Managing conflict in academic settings

Summer 2012

Mediators in the Public Eye How They Help Shape Public Policy In A Time Of High Stakes, Stress, And Conflict

2 ACResolution Summer 2012

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4 President’s Message

5 Fall Issue Call for Submissions

33 2012–2013 Board of Directors Election Results

35 Conflict Resolution Day

37 Thank You to our Donors

Summer 2012 • Volume 11, Issue 2ACResolution is published by the

Association for Conflict Resolution (ACR).

Editors Cindy AlmBill Stempel

Summer 2012 Issue EditorFrances Mossman

2011–2012 Board of Directors OfficersPerri E. Mayes, President

Frances I. Mossman, Vice President Marya Cody Kolman, President-Elect Lou Gieszl, Immediate Past President

Cheryl L. Jamison, Secretary Gigi Robson, Treasurer

Tajaé A. Gaynor, Diversity & Equity Director

DirectorsKim Bunker

Jeffrey Cohen Lewis Dabney

Bill Drake Nancy Flatters

Russell Gerrard Mary N. Miller

Tamra Pearson d'Estree Jonathan Rosenthal

Susanne Terry Jetta Todaro

John Windmueller

ACResolution (ISSN 1537-6648) is published quarterly by the Association for Conflict Resolution, 12100 Sunset Hills Road, Suite 130, Reston, VA 20190. Periodicals postage paid at Washington, D.C. Copyright© 2012 by the Association for Conflict Resolution. All rights reserved. This publication may not be reproduced in whole or in part without written permission.Editorial Policy: The views expressed in this publication are those of the various authors for the purpose of encouraging discussion. Unless expressly noted, they do not reflect the formal policy, nor necessarily the views, of the Association for Conflict Resolution or its editorial staff.

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Features

7 Public Disputes: A Growth Industry How will the ADR Community Respond? Frances I. Mossman

12 Social Media and Mediating Public Policy Michael Spangle & Kerry Mitchell

16 Reimagining ADR in the Midst of Crisis: Neutrals Responding to the Foreclosure Dilemma Susan M. Yates & Heather Scheiwe Kulp

19 Mediation's Promise Joseph B. Stulberg

23 Applying Information and Communications Technology to Muliparty Conflict Resolution Processes Jason Gershowitz & Colin Rule

28 Facilitation of Public Policy Conversations; A Discussion with Thomas J. Stipanowich Kendall C. Reed

31 Dealing with an Angrier Public Lawrence Susskind & Patrick Field

ACR Diversity and Equity Statement: The Association for Conflict Resolution is committed to diversity and equity in its membership, structure, budget and organizational work. A culturally diverse organization is one that recognizes, supports, values and utilizes people’s differences and similarities in support of the organization’s goals and objectives. Diversity and equity mean recognizing and working to eliminate injustices in access, process and consequences of ACR’s efforts to strive to meet the needs of diverse members and stakeholders.

Summer 2012


Dear Colleagues and Friends:

The theme of this magazine issue, “Mediators in the Public Eye,”

sounds almost like an oxymoron. After all, mediators in most disputes are visible only to the participants involved.

What type of work routinely puts mediators in the public eye? Resolving public disputes does – complex, multi-party conflicts which involve public policy issues and decision-making. Examples abound: contested zoning decisions about land development; natural resource disputes; assisted negotiations over federal rule-making; consensus-seeking toward developing public policies; and many others. All involve mediated or facilitated processes that enable stakeholders to communicate, negotiate, and find common ground.

Who among us tends to find themselves often “in the public eye”? Numerous ACR members do - particularly those who are active in the Environment and Public Policy Section (EPP). This is one of ACR’s most dynamic sections with many of the most active and prominent mediators, facilitators, and thinkers about public disputes.

As you read the articles in this issue, you will see how broad the spectrum of this public policy specialty really is. The articles illuminate how the field responds to emerging dispute contexts. Numerous processes have been successfully tailored

for helping parties reach consensus and create lasting agreements in some of the most challenging and seemingly intractable conflicts.

You’ll also see the future: advances in collaborative governance; new online systems for conducting multi-party mediation; greater public engagement through large scale dialogues; and increased use of consensus processes in improving all kinds of governmental decision-making, among other examples.

Which brings me back to ACR. In what other professional association can ADR practitioners, academics, and researchers share experiences across virtually every area of specialization and type of dispute? Making this possible, rewarding, and engaging is what ACR is about. I always find it so interesting and valuable to learn about colleagues’ work in practice areas different from my own. It reminds me of the underlying unity of what we do.

One way ACR nurtures information exchange and support for members to build specialties and expand practices in areas of interest to them is through its annual conference programming. The theme of the conference this year in New Orleans in September is “Creating Connections: Conflict Resolution in Deeply Divided Times”. It spotlights how the field successfully addresses divisions which

exist in current tough times in families, workplaces, communities, and globally.

It is increasingly important for ADR professionals to be involved in our communities in tackling complex and/or controversial issues facing society. ACR is dedicated to supporting you in expanding your capacity to be effective in conflict engagement and resolution. The ACR Legislative and Public Policy Committee (LPP) is taking a lead on this focus. Among other activities, its members are presenting at the annual conference on promoting legislative and public policies which protect and advance ADR.

Only in ACR can people in our field have an ongoing dialogue across the breadth of practice ranging from commercial, workplace, family, community to public policy disputes. I hope you will join me in a commitment to growing ACR and continuously strengthening its impact on society, here in North America and around the world.

Cordially,

Perri E. Mayes ACR President

Message from the President

ACR Special Interest SectionsHave you considered joining an ACR Section? Add to your ACR

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provide members with timely information about changes and

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Correction from the Winter 2012 issue of ACResolution

The article "Perspectives" in the Winter 2012 issue of ACResolution magazine refers to the work of "Bernie Meyer." The name should read Bernard Mayer. We apologize for this error and thank those who brought it to our attention.

http://www.acrnet.org/sections/

Summer 2012 ACResolution 5

Call fOr SuBmISSIOnSThe Fall issue of ACResolution will feature articles from the wide range of diverse practice areas in the field of conflict resolution. We are seeking timely and thoughtful articles that inspire discussion, foster a better understanding of the use of conflict resolution principles and practices, or add to the collective knowledge of those in the conflict resolution field.

Please send submissions (either a full article or a proposal for an article) as an email attachment in Microsoft Word format, to ACR Publications at [email protected]. Deadline for the next issue is September 24, 2012. Articles should be 1200 to 2400 words in length, and include the author’s name, email address, photo, a brief bio, and permission to publish. Suggested length for proposals is 500 words. ACResolution reserves the right to edit or not publish submitted material.

