Isn’t there a better way?

Those words of former Chief Justice Warren Burger reflect the aspirations of our community for innovation and improvement of traditional processes of dispute resolution.  Although he was not generally lauded for his jurisprudence, people in our field remember his early support for our ideas.  In a 1982 speech to the ABA, he said:

The obligation of our profession is, or has long been thought to be, to serve as healers of human conflicts.  To fulfill our traditional obligation means that we should provide mechanisms that can produce an acceptable result in the shortest possible time, with the least possible expense, and with a minimum of stress on the participants.  That is what justice is all about.

The law is a tool, not an end in itself.  Like any tool, particular judicial mechanisms, procedures, or rules can become obsolete.  Just as the carpenter’s handsaw was replaced by the power saw and his hammer was replaced by the stapler, we should be alert to the need for better tools to serve our purposes.

The Past-and-Future conference called on us to appreciate our legacy and engage the future.  We aspire to a better future of dispute resolution, fixing things that we haven’t been able to fix before – as well as problems created by our tools.

To engage the future, we should consider our purposes and the tools we think could help achieve them.  We should also consider all the developments in our field in the almost four decades since Chief Justice Burger’s speech, as well as relevant trends in our field and society.  In other words, we should develop theories of change to map how we might achieve our goals.

The Center for the Theory of Change developed a process including identification of long-term goals, assumptions about the context, backward mapping of preconditions for achieving the goals, and interventions to create the desired change.

Theories of change range widely in scope.  Toward one end of the continuum, Jill Gross used her CRAPP strategy – credibility, repetition, actual evidence, publishing, and patience – to improve the dispute resolution process for low-income parties in certain FINRA cases.  On the other end of the continuum, Maurits Barendrecht and his colleagues have developed global theories about improving the justice system.  There’s a lot in between.

This post provides non-exhaustive lists of some of the many goals of people in our field.  Part 2 will list strategies that have been used to advance these goals as well as factors that may affect the success of these efforts.

Developing good theories of change for our field is a very difficult challenge.  “We” are a varied group and don’t all share the same goals.  Even if we agreed about all of the goals, we couldn’t achieve them all because of resource limitations, tradeoffs between goals, and various stakeholders’ interests constraining our efforts.

We also have a difficult challenge in achieving our goals because, considering the wide range of tools that have been deployed in recent decades, it is not clear what additional tools or changes in existing tools would make a significant improvement.

This series is intended to help you consider what goals you think should be top priorities for yourself and our community and what initiatives are most likely to achieve them.

Possible Goals of a Theory of Change for Dispute Resolution

Members of our community have aspired to numerous goals including:

• giving parties choice of a variety of processes
• increasing parties’ control over the process and outcome
• increasing procedural fairness
• increasing substantive fairness
• using parties’ values and norms
• creating value, producing resolutions that better satisfy all parties’ interests
• improving dispute resolution for disadvantaged individuals and groups
• protecting interests of unrepresented third parties
• improving parties’ ability to handle disputes on their own
• increasing parties’ empathy and concern for others
• reducing tangible and intangible costs of disputing
• reducing the time required to handle disputes
• reducing the use of trials and the courts generally
• improving the quality and simplicity of dispute resolution processes
• providing appropriate confidentiality
• preserving relationships when desired
• reducing hostility
• increasing compliance with resolutions
• developing cohorts of skilled and ethical practitioners, including advocates and neutrals
• improving court procedures
• reducing burdens on courts and other institutions handling disputes
• developing support for DR processes in all branches of government, business, and other organizations
• improving achievement of organizational goals through conflict management techniques
• changing the popular culture to value constructive conflict management processes and devalue destructive ones

What are your highest priority goals (not necessarily limited to or framed as in the preceding list)?

Our community has been self-critical, identifying problems created or not adequately addressed by our efforts.  Some of our goals are to reduce or eliminate problems including:

• lack of access to good dispute resolution processes for large portions of the population
• disadvantages of weaker parties, including members of groups subject to historical discrimination such as women and people of color
• “second-class” justice for low-income parties and premium justice for parties who can afford private dispute resolution
• pressure or coercion to use certain processes or accept certain outcomes
• disempowerment of parties by lawyers or neutrals who dominate the process
• poor quality and/or inefficient processes
• insufficient resources to provide appropriate services
• prevention of disclosure of information of public interest
• prevention of parties from using public courts
• prevention of parties from joining their cases in collective actions
• undermining development of legal doctrine
• decreasing amount of judicial experience in public courts because judges become private neutrals
• reduced support for the public court system because elite parties use private processes
• confusing DR jargon

What problems with DR are your highest priority to address?

In the exciting conclusion of this series, there will be a list of strategies that people in our community have used and can use to advance their goals.