October 5, 2013

Nolan-Haley on Fordham’s Annual ADR Symposium

By Art Hinshaw

On Friday Fordham School of Law hosted its 8th Annual ADR Symposium.  This year’s event, entitled ADR Ethics in a Changing World, featured Ellen Waldman (Thomas Jefferson) as the keynote speaker and had a great lineup of speakers.  If you haven’t read  her book Mediation Ethics: Cases and Commentaries, you should put it on your list.  Fordham’s very own Jackie Nolan-Haley was kind enough to send along this excellent synopsis.

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We just finished the 8th annual ADR Symposium at Fordham Law School where keynote speaker Ellen Waldman (Thomas Jefferson School of Law, San Diego) led the conversation on “ADR Ethics in a Changing World.”  What is the right thing to do, she asked.  Who gets to decide?  Where do we look for guidance?  One place she suggested was to St. Ignatius (founder of the Jesuit order) who developed a guide, the Spiritual Exercises, to help individuals cultivate an inner sense of discernment, an ability to discern between good and bad choices, between consolation and desolation.  Defining the good, she argued, depends upon one’s goals for the process, and she proposed a three part framework to drive ethics analysis: (1) mediation model (2) case context (3) disputant preference.

Reflecting the symposium theme of “changing ethics in a changing world,” she noted that the growing economic inequality in the U.S. is the greatest that it has been since the past one hundred years and that this widening gap between the “haves” and “have nots” is prevalent throughout the world.  Thus, she predicted that at both the domestic and global level,  mediators will have more encounters with power imbalance.  Following her remarks, Ellen transformed the symposium into a stimulating world café where attendees discussed a hypothetical problem from her excellent 2011 ethics book involving substantive fairness, and then reported their reactions to the larger group.

A panel discussion moderated by Paul Radvany (Fordham Law School) followed.  Four speakers continued the “changing ethics” theme beginning with John Feerick (Fordham Law School) who was the original reporter for the Model Standards of Conduct.  He offered an historical view of the standards and stated that ethical standards have to take account of changing times.  Kathy Bryan (President and CEO, International Institute for Conflict Resolution) made a strong plea for a dialogue to frame global principles for ADR providers and institutions.   This would give business predictability and stability as they would be able to have more trust that there would be fair processes.  She also argued that ADR service providers must make diversity a goal because if they do not, it will not happen. ODR expert, Daniel Rainey (Adj. Prof. Southern Methodist University) discussed four ways that technology has impacted law practice, all of which flow into ethics concerns: (1) competence (2) confidentiality online (How do you describe to your client how hard it is to destroy information?) (3) Identity-how do you really know with whom you are dealing?  (4) Information gathering and analysis.  In his view, the greatest challenge for lawyers is how to explain to clients what the use of this technology means.  Expanding the discussion, the final panelist, Michael Alberstein (Bar Ilan University, Israel), argued that we need to promote a stronger identity of what it means to be a conflict resolver.   A more explicit discussion of who we are is a good way to establish the identity of our profession, she argued, and this will lead to a better understanding of ethics.

 

 

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