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A subscription to ACResolution is included as a benefit of membership in the Association for Conflict Resolution. The Association for Conflict Resolution (ACR) is the nation's largest professional association for mediators, arbitrators, educators, and other conflict resolution practitioners. Its mission is to advance the practice, research, public understanding, and teaching of conflict prevention and resolution. With more than 4,000 members, ACR members work in a wide range of settings throughout the United States and around the world.

For information about becoming a member of the Association for Conflict Resolution, please contact ACR's membership department at: 703.234.4141 email [email protected] or visit www.ACRnet.org

Winter 2012

Mediators in the Public EyeHow they help shape public policy in a time of high stakes, stress, and conflict

CENTER FOR DISPUTE RESOLUTION

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By Frances I. Mossman, JD, AICP

T here is an urgent need to apply the concepts and methods of Alternative Dispute Resolution (ADR) to address the major life-changing and critical problems facing people and

communities in the United States and in countries across the world. Some of these problems are new. Many have been around for a long time, often because they have been ignored in hopes they would go away. Others persist because no lasting solutions could be found. Predictably, the failure to find adequate solutions over time generally results in much more serious and even intractable problems than existed in the beginning. Attitudes and strategies, such as "not on my watch" or "kicking the can down the road," are used to describe a variety of "avoidance" mechanisms intended to pass the job of confronting and solving tough problem on to someone else to do at some other time.

Inevitably, the time does arrive when confrontation and difficult changes can no longer be passed on to future generations to take the actions that will implement solutions. Aviators call this the "point of no return," meaning the location between the origin of the flight and its destination at which, if there are serious problems (such as engine failure or bad weather or both), the decision to go on to the destination is set by the circumstances. There is no going back. This imperative applies also to serious public policy problems. There comes a time when there is no turning back or looking the other way and no room for procrastination. Unfortunately, the more critical the emergency becomes, the fewer and less desirable the available options are for the decision-maker to choose from. Today, we have reached that point—or soon will—in so many ways that affect our future. They demand our commitment to effective action.

ThE hISTOrICal rECOrD Of SOCIETIES ThaT faIlED

In his seminal book "Collapse: How Societies Choose to Fail or Succeed," Pulitzer Prize winner Jared Diamond describes how various societies have failed to recognize and solve problems that turned out to determine their fate. Based on his research, he identifies five sets of factors that contribute to a society's collapse. They are:

(1) environmental damage;(2) climate change;(3) hostile neighbors;(4) decreased support from friendly trade partners; and(5) responses to environmental problems.

The last factor always proved significant in the historical cases he studied.

As Diamond writes, "A society's responses depend on its political, economic, and social institutions and on its cultural values. Those institutions and values affect whether the society solves (or even tries to solve) its problems." He summarizes the major reasons why some societies make disastrous decisions about their problems:

(1) failure to anticipate problems;(2) failure to perceive a problem that has actually arrived;(3) rational bad behavior arising from clashes of interest

between people;(4) disastrous values and irrational behavior;(5) other irrational failures, such as responding to "crowd

psychology" or "groupthink"; and(6) unsuccessful solutions and unsolvable problems.

PUBLIC DISPUTES: A GROWTH INDUSTRYHow will the ADR Community Respond?


nInE DrIvErS Of ChanGE In a rapIDly EvOlvInG SOCIETy

Why are public disputes a growth industry today? We are experiencing an impressive confluence of factors that have come to fruition at about the same time and complicate already inordinately complex situations. Together—if not individually as well—they are "game changers." They change how we do things, relate to each other and what we expect from the world. Some can be opportunities for a better life; others can be destructive influences that drag us down. There are those that can go either way depending on how and for what purpose they are used. These trends are sources of competition and conflict that can impact families, the workplace, education, health, civil rights, social life, communities, nations, as well as international relationships. Their pervasiveness makes them stand out and grabs our attention.

The purpose of listing these trends is not to assess the current status of or describe what is being done to deal with these problems. Although the issues are familiar, there is wide disagreement on the facts, severity, impacts and what to do. They are highlighted because they:

• Indicate the kind of continuing and future problems and their magnitude that the ADR community needs to be prepared to deal with.

• Suggest interconnections, which need to be explored to find better solutions. For example, increasing drug abuse creates problems that affect the family, workplace, education, healthcare, neighborhoods, governance and public discourse.

• Require government policies, programs, funding and intervention at local, state and federal levels, which should be consistent, supportive and coordinated.

• Demonstrate the need for effective solutions and actions that work. The goal is not compromise, consensus, agreement, collaboration or political gain. The goal is quality results. Real solutions to the more intractable problems may turn out not to be "win-win" for all parties.

What actions can ADR professionals take to help decision makers in government and business, the public, and individuals cope with the impacts of these trends and make good choices for solving the problems they generate? Some of the dominant trends that affect critical public issues and generate debate, disagreement and conflict are:

1. Information and communications technology in a hyper-connected world that enables large numbers of people to obtain and use great quantities of data and information from multiple sources. They have the ability to communicate with thousands of people all over the world within a matter of seconds. They can share information, ideas, anger, or opinions, as well as direct and coordinate actions and events, from meetings to demonstrations and boycotts, or violent and destructive acts. New political forces are empowered. Governments have new ways to disseminate information and exert control, including shutting down the internet. The opportunities for abuse, misinformation and invasion of privacy are increased. Peoples' lives become more public and less private.

2. Growth of a society on drugs in which substantial quantities of prescription and illegal drugs are affordable and available in urban and rural communities. Drug dealing is a highly profitable global business with extensive organized distribution systems that employ large numbers of people, who have an economic interest in its continuation and success.

3. Availability on the world market of weapons, explosives and other military equipment that enable dissident groups to challenge police and military forces and governmental authority in significant ways. Repressive governments can be challenged effectively and even overthrown by citizen groups and mercenaries. Community dissatisfaction with government leaders and their

policies may erupt into destructive and costly demonstrations.

4. Impacts of science and technology on the environment combined with population growth and their consequences that inhibit maintenance of long-term sustainability. The complexities of these interactions (which may be unknown or underestimated for years), the economics of research and marketing of products and the increasing demand for resources generate intense pressures that favor choosing short-

term expedients and cheaper solutions. As the world population soars from 7 billion to 9 billion people in the next few years, the competition for water, food, oil and gas, minerals or precious metals and other natural resources grows more intense. Solutions and decisions can't wait for perfect information and definitive conclusions but must be made despite troubling uncertainties.

5. Clashes between diverse and opposing religious, racial, and cultural beliefs and practices limit the ability of true-believers to co-exist side by side and tolerate others who do not share these beliefs. Can multi-culturalism nationally and in mega-cities work when there are such deep divides? Are there interests and loyalties (such as national pride and commitment) strong enough to overcome these differences and avoid exclusionary policies and extreme measures?

