April 23, 2012

ABA Dispute Resolution Conference Recap - Day 1

Over 900 mediators and conflict professionals descended upon our nation's Capitol last week, attending the ABA Section of Dispute Resolution's Annual Conference. From bowtie and powersuit arbitrators to casual wear violence interrupters, the conference is regularly billed as the largest annual gathering of dispute resolution professionals in the world. With over 100 concurrent sessions, packed plenaries, a booth burgeoning exhibitors' hall, and attendees from around the world, this year's conference had something for everyone. I'm particularly pleased to have represented NAFCM and share with my community mediation colleagues all the latest updates from this year's conference. 

Below is an update from Thursday, my first day on scene following a restful redeye. It'll be joined by an update from Friday's speakers, sessions, and interactions, as well as a stream of quick hit tweets from throughout the conference.

Negotiating with Terrorists & Mothers-in-Law

Thursday morning kicked off with a plenary speech by Moty Cristal, an experienced Israeli crisis negotiator with a penchant for stand-up. Moty recounted his numerous dealings with labeled terrorists groups and loose-knit groups of bad actors, specifically detailing his experiences negotiating with these counterparts in low-to-no trust environments. One of his takeaways from these hostage-involved and otherwise harrowing negotiations is an appreciation for the difference between Respect and Trust. Trust, Moty posits, places the burden of responsibility upon your counterpart; it beholds the other to act in a way conforming to your expectations. Their failure to conform to expectations damages your trust in them. Respect, on the other hand, retains an internal locus of responsibility. It is an active extension toward the other without (at least initially) the expectation of reciprocal or conforming behavior for those upon which it is bestowed. Under such a framework, you can respect a counterpart during a negotiation without necessarily trusting she will desist from conflict-related behaviors. 

This distinction is important for Moty, and other conflict professionals, because it opens the possibility to extend basic, humanizing, and collaboration inspiring (if not inducing) respect toward momentary or even mortal enemies without the further more cognitively challenging act of also trusting that your counterparts will subsequently act in a particular fashion. Of course, presuming a negotiated settlement is respectfully reached, one would hope to trust their counter would comply with the terms. And indeed, one could logically presume the possibility of such compliance is enhanced following a respectful resolution. Under Moty's model, however, the two need not necessarily be linked to at least initiate the engagement. 

Civil Discourse & Public Conflict

Following Moty's discussion on respect and trust, I made a beeline to the front row of a panel discussion on Civil Discourse and Public Conflict. Facilitated by one of my personal pantheons of conflict theory, Richard Reuben, the front table was full of civil discourse luminaries, such as Susan Carpenter, Anne Gosline, Sandy Heierbacher, Matt Leighninger, and Susan Podziba.

Speaking to a packed room, these leaders in civil discourse, deliberative democracy, dialogue & deliberation, participatory government, and other descriptors of constructive, large-scale public engagement engaged their own colleagues in detailed Q&A. They also shared their 30 second must-know recaps of this category of early-stage conflict engagement processes. Some of these recaps included the following:
  • "There is a vast set of well-established tools -- 30 years in the making -- which can be used to address the many public conflicts facing us today. It is beholden upon us to raise awareness of, disseminate, and utilize these tools.
  • "'Civic Fusion' is the goal for all these processes. It's a way for folks to connect despite -- or even because of -- their differences, to humanize, and deepen understanding."
  • "These processes are a constructive way for folks to discuss fundamental social differences."
  • "Careful assessment should occur to fit the appropriate process to the problem it seeks to address."
Participants were (and readers are) encouraged to learn more about the various discourse processes and resources. Great starting points are the Deliberative Democracy Consortium and the National Coalition of Dialogue and Deliberation (NCDD).

The Future of Mediation Research

Community mediation programs are always on the lookout for new research to help contextualize and validate their impact. The final morning session -- part two of a mediation research mini-conference -- envisioned what the future of that research will look like not only for community folks, but practitioners and academics in all contexts. The panel of academics tackled a broad range of audience-driven issues, including the need for greater practitioner access to the newest research, connecting researchers with interested subjects/sites, and speculating on the up-and-coming in vogue research focus areas.

Some of my session notes were as follows:
  • Theory to practice jam sessions. Could be a regular, scheduled hangouts with a dedicated online discussion group. This could be opened to a very wide group of interested academics and practitioners.
  • Cultural Competence: Is it exclusively a passive competency, or does it require of a culturally competent mediator an active, responsive adaptation of process and/or skills?
  • Where's the future of mediation research headed? (1) Long-term impacts, (2) Unpacking the black box of the mediation session, (3) Moving beyond anecdotal, and (4) Affect of party preparation on outcome and perceptions of the experience.
  • Resonant research will help move the field from an art to a science.
  • How does mediation compare to extant, popularly ascribed settlement processes rather than the more traditional mediation v litigation comparison?

