Sunday, May 13, 2007

Does ADR deliver justice?

Does ADR deliver justice?Several months ago someone tried to post one of those unwelcome comments that all bloggers receive from time to time. With plenty of full capitalization for emphasis, and with attacks on my character and personal habits thrown in for good measure, the writer accused me, among other things, of undermining the rule of law simply because I happen to be a mediator. Since I allow attacks on ideas only not on people on this blog, I hit "delete".

I have remained haunted however by the concern this person raised. Were they right--does ADR weaken the rule of law?

I have written critically before of ADR's two-edged nature and encouraged my fellow ADR practitioners to consider with care their responsibility to the public and to our institutions of justice.

Of course we as a profession should ask ourselves these kind of questions. Does ADR undermine the rule of law? If justice is the end, is ADR the best means?

Fellow mediator Victoria Pynchon, who publishes Settle It Now Negotiation Blog, is inviting readers to complete a Survey on Justice that asks important questions about the complicated relationship among fairness, justice, and ADR processes:

Are we as mediators in the business of delivering justice or simply final resolution?

Do the attorneys and/or clients who use our services want us to be in the business of delivering justice (or enabling it?) when we help them resolve a dispute?
Vickie has already reported some preliminary results, including some fascinating findings on the qualities attorneys look for in mediators. It also looks as if by a narrow margin respondents would rather win in an unfair process than lose in a fair one. (Which may mean there's little life left these days in the old maxim, "It's not whether you win or lose, it's how you play the game.")

One day remains to complete the survey.

On a related note, seekers of justice may wish to read "Is Alternative Dispute Resolution Consistent with the Rule of Law?" by Jean Sternlight, Michael and Sonja Saltman Professor of Law and Director of the Saltman Center for Conflict Resolution, University of Nevada, Las Vegas.

Sternlight asks,
What is the relationship between alternative dispute resolution (ADR) and the rule of law? In the United States, critics often argue that the informal, private nature of ADR is hostile to the rule of law--and ultimately to justice itself. Yet over the last ten years, a broad, international array of groups has advocated including ADR in projects designed to foster the rule of law in other countries. This Article explores the paradox. Have we erred in condemning ADR domestically or in promoting it internationally? Or does the desirability of ADR depend upon the nature of the system in which it is being utilized? By studying this paradox, we can enrich our understanding of the ultimate purposes of both ADR and the rule of law, and thus assist our search for justice.
This article is accessible for the time being, I regret to say, only to those with access to Westlaw. While an increasing number of articles by legal scholars are available for free on the internet, some still remain beyond reach, hidden behind password-protected gateways--in my view unfortunate. An abstract of the article is available at the Social Science Research Network.

Upcoming ADR events in New England: Workshops, trainings, and a conference

Summer ADR events in New EnglandAlthough summer is a time when we New Englanders like to kick back and enjoy the natural attractions for which our region is known, there are plenty of events coming up that may lure ADR practitioners from the beach or the hiking trail. In no particular order they are:

Win a free trip to Hong Kong: Enter the contest to be the recorder for the UN International ODR Forum

Jeff Aresty, president of InternetBar.org, has asked me to pass along some important news. From Jeff's press release:

The competition is designed to encourage ideas and interaction around the problem of creating a trusted online environment, which is one of the biggest issues in creating a useful online dispute resolution community. The contest is open to a wide range of students and recent graduates from a number of disciplines (this is NOT a law school-limited competition) and will run from now through July of this year. All of the particulars are included in the attached document.

The contest will run in three phases. The first is an online discussion open to all, wherein the contestants will engage in an online dialogue regarding trusted online communities. After the first round of discussions, the judges will select a smaller number of contestants to continue the discussion in a more focused manner, and then in early July the judges will pick up to 15 contestants to write a paper about the discussion and their notions of how to create a trusted online community. From the submitted papers, the judges will pick one as the grand prize winner, and that person will become the recorder for the December meeting of the International Online Dispute Resolution Group Forum in Hong Kong. All expenses to the conference will be paid for the grand prize winner.
For more information on the contest and to register, visit InternetBarContest.org. Registration for the discussion closes on May 15, 2007. And please help Jeff by passing this along!

Thursday, May 10, 2007

In This Case: blog allows people to tell their personal stories about the law

In This CaseThe courthouse casts a large shadow--so large sometimes it dwarfs those who pass through its doors. So mighty is the institution we call the law, so lofty its traditions, that we can lose our sense of scale: in the grandeur of the marble columns, the weight of precedent, it is easy to forget that the halls of justice were created to serve human beings.

Now comes a blog that seeks to give voice to the crowds that climb the courthouse steps. Published by Tracey Broderick, In This Case allows ordinary people to describe their experiences with the law.

This recently launched blog has but a handful of posts, but I hope there will be more. My favorites so far: "I brought my breast pump to the courthouse" and "My area of the law is so raw..."

If you have a story for this blog, let Tracey know about it. She'd love to hear from you. And let's wish her the best of luck as she uncovers for us these stories about human life and law.

Blawg Review: It's not just for lawyers any more

Blawg Review hosted by mediator Arnie HerzMediators, mark your calendars.

Blawg Review, the traveling review of the best each week in legal blogging, will be hosted this coming Monday by one of our own.

Arnie Herz, who has been called "one of New York’s most highly skilled and gifted mediators" by United States District Judge Carl Horn III, will be putting his own unique stamp on Blawg Review at Legal Sanity, the blog Arnie created to help lawyers achieve work-life balance and find reinvigorated meaning in their work.

For those of you who blog, if you'd like to help Arnie out and submit a blog post for his consideration as he prepares to deliver Blawg Review #108, here are the official Blawg Review submission guidelines.

In the meantime, Blawg Review #107 is hosted this week by the implacable Professor Kingfield. Sit up straight and make sure you've done your homework.