6. Opposing and incompatible political beliefs, economic theories and primary interests can result in little or no room for compromise. The impasse over core values and issues that results can lead to no solution, inaction, destroyed relationships and/or conflict. When these situations become impossible to reconcile or tolerate, they can also cause failures in the political process and a breakdown of government.

7. Economic competition for major or dominant control of resources, market share and profits match corporations with governments in joint efforts to compete in regional and global markets. The increasing globalization of business emphasizes dependence on these interconnections and intensifies the consequences of failure.

8. The powerful desire for freedom, equal rights, justice and a better life drives people to take action even against great obstacles and with high risks. These motivations are at the center of significant migrations of people, shifts in demographics and strong opposition to existing governments, which in some cases have resulted in regime change.

"A society's responses depend on its political, economic, and social institutions and on its cultural values. Those institutions and values affect whether the society solves (or even

tries to solve) its problems."

– Jared Diamond


9. Public dissatisfaction with the failure of government to deal with problems, keep promises and operate efficiently motivates a lack of confidence and leads to declining support and eventual opposition. An abundance of information, timely communications and many avenues for people to register their opinions have put government officials and what they do in an intense public spotlight and fueled disputes between those who support and those who oppose the government's policies and actions.

If you are appalled by this list of trends—incomplete as it is—then consider this. These nine trends are the realities that today's public officials and elected political representatives must deal with. We hold those in politics and government responsible to us for finding solutions to the problems these trends engender. Politicians try to find ways to balance their responses that enable them to stay in office, as well as protect and promote the interests of their constituents. This is not easy. We need to recognize the magnitude of their task, if we are to realistically hope to be able to help them find better solutions.

ThE mEDIaTOr aS CaTalyST—aDvanTaGES fOr all SIDES

There are many advantages to including ADR professionals in public policy discussions and implementation. That topic deserves more in-depth treatment to explain how the process works than there is space for in this article. The mediator plays a leading role in designing the process to be used and bringing together ADR people, who have the right set of knowledge, skills, experience and personalities to fit the public policy discussions and disputes. That "team" can include facilitators, negotiators, arbitrators and others as needed. Reference to the mediator is made in this broader context.

The most widely recognized advantage is that ADR professionals are neutral, impartial practitioners who are able to bring parties together to settle their disputes amicably. They do not advocate the interests or policies of any of the parties, are not biased and are acceptable to all parties. Government officials, on the other hand, must always act according to the directed interests and positions of the organizations they represent, even when operating in a facilitative mode with the public.

Mediators, and all their team members, must gain the respect, confidence and trust of all parties to be effective. Where past relationships have broken down, some parties may decline to participate in any further discussions or do so only with the intent of disrupting them. The presence, relationship with the parties and leadership of the mediator must overcome these attitudes.

The mediator must be well-informed about all parties, their organization, interests, leadership and positions. They have better access to each party and can obtain information and conduct interviews that would be denied to or constrained for parties in the dispute.

The mediator should be the only one who knows all parties' potential areas of agreement and, therefore, can help move the discussion in the most promising directions for reaching agreement on solutions. This gives the mediator a clearer view of what the possibilities are, based on what the parties actually are willing to do, not on their often repeated public statements.

The mediator functions without the disadvantages of adverse public repercussions that a public official faces because of

advocating, opposing or being responsible for delivering on what has been decided. The mediator can put more creative solutions on the table for consideration without causing the immediate rejection that would be necessary if that were to happen in a public forum.

The ADR team draws on comprehensive diversity of practice and demographics that enables it to understand problems from individual and family situations through all other areas of impact and interconnections and to envision solutions with benefits in multiple sectors. It provides the scope of racial, cultural, religious, generational and socio-economic diversity that best represents community views and interests. This builds into the process a greater level of coordination, integration and collaboration more likely to make solutions work.

The mediator can more effectively interject deficiencies, constraints, uncertainties and realities into the deliberation than the individual parties can do without appearing defensive and partisan or weakening their positions. Solutions are based on the availability and credibility of information, data and their analysis and interpretation of the consequences. The mediator at times needs to take on the role of a critic. These advantages form a foundation for dealing with public policy issues and disputes that offer the promise of better solutions and are more likely to result in agreement on how to move forward.

SIGnIfICanT prOGrESS In puBlIC awarEnESS

Although ADR and those who practice it are not as well-known as those in other professions, lawyers for example, there has been a noticeable increase in the recognition and prominence of mediators and arbitrators and what they do. For the second year, the U.S. News and World Report has identified mediator as among the 50 top growth jobs in the United States over the next 10 years. This trend may come as a surprise to many mediators, who struggle to get hired to do mediations let alone be able to get enough paying cases to make a living out of mediation as a business.

In its Best Careers 2011, US News estimates that employment for arbitrators, mediators and conciliators will expand by 1,400 jobs between 2008 and 2018, for a 22% growth rate, which is higher than the average for all occupations. This interest in ADR, it points out, is contrary to the preference for litigation. "But the mediation and arbitration fields tend to grow at an above average pace, in part because the legal system is such a pricey slog. Mediation and arbitration tend to be cheaper and quicker methods for reaching resolutions." Public Policy ADR Specialization

The magnitude of today's challenges presents an opportunity to bring ADR concepts and skills into the public policy arena in more pervasive, intense and effective ways than we have been able to achieve so far. The development of collaborative governance processes, exploration of new ways to use neutral evaluators and hybrid combinations of mediation and arbitration (e.g., Med-Arb and Arb-Med), offer avenues for wider application. The foundation has been laid by the ADR researchers, educators and practitioners who have pioneered innovative techniques and concepts and established the legitimacy of their advantages and effectiveness. The result has been recognition from the community, expanded use by government, wide acceptance by the judiciary and the growing recognition by the business community of the value of arbitration and mediation over litigation.


Public policy ADR work is different than normal situations and more demanding for the practitioner. It is open, not private. Specialized education and training and extensive preparation are required to overcome some of the challenges and impediments that will be encountered. Preparation needs to include the following:

• A well-developed capability to look behind the rhetoric and public posturing and understand the real motivations.

• A pragmatic understanding of the rules of the political game and how to play it.

• Working knowledge about large organizations, their processes and procedures and how they really operate.

• Functional knowledge about how decisions are made in business and government, including the concepts, techniques and processes that are used.

• In-depth understanding of the issues themselves.

• Detailed knowledge about all of the interest groups involved, including their leadership, associations and positions.

• Sense of what is the range of public opinion on the issue.

• Grasp of the competitive business, economic, political and international environments and practices.

• Techniques to defend against being manipulated and how to use manipulation effectively.

• Tactics and training to be prepared to handle the sometimes toxic political debates and battles in public forums.

• Understanding of the purpose and limitations of the public hearings process.

• Familiarity with and understanding of the role of the media and how to interact with its various segments (e.g., TV, radio, print).

