ADR and the Rule of Law

Is there a tension between various forms of Alternative Dispute Resolution and the Rule of Law? Many argue there is. Critics suggest that ADR represents the privatization of dispute resolution to the detriment of society because public litigation allows for the refinement and development of the law and published decisions are necessary to define and protect individual rights.

Others argue that ADR weakens the less powerful members of society (See, e.g., Harry T. Edwards, Commentary, Alternative Dispute Resolution: Panacea or Anathema?, 99 Harv. L. REV. 668, 675–82 (1986); Owen M. Fiss, Commentary, Against Settlement, 93 Yale L.J. 1073, 1075 (1984); David Luban, Settlements and the Erosion of the Public Realm, 83 Geo. L.J. 2619, 2622–23 (1995); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545 (1991)). I think those views have lost the argument. Clearly, we are not without written decisions by the courts at all levels, produced through the most vigorous use of litigation.

The University of Missouri Center for the Study of Conflict, Law and the Media, along with the ABA Section of Dispute Resolution is sponsoring a Symposium that will take a close look at the supposed tension between the Rule of Law and ADR.

Scheduled for October 15 at the University of Missouri School of Law, the Symposium claims to be the “first-ever convening of scholars and practitioners from across the globe to consider this relationship more deeply.”

It looks very interesting. Wish I could attend.

If anyone attends and has any comments or responses, please let me know or post your comments here.

Brainstorming and Facilitators

Many people who chair or facilitate group meetings ask the group to collectively "brainstorm" as a way to generate new ideas or proposals as a first step to move toward resolution of the issues at hand. An article from the July 2010 issue of Newsweek, based on data and research, debunks the value of that approach.

As a facilitator who tries to avoid "group think" this article confirms my bias. According to the article:

Brainstorming in a group became popular in 1953 with the publication of a business book, Applied Imagination. But it’s been proven not to work since 1958, when Yale researchers found that the technique actually reduced a team’s creative output: the same numbers of people generate more and better ideas separately than together. (Emphasis added)

The article has several useful suggestions about how to generate ideas, and I commend it to your attention.

My thanks to a friend and colleague, Maile Beers-Arthur for circulating this article.

The New Lawyer

My last posting was about whether the legal profession is heading for extinction. I believe it is not. But it will change, perhaps dramatically, over the next decade. A book by Julie Macfarlane, The New Lawyer, says it all. I agree with Macfarlane’s premise that the practice of law is moving from the simple lawyer as warrior and zealous advocate to a much more subtle and complex role of counselor, negotiator, mediator and meta-expert.

This review of Macfarlane’s book by Andrew Pirie, a Professor of Law at the University of Victoria and founding director of the university's Institute for Dispute Resolution, Pirie describes Macfarlane’s thesis and a recent British Columbia case regarding native land claims that he suggests illustrate the role of the new lawyer. The book, the review and the case are all Canadian. But they illuminate changes that will occur in the U.S., Europe and elsewhere.

The End of Lawyers?

The current economic woes have hit many sectors including lawyers. Many recent observers have suggested that the declining fortunes of lawyers is structural and that demand for traditional legal services will continue to decline fueled by technological changes and out-sourcing. I don’t particularly agree with that, although I do think the market will change and the nature, type and cost of legal services will change.

Here is a link to an article in the always interesting blog, ADR Prof Blog about an essay by Paul F. Kirgis, a professor at St. John’s University School of Law titled “The Knowledge Guild: The Legal Profession in an Age of Technological Change.” In the essay, Professor Kirgis disagrees with those who are predicting the end of lawyers. Interesting stuff. I tend to agree with Professor Kirgis, but I do think the nature of the practice will change. Clients have come to recognize that mediation and other settlement alternatives often make sense. I will post another blog about where I think that change will lead.

Tips For More Effective Mediation

Below is a link to a very interesting article published online by the American Bar Association Dispute Resolution Section by Jeffrey Boykin who often represents clients in mediation. He is a business and transactional litigator in Raleigh. His co-author is Diana Mercer, co-chair of the ABA DRS Practice Development Committee with an ADR practice in Los Angeles.

The article lists 18 tips that they believe help define effective mediators. I agree with the points they make; it is very sensible advice for anyone considering mediation. (You must be an ABA member or have an ABA account to read the article online.)

Focus on Practice: A Client’s Perspective on Effective Mediation:
18 tips for a more effective mediation, from the client’s perspective

Paul Verkuil Confirmed as Chairman of the Administrative Conference of the United States

I have posted before about the reincarnation of the Administrative Conference of the United States (ACUS).

Last November I noted that the President intended to nominate Paul Verkuil as Chairman of ACUS.

On March 3, 2010 the Senate confirmed Mr. Verkuil.

This is good news. ACUS will add some light to the debates about good government and process. Congratulations Paul Verkuil. I wish you and ACUS well.

Chocolate Cake versus Fruit – Why We Get Emotional During “Rational” Negotiations

I recently saw a blog by Andrea K. Schneider, Professor of Law at Marquette posted in ADR Prof in which she relates hearing a very interesting experiment described on National Public Radio.

The experiment, by Stanford University professor Baba Shiv was simple: collect several dozen undergraduates and divide into two groups. Give one group a two-digit number to remember and the other group a seven digit number. Instruct them to walk down the hall. In the hall give each person an option for a snack, either a slice of chocolate cake or a bowl of fruit salad.

As reported by Jonah Lehrer, whose books How We Decide and Proust Was a Neuroscientist I have sitting in my too large pile of books to read, in an article in the Wall Street Journal:

Here's where the results get weird. The students with seven digits to remember were nearly twice as likely to choose the cake as students given two digits. The reason, according to Prof. Shiv, is that those extra numbers took up valuable space in the brain—they were a "cognitive load"—making it that much harder to resist a decadent dessert. In other words, willpower is so weak, and the prefrontal cortex is so overtaxed, that all it takes is five extra bits of information before the brain starts to give in to temptation.

Everybody knows that the bicep has practical limitations: If we ask the muscle to hold too much, it will give out and drop everything on the floor. And just as our muscles get tired after a tough workout, and require a rest to recuperate, so does the poor prefrontal cortex need some time off.

I totally get this – I understand lack of will power.

There is something about this view of the brain that undermines the modern view of the mind as rational and self-controlled; that character, not nature, is why we fail in self control. The research clearly suggests otherwise.

To understand ourselves we must look beyond the rational, which is only a recent and thin overlay in our brain.

I see this in nearly every negotiation I mediate. Strong emotions appear in place of rational discourse, even when rational discourse would be more effective.

We might think of ourselves as rational beings, but the cognitive load in our frontal cortex when we are at the table trying to keep track all of the information and arguments is a lot for our brain to handle. So we become emotional; we have a hard time managing our impulses.

According to Lehrer, “This helps explain why, after a long day at the office, we’re more likely to indulge in a pint of ice cream, or eat one too many slices of leftover pizza.” Our willpower fails in large part “because the brain wasn't built for success.”