Sunday, April 6, 2014

Mediating discovery

At the ABA Dispute Resolution section spring conference, I attended a talk on mediating discovery disputes, a subject that has been of interest to me for a long time, but which should be more urgent given the difficulty traditional court processes and rules have in managing the continuing explosion of data. As Marian Riedy, who has written about the difficulties of retrieving electronic data, pointed out, the enormous costs of discovery of such data make it essential that parties cooperate in crafting agreements on the scope of discovery. Indeed, federal and state rules generally require efforts to resolve discovery issues by negotiation. That being the case, there would seem to be a place for mediators to step in and assist attorneys and parties having difficulty reaching negotiated solutions.

illustration from GreenBook
Even though the idea of bringing more mediation to resolving discovery disputes seems so obvious, it has not really taken hold. Why? Cost might be one reason, though it would seem that in many cases the cost of calling up a mediator should be a lot less than the cost of preparing briefs and affidavits in support and opposition to motions to compel.

Institutional resistance might be another reason, as courts are accustomed to referring discovery problems to magistrate judges or discovery masters for resolution, but have less experience or ability to refer discovery disputes to mediation. One of the panelists, Nancy Greenwald, discussed her experiences as a mediator with a Virginia state court program that has had success in assigning discovery disputes to mediation. That is an encouraging sign that some courts are overcoming institutional resistance.

And the adversarial culture that has existed for decades in both big and small document cases presents another reason for slow adoption of new techniques. Lawyers are trained to leave no stone unturned, and to prepare for every possible contingency at trial. Clients are sometimes reluctant to turn over sensitive data unless they are ordered to do so. Lawyers have accepted mediation as a tool to help settle cases after they have conducted sufficient discovery and motion practice, but have been slower to turn to mediated solutions in earlier stages of disputes. Despite courts' meet and confer requirements, and admonitions to cooperate on discovery issues, many lawyers still view discovery as a battlefield.

There is also a big difference between resolving a dispute over the scope of discovery to which parties are entitled under the liberal standards of federal and state rules, and the discovery parties might need to evaluate a case for resolution. Ideally, mediation should promote informal exchanges of the information parties need to help them settle cases (including an opportunity to find potential smoking guns held by the other side), but that is in most cases still a lot less discovery than the parties are entitled to under the rules. In other words, mediation of discovery disputes ideally should lead to an informal exchange of a limited amount of information helpful to reaching a negotiated resolution of the dispute without protracted litigation. But if the mediation is focused on determining the scope of permissible discovery needed to prepare for a potential trial, then it might be biting off more than it should be chewing.

Friday, April 4, 2014

New name needed

Lots of ideas have been floating around for awhile describing new ways to practice law in light of the rise of alternative dispute resolution and the vanishing trial. These ideas revolve around finding a more cooperative, negotiated approach to exchanging information, evaluating the parties' interests and positions, and preparing a case for early resolution. This approach shares some of the goals and styles of collaborative law, but according to the collaborative lawyers, you can't properly call it collaborative law unless the lawyers and parties are willing to sign a participation agreement that requires the attorneys to withdraw if either party decides to proceed with litigation. Acceptance of that process has taken hold in the family law area, but has not gotten far in other forms of civil litigation. Few civil lawyers are willing to renounce the representation of our clients in litigation if negotiation or mediation fails.

I'm writing from this year's ABA Dispute Resolution Section spring conference in Miami, where a task force presented a proposal for something they are calling Planned Early Dispute Resolution. Since that sounds like a mouthful, they are suggesting the acronym PEDR. It's a variation on another name suggested in John Lande's book, Lawyering with Planned Early Negotiation, which he shortens to another acronym, PEN. The concept has also been called "cooperative" practice. By any of these names, the basic idea is to attempt to resolve a dispute by negotiation or another ADR method before it blossoms into a full-blown adversarial process. This task force has published a handy user guide that explains how lawyers and clients can overcome the "prison of fear" that traps parties into allowing disputes to turn into litigation as usual, and also outlines how to conduct early case assessments, plan for potential disputes, and manage disputes as they arise through negotiation, exchange of information, and the use of third party neutrals such as mediators or arbitrators. But they still seem to be struggling to come up with a catchy name.

Similarly, the International Institute for Conflict Prevention and Resolution (CPR) has promoted for years its ADR pledge that many corporations have signed committing to attempt to resolve conflicts by alternative means prior to initiating litigation. But again, what do you call the lawyers who seek to bypass traditional litigation? They're not exactly trial lawyers, because they don't expect cases to go to trial, and they're not litigators either, because they avoid litigation unless other methods fail.

