Should mediators be worried? You be the judge:

A federal judge in Florida, at the end of his patience with two quarrelsome litigants apparently incapable of resolving even minor issues without judicial involvement, has ordered both of them to resolve their latest disagreement over the site of an upcoming deposition by playing rock, paper, scissors.

You can view the text of the order, which, in the words of the judge, “fashion[s] a new form of alternative dispute resolution,”, here at CNN.com.

(Thanks to Bob Ambrogi for the story.)

Earlier this year, I linked to a Times Online article by legal futurist Richard Susskind with his predictions about the future of legal practice and dispute resolution.

For those eager to learn more about what the future holds, via Slaw, the cooperative Canadian legal research and IT weblog, comes news that “The Next Ten Years“, Richard Susskind’s Society for Computers & Law 2006 Lecture, is available now both in podcast and in edited transcript form. Susskind sets forth his vision of the coming transformation in the nature of legal service, legal education, and dispute resolution that the future holds.

Not only lawyers but alternative dispute resolution professionals will want to pay close attention to Susskind’s views of technology’s influence on the evolution of the practice of law and the resolution of disputes, together with his prediction that client demand will shift focus from dispute resolution to dispute prevention.

And all of us will want to heed his reminder that “The best way to predict the future is to invent it”.

For more information on legal futurism, please see “The future is now: a strategic approach to dispute resolution and the law“, an article which appeared in November on this blog.

Technorati tags: alternative dispute resolution, Culture and Society, Law, Lawyers, legal futurism, mediation, ODR, online dispute resolution, technology

Last night an esteemed colleague kindly emailed me the following quote, attributed to Sandra Day O’Connor:

The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.

I think that many of us–alternative dispute resolution professionals, lawyers, and ordinary citizens–would wholeheartedly agree.

Justice O’Connor’s words acquire special meaning just one day after Harvard Law Professor Frank Sander, a pioneering leader of the modern alternative dispute resolution movement, was honored for his numerous contributions to the ADR field.

Thirty years ago, Chief Justice Warren Burger invited Professor Sander to present a paper at the Roscoe Pound Conference of 1976, a historic gathering of legal scholars and jurists brought together to discuss ways to address popular dissatisfaction with the American legal system and reform the administration and delivery of justice. Sander’s paper, “The Pound Conference: Perspectives on Justice in the Future“, profoundly influenced and transformed both ADR and the American legal system. It has in many ways acquired the status of a sacred text for ADR professionals; it is at once history and cultural narrative.

Sander reminded conference participants of the limitations of traditional litigation with its “use of a third party with coercive power, the usually ‘win or lose’ nature of the decision, and the tendency of the decision to focus narrowly on the immediate matter in issue as distinguished from a concern with the underlying relationship between the parties.” He urged conference participants to envision alternatives, a “rich variety of different processes, which, I would submit, singly or in combination, may provide far more ‘effective’ conflict resolution.” And he reminded them of “the central quality of mediation”, namely “its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.”

Sander was one of those early pioneers who blazed rocky trails that 30 years later are now well-traveled roads. The institutionalization of ADR is virtually complete. No longer novel and revolutionary, ADR has become commonplace, woven tightly into the fabric of legal, commercial, workplace, community, academic, and civic interactions.

This large-scale integration of ADR, however, as largely positive as it has been, has unfortunately produced problems of its own.

In an age of tort reform and mandatory arbitration clauses, ADR has been exploited as a means of concealing civil wrong or criminal misconduct or preventing the powerless from seeking justice against the powerful, as this recent article from NorthJersey.com reminded me. (For a full analysis of this issue, please see this post from March 2005, “The company we keep: ADR, tort reform, and the erosion of justice” (selected last month as a Gather.com Editor’s Pick), issued as a call to arms to my profession and a rebuke to those few misguided mediators who all too eagerly denounce litigation as an unnecessary evil).

Thirty years after the groundbreaking Pound Conference is a good time for perspective taking as the ADR field advances into the 21st century. It’s an opportunity to remember our roots.

ADR was founded on notions of greater access to justice for all, improved satisfaction with dispute resolution processes, and meaningful choices for resolving disputes in mutually satisfying ways. Sander and those early pioneers envisioned a multi-door courthouse, with doors swinging wide open to a broad range of dispute resolution processes, where disputes could be efficiently addressed through the mechanism best suited for the parties and the issues involved.

