Category Archives: The Future of ADR and Law

Mediation and law, strange bedfellows: time for us to start seeing other people?

In his recent essay, “Killing Mediation: The Specialized, Professionalized And Neutralized Mediator”, ADR personality Robert Benjamin pronounced mediation dead, naming the usual suspects responsible. (For those who enjoy a good whodunit, you may wish to read how Jeff Thompson, who plays a detective in real life in his work with the NYC Police Department, conducts his own investigation of Benjamin’s allegations.)

As the title of his article suggests, Benjamin is known for iconoclasm, a dramatic flair and a determined willingness to declare the emperor naked (or, in this case, deceased).

If you wash away the fake gore and other Hollywood special effects, Benjamin’s essay contains words of caution to be heeded. He invokes the great promise that mediation offers to consider and address a dispute across many dimensions, in all its astonishing complexity, through a participatory process in which “clients remain directly involved, not merely the objects of professional expertise and treatment”, and in which many issues and needs – legal, financial, interpersonal, emotional, psychological, and more – can be addressed. Benjamin warns that this promise may be compromised in the rush to specialization, citing the rise of “legal mediation” as but one example:

As mediators increasingly specialize in particular dispute contexts or limit themselves to particular practice approaches they close off the systemic focus that is the hallmark of mediation. Those who practice “legal mediation” in the business or legal context tend to use strategies and techniques that are more familiar to traditional case settlement conferences where the focus is solely on the legal solution. That narrow view is not wrong or bad, per se; in some circumstances it may be necessary. However, to have that approach become a matter of habit—or a rut—conditioned by the context in which the dispute is presented often precludes the use of other more creative strategies and techniques…

“Legal mediation” is distinguished from other kinds of mediation, suggesting that those outside law could not understand the nature of conflicts that arise in the legal context and that conflicts that occur in the shadow of the court actions are predominantly legal.

How narrowly we perceive the range of mediatable disputes. Too often mediation is framed as an only an alternative to trial, a dispute resolution mechanism within the machinery of the court, a last-ditch effort to settle a case.

That framework limits our ability to see the full range of possibilities and applications for our work. It’s like looking at the entire world of disputes through the cardboard tube left over after the toilet paper’s been used up. Suddenly your viewpoint has shrunk to a 1.5-inch circle.

There would be more opportunities for mediators if more of us recognized – and helped the public understand – that not every dispute arises in law or offers legal redress. Many disputes that lend themselves well to mediation lie beyond the reach of the shadow of the courthouse.

Perhaps it’s time to pause here, for a moment, and recall the expansive opportunities that mediation holds for those who are mired in dispute and who yearn or struggle to break free. Remember, too, that mediation can be used long before disputes arise, preventatively or diagnostically, to guide planning, negotiations, or dialogue.

Let’s set down the cardboard tube and take an unimpeded look at what’s possible, expanding our vision along with the proverbial pie.

Cognitive errors to watch for as the mediation profession discusses the important issues

watching out for cognitive errorsMomentum seems to be building for mediator credentialing in the United States.  Change is no doubt coming. What form that may ultimately take remains to be seen — whether public licensing by the state (least likely) or the adoption of credentialing mechanisms by major ADR membership organizations that dominate the national scene (most likely). This is but one of several difficult and divisive issues that the field will grapple with in the years to come.

As we contemplate and debate change, let us hope that we ADR professionals can do what we ask of our clients: to listen with open minds, to ask questions, and to be alert to possibilities.

I appreciate that doing so is easier said than done. I know this from my own humbling experience participating on a committee that wrestled with a possible change in Massachusetts state law that protects mediation communications. From the beginning, the work of that committee grew entangled with the charged issue of mediator qualifications; not surprisingly, stalemate resulted. Let’s just say that mistakes were made (by present company included).

Drawing on the lessons that tough teacher experience has taught me, I would present the following list of the cognitive errors I see as most likely to trip us up as our profession debates the important issues we face. And by all means please suggest your own in the comment section below.

Reactive devaluation. As readers know, reactive devaluation (PDF) is the tendency to devalue or discount a proposal simply because the person who proposed it is someone we don’t much like. We see our clients at the mediation table commit this very human blunder. Not surprisingly, mediators are as human as their clients. Honesty compels us to acknowledge that there will always be people, even within our own field, who rub us the wrong way. That doesn’t, however, mean that we should automatically discredit or devalue their opinions. Even jerks can be right.

Confirmation bias. Confirmation bias is our tendency to seek out or interpret information that confirms what we already believe or to discount information that doesn’t support our world-view. Put your hand up if you’ve never done this. See? No hands in the air. That confirms precisely what I suspected.

Status quo bias. Recently journalist James Surowiecki, in an article for the New Yorker, wondered out loud whether the American public’s resistance to changing the existing health care system results from status quo bias –a tendency to prefer things the way they are.  Such resistance to change is rooted in loss aversion, according to “Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias” (PDF), a paper published by professors Daniel Kahneman, Jack L. Knetsch, and Richard H. Thaler, which points out that “individuals have a stronger tendency to remain at the status quo, because the disadvantages of leaving it loom larger than advantages.” If you catch yourself saying “because we’ve always done it this way” or championing “the devil we know” over “the devil we don’t”, you may have fallen into the status quo snare.

The influence of authority. In his famous work, Influence: The Psychology of Persuasion, Robert Cialdini delves into our susceptibility to the manipulations of others, describing six basic categories of weapons of influence. Included among the six is authority, a particularly powerful instrument of persuasion, used to influence everything from consumer purchasing decisions to support for political candidates. In fact, mere symbols of authority trigger our compliance, from impressive-sounding titles to “the well-tailored business suit”.  But if there’s one thing the current economic crisis has taught us, it’s that even the experts can get it wrong. So let’s draw advice from a sixties-era bumper sticker: Question Authority.

