The January 2022 issue of Dispute Resolution Magazine includes results of a survey of past contributors about the dispute resolution field. One question asked about cases, statutes, regulations, or standards of practice that had the biggest impact on the field, and another question asked about changes in case law, statute, or rule they would like to see.
These questions focus on important issues to consider to lay the groundwork for possible future initiatives. This post summarizes the responses in the survey and describes how members of our community can develop realistic theories of change to achieve specific goals to improve dispute resolution.
The Magazine survey identified the following significant achievements:
- ABA Code of Ethics for Arbitrators in Commercial Disputes
- ABA Model Standards of Conduct for Mediators
- “Soft law” produced by the UN Commission on International Trade Law (UNICITRAL), International Bar Association, International Council for Commercial Arbitration, and other organizations
- Gilmer v. Interstate / Johnson Lane Co. decision, which ruled that arbitrations under pre-dispute arbitration agreements could decide statutory claims
- ABA Section of Dispute Resolution resolution clarifying that mediation does not constitute unauthorized practice of law
- UNICITRAL Model Law on Mediation and EU Mediation Directive
- Mediation confidentiality rules
- Bankruptcy court rules mandating use of mediation
- Michigan’s Community Dispute Resolution Act
- Employment arbitration seriously disadvantaging workers [which obviously is not a positive achievement]
- Hall Street v. Mattell decision, which ruled that Federal Arbitration Act (FAA) Sections 10 and 11 provide the exclusive grounds for vacatur
- National Standards for Court-Connected Mediation Programs
- Agent Orange product liability litigation, which ushered a new world of ADR, especially mediation
The Magazine survey identified the following desired changes:
- Enactment of Arbitration Fairness Act prohibiting companies from imposing mandatory binding arbitration on employees and consumers
- Change in the legal system so that the main goals are to help people avoid disputes, deal with disputes themselves, and use adjudication only rarely
- Loosening of confidentiality rules in California
- Provision of legal information to unrepresented parties in mandatory mediation
- “Infiltrating” ADR everywhere
- Recognition that problem-solving lawyers are critical to well-functioning legal systems
- More complete integration of ADR in the fabric of law schools, courts, and entire legal system
- Use of mediation as “diagnostic” of parties’ needs and issues, not just means of addressing legal disputes
- “Welcoming” of expression of emotion in mediation, not “hiding behind” litigation prediction and retired judges as preferred means of settling disputes
- Requirement that federal agencies justify not using negotiated rulemaking
- Recognition that dispute resolution theory and practice are central to good leadership, which can lead to improvements in scholarship, teaching, training, and practice
- Oversight of judiciary’s use of ADR and other public-facing reforms
- Regulation of judicial mediators
- Increased attention to principle of informed consent by mediators, arbitrators, and especially lawyers
- Establishment of (1) all workers’ right to mediation and arbitration of employment termination, and (2) “just cause” as standard for termination
- Global, uniform approach for recognition and enforcement of settlements based on UNCITRAL Model Law on Mediation
- Tighter definition of processes, such as mediation, to better focus ethics, best practices, and training programs
- Mandatory mediation of multiparty public disputes involving expenditure of taxpayer funds, with judicial oversight to ensure good faith participation
- “Mediation line-item budgeting” by towns and cities in addition to budgeting for litigation
- Dispute prevention, such as partnering
- Requirement for mandatory mediation in every lawsuit, timed so that it’s not too early or late
- Reversal of Gilmer case, or adoption of something like the Arbitration Fairness Act
- Requirement for regular data collection and reporting of court ADR activities
- Revisions of FAA (1) clarifying rules about discovery and third-party pre-hearing subpoenas, and (2) distinguishing adhesive consumer and employer arbitration from negotiated commercial arbitration
- “Clean slate” for interpreting the FAA
- Eased restrictions on practice of law to expand access to justice
- Design-thinking and user-centric design in DR systems, opening avenues to voice, remedies, and justice that may violate current “unauthorized practice of law” restrictions
Theory of Change Theory
In addition to these ideas from the Magazine survey, the Theory-of-Change book, Theories of Change for the Dispute Resolution Movement: Actionable Ideas to Revitalize Our Movement, collects proposals for overall approaches in our field, the impact and use of technology, legal education, professional training and practice, and research and scholarship.