Sanders emphasized the need “to reserve the courts for those activities for which they are best suited and to avoid swamping and paralyzing them with cases that do not require their unique capabilities”. At the same time, Sander recognized the legitimacy of the “need to retain the courts as the ultimate agency capable of effectively protecting the rights of the disadvantaged”.

These should remain our bedrock principles. Justice, like ADR, must remain accessible, to the powerless and the powerful alike. Otherwise alternative dispute resolution ceases to be an alternative at all. As ADR professionals, let us work to keep the multiple doors wide open–before they slam shut in the faces of those who are most vulnerable.

Technorati tags: ADR, alternative dispute resolution, Law, Mediation

Game theory, which uses mathematical models to study human behavior and interactions in games, has applications in areas that range widely from politics and economics to warfare and international relations. It has even been used in the study of conflict and cooperation.

One of the best known examples of game theory in action is the Prisoner’s Dilemma, a non-zero sum game used to analyze cooperation.

The basic premise of the Prisoner’s Dilemma is this: the police have arrested two individuals suspected of being co-conspirators in a crime. The police keep these individuals in separate cells to prevent them from communicating with each other. The police lack enough evidence to convict either of them but offer each of them a deal in the hopes that either or both of them will confess. They tell each prisoner that if he betrays his accomplice, he will go free. If both prisoners refuse to talk, they will both receive only a very light prison sentence because of the lack of evidence. If one betrays the other, the one who betrays will go free, and the one who says nothing will be punished with a lengthy prison sentence. If, however, they both betray each other, they will receive prison sentences, but not as lengthy as if only one confesses.

The dilemma of course is that neither prisoner can speak with the other, so neither knows which course of action the other will choose—will they remain silent, thereby cooperating with each other, or will one or both of them betray the other? The biggest payoff for one prisoner occurs if one betrays while the other remains silent; the best outcome for both prisoners occurs if they both remain silent, thereby drawing only a light sentence.

The choice lies between cooperation and competition. Does the prisoner think only of himself or take his fellow prisoner into account?

(Interesting aside: according to Wikipedia, there is actually a television game show, “Friend or Foe“, which utilizes the Prisoner’s Dilemma in dividing up winnings among members of the team that scores the lowest on the show.)

Of course in real-life conflicts or negotiations, people are able to do what the prisoners in the Prisoner’s Dilemma are unable to: talk to each other. Communication removes the risk and unpredictability that silence produces: without communication, an individual can only anticipate or guess what the person across the bargaining table will do. Communication with the disclosure it brings reveals interests and builds trust. Through communication it is possible to address or minimize risk, discuss contingencies, design mutually beneficial outcomes, and optimize proposals already on the table to maximize benefit. This provides significant rewards for cooperative behavior.

The Prisoner’s Dilemma can be played online at several web sites. These include:

• The Serendip web site, a “gathering place for people who suspect that life’s instructions are always ambiguous and incomplete” (you can’t argue with that).
• Iterated-prisoners-dilemma.net, which allows you to change players’ strategies and run simulations using a number of different variables.
• Prisoners-dilemma.com, where you can also play the game against the computer using different strategies. Click on the link for http://www.princeton.edu/~mdaniels/PD/PD.html to play the game.

Over the years alternative dispute resolution (ADR) in all its forms has proliferated, increasing in popularity and accessibility. Mediation and arbitration are widely perceived as affordable, time-saving, private means for resolving disputes, presenting an appealing alternative to the expense, delay, and uncertainty that can characterize litigation.

Mediation and other forms of ADR can certainly spare people the emotional toll and financial costs that adversarial processes like litigation can produce. A friend of mine who mediates workplace and family disputes recently worked with a divorcing couple who came to mediation after spending thousands of dollars on attorneys’ fees. They had realized that they were wasting both time and money battling over issues that they could work out far more cheaply, efficiently and painlessly with the help of a mediator. And what is true in divorce cases is equally true of other kinds of disputes.

My first exposure to ADR came through my initial training by and subsequent volunteer work with grassroots community mediation programs, where mediation is used to bridge differences and empower individuals to become themselves the architects of positive change. Programs like these, which are founded upon idealism, optimism, and an abiding faith in humankind, undoubtedly do much good.

