shunareas of business until the city officials meet demands for neighbor-hood development and the amelioration of long-standing social in-equities and community grievances.118

Jonathan Diskin & Thomas A. Dutton, Cincinnati: A Year Later and No Wiser, NHI:SHELTERFORCE ONLINE (2002), http://www.nhi.org/online/issues/123/Cincinnati.html. The Cityof Cincinnati has developed “zones of safety” which are areas that have been targeted for heav-ier police surveillance. Id. The effort was established for the safety of new residents coming intothe area as well as opponents of gentrification. However, as a result of increased policing, thenumber of citations and violations of area residents and visitors has also increased. Ironically,this uptick in policing and pressure on police officers to crack down on violators has created theperfect climate for conflict. Id.

113 Amodei, supra note 5. The slogan “Enough is enough” was repeatedly announced as theslogan of the community members’ resolve to not only end displacement of minorities, but alsoto show government authorities that the community is fed up and needs a change to occur inpolicies and practice. Id.

114 Id. Boycotting and protesting are occurring to combat what many residents think aregovernment efforts to engage in racist gentrification.

115 Diskin & Dutton, supra note 112.116 Id. The neighborhoods adjacent to the city’s “central business district” are predominately

low-income. The area has experienced problems,“endemic to most poor inner-city neighbor-hoods: populations decline, homelessness, increased segregation, building abandonment by ab-sentee owners, high rates of unemployment and underemployment, and lack of access topolitical power.” Id. These neighborhood characteristics are similar to those mentioned in theGENTRIFICATION COMMITTEE REPORT, supra note 12, that are indicative of the possibility offuture gentrification.

117 Diskin & Dutton, supra note 112. Many of the convention performers such as Bill Cosby,Wynton Marsalis, Smokey Robinson, Whoopi Goldberg, and the Temptations have honored thecity boycotts and taken their business and tours to other locations. Id. The neighborhood effortsto end gentrification, or to at least be recognized by the government, have proved successful attimes. This particular example shows that the anti-gentrification measures people are taking canhave an economic impact on local business and a social impact on people entering cities that areundergoing gentrification.

118 Id. Boycotters emphasized that downtown should be shunned until the city, “meets theirdemands for neighborhood economic development, police accountability, support and enforce-ment of civil rights, and government and election reform.” Id.



Government responses to gentrification are eliciting a nega-tive community responses, regardless of government intent. Thezoning and development efforts initiated by cities119 have been metwith opposition by some citizens, who believe that those areastargeted for the revitalization efforts do not include them.120 Prop-erty owners feel as though they are being singled out by these revi-talization and zoning ordinances because of their socioeconomicposition.121 Racial tensions and government distrust are high-lighted when individuals feel singled out by government actions.122

Though zoning for affordable housing may appear beneficialfacially,123 much of the new affordable housing prohibits the veryconditions that once made it available to all income groups.124 Inother words, many zoning ordinances preclude availability of hous-ing to people of low economic means, who could once afford to livethere prior to zoning. Another reason for government distrustcomes from the fact that some government zoning of neighbor-hoods contributes to the elevation of property values.125

Though, at first blush, it would seem that an elevated propertyvalue might be advantageous, the increase hurts a majority of es-tablished persons living in the gentrified areas: renters.126 Renters,who are mainly low-income households and minorities in areas un-dergoing gentrification,127 are deprived of the security they wereonce afforded in the communities in which they lived before gen-trification began.128 Gentrification’s side effects are essentially cre-ating and exacerbating racial tensions,129 displacement of

119 Sean Reilly, Finding Silver Linings, 68 LA. L. REV. 331, 334 (2008).120 Id. at 347.121 See Elorza, supra note 2, at 33 (“Residents in these neighborhoods tend to have the lowest

levels of education and political participation and are therefore typically unable to engage thelocal political institutions to work to their advantage.”).

122 Id.123 Id. at 22–24.124 Id. at 38.125 See Elorza, supra note 2, at 16.126 See Reilly, supra note 119; see also Elorza, supra note 2. Renters may be displaced by

gentrification, especially when dealing with areas or neighborhoods that have low-income fami-lies. The renters are unable to purchase the apartments or homes that they presently are occupy-ing, which forces them to move to areas where they can afford to rent. These areas are not in thesame neighborhoods and or even cities that the renters lived in. See Dep’t of Hous. Pres. & Dev.of N.Y. v. St. Thomas Equities Corp., 128 Misc. 2d 645 (N.Y. App. Term 1985).