• Sufficient capacity of trained and skilled ADR professionals to stay the course and fill the needs.

• A brilliant plan and strategy.

OppOrTunITIES fOr GrEaTEr InvOlvEmEnT

There are numerous programs that might be developed to better utilize ADR professionals to assist with public policy discussion, decision-making and implementation. These are examples of only two areas where increased involvement could achieve immediate advantages.

Smart Power, as applied in U.S. international relations, is an example of a public policy that could be enhanced by the use of a collaborative ADR approach. This emerging national policy attempts to increase the effectiveness of U.S. foreign policy by coordinating the diplomatic, economic and military programs and responses so that they better reinforce each other to achieve the common national objectives. Although there is considerable agreement on the objectives, implementing it throughout the vast governmental bureaucracy encounters difficult problems to the degree that many officials are skeptical that it can be successful. ADR processes and techniques can help work through many of the relationships, standardization, jurisdictional and collaborative aspects that are critical to Smart Power's success. They should be explored.

Natural disasters and violent acts cause thousands of deaths and injuries and cost billions of dollars in destruction across the country

every year. A well-organized program is in place that extends from the Federal Emergency Management Agency (FEMA) and the Department of Homeland Security at the national level through the states and cities into individual communities. The process includes pre-disaster training and preparation, first response, early recovery and long-term recovery, all of which extend over several years. Inter-governmental coordination, as well as governmental interactions with the public, are challenging under crisis circumstances. Facilitators, mediators and arbitrators can be used more effectively and extensively than they are being used now to: (1) improve .coordination; (2) deal with jurisdictional disputes; (3) get quick solutions everyone will support; (4) understand and respond to the community's needs; (5) provide timely and fair compensation and restitution; and (6) plan for and achieve community, residential, business and economic recovery.

a COllaBOraTIvE aDr COmmunITy

The need is so great and the issues so critical that it is time for the political world to employ the full power of ADR concepts and apply them to the complex public policy issues of our time. To be able to operate in the kind of political environment that exists today and make a difference will take an organized, focused and integrated effort by the ADR community, taking advantage of the full range of its diversity, to be successful. ADR professionals themselves need to come together and act collaboratively. Four steps are suggested:

Step # 1 Start the process by sharing ideas, experiences and concepts to determine what methods work best for different public policy issues and situations and how to use them. Agree on a formulation and description of these processes.

Step #2 Organize and convene a Forum to engage key government officials, politicians, stakeholders, interest groups to determine best options and make a commitment to use that process for a specific Public Policy Issue Pilot Program.

Step #3 Revise and perfect the ADR public policy process and options based on the results of the pilot program.

Step #4 Expand application of the most advanced concepts, techniques and processes to focus on complex public policy problems and their solutions at the national, state and local levels on a high-priority basis.

Even modest progress through a creatively designed pilot program can be an encouraging step toward addressing a gamut of commercial, social, environmental, financial, educational, political and international public policy issues, which need solutions that work and that the public can support. This would be a valuable contribution the ADR community could make to advance the public interest.

Frances I. Mossman, Esq, AICP, Brig/General, USAF(R) is a planner, mediator, facilitator with public policy experience in Hawaii, California, and Washington, D.C. Her company, Hawaii IDR Group, specializes in International Coordinated Systems development for inter-jurisdictional, multicultural relationships. You may contact her at [email protected].

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Social Media and Mediating Public Policy

Social media is transforming both communication and culture. The communication transformation affects not only home and business but extends into political and public policy activities. It inevitably also affects ADR processes.

There are dozens of definitions of social media, since technologies and uses are changing so quickly. For this article, we define social media this way:

“The use of technologies, mostly via internet sites or mobile applications, that allow people anywhere in the world to connect socially by sharing information, opinions, insights, photos, experiences, jokes or anything they deem interesting. These technologies allow people to connect and interact socially in ways which facilitate conversations and collaborations between individuals or groups or people.”

Social media has in the past few years expanded to more than 200 electronic communities in the form of blogs, microblogs (e.g., Twitter and Tumblr), media sharing sites (e.g., YouTube and Flickr), discussion forums (e.g., Quora and Reddit), and social networks (e.g., LinkedIn and Facebook). To date, there are more than 28 million people accessing these sites.

Social media can serve as a new source of power, giving voice to a public that has been feeling alienated from their political processes. For example, during the 2008 U.S. general election, 20% of Internet users turned to one of the social media sites to express political opinions or ask questions. Social media is linked to both

the organizing of the Occupy Wall Street movement in the U.S. and the flash mobs in the London riots in 2011, and served as a prime communication tool for organizing the Tea Party movement during the 2008 elections.

Social media allows citizens to evaluate and second-guess public policy decisions anonymously if they wish. Impromptu videos can go viral and spread quickly to hundreds of thousands of people, making it much harder for decision makers to control information. That means that direct access to government and its processes is not limited to a privileged few. In the recent past, a controversial issue might have promoted a few letters of protest to politicians. Now the same politicians can expect several thousand emails in a single day, in addition to being commented about in social media such as Twitter, Facebook and blogs.

SOCIal mEDIa anD puBlIC pOlICy mEDIaTIOn

Social media is likely to change how mediators, facilitators, and other conflict resolution professionals (all of whom we will refer to as mediators for the sake of brevity) deal with a dispute that engulfs a community. Through the tools of the new media, mediators have an opportunity to engage multiple publics in a manner that permits greater openness and transparency.

Social media can provide information that target groups might otherwise be reluctant to share in public settings. For example, in 2003, when the University of Maryland decided to build a

By Michael Spangle, Ph.D. & Kerry Mitchell, M.A.


laboratory in a residential area of South Boston to study biological warfare, ADR practitioners might have used social media and quickly discovered that citizens united against the project were coordinating resistance on stopthebiolab.com. Information on the site clearly stated how citizens felt and what they planned to do about it. Thus social media enables a mediator to see what the community is saying and what its concerns are before arriving to a meeting or mediation.

Because social media allows rapid communication of both accurate and inaccurate information, it can also lead to greater gulfs in how different parts of a community understand the facts of a situation. At the same time it can provide tools for responding to incorrect information, as companies such as Microsoft, Starbucks and Staples have demonstrated. For example, in 2008, before launching three new products, Microsoft identified where the relevant conversations about the new products were taking place, what was being discussed in those conversations and who the influencers were. Through the use of blogs, they created messages designed to influence unfavorable attitudes. Similarly, Starbucks tweeted “not true” on sites to combat negative rumors and Staples used blogs to counter negative references to its products and the company.

Social media also makes it difficult if not impossible for a mediator to control what information the stakeholders have. For example, one mediator complained that as he exited a meeting, people outside the meeting knew as much as he did about what had been discussed because of someone silently texting the meeting’s content.

