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In 2011, researchers returned to the Fortune 1000 to conduct a new survey, cosponsored by Cornell University’s Scheinman Institute on Conflict Resolution, the Straus Institute for Dispute Resolution at Pepperdine University School of Law, and the International Institute for Conflict Prevention & Resolution (CPR), of the companies’ ADR practices. The aim of this survey was not only to garner a sense of the current (or, at least, more recent) state of ADR at major US corporations but to explore the extent to which ADR practices had either remained stable or changed in the 15 years between the two surveys.
This issue explores the evolution of dispute resolution by examining ADR systems in the private and public sector, noting what has worked and what hasn’t. Other articles look at the growth of ADR providers and their role in providing services, and at the practice of Judicial Dispute Resolution. The International Dispatch feature gives us an update on ADR developments in Australia, and our On Professional Practice feature examines the enduring concept of self-determination – and how important context and timing can be. And finally, an article about a survey by the ABA’s Women in Dispute Resolution Committee looks at whether gender makes a difference in the selection of dispute resolution practitioners.
DuPont’s uses of ADR since 1997 somewhat mirror the shifts that Professor Lamare describes between the two studies of ADR in Fortune 1000 companies. As a corporate counsel for DuPont since 1995, I have been both a participant in and a witness to these trends. DuPont’s first emphasis has been to increase mediation actively in the wide range of disputes where it is a good fit, regardless of subject matter or area of law. Usage of domestic arbitration has remained constant, probably because DuPont primarily trades with businesses rather than consumers.
Looking at how ADR programs have developed in the public sector over the past 40 years is a huge challenge. This article does not attempt to provide a comprehensive review of public sector dispute resolution or the extensive literature on this topic; instead it focuses on insights from interviews with colleagues who have substantial experience in state court and administrative agency dispute resolution programs. In preparing this article we spoke with 19 colleagues who work in programs across the country. We think their experience and wisdom can provide valuable guidance.
In this article we take a close look at the business models of the dispute resolution field, present and prospective. What are the challenges and opportunities for practitioners? To gain an understanding of current business models as well as the strategies and vast differences among firms and geographic areas, we interviewed ADR leaders and informed observers around the world. Although some business models have reached stability, we predict disruptive innovation in ADR. As with other industries, the source of the disruption in the ADR market is likely to be not the established players but new ones. The good news for the established participants, however, is that, unlike in some other industries, the innovations seem more likely to open up new ADR markets and types of service than compete for existing ones.
Best practices of policy mediation are grounded in the development of policy that values, and is improved by, stakeholder participation. With practical strategies for actually reaching sustainable agreements, best practices include conducting preliminary assessments prior to convening negotiations, developing and using participant-determined procedural ground rules, and maintaining mediator independence. Policy mediation conducted in this way can yield plans, regulations, policies, and constitutions that reflect the wisdom and unique characteristics of those who will be governed by them.
I recently spent some time with several dozen judges who specialize in JDR in Canada. In conjunction with the Canadian Judicial Institute, we organized a three-day workshop at which we screened videos of three judges resolving the same case. I was surprised to see how differently the judges approached the same dispute resolution assignment. Since they rarely have time to watch each other work, the variation in their dispute resolution strategies came as a surprise to them, too.
In recent years, alternative dispute resolution in Australia has expanded greatly. Policy makers have redefined the “justice system” to include the extensive ADR system as well as courts and tribunals, a development that has led to legislative initiatives and a new focus on the quality of ADR processes as well as the timing of their use. Significant systemic reforms, including the establishment of a mediator credentialing system, have supported innovation and growth.
At one point in a mediation, the parties appear to be stuck. The mediator offers a suggestion on how to resolve the dispute. Shortly thereafter, the parties sign an agreement based on that suggestion. Has the mediator violated the ethical standards relating to self-determination? For many of you, this brief description captures a typical mediation, so the thought that this could be a violation of an ethical standard may seem preposterous. We believe that closer examination is required.
Many members of the Section of Dispute Resolution have long been concerned that women and minorities are not being selected as neutrals, especially in large and high-stakes cases, as often as their male counterparts. How, exactly, are neutrals chosen? By whom? For what kinds of cases? Does the age or gender of the person or people doing the selecting make a difference?
On April 4, Grande Lum, Director of the US Department of Justice’s Community Relations Service, accepted the ABA’s Lawyer as Problem Solver Award on behalf of CRS. The editors of Dispute Resolution Magazine took this opportunity to interview Lum about CRS and the people who work in it.
In BG Group PLC v. Republic of Argentina, 2014 WL 838424, __ S. Ct. ___ (2014), the Supreme Court held that in reviewing arbitration awards under a treaty, US courts should apply “threshold” provisions concerning arbitration, as they would for similar provisions in ordinary contracts, and review arbitrator decisions with deference. Treaties, the Court held, are simply contracts between nations and should be treated like any other contract. To read more: http://www.supremecourt.gov/opinions/13pdf/12-138_97be.pdf.
Attendees at the 16th annual Spring Conference in Miami were treated to four days of beautiful Florida weather and an inspirational lineup of conference programs. Wednesday, April 2, kicked off with the annual Symposium on ADR in the Courts, at which Florida Judge William D. Palmer welcomed attendees and Jim Alfini moderated a lively panel on the topic of institutionalizing ADR in the courts. On Thursday, Judge Rosemary Barkett spoke about her experience as a federal judge and her current work as a judge on the Iran-US Claims Tribunal. In her candid remarks, Judge Barkett noted that the rules of procedure for the Iran-US Claims Tribunal pose new challenges in her work.