The January 2022 issue of Dispute Resolution Magazine contains a valuable assessment of the dispute resolution field based on a survey of past Magazine contributors. Andrea Schneider and Michael Moffitt, co-chairs of the Editorial Board, asked them:
- what they valued about the ABA Section of Dispute Resolution
- what they wished they had known when they first read the Magazine
- what surprised them about the field in the past 25 years
- what voices are missing from the field
- what case, statute, regulation, or standard of practice has had the biggest impact on the field
- what change in case law, statute, or rule they would like to see
As you might expect, the survey provides a range of very thoughtful responses. This is the first of three posts stimulated by that survey.
Back to the Future
The survey reminded me of a study that I started but never finished. In 2004, I conducted semi-structured interviews of 36 American ADR experts using this interview protocol. I asked about their expectations, hopes, and fears for the ADR field in the next 10-20 years. This was a small, non-random sample, so the findings are not necessarily representative of the views in our field then or now. Nevertheless, the experts’ responses collectively provided a very perceptive and prescient portrait of our field.
I planned to conduct 50-100 interviews but I didn’t finish the study because I got busy with other things. So I never published the data.
Until now. Here’s a summary of what I found.
Degree of Success as a Field
The interviews revealed different assessments of ADR’s apparent success. Some people were pleased that the number of ADR programs and cases had substantially increased. The field had become “mainstream,” being increasingly legitimized, professionalized, and integrated into the legal profession, courts, and other major institutions. Some were excited that ADR values and techniques were incorporated into the regular functioning of public and private organizations, including dispute system design, conflict prevention, and policymaking processes.
But some said that ADR wasn’t being used as much – or actually work as well – as they hoped or expected. Some feared that much ADR activity would be absorbed into other fields leaving little residual identity of ADR as a distinct field. Some feared that this reflected cooptation of ADR symbols without significantly changing the nature of organizational processes or outcomes.
Some were discouraged that integration of ADR into traditional institutions undermined fundamental ADR process values that they were most concerned about, especially active, voluntary party participation. They worried about heavy-handed evaluative mediation and pre-dispute arbitration clauses that disadvantage weaker parties and reinforce social inequities.
Some despaired that continued “success,” including mandatory ADR, was leading to a deadening routine and reduction in service quality due to pressure to settle, market incentives, failure to innovate, domination by the legal profession and retired judges, and marginalization of non-lawyers. Some people, often those who came of age during the movements of the 1960s and 1970s, were uncomfortable with a purely neutral role and wanted ADR to advance progressive policies and the interests of the “have-nots” in society.
Some people hoped and/or expected that the field would continue to grow and innovate. Others expected things to continue on the same general trajectory or stagnate with no significant change in direction.
Fragmentation of ADR
Some feared that the ADR field was fragmenting into separate parts, as if pulled apart by a centrifugal force. As the field grew and gained legitimacy, various subgroups no longer shared a need for affiliation or a shared identity as challengers of the status quo.
Thus some people expected “the” field to decompose into multiple smaller fields defined by dispute resolution process (e.g., mediation, arbitration, facilitation), schools within processes (e.g., the transformative school of mediation acting as an autonomous field), subject areas (e.g., family, labor, employment, civil, public policy), and client status (e.g., elite businesses and individuals, small businesses and middle-class individuals, and working class and poor individuals).
Internal Conflicts within the ADR Field
Some expressed concern about ideological conflicts in the field and orthodoxies about claimed “right ways” (and “wrong ways”) to operate. For example, some people pointed to differences about the transformational movement, debates about facilitative and evaluative mediation, and critiques of what they described as settlement conference approaches to mediation. To some, these conflicts were about protecting parties, process quality, and the legitimacy of the field. To others, these conflicts reflected parochial self-interest.
Certification of Mediators
People differed about whether the field should undertake national mediation certification, which was a hot issue at that time. Some believed that certification was inevitable and necessary to protect ADR consumers, develop recognized career paths, and firmly establish the legitimacy of the field. In addition or instead, some advocated other system designs for quality control, including performance-based quality assistance processes, standards, and/or due process safeguards.
Some feared that certification would be ineffective or even counterproductive, in part because of lack of consensus about what is “good” practice. They worried that certification would reinforce and accelerate routinization, promote problematic government regulation, increase stratification of services based on wealth, entrench lawyers as the dominant profession in the field, reinforce the lack of diversity, and actually reduce the quality of practice.
Developing and Disseminating ADR
People expressed hopes that the field would be advanced and institutionalized through basic and continuing education, training, research, scholarship, public information and education, political advocacy for ADR, and representation in popular culture in a wide range of contexts. There were differences about what approaches would make a significant difference.
Globalization and Technology
Some anticipated international growth of ADR, sometimes worrying about arrogance of exporting US models into cultures where US models wouldn’t “work” appropriately. Some also foresaw increased use of technology, including video.
Looking back almost 20 years later, obviously many of these expectations, hopes, and fears have been realized.
The Dispute Resolution Magazine survey and my study portray an idealistic movement whose members have strong desires to help people manage conflict as constructively as possible. We espouse important principles – and don’t always live up to them. We innovate – and also become routinized. We develop pragmatic solutions that solve real problems – and also promote unrealistic ideas.
Although this is a mixed record, it reflects some significant achievements. It would be amazing if we didn’t have significant failings. We have undertaken an immense task of trying to reform processes of managing extremely difficult problems in every realm of life in almost every place on earth. We function with relatively modest resources. Yet we have achieved some impressive successes in a remarkably short time. Of course, there still is much to do to fulfill our aspirations.
The next post in this series will suggest recognition of the legal profession and judiciary as important parts of our movement. The final post will identify many of our aspirations and suggest ways to try to achieve them.