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In a world where public opinion is influenced by a variety of information sources, the mediator often needs to be aware of community attitudes and grassroots politics. By using social media to monitor information generated both within and outside the local community, the mediator may be able to anticipate potential problems that affect implementation.

Since there are hundreds of social media sites, mediators first must identify the ones used most in a target community. At the time we write community discussion most commonly occurs on Facebook, Twitter, YouTube, LinkedIn, Reddit, Quora, Pinterest or Tumblr (although sites will continue to rise and fall in popularity). They work differently and may reach different audiences. Facebook, Quora, Reddit and blogs allow two-way communication by posting information, questions, or videos and allowing others to respond. Politicians are now using YouTube as a platform for displaying campaign ads and following comments posted by viewers. Protestors and other community members can record and post videos in seconds. Pinterest, Tumblr and Flickr are visual

forums that may be powerful sources of information. Seeing videos or images of destruction may be what compelled so many people to donate to the Haiti earthquake or to take a stand on the Middle East protests. A mediator who wishes to understand the pulse of a community or to understand what topics are hot may find it helpful to see what videos are new and which images are trending.

Mediators do not need extensive experience or training to make effective use of social media. If

needed, most of these sites have tutorials to get started and YouTube has many instructional videos on using various social media sites. A convenient way to scan the social site environment includes HootSuite, which allows one to monitor several social media sites in one site.

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Public policy mediators often begin by surveying the mediation environment. Surveying involves identifying the most important issues, the intensity of the issues, who is for and who is against the issue, interests and needs, and the history of the conflict. Using traditional media, uncovering this information is time-consuming and expensive. Mediators can login to several media sites and search for keywords to see what the concerns are and who is mobilizing for or against them. Some sites such as www.library.vanderbilt.edu/romans/pubpol.html, have listings of specific issues which one can click on to see specific facts, additional sites and forums.

As one writer explains, “listening to and participating in online conversations is quietly replacing polling as a way to understand what communities of interest are actually interested in.” Mediators engaging with social media receive frank and real-time feedback on policy-making initiatives. In addition to identifying what is important and why, social media can inform the mediator about how intensely people feel about issues, which may be impractical or impossible by traditional means.

The new media platforms allow a mediator to better understand a public policy debate by synthesizing information from a variety of sources or filtering out key factors from the landslide of information. This may begin by a search for specific keywords or phrases represented in social media discussion. On Twitter, search for topics such as #environment or monitor Congress by following @TweetCongress. It is possible to save time by setting alerts on some sites including Google alerts, blogtrackers, and Twitter keyword monitors. Klout is a site which monitors one’s social influence on others via Twitter and Facebook postings. Through key words cited in free search engines such as blogpulse.com, Google blog search, and technocrats.com, community leaders can identify the tone and direction of public discussion and fashion effective responses. For example, a national review team analyzed public discussion in media stories and social media about a decision to build recreation sites in U.S. forests. Researchers identified public opinion influence leaders and tracked the direction of public opinion as events occurred.

Social media is likely to change how mediators, facilitators, and other conflict resolution professionals deal with a dispute that engulfs a community. Through the tools of the new media, mediators have an opportunity to engage multiple publics in a manner that permits greater openness and transparency.

http://www.library.vanderbilt.edu/romans/pubpol.html

http://www.library.vanderbilt.edu/romans/pubpol.html


CrEaTE fOrumS

Mediators can use social media not only to listen to what a community is saying, but also to promote and participate in dialogue and relationships that can supplement or even replace face-to-face meetings. For example, the mediator can use Twitter or Quora to engage the audience in discussions, promote specific topics and correct information others have posted or discussed which is not correct, and use Quora or Reddit to gain information about community concerns and provide answers to mediation and ADR-related questions. These sites field questions both serious and silly on any subject, so it is important to search for the topics, people or forums of interest.

A mediator can create and host a forum, using templates found on blogger.com or Google Site pages, and can choose to have it open to anyone or accessed only by invitation. Conversation can be managed with ground rules and the host can remove offensive or inappropriate comments. For selective groups, Ning is a source which allows creation of small social networking communities. Blogs are a great tool to provide information and to allow comments from readers. Some agencies are already creating webpages or forums for particular issues or states. A good example is www.e-democracy.org which is a forum for Minneapolis issues. It was created through OnlineGroups.net and discusses such issues as city stadiums. Another example of a forum for discussions is www.publicagenda.com. These forums allow mediators and disputing parties to engage in dialogue and collaborate solutions. Some of these forums allow the creators to conduct informal polls or surveys of site users. Some even allow users to gather and contribute ideas and to rank solutions.

Participating in the social media environment and being perceived as neutral can be difficult. To appear impartial in an environment of free expression means that the mediator must be cautious and deliberate in all communication. For example, the mediator should limit personal statements that can appear to side with any of the parties, and instead focus more on questions about assumptions the parties bring to the discussion or the careful evaluation of information on which positions are based. It may be useful to provide links and information without providing commentary, which may help parties find accurate information on their own. Another concern is that in the social media environment, there is no such thing as confidentiality. Comments made privately to one party can be forwarded to many parties. The mediator will want to construct comments with this awareness. Additionally, a great many of the comments about public policy in the online environment involve extreme statements. To avoid escalation, the mediator will want to avoid confronting these statements, and focus on the substance of an argument and the central task of consensus building.

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Mediators can now tap the resource of colleagues quickly and easily. Using sites such as LinkedIn (www.linkedin.com) enables mediators to join ADR groups, which engage in discussion about upcoming events, best practices or help in solving problems. Engaging with others can create connections which may stem ideas or partnerships. The ADR Professionals group is the largest ADR group on LinkedIn with more than 7,000 members; recent conversations have included the importance of certification, the best strategies for marketing oneself as a mediator and the amount of time spent on intake versus other mediation steps. Twitter can be used by both community members and mediator to track a mediation and searches for specific topics or issues can be found at @ACRgroup and @BusofGovernment.

Mediators can use Facebook to stay connected to other mediators and mediation groups by adding connections and friends or liking specific groups or organizations. Facebook, in addition to Twitter can serve as channels to notify or advertise for other forums and events. Google+ is another forum that many are using to connect with colleagues rather than connecting and mixing friends and colleagues on Facebook. Some mediators can teach others lessons or remind people to consider what is really important by sending blogs, twitter feeds with quotes or reminders on Facebook.

Many websites include blogs, Twitter feeds and links to Facebook. For example, www.businessofgovernment.org is a website that includes links to its blogs and articles amassed from across the web in addition to links to its Facebook and Twitter presence. Another site with articles, ideas and links to Facebook and Twitter is www.deliberative-democracy.net. Other sites offer training or tips for consumers which can be helpful for mediators as well. One example is Neighborworks America (www.nw.org).

