Panel 5: Emerging Issues in DSD
March 8, 2008
3:45 P.M. – 5:15 P.M.
Where is Dispute Systems Design heading? What are the ethical questions facing a Dispute Systems Designer? To what extent can these principles be applied to other fields? What are its criticisms and how do scholars and practitioners respond? This panel will encourage the audience to think about these questions and build upon a strong foundation for the next generation of Dispute Systems Design scholarship.
Photos:
Akilesh Ayyar
March 8, 2008 @ 4:04 pm
Bob says law students should learn to be “dispute doctors.” I wonder, though, if dispute systems design is the same as actually being a diagnostician and treater of particular disputes. The latter seems to be more about interpersonal skills, social intelligence, and particular skillsets like negotiation and mediation, whereas DSD seems more prospective and seems more about a kind of policy analysis that might or might not be the remedy to certain disputes.
Susan Hackley
March 8, 2008 @ 4:07 pm
I like Bob Bordone’s suggestion that DSD could become more central at law schools, and I would like to hear more about how DSD and work in conflict assessment/diagnosis can also incorporate some of Carrie’s concerns about not excluding people’s need for a variety of processes, because people “need different things” when dealing with trauma, conflict, or other kinds of harms. One of the great underpinnings of the field and of PON is its multi-disciplinary nature. Those with expertise in psychology, decision-making, public policy, law, economics, anthropology all learn from each other and contribute. Being modest and/or aspirational – both are important. So is listening to voices outside our own field, and this conference has done a great job of that.
David Lee
March 8, 2008 @ 4:16 pm
I have two related responses to Bob’s comments:
First, I share Bob’s idealism that DSD can and should be taught to law students – after all, they’ll be the next generation of lawyers and leaders (be they in public or private sectors) and just like schools teach mooting skills to improve their public speaking skills, DSD skills are just as important.
Related to that acknowledgment is the need to identify incentives for students to want to learn more about it. It may be an overstatement, but my sense is that a significant proportion of law students (whether here or in Singapore where I come from) want to go into corporate work. In pursuit of a career in corporate work, we see subjects like corporations, bankruptcy and corporate finance courses being popular to these students.
To that end, I propose the following: How can DSD proponents in academia tailor their DSD curriculum to assist them in their substantive goals of working in the corporate world?
Also, building on Susan’s note about how DSD can and should capitalize on other related disciplines, perhaps the starting point (to the extent that it may not have been done already – pardon my ignorance!) may be to build the initial links with organizational management courses over at the business school. Perhaps that can form the catalyst required to bring DSD to the forefront of legal academia.
Bernie Bonn
March 8, 2008 @ 4:22 pm
Following up on David’s comments, since many corporations have bought into having systems that resolve disputes short of litigation and because the corporate lawyers tend to have the more direct and frequent contact with business people and in-house counsel, encourage the corporations and law firms to influence the faculty to recognize the value of such courses. If the groups that ultimately will hire and utilize the services of the law students want certain skill sets the law schools will respond. Bob should use those stakeholders to help him influence the school and convince the faculty that it is in the school’s interest to offer such courses.
Michael Moffitt
March 8, 2008 @ 4:24 pm
For what it’s worth, I think it’s more likely that DSD will gain prominence in the academy if DSD presents itself as a set of questions to be explored, rather than a set of principles to be promoted.
And I think that’s a lot harder to do than it might sound.
Lisa Blomgren Bingham
March 8, 2008 @ 4:38 pm
Michael, you could not be more right about this. I was referring to this problem when I characterized the literature as normative. What we need to examine is how structure affects function. This was partly the purpose behind the special double issue of Conflict Resolution Quarterly commissioned with Hewlett funds (Conflict Resolution Quarterly, Vol. 22(1&2) 2004). There are 7 review articles collecting empirical and program evaluation studies on DSD in education, courts, community mediation, environment conflict resolution, family law, victim offender reconciliation, and employment. The objective was to structure the articles using a common frame to determine how DSD elements correlated with assessment results. What we need is to build the quality of analysis of these systems.
