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Ethics and the Fourth Party

ACR

 

The Spring 2014 edition of ACResolution is out and available.  I have an article on ODR and ethics in this edition:   “Mediator Ethics and the Fourth Party.”

18
Jul 2014
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International Mediation Institute ODR Task Force

IMI

The International Mediation Institute – IMI – has established a task force with members from around the world to address issues related to the definition of ODR and standards that should apply to ODR practitioners and providers.  I am happy to say that I am one of the task force members.

 

16
Jul 2014
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The IJODR is Now Available

IJODRvol1no1

Volume 1, Issue 1 of the new International Journal of Online Dispute Resolution is now out and available.  The first issue features articles by Ethan Katsh and Orna Rabinovich-Einy, Mireze Philippe, Marc Lauritsen, and me.  John Zeleznikow contributed a book review, and Colin Rule contributed a news roundup – both the book review and the news roundup will be regular features of the journal.  Mohamed Abdel Wahab wrote the introduction, on behalf of the other two co-Editors-in-Chief (Ethan Katsh and me).  Copies of the journal will be distributed at the ODR Forum in California later this month, and subscriptions, both hard copy and online, can be obtained by contacting the publisher, Eleven International Publishing, at www.elevenpub.com.  The journal will be published twice yearly – the next volume will be available in December, 2014.

13
Jun 2014
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CCAT Slides and Ethics Draft

CCAT

Click on this link for a .pdf copy of the slides used in the CCAT presentation (June 2, 2014):  Online Arbitration

Click on this link for a .pdf copy of a pre-publication version of an article on ODR and ethics due for publication later in June in ACResolutionDraft

01
Jun 2014
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4PS, CCAT & SMU

4PS

CCAT

SMU Logo

I am part of a new adventure, one that we hope will lead to an established online dispute resolution consulting practice.  Robin West, David Leffler, Jeff Aresty, Julia Morelli, and I have formed a company called Fourth Party Solutions Corp.  The 4PS above is a temporary visual for the company while we finalize formation and get our act together as a business.

On the 2nd of June, I will present one of the plenary keynotes for the 2014 Council of Canadian Administrative Tribunals (Conseil des tribunaux administratifs canadiens) in Ottawa.  The keynote will focus on the use of technology in the practice of arbitration, using the National Mediation Board’s program as an example of some basic possibilities.

With regret, I have decided not to return for the second year of my contract with the SMU Dispute Resolution program.  Many personal elements went into the decision, and I hope to maintain a relationship with the department as an adjunct, in much the same way I was teaching for them before beginning the new contract a year ago.

25
May 2014
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The Journal is About to Take Off

JournalGraphic

 

The first volume of The International Journal of Online Dispute Resolution is in the editing process now, and should be ready for distribution at the ODR Forum in San Francisco/San Jose in June, and the first volume should be free online.  Here is a draft of the introduction to the journal’s first volume:

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The publication of this, the first edition of the International Journal of Online Dispute Resolution, marks an important milestone in the evolution of ODR: creation of a dedicated outlet for discussion, disputation, and theory-building in the increasingly complex border between “traditional” dispute/conflict engagement and technology.

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The articles in this inaugural volume demonstrate the breadth of the impact of ODR, and the myriad directions from which one may approach the interaction of ADR and ODR. Katsh and Rabinvich-Einy discuss the disruptive nature of technology, particularly as it applies to the concept of justice and justice systems. Rainey outlines the profound nature of the impact of technology on the ethics of third party work. Abdel Wahab reviews the status of ODR as a field, while Philippe highlights the complexity involved in developing online arbitration for commercial disputes. Lauritsen explores the nature of decision-making and how technology can assist in dispute resolution environments, and Zeleznikow reviews a recent publication dedicated to a “Eurocentric” discussion of “agreement technologies.” Finally, in a feature that will appear in every volume, the most recent developments in ODR are outlined in “ODR News.”

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As the co-Editors-in-Chief for this journal, we are dedicated to bringing into print and digital media the latest, most critical thinking about ODR, drawn from every corner of the globe – a globe that has, as the cliché goes, been made much smaller by the technology we use to create and resolve disputes.

