Lawyering was A-Changin’: The Historical Impact of the ABA Dispute Resolution Committees and Section

In reflecting on the near fifty-year history of the ABA’s involvement, support, and promotion of mediation and other dispute resolution processes, I recall the numerous efforts and events that have shaped current law and neutral practices. The integration of dispute resolution processes within legal proceedings has now become routine—but at one point, it was unthinkable. This article surveys the number of ways the ABA, through its dispute resolution committees and section, worked to produce that transformation.

Imagine…..

Most people agree that the 1976 Pound Conference sparked the modern movement toward using dispute resolution processes. The ABA was one of the sponsors of this conference. Interestingly, the ABA was also involved seventy years earlier, when the original remarks by Roscoe Pound (“The Causes of the Popular Dissatisfaction with the Administration of Justice”) were delivered at the ABA’s Annual Meeting in 1906. Pound’s remarks were quite critical of the justice system and litigation, and, not surprisingly, were not well received. At the time, Pound was not yet a renowned legal scholar or Harvard Law dean, and the ABA did not see any need for reform. But seventy years later, those early criticisms led to transformational changes—changes that continue today.

We know that prior to the 1976 conference, arbitration was actively used in a variety of settings, and mediation was being used in some types of matters, such as labor and community cases. At that time, however, there was no real widespread use or awareness of these “alternatives.” As a result of that 1976 conference, the “modern mediation movement” began, with the development of mediation use taking two different, but parallel, paths. The ABA took an active role in each. The first path was at the community level, with three experimental “neighborhood justice centers” established, adding to the few initial early stand-alone mediation programs. Further, as a result of focus on the legal system, the second path of potential change within court systems emerged. This was, at least in part, the subject of the late Frank E.A. Sander’s presentation at that 1976 conference. While Sander’s original article, “Varieties of Dispute Processing” referenced a “multi-door center,” the concept quickly became the “multi-door courthouse,” which was subsequently supported by the ABA’s dispute resolution efforts.

There’s something happening here… but what it is ain’t exactly clear…

As the ABA took an interest in these potential changes, the Special Committee on the Resolution of Minor Disputes (CRMD) was created in 1978 and became active in 1979. The CRMD was the only ABA entity addressing ADR and working to educate lawyers and judges about its use. The CRMD coordinated much of the activity in the field at that time, as well as assisting in research efforts. CRMD members and staff worked with several research entities gathering data to determine the success of these early programs and disseminate that information to interested parties. The CRMD also took an active role in providing technical assistance to several new mediation programs. As the committee’s name implies, however, the general view was that ADR could be helpful and beneficial only in terms of “small cases.” There was no real consideration or discussion in the realm of larger cases, or what was viewed as “real litigation.”

Then, in the mid-80s, the CRMD sponsored the pilot of three experimental multi-door centers, modeled after Professor Sander’s vision. The Multi-Door Projects were established in Houston, Tulsa, and Washington, DC. While the centers did not offer all of the dispute resolution services as originally envisioned, this effort in system design was influential in promoting courts’ use of alternative processes. This project also served to promote greater use of ADR, and the initial foundation was then laid for the integration of dispute resolution within the courts and litigation. The question was who was interested in – or willing to – build on that foundation.

As more judges became familiar with dispute resolution, questions arose concerning the court’s role in encouraging or even mandating its use. Thus, in 1987, at the urging of individuals familiar with ADR in the respective states, Florida and Texas were the first two states to enact comprehensive legislation that encouraged and allowed judges to order cases to mediation and other alternative resolution processes. Not surprisingly, early CRMD membership included at least one judge from those states. As interest grew and more court programs were established, the CRMD later worked with the National Center for State Courts as well as the Federal Judicial Center in assisting with the design of court programs and gathering data to share with other interested jurisdictions.