At the conference, I also had the privilege of meeting Julie MacFarlane, a Canadian law professor who wrote a book several years ago entitled The New Lawyer describing how the adversarial culture has changed in light of litigators' increased focus on settlement. I asked Professor MacFarlane what those of us who are attempting to change the way we are representing clients in conflict should call ourselves. Even when I mostly practiced a fairly aggressive style of litigation, I never much liked the term litigator, since I regard a lot of litigation activity as wasteful, whether or not the case goes to trial. I prefer the term trial lawyer, but it's not accurate either, since so few cases go to trial. At this point, I'd rather present myself as a practitioner of conflict resolution, or a problem solver, but those descriptions are not well understood by clients or the public. MacFarlane told me that some Canadian lawyers she knows have actually borrowed the title from her book and are starting to call themselves "new lawyers." That description does have some appeal, as long as it doesn't turn into something like New Age Lawyer, which would probably scare away some corporate clients. But it hasn't taken hold well enough to be understood either.

Until something better comes along, I'll continue telling clients that I practice conflict resolution in all of its forms, and that I am committed to exploring alternatives to litigation whenever possible. But I don't like defining myself by what I don't do, so I usually just call myself a lawyer/mediator who handles business cases. I'm still waiting for a better handle to describe the new style of law practice to which I and others are committed.

So I'm open to suggestions for a simple and easily-understood label for the field of conflict resolution that a lot of lawyers are already practicing, one that conveys its meaning as easily as terms like "litigator" or "trial lawyer," and one that hopefully does not require an acronym.

Saturday, March 29, 2014

Payments

The problem with payment plans is that they are a nuisance to enforce. It seems that more often than not, the party that is supposed to make the payments at some point stops keeping up with its obligations, and the party to whom the payments are due has to take some action to get the payment plan back on track. Naturally, people at the time of entering into such arrangements usually want to avoid these problems. The debtor wants an agreement that they can perform, and the creditor wants the best enforcement tools available to make sure the payments are made.

One common technique is to provide that in the event of default, judgment can be entered for an amount much larger than the total value of the payments. That is supposed to give the debtor an incentive to keep up with the payment plan, and compensate the creditor for the time and trouble of having to enforce the agreement. Surprisingly, however, the appellate courts in California have been quite hostile to these kinds of arrangements.

Another Court of Appeal opinion in California recently reaffirmed the rule that penalty provisions in settlement agreements are not enforceable. In a settlement agreement entered in Purcell v. Schweitzer, the plaintiff agreed to accept payments totaling $38,000, but provided that in the event of a default, judgment in the full amount of $85,000 could be entered. Evidently hoping to make such a judgment enforceable, the settlement agreement also recited that the $85,000 "is an agreed upon amount of monies actually owed . . . and is neither a penalty nor is it a forfeiture." Further, the agreement set forth a host of reasons why an $85,000 judgment was reasonable, and barred the defendant from appealing or otherwise contesting this amount.

No dice, said the Court of Appeal. The additional amounts over and above the damages and interest resulting from breach of the settlement agreement, could not be justified, and the contractual language attempting to characterize these amounts as something other than a penalty was swept aside as contrary to public policy.

Mediators probably lament the loss of of a useful tool to persuade settling parties to enter into payment arrangements. I'll bet, however, that parties will continue using them (prior court rulings refusing to enforce these provisions haven't ended the practice), either in the hope that they might be found enforceable, or with the desire to strike some fear into the debtor of the uncertain consequences of non-payment. Paying parties can feel fairly safe making those agreements in the hope that they will actually be able to make all the payments on time, but also having the comfort of knowing that in the event they fall behind, such penalties will probably be held unenforceable.

I suggest that in the true spirit of mediation, we probably should not regret that the courts have taken away the club of draconian sanctions to induce parties to perform their agreements. Better to try to bring about enough change in attitude between the reconciled parties that they will be able to manage the payment plan on an amicable basis.

Wednesday, March 26, 2014

Victims of conflict

Last night I had a chance to hear Shane Bauer, Josh Fattal and Sarah Shourd discussing their new book A Sliver of Light, which recounts their two year ordeal of imprisonment in Iran. You might be more familiar with them the way they were usually characterized in the press as the "three American hikers." They prefer to be thought of as hostages rather than hikers. In actuality, they were tourists visiting the Kurdish region of Iraq. Hiking was just the activity they happened to be engaged in on the day they accidentally crossed (or were lured across) the border into Iran.

