Several months ago someone tried to post one of those unwelcome comments that all bloggers receive from time to time. With plenty of full capitalization for emphasis, and with attacks on my character and personal habits thrown in for good measure, the writer accused me, among other things, of undermining the rule of law simply because I happen to be a mediator. Since I allow attacks on ideas only not on people on this blog, I hit “delete”.
I have remained haunted however by the concern this person raised. Were they right–does ADR weaken the rule of law?
I have written critically before of ADR’s two-edged nature and encouraged my fellow ADR practitioners to consider with care their responsibility to the public and to our institutions of justice.
Of course we as a profession should ask ourselves these kind of questions. Does ADR undermine the rule of law? If justice is the end, is ADR the best means?
Fellow mediator Victoria Pynchon, who publishes Settle It Now Negotiation Blog, is inviting readers to complete a Survey on Justice that asks important questions about the complicated relationship among fairness, justice, and ADR processes:
Are we as mediators in the business of delivering justice or simply final resolution?
Do the attorneys and/or clients who use our services want us to be in the business of delivering justice (or enabling it?) when we help them resolve a dispute?
Vickie has already reported some preliminary results, including some fascinating findings on the qualities attorneys look for in mediators. It also looks as if by a narrow margin respondents would rather win in an unfair process than lose in a fair one. (Which may mean there’s little life left these days in the old maxim, “It’s not whether you win or lose, it’s how you play the game.”)
One day remains to complete the survey.
On a related note, seekers of justice may wish to read “Is Alternative Dispute Resolution Consistent with the Rule of Law?” by Jean Sternlight, Michael and Sonja Saltman Professor of Law and Director of the Saltman Center for Conflict Resolution, University of Nevada, Las Vegas.
Sternlight asks,
What is the relationship between alternative dispute resolution (ADR) and the rule of law? In the United States, critics often argue that the informal, private nature of ADR is hostile to the rule of law–and ultimately to justice itself. Yet over the last ten years, a broad, international array of groups has advocated including ADR in projects designed to foster the rule of law in other countries. This Article explores the paradox. Have we erred in condemning ADR domestically or in promoting it internationally? Or does the desirability of ADR depend upon the nature of the system in which it is being utilized? By studying this paradox, we can enrich our understanding of the ultimate purposes of both ADR and the rule of law, and thus assist our search for justice.
This article is accessible for the time being, I regret to say, only to those with access to Westlaw. While an increasing number of articles by legal scholars are available for free on the internet, some still remain beyond reach, hidden behind password-protected gateways–in my view unfortunate. An abstract of the article is available at the Social Science Research Network.
Although summer is a time when we New Englanders like to kick back and enjoy the natural attractions for which our region is known, there are plenty of events coming up that may lure ADR practitioners from the beach or the hiking trail. In no particular order they are:
- UMass/Boston Graduate Programs in Dispute Resolution will be holding a series of professional workshops during June 2007. Among them will be “Meeting and Process Facilitation: A Workshop for Group Leaders and Process Managers”, on June 8; “Do No Harm: Guidelines for Intervention in International ConflictInstructor”, on June 11-12; “Online Dispute Resolution: The State of the Art” on June 13 (taught by my friend Colin Rule, who is a gifted and knowledgeable speaker); and “Collaboration in the Clinical Setting” on June 21. For more information, including workshop times, instructors, and registration, visit the UMass/Boston Graduate Programs in Dispute Resolution web site.
- The Association for Conflict Resolution’s New England Chapter is holding its Annual Regional Conference on May 31, 2007, at the Boston University Corporate Education Center in Tyngsboro, Massachusetts. This year’s theme is “Justice: Conversations for the ADR Community”. Leading that conversation is internationally known dispute resolution scholar and practitioner, Lela Love, professor of law and director of the Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law. Professor Love will also be teaching a full-day Advanced Training on Friday, June 1, 2007, addressing “Keeping Justice in Mediation”. Conference workshops include “Let’s Work This Out: ADR in Environmental Enforcement & Workplace Conflicts”, “Exit Strategies: When and How to End a Process Well”, and “ADR in the 21st Century: Easy Tech Tools to Manage and Market Your Practice” (led by me and ADR tech guru Tammy Lenski). For registration and other information, visit the Conference page at NE-ACR’s web site.
- Finally, on July 19, 2007, together with Melinda Gehris and Ericka Gray, I’ll be teaching an Advanced Divorce Mediation Training at the Boston University Corporate Education Center in Tyngsboro, Massachusetts. Click here for additional information on the program or to register.
The courthouse casts a large shadow–so large sometimes it dwarfs those who pass through its doors. So mighty is the institution we call the law, so lofty its traditions, that we can lose our sense of scale: in the grandeur of the marble columns, the weight of precedent, it is easy to forget that the halls of justice were created to serve human beings.
Now comes a blog that seeks to give voice to the crowds that climb the courthouse steps. Published by Tracey Broderick, In This Case allows ordinary people to describe their experiences with the law.
This recently launched blog has but a handful of posts, but I hope there will be more. My favorites so far: “I brought my breast pump to the courthouse” and “My area of the law is so raw…”
If you have a story for this blog, let Tracey know about it. She’d love to hear from you. And let’s wish her the best of luck as she uncovers for us these stories about human life and law.
Mediators, mark your calendars.
Blawg Review, the traveling review of the best each week in legal blogging, will be hosted this coming Monday by one of our own.
Arnie Herz, who has been called “one of New York’s most highly skilled and gifted mediators” by United States District Judge Carl Horn III, will be putting his own unique stamp on Blawg Review at Legal Sanity, the blog Arnie created to help lawyers achieve work-life balance and find reinvigorated meaning in their work.
For those of you who blog, if you’d like to help Arnie out and submit a blog post for his consideration as he prepares to deliver Blawg Review #108, here are the official Blawg Review submission guidelines.
In the meantime, Blawg Review #107 is hosted this week by the implacable Professor Kingfield. Sit up straight and make sure you’ve done your homework.
