Sunday, April 19, 2015

Applied decision theory

Richard Birke, a law professor at Willamette University, gave a talk at the ABA Dispute Resolution conference expressing frustration with the term "Alternative Dispute Resolution." The term is too limiting to describe the many ways that the skills of negotiation, mediation, and other forms of conflict resolution can be applied in practice. It's also inaccurate, since "alternative" means of resolving disputes probably comprise the vast majority of resolutions.

In the status hierarchy of law schools, the field of ADR has always been treated as something of a stepchild, not considered as prestigious as traditional subjects like Constitutional Law or Contracts. It's not clear that the study of conflict resolution even belongs in law school, since law comprises only a small part of the syllabus. Yet Birke is finding his colleagues in more traditional legal subjects, especially the more esoteric ones like Labor Law, wondering if any of their students will ever use the information they are imparting. Meanwhile teachers of conflict resolution, which embraces concepts from economics, psychology, and a myriad of other disciplines, and not much "law" at all, can see immediately the usefulness of the skills they are teaching. We all benefit from learning how to negotiate and how to solve problems.

Not only are the skills being taught in conflict resolution studies useful to pretty much anyone who has to interact with other human beings, those skills find practical application in a number of new career paths for attorneys (and also non-attorneys). While graduates of mediation training often have a hard time finding work as traditional "mediators," they can apply their skills to solve problems for clients in ways that traditional lawyers may be ill-equipped to handle. ADR specialists can help clients re-structure their businesses, deal with succession issues, avoid litigation, assist with contract negotiations, or any number of other conflict management and resolution scenarios.

Birke thinks we need to come up with a new name for this field, one that better expresses the wider array of applications of its teachings. His suggestion is "Applied Decision Theory," a name that might introduce its own set of confusions; but at least avoids some of the negative connotations of "Alternative Dispute Resolution." He recognizes the challenges of describing the field of study encompassed by this new term. And he also acknowledged the large problem of how to market this specialty, both to prospective students, and to potential clients who are accustomed to thinking that if they have a problem with somebody, they should probably call a lawyer to solve it, expecting that lawyer to employ an adversarial approach. It will probably take a while before it occurs to people experiencing injury or dealing with other forms of conflict, that they should call their local applied decision theorist.

Saturday, April 18, 2015

Re-living trauma

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Einstein supposedly said that the definition of insanity is doing the same thing over and over again expecting different results. I learned this week that even though research has shown for about 20 years that grief counseling does not work--in fact it increases the stress levels of those being counseled--we  haven't given up on the practice. In a lecture at the ABA Dispute Resolution Conference, Professor John Medina explained how grief counseling as traditionally practiced, which involves asking the traumatized victims to recount their experiences shortly after the traumatizing event, can cause these victims to enter into a vicious cycle of rumination on the event and their part in it that does not help them recover. In fact, it can leave affected persons even more impaired.

Jim Pennebaker, a professor at the University of Texas developed a more sophisticated variant of grief counseling, in which victims are asked to wait three weeks, and then engage in writing down a description of the event on successive days. The waiting period is designed to take advantage of the natural process by which unpleasant memories can fade. And in the process of writing a story about the traumatic event, the critical instruction, which apparently makes all the difference, is to view the event as if from the disinterested eye of a neutral observer or cameraman. After doing that, stress levels and other harmful physical and mental effects from the trauma, pretty consistently go down, often close to baseline levels.

This research seems to have obvious implications for conflict resolution, though these implications have apparently never been studied or proven. We know that the traditional litigation process, and even mediation the way it is often practiced, causes participants to experience anew the negative effects of the original perceived injury, and even gives them the opportunity to receive and inflict new injuries on opposing parties. The grief counseling studies suggest that this kind of repetition of trauma is detrimental to reducing stress and other emotions that have been stirred up by conflict, emotions that need to be addressed before conflict can be resolved. We also know that one goal of mediation is to help parties view conflict more objectively, and even to learn to understand the opposing party's point of view to some extent. All of that suggests that simply asking parties to "vent" their anger or other feelings about the opposing party may be harmful to the process of resolving conflict. On the other hand, helping parties talk about the underlying events in a more objective manner may help them arrive at a more rational state conducive to resolving the dispute.

Wouldn't it be nice if someone would do the research that might help to prove what works and what doesn't, so that eventually we stop doing, over and over, the things that are unhelpful?