Their story is compelling as a prison and survival narrative, and as a result of their experiences, they have become activists on issues of human rights and the treatment of prisoners in general. But it is also revealing as an example of how a conflict between two powerful parties can severely damage the lives of innocent bystanders. We are familiar with the tales of refugees and other war victims. Perhaps less familiar are the stories of those who become pawns in such larger struggles.

The United States and Iran have been locked in paralyzing conflict for more than three decades. Each views the other as the devil. Neither has been able to reach any agreements that involve trust or cooperation, until the recent preliminary agreement on Iran's nuclear facilities. Under those circumstances, the situation of three trapped pawns in this struggle, who clearly were not spies and who had no business being detained in Iran for even one day, became for many months, impossible to resolve. At times the Iranians recognized their value as bargaining chips. As such, their release should have been relatively easy to achieve in exchange for some reciprocal gesture by the Americans. But because of the longstanding inability of the US and Iran to agree on anything, the two countries could not even commit to the kinds of prisoner exchanges that are often routine even among hostile nations.

It's good to put a human face on the victims of conflict, and to be reminded that the costs of conflict often extend far beyond the costs incurred by the parties themselves.  Sometimes we remember to take into account the suffering of the children of divorcing couples. But collateral damage can extend to other family members, associates, employees, customers and many others, in all kinds of conflicts. Yet the interests of these victims are not always respected in resolving a dispute between the two main parties. They do not have a seat at the table. But their plight can perhaps serve to remind warring parties of the costs of continued conflict. Just as the three American hostages may have played a small part in the recent thawing of relations between the US and Iran, the suffering of other victims can perhaps be used in some cases to help parties recognize the value of resolving destructive conflict.

Tuesday, March 18, 2014

Gloating

A recent case from the Court of Appeal in Florida illustrates the perils of confidentiality clauses in settlement agreements, but something more as well. Patrick Snay brought an age discrimination suit against a private school that did not renew his contract as headmaster, and settled the case for $80,000 plus $60,000 in attorneys' fees. (According to footnote 5 of the opinion, it appears the settlement was accomplished by mediation.) So far, so good. The settlement agreement contained a strict confidentiality clause prohibiting the plaintiff from disclosing, directly or indirectly, any information whatsoever about the existence or terms of the agreement to anyone except professional advisers. But Snay's daughter, who was a student at the school, and apparently had also suffered as a result of the dispute, had to be told something, Mr. Snay figured. So he simply informed her that the case was settled and that he was happy with the result.

Snay's daughter promptly published the following on her facebook page:
"Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT."
The school refused to make the $80,000 payment. Snay moved to enforce the settlement agreement. The trial court granted his motion, but the Court of Appeal reversed, holding that he had breached the agreement by informing his daughter that the case was settled and that he was happy with the result.

On one level, the case simply provides a cautionary tale about the drafting and enforcement of confidentiality clauses. These need to be considered very carefully! Had the parties inserted language commonly used that permits them to announce that the case has been resolved to both parties' satisfaction, but bars any further disclosures, the problem could have been avoided. Had family members been included in the list of people to whom disclosure could have been made, the problem could have been avoided. Had the father simply told his daughter that he could not say anything to her about the case at all, the problem could have been avoided. Had the father, despite his breach, sworn his daughter to secrecy, most likely the problem could have been avoided. Perhaps better yet, had the daughter, who appears to have been affected by the case to such an extent that she needed counseling, participated in some fashion in the settlement negotiations so that she better understood all of the reasons that the case was being resolved, the problem perhaps could have been avoided. (See my prior post on agents, noting the importance of including all affected parties so as to avoid miscommunications.)

On another level, this case might be about much more than a party's breach of a confidentiality clause. It has been widely reported that it was the daughter's facebook post that cost her father the $80,000 settlement payment. Strictly speaking, that is not true. The daughter was not a party to the settlement agreement, and the school could not refuse to perform based on her actions. The Court of Appeal makes clear in its opinion that it was only the father's comments to his daughter that breached the settlement agreement, not the daughter's facebook post. So why did the court even mention the details of the daughter's facebook post, or the fact that it was disseminated to her 1200 facebook friends? It's hard not to draw the conclusion that the tone of the facebook post influenced first the school's decision to withdraw the agreed-upon payment, and second the Court of Appeal's decision to validate this refusal to perform the agreement.