These are useful exercises to brainstorm ideas of possible initiatives that groups in the field might undertake. To be effective in achieving our goals, we should develop realistic theories of change. According to the Center for the Theory of Change, a full-fledged theory of change involves the following steps:
- Identifying one or more long-term goals
- “Backwards mapping,” connecting requirements needed to achieve the goals and explaining why they are necessary and sufficient
- Identifying assumptions about the context
- Identifying interventions needed to create the desired changes
- Developing outcome indicators to assess the performance of the initiative
- Writing a narrative to explain the logic of the initiative
Setting Explicit Goals
Most of the desired changes listed above are the kind of interventions described in step 4. They make implicit assumptions about steps 1-3, which may or may not be well-founded.
For us to advance our work, we should explicitly identify the intended goals and carefully analyze whether possible initiatives are likely to produce the desired effects.
As described in an introductory article for the Theory-of-Change book, members of our community have aspired to numerous general goals including:
- helping people solve problems and manage conflicts so that they avoid destructive disputes
- giving parties choice of a variety of dispute resolution processes
- increasing parties’ control over the dispute resolution process and outcome
- increasing procedural fairness
- increasing substantive fairness
- using parties’ values and norms in dispute resolution
- creating value, i.e., 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 between disputants and others affected by disputes
- increasing compliance with dispute 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 dispute resolution processes in 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
These are huge goals that are hard to achieve globally. We are more likely to be successful in achieving goals that focus on narrower parts of the field and define goals more specifically. For example, we might undertake initiatives in particular geographic areas, that deal with specific dispute resolution processes, and/or focus on particular subjects of disputes (e.g., family, employment, business etc.).
Developing Realistic Theories of Change
Although people can achieve some of the above goals in their individual work, substantial changes require collective action.
The theory of change process is similar to interest-based analysis. It starts by explicitly identifying the desired goals as specifically as possible and then considering options for achieving the goals.
Brainstorming a lot of possible initiatives can be easy.
Analyzing these ideas to develop realistic strategies for achieving the goals is much harder. We can get attached to our favorite ideas, so it’s important to rigorously analyze how well various ideas are likely to achieve our goals.
Planners should determine what resources would be needed. One of the most important resources is the time of volunteers to work on projects. How much time can you count on people to devote to particular projects? Can organizations assign staff to work on projects? Can you get funding to hire staff to work on the projects? What individuals and organizations would make valuable contributions by partnering in the project? Can collaborations with parts of the legal profession and/or judiciary help advance your goals? What other resources would be needed to be effective?
Planners should be realistic in identifying factors that are likely to promote or interfere with the success of the project. You are likely to encounter resistance if only because people often are comfortable with the status quo and/or don’t want to invest the effort to change. What are reasons for anticipated resistance, and how can you overcome or finesse them?
The Dispute Resolution Magazine survey illustrates that it need not be hard to collect information needed to undertake an initiative. While that survey covered the field broadly, you should collect data focused narrowly on the scope of the area you are interested in. You might ask stakeholders about key theory-of-change issues including desired goals, factors that are likely to promote or impede success, initiatives that might promote specified goals, needed resources, possible alliances, and indicators of success.
You probably can get useful information with a fairly small number of qualitative surveys, interviews, and/or focus groups, which are likely to be more practical than large surveys with standardized fixed-choice questions. You should learn some basic skills to use research techniques, but this is doable, not rocket surgery.
Faculty might use Stone Soup assignments for students to gather information about possible initiatives. Professional groups might collaborate with faculty to have students do Stone Soup assignments collecting information needed to develop good theories of change. If small groups of students or entire classes work together on theory-of-change projects, they can produce guides like students in Harvard’s Negotiation and Mediation Clinical Program.
Clearly, there still is a great hunger in our community to develop idealistic, principled, innovative, and pragmatic initiatives to help people manage conflict as constructively as possible. This is evidenced by the enthusiastic responses to the Magazine survey and pieces in the Theory-of-Change book. If we develop realistic theories of change, we will continue to make this a better world.