Summary

The world of social media offers a new dimension to the work of the mediator. Mediators can access public opinion in fast and comprehensive ways and can join discussions to correct information or present additional views. Discussion forums can involve people who would not come to a community meeting and can enhance the face-to-face communication from meetings. It can engage dialogue that spans continents. The world of new media may significantly alter the way community leaders relate to their public and manage conflict with it.

Michael Spangle, Ph.D. is Professor of Communication and Chair of the Department of Behavioral and Social Sciences at Regis University in Denver, CO.

Kerry Mitchell is Lead Faculty at Regis University and owner of Moxy Solutions, a company that trains and coaches employees about managing conflict. She is especially interested in conflict stemming from personality or generational influences.

http://www.e-democracy.org

http://www.publicagenda.com

http://www.linkedin.com

http://www.businessofgovernment.org

http://deliberative-democracy.net/

http://www.nw.org/


A sampling of our featured courses being offered throughout 2013:


By Susan M. Yates & Heather Scheiwe Kulp, Resolution Systems Institute

Reimagining ADR in the Midst of Crisis: Neutrals Responding to the Foreclosure Dilemma

we mediators pride ourselves on providing intelligent, personal, compassionate services to individuals, families, and groups caught up in conflict. In doing so, we seek

to promote party self-determination and we insist on a process that is confidential. We believe that these characteristics of mediation facilitate creative problem solving and can add value not just in individual cases, but in times of larger public crisis.

Most mediators have a clear picture of what constitutes a traditional mediation session: two people sitting in a room together, speaking confidentially about their one-of-a-kind conflict in a conversation facilitated by an impartial, unbiased neutral trained in mediation. We follow codes of conduct that pertain specifically to the mediation process and our role as mediators. We use the name “mediation” for processes that are governed by such codes, and we try to fit mediation to many different types of disputes.

We need to recognize, however, that mediation as we define it is not always the dispute resolution mechanism best positioned to assist in a crisis. Sometimes adapting a process to fit a particular situation facilitates the most effective outcomes. We’ve seen neutrals do just that in the most varied of emergency situations. To give just one example, Kenneth Feinberg served as Special Master for the September 11th Victim Compensation Fund, in which he decided how best to distribute government funds to

families of those killed that day. He wasn’t always popular. Deep-seated anger after September 11th was directed toward him for deciding the economic value of a life, even though judges and juries do this frequently. However, Feinberg’s public discussion of ADR’s value in traumatic situations educated the public about the benefit of carefully-crafted ADR options and led to his further appointments as a Special Master for the Virginia Tech shooting victims fund and the BP Deep Water Horizon Victim Compensation Fund, among others.

There is no clearer recent example than the development of foreclosure dispute resolution. Consider the Iowa experience. When the farm-lender crisis hit the Midwest in the 1980s, Iowa’s dispute

resolution community responded. In partnership with the Iowa legislature and the USDA, neutrals mediated between farmers and their creditors, in the hope of avoiding many farm foreclosures. So, when the residential foreclosure crisis hit in 2007, Iowa had a model to follow. The Iowa

Attorney General called on the dispute resolution community to start mediating between borrower and lender. Mediators were already trained and adapted well to the differences between traditional mediation and foreclosure mediation.

For states that did not have experience mediating cases involving farm foreclosures, the transition was more difficult. In one of the first states

"We need to guard against being so rigid about process or style that we can’t help

in crises where our skills are needed."


to create a mediation program to address residential foreclosures, the mediation director recalls returning to the office after a long weekend to find legislation signed by the governor. The legislation required the director to create and run a new mediation program that brought lenders and borrowers together to negotiate a mortgage default. The director read the multi-page law, thinking, “This isn’t mediation. What is this and how am I supposed to run it?”

Many mediators will likely have the same reaction when they hear about the procedures in foreclosure ADR programs that are called “mediation”. While there is great variance in the 25-plus programs that exist across the country, the general structure is fairly consistent. A notice about the availability of mediation goes out to borrowers who are in default on their mortgage payments. The borrowers then request, or are automatically scheduled for, a mediation session. Some documents may be required from both the lender and the borrower prior to the session. Usually, a lender representative participates in mediation by phone, while a borrower is present in the room. A neutral facilitates discussion about the mortgage and options for avoiding foreclosure.

What looks different from most ADR processes is that the options for avoiding foreclosure are almost always set before the borrower ever enters the room. The ability to “expand the pie” is rare. The numbers—mortgage debt, fees, borrower’s income and expenses—dictate the options.

Even more, the representative at the table may not be the one who determines what options are allowed. The concept of everyone in mediation having the authority to settle is a core expectation for mediators. But in the foreclosure context, a representative on the phone may have authority to sign only one type of agreement (a short sale, for instance) and not be authorized to sign a loan modification agreement. That kind of decision would have to go to another department. An additional wrinkle in the authority question is that many banks and other lenders routinely sell their loan portfolios to investors (e.g., pension funds), which then contract with the lender to service the mortgage. So, the investors, who are never on the phone, often have the final say in whether the lender can offer a settlement. This lack of authority issue is a major barrier to concluding the mediation in one or even two sessions.

With these departures from the core underpinnings of mediation, neutrals echo the question, “What is this and how am I supposed to run it?” Mediators become frustrated with the narrow menu of options; where is the mutual self-determination? They balk at requirements that mediators make determinations about party behavior that could impact whether the foreclosure proceeds and sanctions are issued; where is the impartiality? They reel when asked to conduct complicated calculations to determine whether lenders are really offering their best deal; where is the joint problem solving? With this in mind, it is easy to see why, when the Attorney General’s office in Oregon offered Oregon’s community mediation centers the opportunity to conduct the mediations for foreclosure cases, the centers there gave a firm “no, thank you.”

But does foreclosure mediation’s seeming deviation from traditional mediation principles mean that neutrals, and dispute resolution more generally, should turn away from helping in the foreclosure crisis? Should long-time mediators leave the foreclosure mediations to people with little experience with mediation and its codes of conduct because the process doesn’t look like mediation?

We stand at the edge of a great opportunity. Instead of arguments among ourselves about what is and is not mediation, why not explore our own assumptions about dispute resolution more generally? Why not explore how and what dispute resolution processes may be appropriate and beneficial for resolving the foreclosure crisis? While many of these programs should not be called mediation, we can use this opportunity to educate the public about what mediation is, and more importantly, what ADR variations might be used to help address the crisis.

As legislatures, courts, and city councils craft these programs’ governing documents, they need assistance from us as ADR professionals. Some don’t understand that mediation is different than mitigation, or that the mediator is a third-party neutral and not an advocate for the borrower. In the politics of the legislative process, those drafting and promoting a foreclosure mediation bill might be consumer advocates intent on punishing the banks or lenders who think mediators will interfere with their legal right to enforce mortgage contracts by foreclosing on homes. Very rarely do legislators, advocates, and lobbyists talk to actual mediators to learn more about mediation. And frankly, many mediators would resist getting involved in the legislative process.