A settlement agreement is supposed to represent peace. Ideally, both parties should be at peace with the result. It's best not to view settlement as a victory or defeat for one side or the other, but instead and most importantly as a peaceful resolution of the dispute that benefits both sides, especially compared to the costs of continued conflict. I am of course speculating here, but perhaps because she was not included in the settlement negotiations, and perhaps because she had suffered herself as a result of her father's dismissal from her school, Snay's daughter was not fully at peace with the result. She needed to take a final jab at the family's adversary, and brag about their victory. What she might not have understood was that such jabs are not considered good form after cases are settled, and that they create a new offense, stirring up all of the negative feelings created by the dispute itself. Likely the school had its reasons for not renewing the contract, valid or not, and its officials probably felt the payment was excessive, and only justified to avoid the even higher costs and risks of continuing the litigation. I'm speculating about that as well, but that is usually the employer's response to discrimination claims by employees.

There are good reasons for confidentiality provisions in settlement agreements. They should be drafted carefully, of course, so they don't turn into a trap for the unwary that can allow the other side to renege on its promises. But they also serve the purpose of enforcing good behavior on both sides, allowing them to remain at peace.

Sunday, March 16, 2014

ODR/ADR

Online dispute resolution was developed to create a more efficient system than the courts are capable of providing, especially for relatively small cross-border and internet transactions. Courts are simply too expensive and too cumbersome to resolve these kinds of conflicts. The nature of online communications allows for a more flexible conflict resolution process, one that is not tied to any one jurisdiction's legal rules and procedures. The vast majority of these online disputes are resolved by informal means, facilitated by the speedy communications allowed by the internet.

Is ODR therefore a form of ADR? Not necessarily. Remember that even the traditional, physical courthouse steers most cases toward informal resolution, whether by direct negotiation between the parties, settlement conferences with a judge, mediation, arbitration, or some other process. ODR does the same thing, resolving most cases though some form of facilitated communication. But ODR can also assist with settlement negotiations by providing a mechanism that allows bidders to make settlement offers that are not transmitted to the other side unless they are within striking distance of each other. Going a step further, ODR can provide parties with an adjudicated decision by a neutral person. Courts themselves are starting to conduct hearings and facilitate other communications online. The next step would be to program computers to decide cases. If computers can be programmed to play Jeopardy, why not teach them to adjudicate legal disputes?

Fixing the Economists blog

My fellow panelists on the program we presented this week at SXSW reminded me that algorithms are becoming sophisticated enough to decide fairly complicated questions. And disputants may not mind having their conflict resolved by a machine, as long as they view the process as fair. If that seems surprising, think of how many disputes are resolved by a coin toss, or a round of rock-paper-scissors, or the drawing of straws, all perfectly arbitrary procedures that people nevertheless accept and perceive as fair, probably because they would rather have a quick result determined by chance than argue over who goes first, or what to have for dinner. Software programs can achieve outcomes less arbitrary than a coin toss, once they are adapted to incorporate legal rules of decision. That might or might not be preferable to disputants. I wouldn't be surprised if programs are developed that could interpret contracts according to established legal rules, or adjudicate traffic accidents based on police reports, photographs, and other evidence. Lawyers and judges might find that a scary thought, but it's one that is encouraged by the tech conference I just attended, where it seems that all the young software engineers are busy designing systems that could put a lot of humans out of work. Ironic, since a lot of them are looking for jobs themselves.

ODR could eventually lead to a brave new world of robot courts, but even if we get there, there should still be a prominent place in it for facilitated party-to-party communications leading to consensual resolution of disputes.

Monday, March 10, 2014

Technical difficulties

I moderated a panel this morning at the SXSW Interactive conference, on online dispute resolution, an appropriate topic for the techies who attend this event. I couldn't help mentioning to one of my panelists, Colin Rule, that the last time he had appeared remotely at another conference I attended, we encountered a glitch in the Skype connection which made him unable to hear the questions being posed. So I was glad to have Colin at my side and in person this morning. Coincidentally, a couple of days ago at this conference, the exact same problem was suffered by Julian Assange who, being holed up in the Ecuadorean embassy in London, was only able to appear here by remote hookup.

The subject of technical glitches was on my mind this morning anyway after a movie screening I attended last night was canceled because they were not able to access the subtitles on the digital file. Then when I got to the green room before our session, I was unable to print out my outline because the printer ran out of toner. (Turned out it was probably good for me to be forced to read my notes from my laptop, however, proving that glitches sometimes encourage resourcefulness.)