In recognition of the expansion of dispute resolution efforts, the ABA changed the CRMD’s name and status, as it became the Standing Committee on Dispute Resolution (SCDR), acknowledging that the work of the committee would be ongoing, rather than transitory. Over the next few years, the SCDR consisted of lawyers and judges who were not only interested in dispute resolution, but who were also active in its use in their home jurisdictions. The SCDR continued the CRMD’s mission as a coordinating resource and national clearinghouse for the education and promotion of ADR. An early project was the promotion of ‘settlement weeks’ – essentially weeks where courts held settlement conferences and mediations, rather than hearings or trials. The goal during those weeks was not only to resolve cases, but to educate those within the civil justice system about settlement through mediation. California and Ohio were the first states leading the development of settlement weeks, and information, including settlement data, was publicized by the SCDR at a number of educational programs.

As more programs were established, the SCDR focused on these examples of mediation’s successful integration with the legal system in its ongoing educational and technical assistance efforts. The SCDR continued its educational efforts, presenting programs each year at the ABA mid-year and annual meetings. In addition, when the SCDR held its spring and fall meetings (those that did not coincide with the ABA meetings), an educational program was provided in the local jurisdiction. Throughout this time, the SCDR worked collaboratively with representatives from local private organizations who were providing dispute resolution services at the time.

Good vibrations….

A key turning point in the SCDR’s work within the ABA, and a fortunate one, happened in the late 1980s, when ABA President Robert Raven took an interest in ADR, and in particular, mediation. President Raven took such an interest that he decided that the theme of the ABA Annual Meeting would be “alternative” processes, with the meeting entitled “Resolving Disputes in Pacific Ways,” held in Honolulu, Hawaii, in August 1989. A record number of programs addressing a variety of ADR topics were presented during the week-long meeting, and the SCDR was involved in all of the programming. This meeting was significant, as it resulted in a large number of lawyers and judges becoming interested in the possibilities and promise of dispute resolution. Shortly after his tenure as ABA President, Raven was appointed Chair of the SCDR, at his request. This garnered a great deal of attention for the work of the SCDR, and under his leadership, additional projects were undertaken. He was one of the strongest advocates and influencers in the creation of the Section, and the promotion of ADR throughout the ABA.

Raven’s efforts led to ADR becoming increasingly familiar within the ABA as well as within large law firm culture. As more and more lawyers became knowledgeable about mediation and other processes, interest continued to grow. This development continued and reached such a level that the SCDR began to consider requesting a status change. Specifically, this entailed moving from committee status to that of a self-governing section of the ABA organization. But not everyone agreed that the SCDR should be a standalone section. At that time, several substantive law sections were involved in dispute resolution and had established their own ADR committees and initiatives. These sections maintained that no need existed for a separate section; instead, the interests of section membership could be best served within the ADR committees of those sections. In the end (not surprisingly through negotiation), a consensus was reached, with most of the other ABA sections supporting the creation of the new section. Thus, the Section of Dispute Resolution was formally established by the ABA House of Delegates at the mid-year meeting in Boston in February 1993 and held its inaugural meeting in August 1993, at the ABA Annual Meeting in New York City. Fittingly, Raven served as the first Chair, serving from 1993-1994.

For the next few years, the Section was quite active in continuing its mission of education, sponsoring and presenting a wide variety of programs each year at both the ABA annual and mid-year meetings. In April 1998, the Section leadership decided to address dispute resolution use on an international level, and, along with the ABA’s International Law Section, held a conference in Washington D.C. in April 1998. This marked the beginning of international work within the section. In April 1999, the Section held its first “stand-alone” conference in Boston. The conference was a success, and since that time, the Section has continued to hold its annual conference each spring. In addition, over time, the Section has been quite active in developing a variety of educational programs for lawyers representing clients in mediation and arbitration.

Jump on the peace train…

Throughout the modern history of ADR and the ABA , the SCDR (and then Section) engaged in some very significant national projects which have shaped the practice of law, as well as neutral practice.

Model standards for mediators. In 1992, the SCDR and later the Section was involved in the creation of a national code of ethics for mediators, ultimately titled Model Standards of Conduct for Mediators. Representatives from three national organizations participated in drafting the Standards, which were approved by all three organizations in 1994. The participating organizations were the ABA Section of Dispute Resolution (with work initiated by the SCDR), the American Arbitration Association, and the Society of Professionals in Dispute Resolution, later called the Association for Conflict Resolution. The revised Model Standards were approved by all three organizations in 2005 and remain in effect today. Both versions of the Standards have also been a basis for the development of mediator ethics in other countries.