127 See Elorza, supra note 2.128 Id. at 2 (suggesting that there is an “unhealthy kind of gentrification that has historically

displaced the poor from American cities.”).129 Amodei, supra note 5; see Elorza, supra note 2, at 17; City of Portland, supra note 9.



minorities,130 community unrest,131 government distrust,132 and theperception of social inequality.133 Where such factors exist, themost basic elements of peace, harmony, and community cannot ex-ist. Courts have fallen short of creating an environment of trustand togetherness during and after gentrification has taken place;134

therefore, another method of ameliorating the effects of gentrifica-tion must be sought.135

VII. CITY IMPLEMENTATIONS OF MEDIATIONS AND FURTHER

DEMANDS FOR MEDIATIONS

Some cities have implemented individual mediation programsin an attempt to retroactively ameliorate and preempt the negativeeffects of gentrification.

A. Cincinnati, Ohio

In 2007, the Mayor of Cincinnati set out to resolve long-stand-ing poverty and housing issues,136 as well as address communityefforts to eliminate businesses viewed as a result of the gentrifica-tion process.137 Attempting to resolve these issues, the Mayor setup a program of reconciliation and understanding for the citizensof Cincinnati, sought to promote understanding through court-or-dered mediations, and focused on improving public relations in aneffort to ease community members’ distress due to the impendingcity gentrification.138

Focusing on “understanding” in mediation sessions has notproven to be helpful in Cincinnati’s efforts.139 As a matter of fact,

130 Elorza, supra note 2, at 19 (quoting Marcuse at 198–99).131 Diskin & Dutton, supra note 112.132 Id.; see Amodei, supra note 5.133 See Elorza, supra note 2.134 See e.g., United States v. J.A.J., 134 F.3d 905, 906 (8th Cir. 1998); see also In re Adoption

of the 2003 Low Income Hous. Tax Credit Qualification, 848 A.2d 1, 17 (N.J. 2004).135 This Note proposes that the methodology of dispute resolution that should be imple-

mented in matters dealing with gentrification is mediation.136 Diskin & Dutton, supra note 112.137 Id. There are several groups that have taken part in business boycotting throughout Cin-

cinnati due to gentrification and government tensions. Some of the groups are the CincinnatiBlack United Front, the Coalition for a Just Cincinnati, and Stonewall Cincinnati.

138 Id.139 Id.



it proved to actually worsen the underlying issues of gentrificationand inequality.140 The efforts of understanding through the court-ordered mediations focused on redevelopment instead of the ine-qualities at the heart of the disputes.141 The redevelopment fo-cused more on the cleansing of the city, which, in practicehappened to be a cleansing of the minorities and the poor.142

The crucial take away from the Cincinnati experience is thatthe issues encompassed in many gentrification disputes can be ex-acerbated if attempts are made to circumvent the driving forcesbehind the emotions and allegations.143 One cannot “save thecity”144 by breaking up poor communities of color that struggle fortheir rights in an effort to reassure investors who are worried aboutthe “riots” that will come about as a retaliation.145 If put in thehands of mediators, the issue of gentrification would be, andshould be, tackled head on. Focusing the discussion of the media-tion session on the effects of gentrification, as opposed to the woesof the pockets behind the redevelopment efforts, will be beneficialto the compromise and community building desired.146

B. Portland, Oregon

Portland’s Restorative Gentrification Listening Project ap-proaches mediation in a fashion that this Note argues should be themodel for resolving gentrification disputes. The Listening Project’sgoal and structure is geared toward understanding “the harms ofgentrification by listening to the stories of those most directly im-pacted [by gentrification], and then working to repair the harm and

140 Diskin & Dutton, supra note 112.141 Id.142 Id. The city’s cleansing of the poor consisted “mostly [of] African-Americans.” Id.143 The author of this Note would like emphasize the fact that gentrification is a complex

issue and must be treated as such. Due to the many levels of emotions at play and allegationsthat may be made—for example, racism and targeting—a dispute resolution process that dealswith gentrification must be willing and able to facilitate dialogue dealing with these particularissues. Mediation is a process in which the complexity of gentrification can be broken down intosmaller, simpler elements.