After all that, I couldn't help but play the curmudgeon skeptical of technical innovations in dispute resolution, and forcing the other panelists to defend the efficacy of online systems. But while the disadvantages to conducting dispute resolution procedures via computer connection are real and are not limited to potential technical difficulties (these disadvantages can also include missing out on some non-verbal communication, and delays that sometimes occur in online communications), there are also significant advantages (convenience, cost savings, more efficient scheduling, and the ability to prepare considered statements in writing as opposed to statements that people sometimes regret making in face to face communication) to the use of technology.

Quite simply, online processes allow a lot of disputes to be mediated or arbitrated that would never be feasible to resolve in person, either because of geographical distances or cost considerations or other reasons. For small dollar value cases such as disputes between far-flung eBay buyers and sellers, online dispute resolution is a necessity. Moreover, since those kinds of disputes arose in the virtual world, it only makes sense that their resolution should take place in the same space. But even for larger cases, there may be significant advantages to conducting all or part of a dispute resolution process through the internet. The use of new online tools will also encourage new and more efficient solutions to the many problems that are encountered now in the real world, especially in multi-party and multi-jurisdictional disputes, including venue, choice of law, and enforcement. Technical difficulties will never be eliminated, either in the real or the virtual world, but automated processes are definitely improving, and probably solving more problems than they create. Online dispute resolution is here to stay.


Thanks to three excellent panelists, the other two being Beth Trent, Senior Vice President and Director of Programs with the Institute for Conflict Prevention and Resolution, and Jin Ho Verdonschot,  a justice technology architect with HiiL Innovating Justice in the Hague.

Friday, February 28, 2014

Directions

Say you're planning an excursion to the beach. Would it make sense to suggest that the best way to get there would be to head in the opposite direction, toward the desert? When your passengers question that route, the only excuse you might have to offer is that after they spend a few hours driving around in the dry heat, they will appreciate eventually getting to the beach even more. But they probably would have arrived at the beach in a better mood if you had taken them on a more direct route.

One commonplace saying I've heard over the years from litigators is that the best way to get a favorable settlement in a lawsuit is to prepare the case vigorously for trial. The statement recognizes that the vast majority of cases are not going all the way to trial, but instead will be resolved at some point along the road by negotiated agreement. Litigators can nevertheless justify the expenditures of time and money necessary to prepare for an event that in most cases will never happen, by claiming that this activity helps produce more favorable settlements. The rationale goes something like this: If the other side knows that we are prepared, that will help them recognize they might lose at trial, and they are more likely to back down to some extent in settlement negotiations. And if we don't settle, we won't get caught with our pants down. We'll be prepared for any eventuality.

Of course any good trial lawyer should be prepared if the case goes to trial. But most trial lawyers recognize that a lot of litigation activity doesn't have all that much to do with good trial preparation, and ends up being discarded or disregarded at the time of trial. Often, it seems to have been done for some other purpose. And for the vast majority of cases that settle, such activity often seems to take the parties in the opposite direction from the negotiated settlement they are eventually going to reach.

The truth is that litigators file a lot of motions and get into a lot of discovery battles, because the opportunities to do so present themselves naturally and that is what we have been trained to do. We rationalize these activities as necessary trial preparation, which might be useful whether the case settles or not. We are unfamiliar or uncomfortable with the sorts of activities that might actually help the parties down the road to resolution of the conflict. And we sometimes underestimate the costs both in dollars and in negative feelings, that are created by litigation. In other words, we are often furiously driving in the wrong direction. If we expect to take a dispute toward a negotiated resolution, we ought to spend more of our time and energy doing things that help parties reach that goal.

Sunday, February 16, 2014

Agents

One of the plot lines of the new season of House of Cards (I'll confess I've spent a good deal of President's Day weekend binge-watching it), depicts a trade negotiation between the US and the Chinese that abounds in confusion and double-crossing. On the American side, the negotiator is our anti-hero, the new vice-president Frank Underwood, who repeatedly misrepresents to the President what his Chinese counterpart told him. On the other side, Xander Feng is a shady businessman who might--we are never sure--be speaking for the Chinese government or only for a faction trying to change government policy. Or he might be put away after a corruption trial.