While these ethical standards are for mediators, along the way the Section also focused on the changing role of the lawyer in representing clients in dispute resolution and whether ethical rules should change accordingly. In 1997, the ABA had established a working commission, the Ethics 2000 Commission, that was charged with the task of reviewing and revising the Model Rules of Professional Conduct. The Section, based on the understanding that the lawyer’s role is different in the mediation room versus the courtroom, urged two specific changes to the Model Rules. The first was to establish a requirement that lawyers inform clients about alternatives to litigation. The result was an added reference in comment 5 to Rule 2.1 urging lawyers to advise clients about alternatives. The other change dealt with attorney conduct within mediation, and other non (or less) adversarial approaches to settlement, such as problem-solving negotiation. In other words, rather than rely on or apply Rule 4.1 – where a lawyer may be deceptive under “generally accepted conventions in negotiation,” the Section recommended another provision, such as a requirement of good faith or other level of truthfulness in negotiation. Not only was this change not made, but the ABA also subsequently specifically extended Rule 4.1 (and of course its comments) to mediation.

New law courses and competitions. Early on, the SCDR took a very active role in the expansion of dispute resolution in legal education. By the late 1980s, a few law schools had begun to offer courses in negotiation, mediation, arbitration, and dispute resolution. Some schools created mediation clinics, where the students mediated real cases in small claims courts and community centers. The SCDR served as a clearinghouse and collected information from the schools and published that information in a Directory of Dispute Resolution Courses in Law Schools. This, of course, was before the internet and other electronic information sharing. The Directory also included a short description of courses, and, when possible, the course syllabi.

The SCDR was also the impetus for the law school representation in mediation competition. While the experience for clinical students serving as mediators was quite valuable, the committee recognized that practicing lawyers are much more likely to be representing clients in mediation, rather than serving as mediators. The SCDR discussed using the format of a competition, such as the negotiation or client counseling competitions, to create a representation in mediation competition. SCDR members decided that an effort to create such a competition should begin on a small scale. As the young lawyer division representative on the SCDR, I designed the original pilot competition to include only Texas law schools, and early competitions were held in Texas from 1991-1993. The ABA determined that the competition itself was worthy of continued sponsorship and national expansion. Since that time, the competition has been held each year, and has served as the model for the international annual ICC Mediation Competition, held each February in Paris.

Legislation and publications. Another very significant project of the Section was that of work on the Uniform Mediation Act (UMA). Work was initiated in 1998 and continued through the adoption of the Act by the Uniform Law Commissioners. It was a joint project of the ABA and the Commission, and the Model Act has been adopted in thirteen states. The Section also continued interest and work in arbitration, working with others in the revision to the Uniform Arbitration Act. The revised act, enacted in 2000, is known as the Revised Uniform Arbitration Act (“RUAA”). The Section, with the ABA’s Washington DC office, was active in both monitoring and supporting much ADR legislation in Congress throughout the years.

Additionally, the Section’s committees provide opportunities for those newly interested in dispute resolution to become involved with a variety of section projects. The Section continues to be active in a variety of dispute resolution educational events and has sponsored a wide array of publications. These include a number of books on ADR topics, as well as a newsletter and this magazine for its membership. The Section remains the leading organization for ADR publications, projects, professional development, and related work in the United States.

Ch-ch-ch-ch-changes…

The work of the early ABA committees and Section was instrumental in establishing the foundation for the work of neutrals, and the committee’s membership included individuals from private provider organizations. This work also paved the way for changes in law practice. As a result of the Section’s work (and that of its predecessor committees) much of lawyering has changed. Lawyers representing clients, while initially hesitant, soon became comfortable with mediation use, and its use grew. Most lawyers are aware of, and use, negotiation and settlement options, ahead of court appearances. For many, so-called “alternative” processes have become an integral part of procedure in civil cases. And it is doubtful that the practice of law would be where it is today without the groundwork and foundation laid during the early days.