Submitted by Rishi Batra
The Future of ADR Scholarship
Discussion Group, SEALS Conference, August 6, 2018
In a wide ranging and spirited discussion at the Southeastern Association of Law Schools Annual Conference in Ft. Lauterdale, FL, a number of ADR scholars and others discussed both the history and future of ADR scholars and scholarship, both here and abroad. Moderated by Rishi Batra (Texas Tech), discussants included Peter Reilly (Texas A&M), Lauren Newell (Ohio Northern), Richard Reuben (Missouri), Rikiya Sakamoto (Nihon University), Enrique Guerra-Pujol (UCF College of Business), and Debra Berman (South Texas College of Law Houston). A brief summary of some of discussion topics, edited for clarity, is below. No attribution was given to individuals in order to allow for a more free flowing discussion.
History of ADR Scholars and Scholarship
The conversation started with a brief overview of the history of ADR as a field of scholarship. While there were predecessors, the general agreement that the Pound Conference of 1976 with Frank Sander’s idea of the “multi-door courthouse” (even though he did not use that phrase) was the “starting bell” of ADR as a field of study. The panelists discussed the theory that the field can be thought of as having “three generations” of scholars.
The first generation being the “pioneers” or “prophets” with the “big ideas” – Fisher, Menkel-Meadow, Mnookin, Riskin, Sander, etc. This generation, many emerging from family law or labor law, addressed large questions about what processes such as mediation were, how they were to be conducted, and what the law required. The shift was in the framework of the legal mindset to one of problem solving, with lawsuits being problems to be resolved. The second generation were the “evangelists”, who both helped define important concepts – consent, confidentiality, mandatory ADR – and also spread these ideas throughout the academy. This may have been the generation that was hired as “pure” ADR scholars, as this was a time when ADR was gaining popularity and law schools had money to hire. We are now possibly in the third generation, which is covering areas that had not yet been addressed, such as criminal law, and “filling in the gaps” in the scholarship. These are narrower, more specialized pieces, and some concern was expressed over the lack of new “big ideas” in the scholarship.
However, this view was challenged a bit by the review of some of the earlier literature, which did find pieces that were less “big idea” and more “narrow”, with focus on negotiation of specific issues such as superfund sites, collective bargaining, rulemaking, pre-contract negotiation, etc. It may be the case that the “big ideas” have always been contemporaneous with “application” of ADR principles.
Participants also discussed where dispute resolution scholarship may develop in the future. If it is true that the focus of the scholarship has become more narrow, it may be time for another round of “big ideas.” Some areas that certain participants thought were underdeveloped at the moment focused on adversarial or “hard bargaining”, online dispute resolution, negotiation strategy (addressed more in Business school literature), the role of power in negotiations, and international developments.
Role of ADR Scholarship
This led to some discussion of the role and focus of ADR Scholarship more generally. ADR has always seemed to struggle for legitimacy among law faculties and this seems to continue today, even as ADR has become integrated in to legal practice and court procedures. Since ADR is a “procedural” rather than a “substantive” area of law, there is some question about whether it needs to be or has been combined with other areas in order to gain legitimacy, such as with “ADR and …” pieces. This doesn’t seem to be the case for other “procedural” areas such as Civil Procedure, or theoretical areas such as law and economics, although it was pointed out that there are few pure law and economics scholars either.
In Business schools, the role of ADR scholarship is fairly different, with no focus on the legal issues, and more focus on the strategic aspects of negotiation as it is housed in the management and strategy wings of those departments. Throughout the discussion, discussants noted that despite the interdisciplinary nature of ADR, we seem to be missing the perspective of the business scholarship.
Distance Between Scholarship and Practice
Participants also discussed whether ADR scholarship today is too distant from the practice of ADR. It was noted that some of the large issues of the day, such as the international trade dispute between the US and China, were not being addressed by legal scholars, or trying to be resolved by them. However, there was some agreement that however the situation with the trade dispute resolves, the basic analytical tools of positions, interests, etc. would still apply to those types of disputes. Another area of distance between scholarship (or perhaps teaching) and practice was in the area of mediation. Mediation classes seem to be focused on a facilitative or transformative model of mediation, but what students were likely to encounter in practice was more an evaluative style based on monetary settlements. Lawyers in practice seem to just “want to get it settled” and we may be doing a disservice to students by not focusing on this more.
One area that participants focused on as a potential future topic area was what we could learn from international perspectives on ADR and vice versa. ADR looks somewhat different overseas, with clients from Japan in particular relying much more on the mediator to be an arbitrator. With the expansion of the global enforcement of mediated agreements through the Singapore Mediation Convention, third party neutrals will struggle with what norms or standards to apply cross nationally, and will look to scholarship to help them. Scholars were encouraged to focus on issues such as the differences in foreign law practice and policy, enforceability of arbitrated or mediated agreements abroad, unauthorized practice of law in foreign jurisdictions, and foreign dispute resolution culture.
Who are ADR Faculty today and in the future?
Another theme of the discussion throughout the session was the question of who are the dispute resolution faculty of today, and what will the faculty look like in the future. There was note that there are few if any “pure” ADR hires as faculty lines today, and faculty focused on ADR have to be “ADR and..” much like their scholarship. Because of ADR’s skills focus, there are increased opportunities for Clinical faculty, which may have an easier entry point given the lesser focus on scholarship and tenure for those roles at some schools, but it was noted that often comes without the security of tenure as well, and that clinical roles sometimes are marginalized at different institutions.
Participants also discussed the increased or continued use of adjuncts in teaching ADR classes at many schools. There was some debate about the value of the use of adjuncts for the field. While adjuncts bring a wealth of practice experience and can come at a cheaper cost to law schools, some adjuncts don’t commit the time or have the background in teaching which can result in a lower quality experience for students. More broadly, there was some concern that the use of adjuncts made the field as a whole seem less important in the eyes of either students or the schools, and the comparison was made that core doctrinal classes would rarely if ever be taught by adjuncts for historical and cultural reasons.
There was also thought given to the characteristics of ADR faculty. While the field seems to anecdotally have greater gender diversity than many other areas of law, there remains a lack of racial diversity. Also interesting is the lack of political diversity, particularly a lack of the “conservative” side of the political spectrum. Discussants noted that conservative ADR faculty members were afraid to “out” themselves, particularly pre-tenure.