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ADR’S Place in Navigating a Polarized Era

by John Lande

February 2021

Indisputably

John Lande

In the middle of the impeachment trial last week, I received a Westlaw email with links to the symposium on ADR’s Place in Navigating a Polarized Era, organized by Texas A&M and published in the Ohio State Journal of Dispute Resolution. The symposium could not be more timely and is well worth reading (though the articles were written before the January 6 insurrection and events immediately leading up to it).

This post lists the articles in the symposium, including an article by Jen Reynolds (which couldn’t fit into the OSUJDR), and provides my reflections on these issues.

Nancy A. Welsh, Introduction to Symposium on “ADR’s Place in Navigating a Polarized Era,” 35 Ohio St. J. on Disp. Resol. 581 (2020).

Robert A. Baruch Bush, & Peter F. Miller, Hiding in Plain Sight: Mediation, Client-Centered Practice, and the Value of Human Agency, 35 Ohio St. J. on Disp. Resol. 591 (2020).

Sharon Press, Using Dispute Resolution Skills to Heal a Community, 35 Ohio St. J. on Disp. Resol. 645 (2020).

Deborah Thompson Eisenberg, Beyond Settlement: Reconceptualizing ADR as “Conflict Process Strategy,” 35 Ohio St. J. on Disp. Resol. 705 (2020).

Jonathan R. Cohen, Negative Identity and Conflict, 35 Ohio St. J. on Disp. Resol. 737 (2020).

Jill DeTemple The Spaces We Make: Dialogic Classrooms and Social Transformation, 35 Ohio St. J. on Disp. Resol. 753 (2020).

William Froehlich, Nancy H. Rogers & Joseph B. Stulberg, Sharing Dispute Resolution Practices with Leaders of a Divided Community or Campus: Strategies for Two Crucial Conversations, 35 Ohio St. J. on Disp. Resol. 781 (2020).  (Winner of CPR’s award for best professional article in 2020)

Noam Ebner, Teaching the World: Educational Pivots for the Second Half of the ADR Century, 35 Ohio St. J. on Disp. Resol. 825 (2020).

Jennifer W. Reynolds, Talking about Abortion (Listening Optional), 8 Tex. A&M L. Rev. 141 (2020).

The symposium organizers had conversations with three of the authors – Jen Reynolds, Jill DeTemple, and Deb Eisenberg – which you can view here.  Peter Phillips, at New York Law School, also had a conversation with Jen Reynolds about these issues.

Some Assumptions in Our Field

As we all know, “ADR” is a combination of diverse things, not a single, uniform thing.  So analyzing ADR can be like wrestling an octopus.  Analyzing ADR in a polarized era is like wrestling a swarm of octopuses.

It can help to consider some assumptions in our field.   Some of us generally make one or more of the following assumptions:

  • parties and stakeholders generally operate in good faith
  • self-determination should be the pre-eminent value of ADR
  • any decisions by parties and stakeholders are legitimate unless they result in abuse or other harm
  • the status quo is acceptable in the absence of agreement
  • listening, promoting mutual understanding and respect, and demonstrating empathy are virtually always appropriate actions
  • ADR professionals’ identities should be as neutrals rather than advocates, particularly in litigated matters
  • ADR professionals should primarily react to conflict or prepare for conflict rather than taking the initiative to advance particular goals
  • over the long term, the ADR field can promote constructive conflict engagement by educating students and the general public directly about ADR values and techniques as well as indirectly through popular culture

These assumptions often make sense, at least for “normal” conflicts, especially in “normal” times.  They may not make sense, however, for dealing with major social conflicts in an era of polarized conflict – particularly the one we now are in.

As we recently witnessed, violent domestic extremists attempted to prevent the legal transfer of power in the US government.  Powerful interests promote propaganda campaigns to perpetuate falsehoods.  A substantial fraction of the American public deeply believe false conspiracy theories and that it is appropriate to threaten public officials.  The electoral system has structural problems that undermine the legitimacy of government as reflecting the will of the majority.  The world is on a trajectory of global environmental disaster due to climate change.  We are suffering tens of thousands of avoidable deaths and illnesses due to mishandling of the coronavirus pandemic.  Too many people live in poverty and insecurity, including many people who work full-time.  Centuries of slavery, white supremacist ideology, racial terrorism and discrimination, and structural inequities continue to haunt our society.

In my view, this status quo is not acceptable.

Some History of Polarized Eras

What can and should the ADR field do now to address the polarized society in the US?

Before I address that question, let’s consider some past efforts to deal with major social conflict in the US.  In recent years, I have read about American history.  I’m no historian, but here’s a simplified version of my understandings.

I wondered what led to changes such as the abolition of slavery, Reconstruction, and reforms in the Progressive Era, New Deal, and Great Society.  Those eras were quite polarized and resulted in reforms that virtually everyone now takes for granted.  Our society adopted these reforms because of significant changes in public opinion, typically in reaction to major problems such as slavery, economic domination by the robber barons, the Great Depression, and persistent racism.

We think of leaders like Abraham Lincoln, Ulysses S. Grant, Theodore Roosevelt, Woodrow Wilson, FDR, and LBJ as being responsible for the reforms.  They were pragmatic moderate politicians, especially in the periods before the changes they championed.  They seemed to follow public opinion as much as (or more than) lead it.

The reforms during their presidencies would not have been happened if there hadn’t been powerful movements pushing for change.  You may be familiar with FDR’s statement to civil rights leaders that he agreed with them and that they had to “make” him do what they all wanted – by changing public opinion and exerting political pressure on him and other policymakers.

LBJ was famous for pushing through the Great Society legislation, but that was possible only because the civil rights movement changed social and political attitudes.  When public support evaporated for the Great Society and the other progressive movements, the leaders were unable to advance their agendas.  Obviously, the presidents and others who promoted necessary social changes weren’t ADR people, but they did a lot of negotiating.

Our history involves a continuing series of reactions including reactions to the status quo, reactions to the reactions, and so on.  Conservatives reacted to reforms of liberal eras, seeking to restore the status quo ante and/or advance conservative goals.  Polarized eras of conservative dominance included the Jim Crow and Gilded Age, anti-communist, and the Reagan Revolution eras.  More recently, the Tea Party movement and Donald Trump’s presidency were reactions to the Obama initiatives to provide universal health care and recover from the Great Recession.

Theory of Change for a Polarized Era

I think that our field has only limited potential for making necessary changes and resolving major social conflicts.

I think that our techniques of listening, negotiating, and mediating can have some tactical and strategic value, but ultimately they are not going to be decisive in major power struggles.  There usually have been internal divisions within political movements, and conciliation could help manage those conflicts.  And sometimes we can help in conflicts between opposing sides, such as the work of the Community Relations Service and Divided Community Project.

However, I think that fundamental progress generally comes from sustained non-violent social and political action over extended periods that substantially changes public opinion.  That is what forces entrenched interests to surrender some political power.

Given this, I don’t expect that our field will be a major player in such social change efforts.  It would be nice if we could mediate major social conflicts to produce equitable positive-sum outcomes that most people feel good about.  Unfortunately, I think that the world doesn’t work that way in polarized eras (if ever).

In these times, I think it’s important to strategically promote or provide advocacy involving constructive conflict engagement rather than neutral conflict resolution.  We can help identify parties and stakeholders that will act (or can be induced to act) in good faith, and we can limit our work to engage only with such people.  In some situations, we should explicitly identify our goals and values at the outset of interventions.

These efforts may not be recognized as “ADR.”  The definitional boundary, which already is confused, may not matter.

What do you think?

John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



Website: www.law.missouri.edu/lande

Additional articles by John Lande
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