 

21
Apr 2014
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ABA Section of Dispute Resolution – ODR is now Legit?

ABASDR Logo

I just attended the 2014 ABA Section of Dispute Resolution conference in Miami, Florida.  In addition to the weather (the first real Spring weather I’ve felt this year) there were other “warming” things about this conference.  First, of course, it was good to see colleagues face-to-face with whom I interact over the phone or online throughout most of the year.  But this year the attention to technology and the attendance at the two ODR panels on which I participated was heartening.  Ethan Katsh, Colin Rule, Jeff Aresty, and I conducted a panel entitled “Building an Online Justice System.”  In years past, the four of us have joked that we would be happy if the audience outnumbered the presenters at ODR panels.  This year, there was a good, knowledgeable crowd, with interest in the topic, and an awareness that things may, in fact, be changing a bit in the legal world.  The other panel on which I participated with Susan Exon (La Verne Law School in California) and Harold Coleman (AAA in Los Angeles) was at one of the worst time slots in the conference – mid-afternoon on the last day of the conference with a sunshine-filled day outside.  The room was packed to hear us talk about the fourth party impact on mediator ethics.  As Colin said at dinner one evening, we don’t have the “is ODR legit?” discussions any more – we still have the “what is ODR and how do I fit in?” discussions, but there seems to be general acceptance of a conviction that some of us have had for a long time:  the ubiquitous nature of information and communication technology in our society cannot help changing the practice of conflict engagement in all its forms.

06
Apr 2014
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Geneva

Geneva Fountain

Geneva Schedule Update

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From June 22 – June 28, 2014, I will lead a class from the Southern Methodist University Dispute Resolution program on a tour of Geneva, Switzerland.  The course is entitled, “International Conflict Engagement:  Provention, Engagement, and Peacebuilding,” and will feature lecture and discussion sessions with international organizations headquartered in Geneva but engaged in conflict engagement all around the world.

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Early in the week in Geneva we will meet in the room where the international arbitration that settled the final conflict associated with the American Civil War (the Alabama Arbitration) was held.  There the class will be given some historical perspective on the role of Geneva as an international center for dispute resolution, and how the city came to embody the idea of peaceful dispute resolution.  In addition to seeing museums and cultural sites within the city, an array of peace makers, peace keepers, and peace builders will hold discussions with the students.  Here is the tentative schedule (more organizations may be added):

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Sunday, June 22:  Check in to the hotel, Orientation to the Week

Monday, June 23:  International Organization of Migration (IOM) and Etat Geneve

Tuesday, June 24:  International Committee of the Red Cross (ICRC) and the International Court of Arbitration for Sport (CAS)

Wednesday, June 25:  Day trip to Chamonix and Mont Blanc

Thursday, June 26:  The International Labour Office (ILO) and the World Intellectual Property Organization (WIPO)

Friday, June 27:  Day trip to Annency-les-Vieux

Saturday, June 28:  Capstone discussion and dinner.

Sunday, June 29:  Check out of hotel.

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For more information, call Kay Barclay at SMU:  972-473-3435, or send an e-mail to Daniel Rainey through the “contact me” function on this web site.

07
Jan 2014
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The Year of the Horse

Dahnaan - Kevin Geary

 

January 31st of 2014 ushers in the “Year of the Horse” in the Chinese calendar.  It’s the year of the horse in more ways than one for me – the portrait above was one of my Christmas presents this year from Julia.  It is, perhaps, the best present I have ever received.

The artist is Kevin Geary, an internationally known portrait artist with work hanging in museums around the world, including the National Portrait Gallery in London.

The subject is Dahnaan, most often known as Mr. Moose, and rarely known by his registered name, Robin’s Raftery.  He was, I am not ashamed to say, one of my best friends, and a teacher of great life lessons.  Some day I will write a full description of how Dahnaan came into my life, and how he helped to make me a better person, but suffice it to say here that he was abused before he came to live with us.  When I first met him he looked at me with those big eyes and sent me a clear message – “get me out of here.”  So I did, with reluctant agreement from Julia.  We were told that he was crazy, that he would have trouble with his feet as he got older, and that he was probably not going to be a long term “working” horse.  All of that was true, but for 22 years he worked on me in ways that would make a therapist proud.