Susan Hackley
March 8, 2008 @ 4:41 pm
In addition to post-conflict peacebuilding, many in the peacebuilding field also seek to prevent violent conflict from erupting. Conflict averted rarely gets much attention. Stephanie raises the question of where should resources go, and Noah Feldman talked about how some efforts, such as promoting women to take on leadership positions in conflict situations, can have tragic consequences when there is not sustained support to protect them after the ADR/DSD/NGO help leaves. So one question is what can DSD do to adjust, edit, evaluate, and change the system that has been designed as it starts to be implemented?
hnmcp
March 8, 2008 @ 4:44 pm
As mentioned by Carrie Menkel-Meadow:
Georgetown Principles for ADR Providers –
http://www.cpradr.org/pdfs/finalProvider.pdf
Michael Moffitt
March 8, 2008 @ 4:46 pm
I’m not sure I captured it entirely accurately, but as I heard it, the draft ADR Credo developed by Carrie Menkel-Meadow and Larry Susskind was something like:
Do no harm
Self-empowerment
Self-management
Consent
No requirement to agree
Voluntariness about outcome, if not participation
Sarah Woodside
March 8, 2008 @ 5:00 pm
I would like to reiterate a speaker: A major issue in my mind in ADR is the prevalence of white Americans doing both the work and the research. As DSD grows, especially creating broad ranging systems that cross national boundaries, finding ways not just to “include” non-white non-Americans but to step out of the way should be a primary focus.
hnmcp
March 8, 2008 @ 5:00 pm
This is a link to Wiley InterScience where you can purchase the Conflct Resolution Quartly double issue that Lisa mentions above (Vol 22 (1&2) 2004) titled “Conflict Resolution in the Field: Assessing the Past, Charting the Future.” http://www3.interscience.wiley.com/journal/97519532/home
Bernie Bonn
March 8, 2008 @ 5:13 pm
For you law students, I think there is more opportunity to explore this field in large multinational law firms such as Cleary than you might expect. Litigation and corporate partners recognize the value of dispute resolution systems and I think firms will encourage you to develop your interests if they serve the clients and I think clients are interested. I just retired from a large multinational firm and I assure you such firms are interested in services that clients want.
Lisa Blomgren Bingham
March 8, 2008 @ 5:26 pm
African-American scholars of DSD include Lamont Stallworth of Loyola University, who has done considerable work on the design and evaluation of employment dispute resolution systems and mediation of EEO claims, and Phyllis Bernard, who is doing very exciting work in DSD in Rwanda, helping a group there build mediation into community justice systems. There is also an ongoing effort, the 3rd National Training Institute of Minority Professionals in Alternative Dispute Resolution http://www.law.capital.edu/ADR/ that is open to the public. Finally, Maria Volpe at John Jay School of Criminal Justice in NYC and Josh Stulberg at Ohio State University had a Hewlett mini-grant to address the ongoing absence of diversity in the field.
Bob Bordone
March 10, 2008 @ 9:57 am
Thanks to all of your for your great comments. I missed these ones because I was on the panel.
I think Bernie Bonn’s point is a good one. Law firms are doing lots of DSD work. But they are not calling it that.
And one of the challenges is that most law firms don’t know much about what we are doing in the DSD world. So they are making it up as they go along.
I think we need to do a better job, therefore, of exposing law students to this material so that they can use it when they get to firms.
In addition — and of equal importance — we need to figure out ways that we can learn more about what lawyers in these large firms are doing so that we can write about it and teach it to others.
Jim Krenn
March 14, 2008 @ 12:30 pm
I think Bob’s comments regarding the benefits of expanding law school curriculum to include DSD are quite sensible. While the tendency for law schools to restrict much of their instruction to focusing on litigation related matters certainly does prepare students to enter that field, a very large portion of law students will never, and have no desire to, set foot in a courtroom. As a consequence, the near total reliance of teaching through cases prevents students from most efficiently building upon the analytical and practical skills that they will need upon graduation.