Regulating Mediators

Capping the day was an afternoon-long town hall meeting which tacked the ever-timely and polarizing (yes, even for mediators) topic of regulation. Facilitated by AmericaSpeaks and including 100 participating mediators and arbitrators, this ambitious event was organized using a dozen or so practice-oriented tables, each with their own impartial table-side facilitators; nifty electronic keypads; a designated thematic review group; and near instant display of aggregated input. The near three-hour session was an engaging, insightful, and data-rich -- if not decisive -- experience. Not to let the conversation fade, the ABA Section of Dispute Resolution's task force on regulation will use the info gathered during the session as they continue their discussions about whether and how to move forward on this issue.

Not wanting to wait for any task force proposal, I hurriedly took copious notes on the detailed feedback received from the meeting's many questions. Here are a few of the more interesting aggregated responses revealed during the meeting:
Notable participant demographics:
  • 100 Participants (89 mediators, 11 arbitrators)
  • Only 9% younger than 35
  • 65% were attorneys
  • 36% actively volunteer
  • 61% began their ADR involvement through legal work, while 17% were first-career ADR practitioners
Regulation is important to: ("Me" refers to town hall participants)
                                   Me          Clients     ADR Profession
Strongly Agree           15%           26%              24%
Agree                         18%           29%              31%
Neutral                       24%           16%              14%
Disagree                     18%           13%              13%
Strongly Disagree       26%           16%              19%
Mediators should be regulated:
21% - Strongly agree
24% - Agree
17% - Neither agree nor disagree
14% - Disagree
24% - Strongly disagree
If a national regulatory system were developed, would you seek to become certified?
52% - Definitely
27% - Maybe
16% - No
  5% - Don’t Know
Mediator Competency Themes (choose top two):
53% - Listen openly, reflectively, and without judgement
25% - Intellectual acuity/flexibility
24% - Competence in the process
22% - Neutrality
19% - Facilitate communications
12% - Engendering trust
12% - Professional Experience
11% - Comfort with tension/conflict
  8% - Sense of ethics
  6% - Patience
Regulation would help which of the following (choose top three; mediators' responses):
18% - Ensure adherence to professional standards
17% - Enhance the quality of practice
16%- Restrict entry to the profession
16% - Enhance the public image of the profession
16% - Protect consumers from unethical practice
  9% - Clients could make better decision about services
  5% - Increase compensation for practitioners
  4% - Increase practitioners' competitive edge
  1% - Increase entry to the profession
What are the two best ways to measure the competency of mediators?
21% - Mentoring or supervision
18% - Program evaluation criteria/Experience
14% - Performance tests or live or taped demonstrations
14% - Training requirements
13% - User evaluations
  8% - Continuing education or training
  5% - References
  4% - Degrees/education
  1% - Complaint procedures
  3% - None of the above— Mediators should not be regulated
A single national regulation system, if developed, should apply to which of the following? (Select all that apply)
31% - Entry level
21% - Every 5 years for active professionals
21% - Part-time practitioners
18% - Seasoned practitioners
  9% - Other
There was a lot of interesting feedback from the town hall that deserves further discussion. For example:
  • While 38% of mediators disagreed they should be regulated, only 16% replied they definitely would not apply to such a system if implemented. Does this suggest to possible regulators that a "build it and they will apply" approach will work, regardless dissonance during the design phase?
  • The third most desired role for regulation is to "restrict entry to the profession." How does this jive with community mediation's fundamental drive to train leagues of neighbors, family, and friends to become both formal and informal nearby mediators?
  • Just over half of the participants identified listening skills as a top competency for mediators. Beyond that skill set, however, there was little agreement as to what else is important for mediators. Why is there such disagreement about key competencies?
  • Why is it that fewer than a fifth of participants believed "seasoned practitioners" should be regulated? What implications would arise if a two-tier system of regulation were to be developed for mediators of varying levels of experience?
After jotting the above notes, I learned a summary Preliminary Report of the session would be shared with participants. If you're interested in this topic, do be sure to give it a thorough read. This is the same info potential regulating bodies, including (possibly) the ABA's SDR, will review when designing any future regulatory scheme.

What are your thoughts? Is mediator regulation an idea whose time has come? Would such a system adversely affect community mediation programs or their volunteer mediators? What, if any, community-related special considerations should be built into any future regulatory system? Share your thoughts in the comments below.

In community,
Executive Director, NAFCM

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