What did I learn from Dahnaan that I have tried to apply to relationships with my human friends and colleagues?  I learned that true change, and true progress, come only with patience and understanding.  I learned that trust is an output, not an input, and that generating trust takes the repetition of trustworthy behavior over time.  I learned that consistently positive behavior, even in the face of great provocation, will be repaid with trust and respect, and perhaps even affection.  I learned to look over the horizon to see what can be, beyond what is.  I learned to assume goodness in others even when the goodness is hard to see.  I learned to plan with my head, then lead with my heart.

As he was teaching me, his outlook on the world progressed from fear to self-confidence.  When he first came to us, he would try to hide in the corner of his stall to keep from being abused.  As I was learning my lessons about trust and patience and consistency, he developed a healthy and accepting self concept.  Basically, he took his cue from us – if Julia and I were calm, everything was ok, even if the moral equivalent of bombs were going off around him.

As I write this, I can hear his deep nicker coming from the barn when we would drive up, and I can feel his big Quarter Horse jaw rubbing my shoulder as we stood together looking off into the field.  I miss him, still.

01
Jan 2014
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Compromise Symposium Notes

Dedman

I put together a set of notes from which to speak at the symposium today – some I may have used, some not, but here’s the opening with the “provocative” statement that I was supposed to make to kick things off.  The full set of notes is attached as a .pdf lower on the page, after the opening comments.

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The obvious place to start thinking about comments and discussions surrounding a topic like “The Art of Compromise” is with the definition of the word compromise itself. As I began this process, I have to confess I was struck by the wisdom of a comment made by Edward Charles Francis Publius de Bono (a Maltese scholar responsible for the term “lateral thinking”):

 

. . . words are encyclopedias of ignorance because they freeze perceptions at one moment in history and then insist we continue to use these frozen perceptions . . . .”

 

The more I thought about compromise, and our charge to come up with something provocative to say about compromise, the more I realized that there is not a thing called compromise – there are many possible definitions – and I realized that I needed to not worry so much about how my colleagues from history or psychology would define compromise.

 

I needed to worry about how theorists and practitioners from the world of conflict engagement would define and use the term and the fact of compromise.

 

To start, I asked several of my colleagues and friends to do a word association game with me – I said the word “compromise” and I asked them to give me the first word that popped into their heads. Now, I have to admit that the first one really surprised me. I said, “compromise,” and she said, “Butte, Montana.” After thinking about it for a moment, I said, “I have to ask, what does Butte, Montana, have to do with compromise.” “Oh,” she said. “I thought you said “copper mine. Never mind.” I felt like I was back on SNL with Roseanne Roseannadanna.

 

The responses from those who didn’t focus on copper mines were interesting. Here’s a sample: Sharing, Surrender, Failure, Defeat, Not Ideal, Positional, Win-Lose, Split-the-Baby.

 

In short, none of my colleagues had what I would call an overwhelmingly positive immediate reaction to the concept of compromise. Why is this? It’s in the DNA of conflict engagement theory.

 

Practically all of the literature on Dispute Resolution/Conflict Resolution/Conflict Engagement (you should get an idea that a field that can’t even decide what to call itself may not be the best place to go to talk about definitions) stresses the pursuit of INTERESTS, not POSITIONS, and part of the field (Transformative) avoids leading the parties to either compromise or consensus.

 

But the most interesting thing to me is not the negative view of compromise, but the fact that, for the most part, when we talk about compromise, we have it all wrong – what we label compromise is not compromise at all.

 

I’m supposed to start things off quickly with a provocative statement, so, notwithstanding de Bono’s observation, let me just say that my colleagues have got it all wrong – when they talk about compromise, most of the time they are not talking about compromise at all – and just as an example, the 3/5′s “compromise” that Professor Finkleman referenced last night at the keynote had absolutely nothing to do with compromise.

For a full set of notes, click here:  NOTES

23
Oct 2013
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