Finally, let us not forget the overconfidence effect – our boundless optimism about our own abilities and talents, despite evidence to the contrary. That includes of course our overconfidence in our ability to recognize and avoid cognitive errors.

For now, let us all be supremely overconfident that we will, one way or the other, slip up.

A kinder, gentler lawyer: shows the sensitive side of the practice of law

Cuttingedgelaw.comSomeone called me the other day to ask me to recommend them a lawyer. After describing to me the issues at stake, they said, “I want a real pitbull — someone who’ll go straight for the jugular and show no mercy.”

Believe me, a pitbull was not what this particular case warranted. It’s too bad that so many people think that’s what they need in a lawyer. Not a principled defender of justice, nor a skilled negotiator who can broker a winning deal, nor a charismatic leader who can influence others. Thanks to the media, which rarely depict this side of lawyering, most people fail to see, let alone celebrate, the art in the lawyer’s craft.

J. Kim Wright, who describes herself as a “pioneer, catalyst and leader in a new paradigm of law”, has launched, an online community and magazine that seeks to show lawyers in a very different light:

Rather than focusing on the latest litigation victories and defeats, we will focus on the roles of lawyers as healers, peacemakers, problem-solvers, and champions for justice. We aren’t looking for the “Super Lawyers” who made $6MM on moving money between two behemoth corporations over a technicality but rather the lawyer who healed a conflict between two parents in a custody dispute or a lawyer who helped a murderer come face to face with the family of his victim and give them the gift of a sincere apology. We’re here to support the explorations and promote the most workable and inspiring options for the legal system. Imagine the legal system as a resource for creating whole, vibrant, loving communities? If we transform our practices, how do we reach clients? How do we earn a living on healing and peace-making when the world is used to viewing lawyers as a polarizing force? is still under construction, so not all links on the site are operational. In the meantime, however, you can view video interviews with lawyers who are themselves leaders in the “new paradigm of law”.

A big hat tip to Stephanie West Allen for alerting readers to the launch of this site and Wright’s work.

Time for a change: Is mediation ready for reform?

Changes ahead for the mediation field?While legal futurist Richard Susskind contemplates the future of the legal profession in an online debate over excerpts from his new book, The End of Lawyers?, two leaders in the alternative dispute resolution field take a hard look at the direction of mediation and think it’s time for change.

Guerrilla negotiator Robert Benjamin offers both tribute and lament to the field of mediation in an essay honoring co-founder Jim Melamed, recent recipient of the ACR John Haynes Distinguished Mediator Award:

Now, as mediation has become institutionalized, too many of us seem content to merely send out brochures to referral sources or sign up for panels and wait for cases to be sent to our door. Too often we work as agents of the establishment and not as independent, innovative professionals.

The acceptance and legitimizing of mediation by courts and other organizations may be the best thing that has happened to mediation practice — and perhaps also the worst. Haynes often warned that without very careful monitoring, mediation would become just another cog in the institutional machinery. He knew, as does Melamed, that unless mediators appreciate the necessity of being independent and effective practitioners, not beholden or reliant on anyone but the parties for their professional survival, the field may be in jeopardy.

Meanwhile, ADR expert James Alfini, president and dean of the South Texas College of Law, recently made the case that the mediation system in Texas needs reform, pointing to problems that other U.S. states are no stranger to. The big problem? Too many lawyers serving as mediators, according to an article this week in the Southeast Texas Record:

For “big stakes” cases, like civil litigations coming out of district courts, lawyers make up about 95 percent of the mediators, Alfini said. In small claims and family law disputes, the number is about 50 percent.

The law professor said that when lawyers become mediators, it can reduce the role of the actual disputing parties, as negotiations often take place among the lawyer-mediator and the counsel for the parties, not the parties themselves.

“This mutes the parties and returns it to a lawyer-centric, not party-centric system,” Alfini said.

When lawyer-mediators take on an evaluative role – offering opinions on settlement options – the framework is narrowed and it invites attorney dominance to the process. By suggesting an amount or specific option for settlement, studies have shown that in the end the parties are less satisfied with the outcome of the mediation, feeling that the mediator was somehow partial to one of the sides.

Alfini said on the decline is the joint session in which the two parties and the neutral mediator sit down together at the conference table. Taking its place is a form of “shuttle diplomacy” – one party or its counsel in one room, the other party in another room and the mediator going back and forth between the two.

“This sacrifices effective justice for efficient deal brokering,” he said.

Gone is the opportunity for the parties to tell their side of the story directly to the opposing party, Alfini said. Instead of give and take between the parties, which can lead to a settlement agreeable to both, the parties now rely on the lawyer-mediator to tell the story for them.

New Zealand mediator Geoff Sharp asks his American readers for help in making sense of Benjamin’s criticisms of the state of the mediation field here in the U.S. In my view the problem lies not in a lack of innovation or entrepreneurship. But I do think that Benjamin is right that mediation’s complicitness in the functioning of the institutional machinery yields the kind of failings that Dean Alfini points to.

And I continue to ask, as I have here before, does ADR further justice or does it thwart it? There is too much evidence to suggest that it often, however inadvertently, performs the latter and not for the former.

Maybe it’s time for us to shake up the establishment. Mediators, what do you think? Is Robert Benjamin the Richard Susskind of our field? Or is he just lobbing bombs for the pleasure of seeing them explode?

Legal futurist sees new directions for dispute resolution and the practice of law

New directions seen for the future of dispute resolution and the practice of lawEarlier 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.

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