144 Diskin & Dutton, supra note 112.145 Id.146 Monetary concerns cannot be the heart of a discussion to promote understanding about

gentrification. The issues surrounding the matter are very complex. The threat of losing one’shome, the feelings of government distrust, economic disparity, and anger that persons undergo-ing gentrification have or go through tends to be more crucial than money matters.



prevent further harm.”147 There is a theoretical underpinning, abelief, in the Listening Project that “[t]he one who strikes the blowdoesn’t know the force of the blow, only the one who has receivedthe blow, knows its force.”148 One of the primary tactics used inthe Listening Project is restorative listening circles. The listeningcircles are used to address the issues of racism and social injusticein order to build community ties, increase cultural understanding,and help people find ways to act together to include and value allmembers of the community.149 New residents are able to sit downwith persons who have been living in the community and to get aperspective of the harm that is being done due to gentrification.150

Black community members in Portland once formed a tightknit, culturally-connected area that is now dominated by youngwhite people.151 Damage has been done to the relationships in thecommunity. Further divisions have occurred due to the economicrevival of the area.152 Conflicts run high between communitymembers and new arrivals where there is a racial as well as a socio-economic divide.153 Though it may seem an invariable conse-quence that a socioeconomic divide would cause such conflict, newmembers are baffled by these conflicts. They are unaware of why

147 City of Portland, supra note 9. The City of Portland’s Restorative Listening Project’s goalhighlights listening and direct communication of the past harms caused, and most importantly,the prevention of future harms. The forward-looking aspect of the Restorative Listening Projectis particularly remarkable, as it uses past injuries to develop the dialogue needed for findingsolutions to prevent future harms.

148 Id. A theoretical underpinning, such as what the Listening Project adheres to, is ex-tremely powerful because it does not place blame on either party. Neither the new residents,nor the old residents, are blamed with respect to the “force of the blow” language, but insteadboth are equally put on notice that their actions have an impact on the other party, an impactwhose force they may not be aware of. By introducing all parties to the dispute to the possibilitythat their own possible “blow” is causing some degree of injury of which they are not aware, theProject allows for the parties to open up and discuss ways to soften, or even eliminate, the effectsof their own personal actions.

149 Id. As previously discussed, the underlying issues of social inequality among neighbors,the perception of racism and the lack of cultural understanding that results from a mix of demo-graphically distinct people in one place (where the mix had yet to occur) are issues that plaguegentrification disputes. By addressing these issues, and other issues serving as a barrier to com-munication among members of gentrified communites, the fostering of a community atmospherecan begin.

150 Id.151 Id. The wide spectrum of the people occupying the gentrified neighborhoods is quite ap-

parent in some areas, such as old residents that are elderly black people and new residents thatare young and white.

152 Id.153 City of Portland, supra note 9.



there is such hostility.154 The newcomers want to live in raciallydiverse neighborhoods, but have trouble building the relationshipsnecessary to facilitate a healthy, growing community.155

This is where mediation comes into play; mediators can facili-tate dialogue amongst newcomers and the existing communitymembers and can help participants devise a collaborative actionstrategy,156 which serves the purpose of providing a structured con-versation between disputants, in the hope of solving the issuespresented. Mediation focuses on the future;157 therefore, the Lis-tening Project encourages community members to use their ownstrengths and resources to come up with problem-solving strategiesto correct the harm done by gentrification.158 This dialogue fostersaction and builds the kind of trusting relationships that reachacross racial and class lines.159 Empowerment of the community isimportant if they are to continue to work together and improve thequality of life in their communities.

C. Tucson, Arizona

In Tucson, some property owners in gentrifying neighbor-hoods have noticed the hostilities attached to development and aresuggesting the creation of boards comprised of community mem-bers.160 The hope is that the community, including city officials,can sit down in a non-adversarial atmosphere and just talk.161 Theopening of communication will allow city officials to better under-stand the concerns of community members in light of gentrifica-tion.162 Architects in Tucson hired to “beautify” neighborhoodsare even considering using mediation to ameliorate negative feel-ings attached to gentrification.163 Architect Corky Porter recom-mends that facilitated mediation processes be conducted after thecompletion of buildings that are being redeveloped in neighbor-