But once neutrals saw that these bills were passing, and that programs were being created with or without their input, many neutrals realized they could impact not only how the session itself is run, but how the decision is made to create and use ADR for foreclosure cases. In Utah, a private mediation office was responsible for drafting the first proposed bill that would create a mediation program. The bill included reference to the ethics articulated in the Uniform Mediation Act and also clearly defined the role of a mediator. To better understand the needs of those impacted by the bill, the mediators partnered with the Utah Attorney General to gather, for the first time, representatives from the state banking association and consumer advocates. It was the neutrals’ involvement that made possible such a gathering, and neutrals who could start discussion about the genuine concerns each group had with the bill. While the bill did not become law, that was in spite of, not because of, the mediators’ involvement in its drafting.

Seeing mediation skills at work in single cases, states are now inviting mediators to participate on a larger scale in the discussions about resolving the foreclosure crisis. In Washington State, the initial foreclosure mediation legislation was passed without much input from the mediation community. But when the first few months of the program revealed significant flaws in the legislation as it related to mediator immunity and confidentiality of the sessions, Washington turned to the mediators themselves to help the state figure out what to do. One foreclosure mediation program administrator impressed the legislature so much that he was asked to facilitate all future discussions about how to modify the bill. He led representatives of the stakeholders, including the vice president of a major bank and the director of the state’s legal aid organization, through a dispute resolution process until the group had a joint recommendation for how to change the program. Now, the legal aid director and the bank vice president have begun to turn to the mediators for suggestions for how mediation may benefit their clients in other disputes.

States that have experienced success with foreclosure ADR are also looking to neutrals to show them other disputes in which mediation will be useful. In Connecticut, the program has been


so successful, with over two-thirds of homeowners remaining in their homes and nearly three-quarters of cases avoiding foreclosure, that the state’s banking association has been willing to fund the entire program. While this outcome may stir jealousy in some mediation program administrators, perhaps the follow-up outcome provides more hope: the ADR administrator who was at first confounded that the legislature would call its process “mediation” is now head of a taskforce to develop a comprehensive ADR plan for all case types in the courts.

This view of ADR as an essential component to resolving public crises is not limited to state efforts, but has now taken the national stage. Seeing the increase in state-and-county-sponsored foreclosure mediation programs across the country, the Department of Justice (DOJ) gathered foreclosure mediation program administrators, consumer advocates, and researchers from around the country in March 2011 to discuss best practices in foreclosure dispute resolution programs. In 2012, the DOJ released "Foreclosure Mediation: Emerging Research and Evaluation Practice", a report that highlighted what foreclosure mediation programs were achieving and what such programs needed to do their work even better. The report advocated that mediation programs receive funding for evaluations. Such evaluations would ensure these programs were transparent, as Feinberg’s critics often called for, while still preserving the confidentiality of each session. The report went on to say that best practices should be developed and published, so programs did not have to start from scratch. In this report, the public saw that high-quality, well-designed dispute resolution programs facilitate real solutions and are not just band-aids. The report showed states and municipalities that such programs are worthy of more attention, official partnerships, and financial support.

In this foreclosure crisis, the public is experiencing what ADR can do. Mediators can be an essential part of planning and creating mediation programs, not just performing the services. We can decide when dispute resolution fits best in a dispute or crisis. If we are willing to let go of the idea that mediation is the default process to address a crisis, we can explore what type of process is most appropriate for the type of dispute, and what rules and steps that process may entail.

When ADR programs are being designed to address public crises, we need to be flexible enough to have a seat at the table, where we can apply our expertise concerning what core values in ADR need to be preserved. Helping our communities find the right ADR approach is especially critical when the stakes are as high as they are in foreclosure and other crises.

Susan M. Yates is Executive Director of Resolution Systems Institute, a non-profit that strengthens court ADR systems through program development; monitoring and assessment; and a national court ADR resource center. She has been a mediator since 1983.

Heather Scheiwe Kulp is Resolution System Institute’s Staff Attorney/Skadden Fellow, developing mediation programs–small claims, foreclosure, child custody–to meet pressing needs of low-income litigants. She speaks and writes regularly about foreclosure dispute resolution and access to justice through mediation.

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Over the years, many mediators have scoffed at litigators who see every conflict as a lawsuit, saying, “If all you have is a hammer, everything looks like a nail.” We mediators are not immune from this kind of thinking. If the only tool we intend to use is traditional mediation, we are limiting the situations in which

we can be helpful.


We live in exciting times.

I don’t believe it extravagant to claim that we confront significant challenges—political, economic, social, environmental, and technological—that seriously test the continued viability of democratic governance.

At the national level, how do we establish an acceptable federal budget framework, develop a viable immigration policy, and structure the delivery of health care services?

At the state and local level, given the 2008 economic meltdown, how do individual state governments decide whether to fund—and at what levels—the delivery of mental health services, court administration, or public universities or whether to privatize the state prison system? How do local school districts develop and deliver a quality, comprehensive, high technology training to students of multiple skill levels and special needs while operating dilapidated school facilities?

Some of these challenges arise in such a way that we can proceed to plan for, and deliberate about, how best to meet them. Other challenges simply erupt, and we must deal with their consequences. When natural disasters such as tornados and hurricanes destroy lives and towns; how do we develop acceptable plans for re-establishing efficient, fair, broad-based public services and restore damaged communities? When a proposal to establish a Muslim community center near the site of the former World Trade Center produces a storm of rhetorical protests, what forum is available for the disputants to talk with each other? When concerned citizens protest

the handling of the 2012 Trayvon Martin shooting and want to engage in constructive dialogue with those officials responsible for its investigation, and prosecution or defense attorneys, what avenues can they pursue?

I believe that in each of these situations, the intervention of a non-governmental, third-party neutral mediator can make a positive contribution, as the history of such interventions demonstrates.

But many might object to such an intervention. The self-serving rhetoric of democratic governance calls for channeling such conversations through the offices of established elected officials or governmental bodies; even if those calls are genuine, they are appallingly insensitive to how inefficient, polarized and inaccessible those processes are to most stakeholders. More affirmatively, though, responsible citizen engagement in problem solving is not in conflict with democratic governance—it constitutes its vitality and strength.

