Peter Reilly (Texas A&M) directed the panel to discuss where mediation is going.

Erin Archerd (Detroit Mercy)

Is restorative justice different than mediation or really mediation itself?  Like mediation, it is a part of “peace making,” and like mediation we need to ask ourselves whether the process has been lessened in the name of results.  Almost every state has some form of RJ law or regulation, and we’re primarily seeing it in schools for disciplinary issues in part to combat the school to prison pipeline.  With restorative justice, we could mean victim-offender conferences, peace-making circles, and victim offender dialogues.  State goals are often described as accountability, restoration, and repair, but we are seeing compliance being the more embedded goal.  Her concern is that rather than these processes reflect community practices, the goals will be institutionalized rather than emanating from the communities / groups themselves.  In an example from Michigan, a limited number of practitioners went into the schools, but they were compliance officers – a place where students were sent when they were misbehaving.  Things to monitor going forward – how it’s adopted, codification, implementation, and quality verification (which she considers to be the big piece).  One big question is how can we verify it’s going well.  Is it recidivism, adherence to agreements or something else?  Also, RJ practitioners do not like how scripted the process is.  She thinks there’s a benefit to using scripts – it cuts down on the facilitator’s ability to engage their biases into the process.

Art Hinshaw (Arizona State)

Rather than summarize my own presentation, and I didn’t think of asking someone else to do so.  So instead, here are my bullet points of hopes and mopes, starting with the mopes to end on a happier note.

Reasons to Mope

• There is almost no professional regulation of mediation, and there is little recourse against unscrupulous mediators.
• Flexibility in the mediation process was once considered a hallmark of mediation’s ability to meet client needs. However, the process is now routinized to focus on the needs of the professionals.
• A large number of mediators look at their role very narrowly, only associated with litigation issues.

Reasons to Hope

• Mediation remains the dispute resolution process of choice across the US and will likely maintain that position.
• Mediation is the one place where parties’ emotional concerns can be addressed through “official” processes.
• The Next-Gen bar exam (nationwide in 2028) will elevate the importance of problem-solving in both legal education and legal practice.
• Despite mediators’ narrow focus, mediation is still a head and heart process. While AI will be able to do the head portion, it will not be able to replace the heart portion of the process.  And AI will be able to help train mediatiors to improve their skills in a wide variety of situations they will encounter.

Colin Rule (odr.com)

ODR is ADR plus technology, and there is a lot of amazing work being done.  Everyone is talking about Artificial Intelligence, which is still in its early public phase.  Our reactions to it are more like a rosharch test – a test about you.  In ADR AI is the 4^th party with a seat at the table along w/ the 3^rd party neutral.  Remember that AI looks for patterns in datasets.  While there are legitimate worries that data can be biased, it’s data and we can fix data.  Our job now is to come up with dispute resolution specific guard rails, and online mediator ethical standards need to include platform designers.   Most of the field’s current focus is on whether/how AI can carry out our professional roles (mediator, arbitrator, ombudsperson, etc.), and we need to understand that it is here to stay.  But rather than replace mediators, it will make us more human.  We can focus on the human journey while the 4^th party does the rest.  The other thing we need to remember is how much AI will increase access to justice for so many people – much more access than what is available today.