154 Yardley, supra note 6.155 Id. (stating the fact that the newcomers in some of the gentrified neighborhoods desire the

development of relationships with the elderly community members).156 See id.157 158 Barna, supra note 40.158 Yardley, supra note 6; City of Portland, supra note 9.159 Yardley, supra note 6; City of Portland, supra note 9.160 Dave Devine, Beautification or Gentrification?, TUCSON WEEKLY, Feb. 26, 2004, available

at http://www.tucsonweekly.com/tucson/beautification-or-gentrification/content?oid=1075362.161 Id.162 See MENKEL-MEADOW ET AL., supra note 65.163 Devine, supra note 160.



hoods undergoing gentrification.164 His recommendation comesfrom the recognition that there are strong and deep-seated emo-tions that must be addressed concerning gentrification and redevel-opment.165 Fear of expressing emotion resulting fromgentrification causes those emotions to go unheeded and may leadto the issue blowing up.166 Mediation allows for a healthy releaseof emotion, which may be critical in dealing with gentrificationdisputes.167

D. Berkeley, California

Berkeley Planning commissioners and urban planners are sug-gesting that in response to commercial gentrification, mediationand arbitration statutes should be implemented to deal with dead-lock rent disputes.168 The Berkeley City Council set up a commit-tee that proposed mediations and arbitrations as means ofcontrolling landlord and merchant disputes.169 Either of the partiesinvolved in the dispute can petition for mediation with the Ameri-can Arbitration Association (“AAA”). In the event that the medi-ation proves unsuccessful, the parties can then move to try bindingarbitration.170 As of the City Council’s implementation of this pro-gram, no disputes, to date, have required arbitration.171 This factsuggests that mediations have proven successful in resolving thegentrification-related disputes.

E. Baltimore, Maryland

Howard County is exploring the use of mediation sessions forresidents and developers.172 The City Council has proposed a bill

164 Id.165 Id. (“[T]here are strong passions in the district.”).166 Id.167 See Barna, supra note 40.168 Sean Gordon & Dennis Pinkston, New York Forum About Money They Regulate, and

Prosper, NEWSDAY, Feb. 20, 1987, at 74.169 Id. An example of the Berkeley gentrification issues is highlighted by “[a] grocery store in

a nearby . . . neighborhood [that was] hit with a 425 percent increase in its rent, effectivelyending 70 years of essential service to make way for a cookie store.” Id.

170 Id. Mediation is the first step, and hopefully, the only step needed to resolve the disputesbrought before the AAA.

171 Id.172 Hedenberg, supra note 80.



that allows for Council recommendations of mediation sessions be-tween residents and developers to work out solutions to countyzoning and gentrification issues.173 Mediation has already helpedthe residents and developers to compromise: the residents agreedto stop protesting the expansion of buildings by blocking bridgesand streets.174 Community members involved in mediation are in-clined towards getting involved in mediation to avoid lawyers. Ste-phen Wecker, the owner of a bridge that citizens were trying toblock said, “I’m for anything that keeps lawyers out of it . . . . Wecertainly had legal rights that we gave up, but we circumvented along court battle. When you get 85 attorneys involved, the onlypeople that make money are the attorneys.”175

Granted, there is some skepticism concerning the use of medi-ation. Some residents in the Baltimore area have doubts that me-diation can help in the big picture, but they still favor mediation forsmaller issues.176 Others say that it may take more than mediationalone to settle the anger that many residents feel about redevelop-ment and zoning.177 Alternatives to addressing the anger may in-clude litigation or grassroots organizing: economic boycotting,petitioning, rallying, or blocking roadways.178

VIII. WHERE TO GO FROM HERE?

The easy part, identifying gentrification issues, is over, and an ef-fective way to solve the issue, mediation, has been introduced.Now comes the difficult part: the procedural implementation ofmediation programs targeted at gentrification’s effects and futureimplications.

173 Id. “It’s been frustrating for the zoning board to watch these two adversaries go at it,” saidCouncil Member Guy Guzzone, D-District 3, referring to bitter appeals that pit residents againstdevelopers. “Current guidelines allow residents to voice their opinion on proposed changes tozoning in three different public meetings, but they never get a chance to hash out a compromisewith developers if they’re unhappy,” said Council Member Kenneth Ulman, D-District. Id.

