For Pragmatic Romanticism About ADR, Understanding Why the “Haves” Come Out Ahead

“Mediators equalize the power between the parties.”  Have you heard that claim?

I used to hear it with some frequency, though (fortunately) not much lately.

Considering this idea even for a nano-second, obviously it is wildly optimistically untrue as a generalization – and it doesn’t even make sense in individual cases.

Some of the discussion at the Past-and-Future conference about successes and failures of our movement prompted me to think about this.  Jean Sternlight referred to Marc Galanter’s classic article, Why the ‘Haves’ Come Out Ahead, and noted that people generally act out of self-interest.  This analysis should prompt us to have realistic expectations about what our field can and cannot accomplish.

If you haven’t read Galanter’s article, let me suggest that you check out my post about my commentary, For Pragmatic Romanticism in Law and Dispute Resolution:  Reflections on Galanter’s Remarkably Realistic Analysis of Why the Have-Nots Come Out Behind, which is only slightly longer than the title.  That post includes a link to Galanter’s article.

His article provides a cautionary analysis of potential strategies that were more and less likely to help “have-nots.”  Inspirational images of advocates like Ralph Nader created unrealistic expectations of the potential for more law, courts, and lawyers to promote social progress.  Galanter argued that while these factors could be useful in such efforts, organizing “one-shotters” (the “have-nots”) into repeat-players (the “haves”) was key.  Without this transformation of the parties, repeat-players generally would be able to thwart one-shotters’ legal strategies.  Based on this analysis, he suggested plausible strategies for helping have-nots.

Galanter essentially cautioned against what Carrie Menkel-Meadow later called “litigation romanticism.”  She favors romanticism about some things, including the legal system, and argued that “to love an idea or institution realistically we need to see the object of our love as it really is.”

For Pragmatic Romanticism About Dispute Resolution

We need to avoid the trap of unqualified ADR romanticism.  These days, folks in our field generally don’t subscribe to the simplest versions of this romanticism such as the notion that mediators equalize power.  Indeed, many of us are quite critical of various aspects of ADR.

There is much to criticize about the way people use ADR, and there are opportunities for improvement.  Perhaps the most egregious contemporary example of haves taking advantage of their power is the use of adhesion contracts to force have-nots to use arbitration, especially without the possibility of class-wide arbitration.  In negotiation and mediation, haves regularly use their power to impose unfair processes and results with little participation by the have-nots.  The list goes on.

Academics and professional practitioners are right to point out problems and to promote improvements in current ADR practices.  Our scholarship sometimes influences courts and other policymakers to make changes.  We provide advice, such as being reporters for uniform laws.  We help develop and operate innovative ADR processes, as illustrated in the plenaries on Wednesday afternoon.  We are most likely to be effective when our ideas support (or are not inconsistent with) the interests of powerful stakeholders.

We should be humble and realistic in our expectations about what we can (and should) do to remedy problems with ADR processes.  This is a similar perspective as mediators who treat the parties as being responsible for their decisions, good and bad.  When people and entities follow our suggestions and produce good results, ultimately it’s their responsibility (with some help from us).  When they don’t follow our advice, that’s also their responsibility, clearly not ours.

Just as having more law, courts, and lawyers won’t offset the power of the haves, as Galanter suggests, certainly just having good ideas and DR processes won’t do so either.  He teaches that when powerful interests are determined to use their power, the main way to neutralize it is by having less powerful interests coalesce to get more power.

For example, we can argue until we’re blue in the face about the unfairness of binding pre-dispute arbitration clauses and non-disclosure agreements in sexual harassment cases.  Powerful employers that use these agreements are not likely to be persuaded to change their practices until something like a #MeToo movement pressures them to do so.

The Need to See the World Through Others’ Eyes

Pragmatic romanticism also requires us to have realistic understandings of the perspectives of people and entities who we think are using problematic practices.  “ADR” is an inanimate set of processes without human agency, so we should focus on how people use ADR processes and not assume that any particular ADR processes have universal, intrinsic qualities independent of how people use them.  Sometimes, powerful stakeholders have bad motives and sometimes they are struggling to do the best they can given their perceptions of their circumstances.  In either case, we are more likely to achieve our goals by accurately understanding their perspectives.

Here’s an example.  What could be dumber than savvy business executives routinely hiring lawyers to handle continuing flows of extremely expensive, lengthy, and risky disputes in litigation?  This seems to make no sense for repeat-players who are very sensitive to the huge costs and risks of litigation.  One might understandably assume that they are out of their minds.  Peter Benner and I did a study interviewing inside counsel about why their companies used planned early dispute resolution systems – and why other companies often don’t.  Turns out that in many companies, most of the players have interests in maintaining the status quo and they feel that it’s not in their interest to change.  While it’s easy for an outsider like me to assume that I know what other people should do, I can easily imagine that I might act as they do if I were in their situations.

Being pragmatic requires having realistic expectations and using appropriate standards for evaluation.  Like all human institutions, ADR is imperfect – and, of course, “it” is many very different things.  Rather than evaluating it by comparing it to an unattainable ideal or unrealistic claims (such as equalizing power), we should compare it to plausible expectations and other institutions, such as the traditional legal system.  Considering various criteria for evaluation, we should assess how much net benefit various categories of parties receive using ADR processes compared with other institutions or reasonable expectations.

I admit to having romantic visions for our field.  I have had a “mediator’s high” and seen how we have improved life for many people.  I am also disappointed that people and institutions have not taken advantage of much of ADR’s potential and have abused it in significant ways.

As a predicate for pragmatic efforts to pursuing our romantic visions, we must see ADR as it is, recognizing both the virtues and vices in the ways that people use it.

Part of seeing the world as it is involves understanding how the world looks through the eyes who experience ADR.  Qualitative interviews – by faculty in their scholarship and students in Stone Soup assignments – are remarkably helpful for this task.  And more fun than a barrel of monkeys.

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