While exaggerated, this depiction of international diplomacy has its roots in reality. I heard a talk the other day about the history of negotiations between the US and Iran over Iran's nuclear program. Those negotiations broke down a number of times over the past 10 years, in part because the negotiators for each side did not always have the full backing of their respective governments. Even now, when the latest round of negotiations finally seems to be bearing fruit, forces back home in each country are second-guessing and some are even trying to derail the initial agreement. Questions are also being raised about whether the negotiators have accurately represented to the home front the concessions the other side has made so far.

In such difficult negotiations between long-standing adversaries, the many levels of distrust that must be overcome before an agreement can be reached can actually be increased when agents and principals and their broader constituents do not accurately communicate or understand what is being discussed. Faithless agents sometimes sabotage negotiations, while principals who withdraw authority the agents thought they had, also have the power to kill potential deals.

These pitfalls highlight the need for greater transparency: all the necessary parties should participate in some fashion in negotiations, or at least understand accurately what has taken place and why. These examples of failed negotiations also raise the question of what role mediators can play in keeping negotiators honest. Had there been a mediator in the room when Frank Underwood and Xander Feng were making statements somewhat at odds with what they were telling their principals, perhaps the negotiations would have stayed on track.

Friday, February 7, 2014

Mediation's future

I've heard a number of evangelists of the mediation world, most recently Lee Jay Berman in a talk SCMA sponsored this week in San Diego, talk about the seemingly limitless future of the mediation process. That future seems to depend on the public finally becoming more aware of the possibilities of mediation to resolve not only conflicts that have already worked their way through the court system, but also conflicts that have never even made it to court, or that might be unsuitable for court. But right now the public still seems only vaguely aware of mediation's possibilities. People might have heard of resolving a divorce or other civil dispute out of court, but might still think that mediation is only available just prior to trial. Some might be aware that there are programs available to resolve neighbor disputes, but they are still confused by what a mediator does that is different from what an arbitrator or judge might do.

Like my predecessors before me, it is now my job to try to bring about more public awareness of mediation as an available option for resolving conflict. The question is, what is it going to take for the public to grasp mediation's potential? The bright future for mediation always seems just within our grasp, while frustratingly out of reach. Meanwhile, mediation's present presents a difficult and uncertain career path for many who would like to practice in the field, many more than it seems are needed to satisfy current demand for mediation services.

To try to answer that question, we might start by asking what is keeping most parties in conflict from taking advantage of mediation. Is it their lawyers, always a popular group to blame? While there has been resistance from the bar in many places to efforts to deny litigants access to the courts, and while that resistance may be motivated in part by self-interest, I have not found most American lawyers to be hostile to the mediation process. Lawyers already know that it doesn't make sense to take most cases all the way to trial. They often welcome the opportunity to find a less expensive and less risky means of resolving cases.

Instead it may be that resistance to mediation lies deep within human nature, which resists peaceful resolution of conflict at least at first. When a person feels wronged, their first instinct is not usually to reconcile with the party that wronged them. Their first instinct is to retaliate. Clients feeling aggrieved by conflict don't generally come to their lawyers' office begging for the chance to make up with the other side. Lawyers file lawsuits because clients demand justice.

Then there is the elaborate structure of the legal system itself, which is supposed to provide the justice that the public is seeking, or at least to provide the certainty of resolution of conflict according to pre-determined rules of law. So when human nature, which is looking for an assessment of blame and a determination of right and wrong, encounters a system which is designed to do just that, it is only natural for people to want to seek recourse in that system. Only later when they discover the costs and imperfections of the traditional justice system, do they resort to a consensual alternative settlement process.

What is going to cause the change that people in the ADR community are seeking? It's probably not going to be enough simply to try to spread the gospel of mediation to the public, trying to persuade people seeking answers to their conflicts, that they have the ability to resolve those conflicts themselves with the help of a mediator. It's a message that needs to be repeated, but people are resistant to that message.

It's probably going to take a new generation to absorb the idea of resolving conflicts in a more cooperative manner, rather than through an adversarial system based on apportioning blame according to a pre-determined set of rules. A generation that is gaining experience with peer mediation in schools, perhaps (discussed in a previous post). A generation that is growing up in what is being called the sharing economy, where interactive and collaborative tools are commonly used to solve problems. A generation grown up around the internet, which for the most part does not operate within the traditional justice system, but rather depends on communication and informal means of dispute resolution. That kind of public may eventually grow more receptive to the idea of resolving conflict by collaborative means.

Mark Davis/WireImage