174 Id.175 Id.176 Id.177 Hedenberg, supra note 80 (According to Angela Beltrom, Ellicott City resident, “‘It’s not

a question of mediation, it’s a question of standing up to developers and legal standards.’”).178 Id. (mentioning road blocks initiated by citizens, who aim to protest gentrification); see

Amodei, supra note 5 (dealing with petitions signed by thousands of citizens opposed to gentrifi-cation); see also Diskin & Dutton, supra note 112 (describing community member attempts,some successful, to economically boycott gentrification by boycotting those business that havearisen as part of the phenomenon of gentrification).



In recognition of these difficulties, it is critical to be aware thatno mediation program is easy to set up. Mediation is a skill, and assuch, it demands people who not only understand the techniques,the agendas that need to be set, and the most effective ways togenerate movement within the conversation, but also people thatgenuinely care about the integrity of mediation and the impact thatsuccessful mediations can have on disputants’ futures. With such apowerful role as a mediator, time and diligence must be devoted tothe choice of mediation process that should be used (facilitative,restorative listening, transformative) and the manner in which theissues and interests presented to the mediator are managed. Sincegentrification is a complex issue, the mediators and programs se-lected to address gentrification must be necessarily sensitive to themulti-faceted dimensions of gentrification disputes.

Aside from difficulties that mediators may have in dealingwith these complex issues, there are several factors that will makeimplementation of such a mediation program difficult: lack of de-sire to attend sessions, need for adequately trained mediators, thecost of maintaining a mediation facility equipped to handle thenumbers of individuals who may want to participate in the media-tion, a persistent desire for the retributive justice offered in court-rooms, and general lack of knowledge about mediation andalternative dispute resolution. However, one factor, in particular,presents enormous difficulty: funding.

This Note proposes that court financed mediation programs,as courts have already acknowledged that litigation is not necessa-rily the proper forum to address some, if not most, gentrification-related conflicts. These mediations could be court-mandated,which would serve the purpose of making the different parties sitdown with a third-party to have constructive conversations. How-ever, the mandatory nature of this mediation may work against theprinciple of voluntariness in mediation that allows for an open dia-logue and the free flow of ideas and creativity that is offered, forexample, in a Safe Horizons179 type setting.

Another alternative would be for state and local governmentsto develop gentrification mediation programs where the phenome-non has already occurred, where gentrification is underway, orwhere the telltale signs are present that gentrification is going tooccur in the near future. Such programs have already been estab-lished and have been helpful,180 while others have been less than

179 Safe Horizons Mediation, supra note 38.180 See Gordon & Pinkston, supra note 168; see also City of Portland, supra note 9.



helpful, even exacerbating gentrification disputes.181 Communitiesexperiencing gentrification disputes should look to established,successful mediation programs for guidance.

Gentrification-related disputes deal substantially with peopleof lower socioeconomic backgrounds, which is one reason whymany gentrification disputes are not raised in a court setting. Thisis something to be mindful of when establishing a mediation pro-gram, either court-mandated or voluntary.

IX. CONCLUSION

Regardless of the definition of gentrification, the phenomenonis occurring across the nation.182 Small cities and large cities areaffected by dispute between new and old residents, developers andcommunity members, and government agencies and their constitu-ents. Among the various types of dispute resolution, mediation isthe most advantageous. Whether it be the high cost of litigation,the finality involved in the common type of arbitration, or the in-ability to address underlying emotions involved in gentrificationmatters (both by litigation and arbitration), these adjudicativemethods of dispute resolution are not well-equipped to deal withthe complexities of gentrification.

Mediations are cost-effective, cost-efficient, and able to openup dialogue amongst all involved to build the missing neighbor-hood ties and understanding necessary to foster and maintain pro-ductive communities. The individuals affected by gentrification areof low socioeconomic means, unfamiliar with court proceedingsand unable to provide the necessary funding to go forward withextensive litigation. ADR, specifically mediation, is focused on fu-ture relationships and has proved beneficial in gentrificationdisputes.

The courts themselves have given the right of way to gentrifi-cation and passed on the responsibility of dealing with gentrifica-tion to the localities most affected by the phenomenon: states,cities, towns, neighborhoods, and communities. Gentrification-re-lated disputes must be managed lest tensions continue to linger.

181 Diskin & Dutton, supra note 112.182 See Kennedy & Leonard, supra note 16; Schaffer & Smith, supra note 7, at 347–48.

and mediation: where a single …influx of middle-class or affluent people into deteriorating areas...

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