Conversation with Nancy Rogers about the Past and Future of the ADR Field

Nancy Rogers, a great leader in our field, has made tremendous contributions to our community and she is one of the people I thanked for her contribution to my career.  I was fortunate to participate in a three-week summer institute that she and others organized at Ohio State in 1993.  With Nancy’s permission, I am posting the following slightly edited email conversation we had about that institute, the development of the field since then, and our thoughts about the future.

John:  I have been going through some of my old files and I ran across one with materials from the 1993 summer institute that you conducted at Ohio State.  I was struck by how fortunate I was to be able to attend that event, which came at a critical time in my career and the development of our field.  So I wanted to drop you this note to let you know how much I appreciated being included.

I started my doctoral program in sociology at Wisconsin in 1989.  Before then, I practiced law and mediation in the San Francisco Bay Area and was heavily involved in mediation activities there.  By the time I got to your institute, I had read a lot of the scholarly literature, so I was able to hit the ground running.  Reviewing my notes from the institute, it is clear how you and your colleagues identified key issues that still remain important today.  It helped me to put the pieces together in a more coherent way and reaffirm my decision to pursue an academic career.

Now, a quarter century later, there are signs that the ADR wave we have been part of may be receding.  Of course, it is impossible to know the future.  In any case, it has been very fulfilling for me to be part of our community, which has done very valuable work.  Thanks again for your contribution to my development.

Nancy:  Thanks for your thoughtfulness in sending this.  I am pleased that the seminar fit into the right moment for you to be thinking about next steps – its goal!  I heard from most of the students every so often in the few years following, and they used that time in many different ways.  Some – about eight as I recall – seminar participants turned some of their teaching and writing toward dispute resolution.

I read your interesting blog.  I haven’t given this enough thought to write a blog myself, but here are a few not-well-thought-out ideas.  This seminar was an example of one major and broader thrust of those times – to plant the seeds in many law schools and in many parts of the practice.  The need for that seed-planting may be waning, at least in the ways then envisioned (though perhaps not for others reasons as I will soon mention), because it succeeded.

In those days, I regularly explained to lawyers the difference between arbitration and mediation, and few had participated in a mediation.  I’ll bet that you experienced that at first as well, John.  I have the impression that now even though law schools may use adjuncts, they are mostly offering some instruction in this area.  And I no longer run into attorneys who do not know what mediation is.  They seem to accept that it should be part of legal education, just as pre-trial litigation and trial practice are, and that they should know how to use it.  Your upcoming book will help with that.  They often hope to become mediators themselves, especially as something rewarding to do in their retirement from an advocacy practice or judging.

Another of our goals in that seminar and more broadly among those in the field was to spark more scholarship in the field.  For whatever reasons (not claiming to know the reasons), scholarship regarding mediation (and also arbitration and negotiation) has burgeoned since Craig McEwen and I first wrote our mediation treatise 30 years ago, and that scholarship has become more international in scope.

So what is missing?  Perhaps it’s that the number of tenure-track faculty in dispute resolution will wane because law faculty who anticipate that their law school will not achieve prominence in this field will decide to handle the topic through adjuncts.  As you well know, that is not an unusual approach for law faculty to take in fields outside the foundational legal theory courses of the first year.

If that’s a bad result, perhaps it’s time for another seminar for existing or prospective full-time faculty.  Our theory in holding the seminar was that most law schools would not hire in the dispute resolution field, but that some faculty who already had another field would be permitted to switch fields or spend a part of their teaching and writing in dispute resolution.  We tried to find people with that interest and to facilitate their taking advantage of tooling up in a new field by underwriting most of the expense of doing so.

If someone wants to offer another such seminar, I would add that the seminar faculty was a key to the success.  We recruited an amazing group of faculty who had many ideas for scholarship that would improve the quality of disputing – more than they could possibly write about – and who had a mentoring disposition.  It was a tremendous experience for me as well to sit through that teaching – I learned an enormous amount during those three weeks.

Thanks for causing these happy recollections and current thoughts.

John:   Thanks for your very thoughtful response, Nancy.  You provided a valuable perspective on the history of our field since your institute.  It took place at an exciting time in our history and contributed to the remarkable growth since then, which you note.  Certainly, most law schools now provide some DR instruction and a wonderful cadre of colleagues has created a rich body of scholarship. So we have succeeded in integrating our work into legal education and practice.

I think that there’s still a real need for perspectives from our field in teaching and scholarship.  In legal education, there still is an overwhelming emphasis on legal doctrine.  Teaching practical skills and problem-solving orientation generally seems to be a secondary priority.  A few innovative schools have established one- or sometimes two-credit course requirements using these approaches, but they are rare and less than optimal in a 90-credit program.  It’s understandable that law school faculty and administrators would take a defensive stance considering the contraction of legal education, competition for students, and the bizarre influence of US News.  It would be nice if we can persuade them that the continued vitality of our field is in their interest.

You talked about a modern-day follow-on seminar and I expect that the the upcoming conference at Pepperdine may serve that purpose to some extent.  You’re right that the caliber of the faculty at your institute was very important.  Indeed, you attracted great faculty including Deborah Hensler, Craig McEwen, Maurice Rosenberg, Frank Sander, and Gerry Williams, among others.  I am amazed at the strength of the faculty who will be on the program at Pepperdine – and that there could be many more if there was more time.  It will be interesting to see what happens at and after the conference.

I am concerned that there is a substantial cohort of fantastic colleagues who will be aging into retirement in the not-too-distant future, which could cause a real loss to our field.  Just as your institute was designed to plant seeds, perhaps we need to do a new round of seed-planting to generate new colleagues who will succeed us and hopefully build on our work.  Some groups, like the Law and Society Association and Federalist Society, have had programs specifically designed to cultivate future generations in their fields.  Perhaps we should do something like that.  Most faculty will still need to specialize and teach in other subjects in addition to DR, but that’s always been the case.

Thanks for sharing your experience and perspective.

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