Steve Goldberg, Nancy Rogers, and I recently finished the Seventh Edition of Dispute Resolution: Negotiation, Mediation, Arbitration and Other Processes. In the course of our revision, we identified several questions that we thought may have significance in the dispute resolution field. Please take a look and, if you are inspired to write a response, please do!
We found that, in the eight years since the Sixth Edition of our casebook was published, the most impactful changes in the field have not been law-related, though we noted several of these, particularly in arbitration. Instead, the innovations by those using their dispute resolution expertise to deal with societal problems and to seize the potential of technological progress provide the basis for many of the changes in this edition. As we send the manuscript off to the publisher, this is how we begin the concluding chapter:
The Dispute Resolution Movement established a foundation of support for dispute resolution processes and led to substantial institutionalization of mediation. Those now entering the field can help society deal with current challenges and unmet conflict resolution needs. They can take advantage of ongoing progress in technology as they design both online and in-person processes. They can also take advantage of case law and commentary created early in the field’s development as a basis for considering current public policy issues. Here are a few questions to illustrate what remains ahead:
• What adaptations of dispute resolution practices might give society tools to tackle such current challenges as community division, conflicts over delivery of services for opioid addicts, and climate change?
• Could the restorative practices discussed in Chapter 3, including truth and reconciliation commissions, play a useful role with respect to the current U.S. issues regarding civil rights?
• How do we adapt what we have learned about dispute resolution techniques and regulation and translate these lessons effectively to an online platform?
• Conversely, what can we learn from millions of online dispute resolution cases (much of the data in retrievable form) that might improve dispute resolution processes, whether offered off-line or online? How can data analytics help parties’ selection of a dispute resolution process?
• How should artificial intelligence be utilized to improve dispute resolution processes and inform unrepresented parties about their BATNAs?
• As mediation is institutionalized, what practices will insure that the mediation continues to meet the goals set for it (for example, if set up to allow parties the opportunity to engage in resolving their disputes, what should be done if mediators tend to evaluate the merits in separate conversations with attorneys, foregoing both joint sessions and party involvement)?
• As dispute resolution processes are conducted across state and national borders, and matters arising from them might be litigated in either state or federal courts, how can we make clear what law applies? Or how might we harmonize these laws through uniform laws and ratification of international conventions so that it does not matter as much which jurisdiction’s law applies?
• How might leaders adapt ADR techniques to ensure greater collaborative decision-making within their organizations?
Your question about whether restorative practices, including truth and reconciliation commissions, could play a useful role with respect to the current U.S. issues regarding civil rights got me thinking. I think the short answer that question would be yes, but I think the U.S. is not at a place where a TRC could happen where the federal government gives the weight of the findings like the TRCs of Canada and South Africa. Reflecting on what I know of the TRC process, there has to be more than mere acknowledgment of the wrong. There has to be some desire to be accountable for those wrongs and make a change going forward to reconcile past wrongs with the pain felt today in a way that prevents a repeat of the past and promotes healing. With acknowledgment comes accountability, which I think the United States politics is unfortunately ill-equipped to handle. I hope that one day, both state and the federal governments can overcome this, but I think we, as a society, still have a long journey ahead of us.
However, the Maine Wabanaki-State TRC does give me hope that maybe the rest of the country will be able to incorporate TRCs into how past and current civil rights abuses are addressed. I had the privilege of being invited to the Maine Wabanaki-State Truth and Reconciliation Commission’s offices and their subsequent presentation of their final findings while I was in undergrad. The TRC was formed to investigate how the Indian Child Welfare Act (ICWA) impacted Wabanaki women in children. The TRC gave those who were affected by the ICWA room to tell their stories and delivered recommendations as to how ICWA compliance could be improved in Maine for the Wabanaki people. I think that the Maine Wabanaki-State TRC does serve as a model that should be used by allowing those who were directly harmed by state action to have more of a say and influence in how the law should be constructed.
The question about using artificial intelligence to improve dispute resolution processes is very thought provoking. With rapid advancements in technology, I believe the future of ADR involves AI. It would be interesting to see a platform that incorporates advice about one’s BATNA and potential trade-offs with online communicaiton to enhance access to justice for parties who enter an ADR process unrepresented. With the help of AI, parties could enter information about their situation into the database to be informed of their options.
I really like what Phil said above about the practice of simplifying mediation by talking to attorneys and not involving the affected parties. It’s a common practice, but it defeats the purpose of mediation, which is to get an agreement between two people or paties. A mediator should actually look forward to the involvement of the opposing party to ensure they reach an agreement with which they’re both satisfied.
Thanks for the food for thought!
Reference from: https://www.kohnmediation.com/practice-areas/mediation/
You have a paragraph in your last article that got me thinking …
• As mediation is institutionalized, what practices will insure that the mediation continues to meet the goals set for it (for example, if set up to allow parties the opportunity to engage in resolving their disputes, what should be done if mediators tend to evaluate the merits in separate conversations with attorneys, foregoing both joint sessions and party involvement.
I realize you raise this in an institutional context, but I started thinking about all mediations, and how I have unconsciously drifted to the easy way sometimes, especially when I know the lawyers on both sides, and if one has a “difficult” client. Often it is easy, and lazy, for me to get the lawyers together and cut to the chase to resolve it, even if it means I will have to accompany the lawyer back to his difficult client to sell it. That is not the way it should work, or course, because the resolution should derive from conversations with the clients, so they help develop the alternatives that are part of the solution and don’t have to be sold. But you are right, the increasing reluctance of counsel to have joint sessions and to let the clients talk to each other deprives them of the opportunity to hear the other side directly, and be heard themselves, perhaps to understand their situation better, and to develop solutions that counsel could not have even considered. We all know this is really what it is all about, not just getting to an acceptable answer to the problem, but we need reminding … and I thank you for reminding me.
Best.
Phil