Lela Love, Donna Erez-Navot, and Robyn Weinstein (all Cardozo) and Vikki Rodgers (Pace) were kind enough to provide a recap of the recent Jed D. Melnick Annual Symposium entitled The Pound Conferences: Where Do We Come From? What Are We? Where Are We Going? hosted by the Cardozo Journal of Conflict Resolution.
The Symposium opened with two former Editors in Chief of the Cardozo Journal of Conflict Resolution—Brian Farkas and Lara Traum—giving a presentation on the history of the Pound Conferences. Brian Farkas, commenting on Gaughin’s painting Where Do We Come From? What Are We? Where Are We Going?, which was used as a theme of the conference, reflected on how the painting sounded the fear and hope that we (as human beings) are either: 1) caught in an unbreakable cycle of repeating the same errors (“samsara” in the Buddhist world) or 2) involved in an evolutionary process.
Following this, Tom Stipanowich gave a keynote address on Living the Dream: Taking Stock of the Quiet Revolution in Dispute Resolution. His comprehensive and thoughtful remarks shed light not only on the history of ADR but also on the direction we are going. For example, from “one size fits all” to “tailored to suit”, from “advocate-controlled” to “client-controlled”, from a “temple of justice” to “community”, from “adversarial” to “collaborative”. And, as the rest of the day unfolded, there were many illustrations of these movements.
The first panel, Designing Dispute Resolution Processes: The Multidoor Courthouse and Beyond, had several highlights. Dan Weitz, the Director of the NYS Courts ADR Program, talked about nudge concepts and the architecture of dispute resolution processes in the court. As he talked, I (Lela) thought, how wonderful to have such an inspired director of dispute resolution and authority of neuroscience planted in the bowels of the court system. Erika Sasson brought to life the efforts of the model “multidoor courthouse” that is the Red Hook Community Justice Center, especially highlighting its Peacemaking Program that trains community members to resolve disputes using an approach inspired by Native peacemaking. And Mariana Gonstead (St. Thomas) took us to Casas de Justicia in South America, showing how a multi-door courthouse model can foster foreign investor-State business relationships, in order to move from dispute resolution and prevention to investment retention.
The second panel of the day entitled Studying ADR: A New Focus on Empiricism examined the importance of reliable empirical information for our conflict resolution field–information that includes context, culture, and clarity about processes. Two members of the Maryland Judiciary, Jonathan Rosenthal and Jamie Walter, reviewed the remarkable findings from the innovative study of mediation of the Maryland courts (www.mdcourts.gov/publications/reports.html), and Lisa Blomgren Amsler, a quantitative power house scholar in ADR, critiqued (and praised!) the Maryland study, raising, at the same time, concerns about the methodology of the Global Pound Conference Series (for example, a relative lack of users in the database).
During the third panel, Technology Enhancing and Disrupting ADR, Vikki Rogers (Pace) led a discussion with thought-leaders on the future of online dispute resolution (ODR), and explored the relationship between ODR and ADR. Alyson Carrel (Northwestern) presented a fascinating array of “wearable technologies” that are being used to improve participation and empathy of parties involved in ADR processes. Colin Rule demonstrated several ODR platforms that his company, Modria, have developed for the public and private sector. Noam Ebner (Creighton) questioned whether it was time to create a formal governance structure around ODR. Ethan Katsh – who coined the idea of technology as the “fourth party” in ODR – explored technologies’ impact on other professions, and its inevitable impact on the legal profession. Regarding the imminent future of ODR, he noted that he was most excited to see the resources being invested in courts around the world (notably in British Columbia, Canada, England, the Netherlands and China) and eager to see how US state courts would start implementing comparable technological innovations.
The final panel, Reading the Tea Leaves, What Will ADR Stakeholders Need in the Future focused on trends in commercial dispute resolution for both ADR consumers and ADR providers. Deborah Masucci (IMI/Cardozo) discussed the increase in the use of mixed-mode dispute resolution, specifically “med-arb”—a hybrid process where a non-adjudicative neutral such as a mediator “changes hats” by shifting from the role of mediator to that of an adjudicator. Noah J. Hanft (CPR) discussed an uptick in the use of pre-litigation ADR techniques in transactional disputes, and called for a greater role in early dispute resolution processes for transactional attorneys and non-attorney business professionals including CFOs and COOs. Daniel B. Garrie (Cardozo) spoke about the use of supplementary expert neutrals as a measure to reduce litigation costs and expedite resolution, particularly in matters where complex electronic discovery issues are involved. At the close of the panel, Robyn Weinstein, the ADR Administrator for the Eastern District courts, discussed the current landscape of ADR providers including the future of mediator certification and various initiatives underway to increase diversity among practicing neutrals.
To listen to the whole conference, click here.
I’m not sure if you’re familiar with the ODR Regulation and ADR Directive in the European Union, as this is a good example of a creative solution to governance of ODR in the realm of consumer disputes. In short, they’ve created an ODR platform designed to help resolve disputes between consumers and businesses in different EU member states. It is mandatory for online traders in the EU to provide a link to this platform where consumers can submit their complaint and be connected to a suitable ADR body.
It may be easier in the EU because of their level of integration and harmonised consumer protection laws, however it is likely that a treaty or similar mechanism could be used to achieve the same thing in other free trade areas such as NAFTA. Perhaps the EU legislation could be used as inspiration.
Professor Pablo Cortes has just published a book about EU Legislation on this area, there’s a useful video on Mediator Academy where he talks about the EU ODR Regulation.
Hope it’s useful. Kind regards
John
I find the idea of formal governance over Online Dispute Resolution to be very interesting in light of the potential uses for increased technology in global dispute resolution. I think that it would take some very creative solutions to put formal governance into effect when online dispute resolution could potentially involve international parties. For example, if there is a business dispute regarding a contract between a business from Wisconsin and a business located in Vancouver, I would wonder what form formal governance over ODR would take. The United States can only really regulate its own citizens, but how could the country make sure that the governance enacted is fair to American parties who must comply when a Canadian party may not necessarily need to? International law generally only regulates state actors – not citizens. A possible solution could be for countries that participate in Online Dispute Resolution to sign a treaty agreeing upon certain regulations. However, I think that it would probably be more economical and make the parties more comfortable if they laid out the procedures in their contracts (similarly to how it is now) or in the particular forum of ODR being used. Formal governance would be great for disputes between parties of the same citizenship that use ODR, but I am curious about how it would work for parties of differing citizenships.
Hi Margo,
Good points. One of the challenges in envisioning governance in such a global, transjurisdictional area is that it is easy to imagine multiple governance schemes or no governance structure – but it is much harder to imagine one that would encompass it all. This chapter by John Zeleznikow and myself is the first chapter of – or, better, just a foreword to – the conversation that we hope to see taking place on this issue. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2845639