The Next Generation of Dispute Resolution Scholars

To explain my broader goals and where my ideas fit into the existing scholarship, I should first describe what I see as the calling for my generation of dispute resolution scholars.


The general duty of the first generation of dispute resolution thinkers was to create effective alternatives to formal, adversarial processes. In this endeavor, they succeeded wonderfully, mastering methods of facilitating negotiation and legitimizing mediation in the eyes of the law. As they continue this mission, however, it seems that they have hit a wall--people know about mediation and no one questions its legality, but people are not flocking to it as ADR advocates believed they would.


Simply assembling an army of mediation-trained professionals and releasing them into society may not be enough to change the system. Decisions and disputes remain at the hands of adversarial forums and unstructured negotiations. This is where the second generation of ADR scholars needs to step in. While the first generation created effective dispute resolution methods, the second generation must figure what to do with them (the DR skills, not the first generation).


Mediation is the most basic application of facilitation skills--one actor applies these techniques in a voluntary negotiation that parallels or supplements traditional processes. While mediation provides structure to the negotiation, the process itself enjoys no outside structural support (other than the enforcement of agreements as contracts) or internal protection (other than neutrality). And in the broader system, conflict is only brought to facilitated negotiation under the threat or force of litigation or another adversarial process, and mediation usually stands apart as a parallel, overlapping track to these forums. Because mediation is at the apex of dispute resolution, the movement is therefore a free-floating skill instead of a structure.


While this may be a reason that mediation remains underused, it also holds the potential for its revolutionary expansion--as a skill set, facilitated negotiation may be plugged into other systems to improve interactive processes. The failings of an "if you build it, they will come" strategy for mainstreaming mediation indicates the needs for more creative, integrated uses of this skill set. We therefore need to invent new processes and systems that integrate facilitated negotiation into standard decision-making and dispute resolution.


Allow me to be so presumptuous as to use myself as an example (because that phrase is presumptuous enough). To address corruption and inefficiency in Congress, I suggested a system in which interest groups would be subject to mediation based on a certain level of lobbying expenditures (see 23 Ohio St. J. on Disp. Resol. 373). The basic effect of this device is that Congress would be able to tell conflicting interest groups to negotiate under facilitation before bogging down their system with an overwhelming amount of indirect influence in lobbying (a real and increasing problem in legislatures nation-wide). While lobbying disclosure laws (the only regulation of lobbying ) have not reigned in these excesses, allowing Congress to pull specific conflicts to a process that will produce mutually-acceptable policies may decrease inefficient, improper lobbying. The implications for the ADR movement are that this idea involves mediation as an enforcement mechanism for a problem that is not connected to litigation.


For another example, consider the brilliant idea of my friend, Emily MacBeath. She proposed using mediation on couples that experience turbulence in getting engaged. Her system of Facilitated Engagement Planning will bring couples to discuss their individual dreams and conflicting interests so that they may negotiate their shared future as husband and wife. This idea may seem silly to older generations that were taught to value family, but today's younger generation was raised to value individualism (your life is not fulfilled unless you contribute something or backpack through Europe). When two such individuals attempt to meld their lives together (and inevitably sacrifice personal aspirations), they often experience tension no matter how much they love each other. To combat this conflict, Emily's mediator would encourage the parties to share their expectations and discuss difficult choices in a safe, facilitated environment. The implications to ADR scholarship are that there are no legal rights at play--most people would see this situation as being devoid of conflict (yeah right) and therefore impossible to mediate.


These ideas illustrate the capability of mediation to be applied and integrated into untested systems and situations. Facilitation skills, created and cultivated by the first generation of dispute resolution thinkers, have the potential to transform a wide range of human dynamics. Now that mediation is well-accepted and underused, the new scholars in our field will recognize its potential for new applications or will develop new processes as an attempt to break into steady, fulfilling ADR employment.