Measuring ADR effectiveness

The state of Maryland commissioned a cutting edge research project that has succeeded in measuring the effectiveness of the state's court-connected ADR program in limited jurisdiction courts. This study attempted to do much more than track settlement rates achieved through the program; the researchers also assessed the satisfaction of participants with the system, comparing the results with control groups of litigants who did not utilize the program. They found that participants who achieved settlement through ADR processes were most satisfied with court than those whose cases were adjudicated by the court. Even more tangibly, those cases were more than 20% less likely to return to court for enforcement or other follow-up action, a finding of considerable cheer to court administrators attempting to secure ADR funding from the legislature.

The study also attempted to measure more precisely what features of the ADR process participants found most beneficial, such as whether issues were addressed by the court, or whether participants took responsibility for their actions. These questions found significant gains through the use of ADR.

Drilling down even more deeply, this study even attempted to measure what techniques used by court mediators were most effective. This effort required the researchers to monitor mediations, code various types of mediator interventions, and correlate those with participant responses. They could thereby determine whether techniques such as eliciting information from participants, or reflecting what participants told the mediators, or making suggestions to the parties, were more successful in achieving agreements as well as satisfaction by the participants.

This research found, for example, that eliciting solutions from the parties had a positive impact on reaching agreement in mediation. On the other hand, using more evaluative or directive techniques had some negative long-term impacts. And participants reported feeling less satisfied with caucus-style mediation than those who relied more on joint sessions.

Not all of these results have been published yet, but more information about this study can by found at

Monday, April 6, 2015

Woman in Gold

About halfway through the new movie Woman in Gold--which tells the story of Maria Altmann's lengthy legal battle to recover the famous Klimt painting of her aunt from the Austrian government--the parties try to resolve the dispute by mediation. At the mediation, Altmann (played by Helen Mirren) offers to allow the Austrians to keep the painting if they will only acknowledge that it was stolen property (looted from her family by the Nazis), and pay some amount in compensation. It was a framework for negotiations that most mediators would jump at, because if the framework were accepted by the other side, the only thing left to negotiate would have been the amount of compensation. But the Austrian representative refuses even to consider admitting that the painting was stolen, and Maria and her young attorney walk out of the negotiation.

At that point, Altmann's side felt fairly confident of their legal position. Their main risk was that Maria would not live long enough to see the legal battle through. So they agreed to arbitration in Austria. After the arbitration was decided in their favor, the same Austrian representative attempted to re-instate a version of the deal discussed at the mediation. Too late, says Maria. She now feels so abused by the Austrian government's resistance to her claim, and its repeated refusals to negotiate, that she is determined that the painting must travel to America, as she was forced to do herself many years earlier.

A nice example of how opportunities to resolve conflict at mediation are often squandered, and how litigation opens old wounds and makes problems more difficult to resolve in a consensual manner. And how winners are not usually magnanimous in victory. Rightly so, it would seem in this case. So what was the value of mediation in a do-or-die case like this one? At the very least it reminded the victors that they had made a reasonable settlement offer that the other side should have accepted. That experience justified Altmann's refusal to make any concessions to her adversary after her victory.

Friday, April 3, 2015

Three options

President Obama's statement announcing the framework agreement reached with Iran this week outlined the three options the world has for preventing Iran from acquiring nuclear weapons.
First, we can reach a robust and verifiable deal -- like this one -- and peacefully prevent Iran from obtaining a nuclear weapon.
The second option is we can bomb Iran’s nuclear facilities, thereby starting another war in the Middle East, and setting back Iran’s program by a few years -- in other words, setting it back by a fraction of the time that this deal will set it back.  Meanwhile we’d ensure that Iran would race ahead to try and build a bomb.
Third, we could pull out of negotiations, try to get other countries to go along and continue sanctions that are currently in place or add additional ones, and hope for the best -- knowing that every time we have done so, Iran has not capitulated but instead has advanced its program, and that in very short order, the breakout timeline would be eliminated and a nuclear arms race in the region could be triggered because of that uncertainty.  In other words, the third option leads us very quickly back to a decision about whether or not to take military action, because we’d have no idea what was going on inside of Iran. 
The three options are familiar to many people embroiled in conflict, and basically boil down to (1) accepting an imperfect agreement, (2) escalating the conflict, or (3) maintaining the status quo. As the president points out, the third option may be unstable, and is likely to lead back to a decision to escalate the conflict. Thus, most of the time, efforts to resolve conflict devolve to only two options: deal or no deal, war or peace, acceptance or rejection.

I wrote about this problem in a prior post, but it bears repeating: Those who are opposed to the deal on the table only cloud the issue when they compare it to some hypothetical perfect deal. To be honest, they should acknowledge that the only real alternatives to the deal are escalation of the conflict or maintenance of an uneasy status quo.

That doesn't mean parties should always take the deal. But they should understand that rejecting the deal means that they are choosing to perpetuate the conflict, rather than resolving it.