I recently sent a message on the DRLE listserv about a transition in managing it and the DRLE website from Jim Levin and me to our University of Missouri colleagues, Ilhyung Lee and Paul Ladehoff. Missouri has been managing them for more than 20 years, and lots of people wrote lovely notes thanking us for this community service.
This prompted me to reflect on what I called “passing the baton” to Ilhyung and Paul. This post grows out of a message I sent to the listserv.
Metaphors for the Dispute Resolution Movement
Metaphors of relay races, joint journeys, and Broadway shows shape my thoughts.
Jim Levin and I are passing the DRLE baton to Ilhyung Lee and Paul Ladehoff. Bobbi McAdoo had passed it to us. She initiated the listserv, and she passed the baton of directing our LLM Program to me, which I later passed to Paul.
Zooming out a bit, I think of the succession of the directors of our Center, who each passed the baton to the next. Zooming out even more, we receive batons from our teachers and pass them on to our students. In our scholarship, we receive learnings from our predecessors and contemporaries, and we pass our ideas to our colleagues and future readers we will never know. Practitioners get batons from their clients, colleagues, and even “opposing” counterparts, and pass them on to others.
In our field, we are on a journey together. We can remember lonely pioneers in the labor and community relations movements, for example, who started on their paths with few compatriots. Our ranks have grown steadily. We’re no longer just a few pilgrims in the desert. Now we are a large throng traveling through practically every physical, social – and now virtual – space.
I have had the good fortune to be at Missouri since 2000, where I have crossed paths with many wonderful colleagues. Some are still here and others have taken different paths on our common journey.
Dwight Golann sent a message to the listserv saying, “Broadway producers wait a lifetime for a run like this – with productions that have much less value than the listserve you created and have curated these many years. Congratulations, and please accept the AALS ADR’s 2023 Tony!”
Of course, the “same” show evolves with rotation of actors in various roles. Indeed, each performance is slightly different, varying with the interactions between the actors and the audiences. The DRLE show goes on, inevitably transforming over time.
Evolution of Our Movement
DRLE has been a success. So far. We have had a successful handoff of the baton, the subscriber base is substantial and continues to grow, and our “show” continues apace.
But movements don’t last forever. Some burst on a scene and then fizzle quickly. Others last a long time, naturally evolving and transitioning with a turnover of membership. Movements co-evolve with changes in the surrounding world. Indeed, sometimes movements are absorbed into other parts of society, completely losing their independent identities and initial goals.
The history of ADR is a history of innovations that were considered radical when proposed but became taken for granted. Consider juvenile courts, family courts, small claims courts, labor arbitration, workers’ compensation and other administrative adjudication, and court-connected arbitration and mediation, among other ADR reforms. They became part of the systems they critiqued and they eventually incorporated some of their dysfunctions.
The comparison of court-connected arbitration and mediation is particularly instructive. For a time, the courts that embraced ADR focused almost exclusively on court-connected arbitration. Now, it’s practically extinct whereas court-connected mediation is deeply embedded in many courts.
Of course, “mediation” itself evolved during this time, as I described in this post. Proponents initially focused on its capacity to promote self-determination. As it became institutionalized in the courts, it was transformed into what I called “liti-mediation,” with the goal of terminating cases efficiently.
So courts coopted mediation, much to the dismay of many in our movement. Coopting involves tradeoffs. Expansion of court-connected mediation greatly increased opportunities for parties to gain benefits of mediation. The tradeoff is that the version of mediation that many parties experience is sub-optimal and sometimes seriously problematic.
Metaphors for the Evolution of Our Movement
Will we continue to pass our batons indefinitely? Will a large mass of people continue on our journey together? Will people continue to produce and watch our show?
The correct answers are “maybe” and “it’s complicated.”
Part of the complication is that our movement is composed of many very different parts.
Consider American legal education. Twenty years ago, relatively few law schools taught “ADR.” Since then, practically every law school includes ADR in its curriculum, and many schools offer robust sets of courses. In 2019, Doug Yarn and Jean Sternlight had a colloquy expressing concerns about our future. ADR no longer is the “shiny new thing” and is being displaced by shinier newer things. A large cohort of academics has retired or will reach retirement age soon and schools may not hire many faculty to take their places.
In that post, referring to Michael Moffitt’s Islands, Vitamins, Salt, Germs article, I riffed on his metaphors, writing, “ADR in legal education may have been a tide coming into shore, creating a rich ecosystem of ADR programs and activities. Is the tide going out, so that parts of the system are washing away completely or disintegrating from islands and vitamins into salt or maybe just germs?”
While there is some worry about the future of ADR in American legal education, in many areas in the world of practice, “ADR” has become “NDR” – normal dispute resolution. Federal courts are statutorily required to provide ADR processes. Many state court systems regularly offer robust ADR processes as well. With the cover of US Supreme Court jurisprudence, many private businesses incorporate arbitration in their routine dispute resolution processes with their employees and customers. This routinization perpetuates and transforms the movement.
During the post-World War II era, the US dominated the ADR world just as it dominated the global political and economic spheres. In recent decades, other countries have institutionalized substantial ADR systems much as they have increased their presence in the world community generally.
Sometimes exogenous events affect the trajectory of movements. The NextGen bar exam will cover client counseling and advising, negotiation, and dispute resolution, client relationships and management. That certainly could renew and increase law schools’ interest in hiring dispute resolution experts. Or it could prompt law schools to incorporate these topics in existing courses, coopting the dispute resolution movement in legal education. Or both.
The expansion of artificial intelligence applications is likely to discombobulate things in ways we can’t confidently predict.
Using Metaphors Moving Forward
How can movement leaders use metaphors to advance their agendas? Imagining our movement(s) as relay races, joint journeys, and theatrical productions offers some ideas.
Each of these metaphors suggest the need to continue to attract people’s interest and not lose more interest than we gain.
Races need to be exciting. Perhaps there might be technical changes in the sport like better batons or running shoes that make people want to run and watch races.
People need to want to go on journeys. This may involve desirable destinations and/or enjoyable experiences on the journeys. Over time, the excitement at the beginning of journeys needs to be replaced by satisfaction of staying on extended expeditions and going to particular places.
People need to want to perform and watch live theater. Producers need to mount productions that feel new and exciting.
In each case, movements compete with other movements to attract and keep people’s interests. Baseball used to be the “national pastime” but has been overshadowed by other sports such as football and basketball. Cuba used to be a favorite vacation destination but lost business to neighboring Caribbean islands due to the US embargo. Radio lost business to television. Plays have lost business to movies, and VHS rentals lost business to cable and streaming services.
Most important, people in our movement should focus on how they can promote their highest priority values and goals given the various forces in motion over time. In The Dispute Resolution Movement Needs Good Theories of Change, I identified 38 goals that various members aspire to for our movement. Which ones should be the highest priorities?
How can we use particular metaphors to decide where to go and successfully move forward?