Including a greater emphasis on DSD certainly seems to be a step in rectifying the current imbalance. The challenge, for Bob and others, I believe, is making sure that in defining how DSD is taught, they are training truly holistic and effective “doctors”, as Bob put it, that can both effectively diagnose and treat a problem. That is, not to limit DSD instruction to simply providing an effective diagnostic tool (i.e. recognition that triple bypass isn’t the best way to help a broken bone) but also make sure students have the necessary skills to implement useful solutions (i.e how to set the bone).
Jim Krenn
March 14, 2008 @ 12:43 pm
Brian’s discussion on the transportability of conflict management across conflicts provided many valuable insights and provoked a few questions. In particular, given Brian’s discussion on the increased intensity of many conflicts within religious organizations, how should one approach conflict management in a situation where positions on issues are wrapped in the identity and conflicting moral views of participants? I think Dan Shapiro has taken an important first step in attempting to address this question (http://www.beyond-reason.net/ini/), but what are others thoughts on strategies or tactics in such emotionally charged situations?
Jim Krenn
March 14, 2008 @ 1:09 pm
Given the discussion over which individuals or entities should/can be the leaders on conflict resolution, what do people view as necessary for an organization to be the premiere conflict resolution organization?
It seems Stephanie raised an important point that such an organization likely can benefit from having individuals with a diversity of skill sets from both the legal and business world. For instance, I think many of the conflicts we see to day in the corporate context entail integrated issues of law and business (among others). There is a strong tendency among lawyers and principles alike to attempt to separate these issues into silos both in terms of substance and process where the lawyers tackle the “legal” issues and the principles tackle the “business” issues. The resulting disconnect of these silos from reality results in amplified conflict in which the broader, underlying issues are not dealt with in an effective manner. I think anyone developing an organization dedicated to conflict resolution must consider this interplay when structuring their teams and approach.
Jim Krenn
March 14, 2008 @ 1:22 pm
After listening to various questions posed by audience members, what are people’s thoughts on how, when approaching dispute system design, one should balance structuring the system towards most effectively addressing and satisfying parties’ interests while at the same time accounting for the power and rights aspects (i.e. legal system, hierarchal positions of parities, resource disparities) that pervade the realities of the situation?
Yared Alula
March 18, 2008 @ 12:44 pm
To add to David Lee’s post, perhaps the best way to increase the demand for DSD instruction within law schools would be to show students how DSD can be applied in the large law firm context to the benefit of their career. Students demand that which improves their ability to be successful so perhaps the optimal way of increasing the demand would be to focus more on the application of DSD and less on theory.
To David’s question, I feel that the optimal way of teaching DSD is through clinical experience. In my opinion as a student, absent some real world application, DSD theory will not make it out of the classroom.
Yared Alula
March 18, 2008 @ 12:58 pm
I completely agree with Brian Bloch’s comment about DSD being sensitive to religious theology rather than based on it. Upon first blush it may seem unlikely that DSD within religious institutions can succeed if it is not based in the theology. But it may be the case that religious organizations view DSD as more independent and neutral if the design only respects the theology. The alternative might signal to stakeholders that the doctrine can be manipulated for the gain or some and to the detriment of others.
Yared Alula
March 18, 2008 @ 1:00 pm
In reference to Carrie’s comments on DSD ethics, I am curious to know how people respond to her idea that we are not ready for an ethics code in DSD? If we know it (unethical situations) when we see it, and can feel it when it exists, why not catalogue it?
Do we lose anything by starting early? Is it wrong if we are forced to make adjustments later?
Yared Alula
March 18, 2008 @ 1:08 pm
One of the questions posed by an audience member was how to change an institutional culture of racism or sexism?
I wonder how this relates to the ethical standards that Carrie Menkel-Meadow posed? When an abhorrent culture pervades an institution and is likely to affect the outcome of any dispute system design, how willing should the DSD community be to involve itself?
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