Theory of Change Symposium – Part 4

This part of the symposium includes several pieces focusing on key skills in legal and dispute resolution practice.  Lisa Amsler highlights the importance of interpersonal and process skills as technology is radically changing legal practice.  Russ Bleemer identifies deficiencies in mediators’ listening behaviors as mediation practice becomes routinized, and he encourages mediators to keep focusing on this critical skill.  Rebecca Price analyzes challenges in assessing skills of new mediation trainees and suggests that we develop a common assessment and feedback mechanism.  John Lande recommends that law schools teach courses in strategic case evaluation and management that integrate multiple elements of legal practice into a single coherent framework.

Three pieces focus on the “big picture.”  Deb Eisenberg urges that we reframe “ADR” as “process strategy” to more accurately reflect what our field really is about.  Rather than focusing on what she calls the “trifecta” of negotiation, mediation, and arbitration, she argues that we should (and actually do) focus on process strategies to advance the interests and goals of clients and constituencies.  Randy Kiser proposes a set of ideas to advance our field.  These include renaming it, protecting it with stronger ethical regulation, improving it by addressing well-known problems, promoting it more effectively in law schools, prioritizing the skills that lawyers actually use most frequently, and refreshing it by recruiting and mentoring new leaders.  Kim Taylor advocates regulation of mediation that helps mediators perform appropriately while leaving flexibility for mediators to use their wisdom, judgment, and creativity to help parties resolve their disputes.

Here is more detail with links to the pieces:

Lisa Blomgren Amsler, J.D.:  Responding to Disruption in the Legal Profession:  Teaching Interpersonal and Process Skills across the Curriculum.  Lisa argues that law schools should focus on the sophisticated knowledge that lawyers and their clients need and that technology cannot provide:  interpersonal communication and voice about what matters to us as human beings.  She is the Keller-Runden Professor in the Indiana University Paul H. O’Neill School of Public and Environmental Affairs.

Russ BleemerListening for Mediators.  Russ argues that mediators should focus on good listening practices, noting complaints that mediators haven’t carefully considered parties’ arguments.  These complaints spark questions whether mediators and mediation program officials are stretched too thin and are too reliant on pre-session preparation.  Russ is the editor of Alternatives to the High Cost of Litigation, a newsletter of the International Institute for Conflict Prevention and Resolution (CPR), a New York-based nonprofit think tank.

Deborah Thompson Eisenberg:  Beyond Settlement:  Reconceptualizing ADR as “Process Strategy.”  Deborah argues that it is time to retire the confusing, incomplete, and myopic acronym of “ADR.”  She recommends that we reframe ADR under the more inclusive and flexible concept of “process strategy,” a field that studies and teaches the process strategies that lawyers and others use to help individuals, communities, organizations, and nations accomplish change or address conflicts.  She is professor of law and faculty director of the Center for Dispute Resolution at the University of Maryland Francis King Carey School of Law.

Randall KiserSuggested Directions for the Dispute Resolution Community.  Randall suggests six methods of protecting DR curricula and improving DR practices.  He is a principal analyst at DecisionSet® in Palo Alto, California, a scholar-in-residence at the University of Indiana Maurer School of Law, and the author of four books on attorney and law firm performance.

John LandeLaw Schools Should Teach Students to Think Strategically – That’s What it Really Means to Think Like a Lawyer.  John argues that law schools should teach law students to think strategically when representing clients.  He recommends that law schools offer courses in strategic case evaluation and management that integrate elements of interviewing, counseling, pretrial litigation, negotiation, and mediation in a coherent practical framework.  He is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law.

Rebecca PriceWe Need to Do More and Better Assessment of New Mediation Trainees.  Rebecca argues that the ADR community needs to do more to bridge the gap between training and practice.  Not only would that help make better neutrals, it would help to level the playing field for newer neutrals and raise the quality of service to those in dispute.  She is the director of the Alternative Dispute Resolution Program at the U.S. District Court for the Southern District of New York.  These views are her own and not those of the Court.

Kimberly TaylorA Goldilocks Approach for Mediation Standards.  Kimberly argues that it is important to maintain flexible mediation standards that provide appropriate guidance for mediators and parties while avoiding over-regulation that would restrict their ability to tailor the process and outcomes to meet parties’ needs.  She is the senior vice president and chief legal and operating officer of JAMS.


Here’s a post with an index of the contributions to this symposium.  As I add posts, I link to them all in this index post so that you can find them all in one place.  You can bookmark this post if you like.

I welcome additional contributions to this symposium.  If you might be interested in writing a short piece – they generally are 2-4 pages – please take a look at posts that provide the basics about writing for the symposium and give more information about what does and doesn’t fit into the parameters of the symposium.

The next post will be the last one in this symposium.  If you would like to write for this part, please send it to me by New Year’s if possible, and January 6 at the latest.

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