ADR’s success extends well beyond the grassroots level. ADR exists on both micro and macro levels, and today ADR is equally at home in the private and public sector, in schools, in neighborhoods, in federal agencies, in workplaces, in the military, in local, national and international conflicts, and even of course on the Internet.

But the Force, as any Star Wars fan can tell you, has a dark side.

The advantages that ADR offers over litigation have not gone unnoticed by corporate America. Litigation is an expensive proposition for corporations, and the public nature of trial and the evidence that discovery produces can result in embarrassing public revelations regarding corporate policy. Mediation and arbitration, on the other hand, conducted in private and shielded by confidentiality, produce speedy resolutions without public disclosure. ADR has become increasingly attractive to corporations who want to find ways to limit their liability and reduce exposure. Private remedies like arbitration and mediation shield corporate acts from public scrutiny and can result in the concealment of patterns of corporate misconduct.

The prevailing view in Washington is that litigation and jury trials have been bad for corporate America and that reform is urgently needed. Powerful business interests have been lobbying hard to limit access to courts, place caps on the amount of damages a jury can award, and place restrictions on class action lawsuits. (For example, Congress recently approved legislation aimed at restricting the power of state courts to hear class action lawsuits, requiring many of these suits to be filed in federal court instead where class action plaintiffs are less likely to enjoy a sympathetic reception. Good for business, very bad for consumers, patients, employees and others affected by negligent, unethical or illegal corporate practices.) Those sounding the drumbeat for litigation reform have been successful in influencing public opinion of trial attorneys and plaintiffs.

ADR unfortunately has become a piece of this overall pattern, increasingly utilized by the powerful to limit access to the courts by those less powerful. Mandatory arbitration, for example, has become a common feature of many consumer agreements, including everything from health care coverage to the purchase of an automobile. If you have a credit card or motor vehicle insurance, read the fine print—your agreement with either your credit card company or your insurer may well require you to arbitrate any disputes that arise—and most likely in a forum convenient for the company, not for you. And many large corporations—not surprisingly, Halliburton, friend of the current White House, is among these—have instituted mandatory ADR programs to address workplace disputes.

This trend is an alarming one. Those of us who are ADR practitioners need to be very careful of the company we keep and the uses to which ADR is put in our name.

ADR was conceived as a way to do much good, to provide a cost-effective process in which all parties participate on a level playing field, resolution can be achieved quickly, and which produces outcomes capable of creating winners out of everyone. We need to ensure that the affirming principles on which ADR was founded do not become distorted or manipulated for harmful ends.

We should resist the lawyer-bashing that seems to characterize much of the public conversation about litigation today. And let us stop spreading the notion that all litigation is bad—a view I have heard even well-meaning mediators advance in a misguided effort to promote the ADR field.

Litigation and ADR each have their place. There is much that each can offer, depending upon the parties, the case, and the issues at stake.

Mediation can result in what litigation by its nature does not typically allow for: dialogue, reconciliation, and closure. Arbitration avoids the delays of trial, bringing speedy resolution in an informal and private setting. And litigation can be the surest path to uncover truth, right wrongs, and achieve justice.

We need to ensure that all these avenues remain open and be cautious in our enthusiasm to promote the ADR field that we do not risk closing any of them.

May the Force be with you.

Community associations—condominium or homeowners’ associations—are booming. According to the Community Association Institute, over a quarter of a million community associations are in existence here in the U.S. Almost 50 million Americans live in an association-managed community—or one out of every 6 Americans.

There are advantages to living in an association-managed community—in some of the tonier communities residents share access to such amenities as tennis courts and swimming pools.

But there’s a down side as well. As a means of preserving property values, community associations are typically governed by rules and covenants which place restrictions on what property owners can do with their property. These rules, sometimes arbitrarily enforced, can place stringent limits on property owners, imposing strict rules on everything from mailboxes and flags to landscaping and exterior paint colors.

Needless to say, disagreement often arises as to how these rules should be enforced or interpreted. This generates a huge amount of misery and litigation for association residents who run afoul of these rules.

As someone who has mediated disputes involving condominium associations, I know from experience that these kinds of conflicts can be highly contentious. Good fences do not always make good neighbors.

The California Law Revision Commission is considering a proposal to establish an agency with oversight of homeowners’ associations. The services and resources that would be available through such an agency would include mediation services.

That’s a great way to mend fences.

Thanks to my friend and colleague Moshe Cohen for alerting me to this story.