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Regulating ADR?

Way Sign

I don’t know if this is a momentary blip or the emergence of a new discussion that extends the ongoing debate about credentialing and accreditation.  In the most recent issue of the ABA’s Dispute Resolution Magazine there are “point-counterpoint” articles about possible regulation of ADR (basically, mediation).  This is regulation, not accreditation, but some of the arguments are similar in nature.

Of course, since the articles come from the legal world, there is an unstated assumption that ADR really is just a set of dispute resolution modes attached to the court system.  But, leaving aside that myopia, there is a remarkable reliance on the language of commerce and the marketplace to justify or refute the need for regulation.  

Jean Sternlight, in the pro-regulation article, argues that:  “While many of us are attracted to the free-spirit or even libertarian idea that disputants should design processes that best suit their needs, others fear that unregulated dispute resolution processes may lead to unjust results.”  Imagine having a say in how one handles conflict.  That’s radical and may well lead to a “race to the bottom.”  Now, I think there is some merit in the notion that in ongoing ADR systems there may be a tendency for providers to  “cater to powerful repeat players,” but whether that justifies lumping all ADR into the court world and regulating the providers and the process is, to me, questionable.

Even the defenders of the open system that we currently have use economics and the open market as a basis for rejecting regulation.  Bryan and Weinstein assert that:  “Creative dispute resolution tailored to the case at hand ultimately saves company time and resources, thereby maximizing shareholder profits.”  Bodies that have looked at the issue of accreditation, even within the ABA, have consistently suggested that rules and frameworks, let alone regulation by the government or the ABA, would have a chilling effect on the creative development of ADR modes.  Are we getting to the point in the maturing of the field, if it is that, where the mainstream desire will be for stability, predictability, and accountability instead of creativity?  Probably not yet, but it could be that we are hearing the first round of a debate that will go on within the ABA, and that ultimately could affect all those ADR providers who are not lawyers and who are practicing in ways not connected to the traditional justice system.

It’s a complex topic, too big for a blog entry.  I suggest you read the pro and con articles in the DRM and consider joining the discussion.

06
Jun 2013
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Teaching ADR/ODR

 

Hastings Title

For notes on the ADR Faculty of Northern California conference keynote, click on this link:  HSI Blog

 

09
Feb 2013
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The Grammar and Syntax of Art and Mediation

StPaul

Recently I’ve been helping to teach some basic mediation courses – I’m in the middle of one now at the Cornell ILR program, and I’ll be involved in one next month at Dominican University in Chicago.  As a way to introduce the value of a standard model of mediation, I’ve put together a short presentation on the “grammar and syntax” of art and mediation.  For those who may be interested, here’s a link to the brief notes that I use as reference for the introduction to mediation.  Grammar and Syntax of Mediation – HSI – Dominican

17
Jan 2013
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Buenos Aires Mediation Class

On our recent visit to Buenos Aires, Julia and I had the pleasure of having a discussion with the students in Alberto Elisavetsky’s mediation course – we had a particularly lively discussion about process, caucuses, etc., during which one of the students really defended their basic process and questioned the use of caucuses (particularly pre-session caucuses).   Interestingly, the model used by the Center, and in some university courses in BA, is basically the “Harvard model” (interest based).  The students in this course were all professionals, working as CPA’s or in other economic fields, so our discussion may have been different if we’d been talking with family mediators or workplace mediators, but the basic interest based model, with little overt adaptation for culture, seems to be the baseline model for mediation in Argentina.  Coincidentally, the issue of the ABA Dispute Resolution Journal that came while we were in BA contained an article on caucusing, which I shared with Alberto for distribution to his class.

Here’s Alberto’s Facebook post regarding the session with Julia and me:

Encuentro con mediadores de Estados Unidos, Odr Latinoamerica facilito un encuentro presencial en Buenos Aires Argentina a temario abierto con los Profesores Dan Rainey Director del National Mediation Board de los Estados Unidos & la Profesora Julia Morelli especialista en conflictos en el ámbito del trabajo del estado de Virginia (EEUU), con un grupo de mediadores profesionales en Ciencias Económicas.

30
Nov 2012
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ODR and Mediator Ethics

 

The Fordham University ADR Conference scheduled for last week in New York City was, for obvious reasons, cancelled, but I had prepared a short talk on the impact of technology on the ethics of mediation to present at the conference.   To begin thinking about the issue, I reviewed the ethics guidelines of the AAA, ABA, ACR, JAMS, the Commonwealth of Virginia (where I live), and the State of Texas (one of the states in which I teach).  This link – ODR Ethics Prezi – is to the Prezi graphic presentation that I was going to use at the Fordham conference.  Obviously, a lot of the presentation was going to be oral, but the landing points in the Prezi give some indication of where I was going with the issue of ethics and ODR.

I pulled 14 issues related to ethics that appeared in the ethics statements of the organizations mentioned above, and created a grid to show which ones were common and which ones popped up routinely across the board.  I chose four of the fourteen issues on which to concentrate for the presentation.  Arguably, all of the issues are affected by technology, but it seemed to me that, for purposes of a short presentation, the four I pulled out were the most affected, or at least the most obviously affected.  The four are:  Competence of the Third Party, Confidentiality of the Process, Quality of the Process, and Advancement of the Practice of Mediation.

Under Competence I was going to address certification, training and training content, mentoring and co-mediation, and review processes for third parties who use technology.  Confidentiality brought up issues of what representations the third party can make regarding confidentiality online, the responsibility of the parties to maintain confidentiality, the nature of “deleted” content online (it’s almost never really deleted in a final sense), and hacking or file sharing.  Quality of the process is related to the comfort level of the parties in a strange venue, the computer literacy of the parties and the expertise in using technology by the third party.  Finally, Advancement of the Practice of Mediation, suggests issues related to integration of ODR into F2F modes, use of varied communication and data handling channels, and the use of evaluation and data analysis methods.

I’ve been invited by The ADR Commercial Law Journal to write an article about this topic – as scant as the information in the Prezi is, and as thumbnail-like as my comments here are, I’d appreciate any comments or observations that might be useful as I prepare the article – post them as comments on this blog, or send them to my e-mail address .

 

07
Nov 2012
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Conflict Engagement Specialists

My interview with Dave Hilton on Conflict Engagement Specialists, the first in a series of interviews with conflict engagement professionals, was posted today.  To see and hear the interview, click here.

18
Oct 2012
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Mediation in the Mainstream: From Courthouse to Conference Room

 

 

 

 

 

 

 

Tonight at the Creighton Law School I presented “Mediation in the Mainstream,” a talk about the nature of mediation and the array of conflict engagement found coming out of the mainstream.  I’ve posted my notes for the talk (minus the graphics from the Power Point) – to see the basic text of the talk, click here: MediationintheMainstream – Post Copy

18
Oct 2012
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cyberweek 2012 flyer

This year, Cyberweek runs from October 29 –  November 2.  There will be the usual wide array of online discussions and demonstrations with participants from, literally, all over the world.  Click on the link above for information about registration – it’s free – and schedules.

10
Sep 2012
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