Regrettably, the ADR field in recent decades has developed in a way that minimizes, if not eliminates, its use in these matters. I submit that instead we should work to promote the use of mediation in public controversies. We must begin by stating crisply what the mediator’s role in such situations should be: it is to promote discussion, dialogue and negotiation with the goal of reaching an agreed-upon outcome. That outcome, as will be noted below, could take multiple forms, ranging from agreed-upon recommendations or a statement of principles to a plan of action that the parties themselves would implement. But the goal is to gain an agreement to action. It is not—however worthy such conversations might

Mediation’s PromiseBy Joseph B. Stulberg, JD, Ph.D


be—merely to convene a gathering in order to exchange information with decision makers or conduct “a difficult conversation.” In my view, the mediator’s goal should be to help participants forge an agreement to do something.

I consider three questions below: first, are the situations noted above, and similar matters, appropriate for mediator service? Second, how can a mediator (or mediation process) gain entry to serve and what types of outcomes might she promote? Finally, as a “test case,” how might such mediator services have operated in an actual recent public controversy: the attempt by some state legislatures to significantly alter the role of public sector unions in the delivery of public services and the spirited citizen response it triggered?

arE ThESE COnTrOvErSIES an apprOprIaTE DOmaIn Of mEDIaTOr SErvICE?

Many of us believe that the contemporary ADR movement—particularly the use of mediation—originated in settings of explosive community confrontations over social policy. Citizens protested court-ordered school busing plans; environmental activists opposed building flood-control dams; streets exploded with civil rights marches and anti-war demonstrations; and public school teachers went on strike to protest working conditions.

Typically the government authorities responded with a conventional law enforcement approach. In 1960, when Albert Shanker led teacher boycotts and strikes of the New York City public schools, he was arrested and convicted for violating statutory prohibitions of such public employee conduct and criminal statutes such as trespassing. In 1971, when Boston parents conducted a demonstration at school headquarters to protest the busing of their children to non-neighborhood schools pursuant to a court desegregation order, they were convicted of criminal trespassing.

It is understandable, of course, that political, judicial, and bar leaders invoked the legal system to “keep the peace” in these situations. But in so doing, they prevented rather than invited dialogue about these important issues. After all, what Shanker and his colleagues wanted was to engage city school officials, city and state governmental leaders, and others to discuss—negotiate—working conditions for teachers. The parents were concerned about, and wanted to discuss, how the school board made student school assignments; the procedures, if any, to insure their children’s safety on the bus; and, more fundamentally, the appropriate role of the principle of racial integration in the design and delivery of public education.

The authorities’ responses distorted participant priorities, making the issue about power rather than policy. They did not permit, let alone encourage, responsible participation by the very persons who were central players in the controversy and who had to live with its outcome. They did not involve interveners who reflected meaningful racial, ethnic or economic diversity with whom the parties felt instant empathy and respect. And, most devastatingly, they displayed a lack of confidence in citizens’ ability to address and resolve significant social challenges as equal members of a common political community.

By striking contrast, using mediation in such situations, even on a limited basis, explicitly did all those things. Through skillful intervention with a multiracial mediation team, twenty-six separate negotiating parties in Rochester, NY forged an agreement governing school practices to insure student safety in the schools. A multiracial mediation team facilitated prison hostage negotiations at Walpole State Prison, and a mediation team blending multiple skill sets and substantive training mediated a high-profile environmental controversy involving the Snoqualimie River Dam.

To my way of thinking, today’s leaders display a similar blindness and reluctance to engage citizens in resolving serious problems. Those with power hide behind the law’s authority; those without it resort to the internet, cable programming, or spontaneous demonstrations to spew rhetorical poison that demonizes those with whom they must strike deals. Neither those in nor out of authority value engagement in a forum in which spirited debate and ideas are welcomed,; instead they abdicate responsibility for shaping their future. Political polarity ensues; inaction trumps responsible engagement. The constructive use of mediation in such settings would strengthen our democracy.

GETTInG InvOlvED

Why aren’t mediators used—or used more frequently and visibly—in such controversies? Explanations vary. Some dispute resolution professionals lament the general public’s alleged lack of understanding of a mediator’s presumptive skill set. “If they only

knew how good the process is—and what it can enable them to achieve, they would use us often,” goes the refrain. These persons accurately note that most citizens know how and when to call a lawyer for assistance; regrettably, they claim, that is not the case for calling mediators.

I believe attributing ignorance to the general public amounts to unproductive hand-wringing. Even if the claim were true, which I do not believe it is, it will not advance citizen engagement in the process. The danger of the lament is that it assumes that the parties must take the initiative to seek out mediator engagement. The assumption—that the mediator must passively “wait to be called for service” is unwarranted: the mediator and mediation advocates, consistent with their process and professional values, can be more proactive to trigger its use.

Other writers (notably Bernard Mayer) argue that if dispute resolution professionals (not including lawyers in their traditional advocate’s role) want to be relevant, engaged and employed, then they must stop presenting themselves as “only a mediator” or neutral. Mayer, for example, in suggesting that the dispute resolution professional should offer her services as a “conflict specialist,” not just as a mediator, importantly notes that one must be sensitive to the manner in which one might have to integrate the possibly conflicting roles of one’s being a conflict ally, a third-party, or a systems resource person, such as a trainer. But he and others believe that blending those roles can ethically be done and that offering multiple services, not just “mediation,” is the only way for the dispute resolutionprofessional to be engaged, not ignored, in the social controversies noted above.

The authorities' responses distorted participant priorities, making the issue

about power rather than policy.


I believe Mayer’s prescription speaks to a legitimate question—viz. how to make a living at doing this work—that is less central than how a person as mediator can be relevant to serving the public good. What matters is that each of us be engaged as citizens. That cannot be done by waiting on the sidelines to be called. And it cannot be done without some ideas about how to engage participants—how to “get them to the table”—and keep them there.

That is a significant challenge. What is involved in doing that? There is much guidance now available to prospective, concerned, pro-active interveners. In somewhat general, summary terms, the guidance goes like this.

• Determine the Stakeholders. Who are the persons or groups impacted by the controversy? Or, as a mediator would want to know, who are the persons who are able to block the implementation of any agreement? These persons or groups almost always include more participants than persons who meet the targeted legal criteria of having “legal standing to bring a lawsuit”. The mediator must identify them and try to get them all into the discussions.

• Form of Process. There are multiple decision-making processes. Which should we use? We must design the forum (or format) to fit the fuss. Is a decision required? Must a consensus be developed? Is the challenge “only” to generate agreed-upon reliable information bases or a process for generating that information? And, crucially for a mediator to remember, our mediation principles do not necessarily require that all mediated conversations be conducted in “private” with confidentiality guarantees. The best format in some cases is a facilitated, non-confidential, public discussion

• Nature of Outcome. What is the goal of the conversation? Is it to develop a statement of shared values? Develop mutually supported action plans? Settle a specific controversy or work out how to live together in the future? And who will be responsible for implementing the outcome’s terms? While there are multiple possibilities as to the nature of the negotiated outcome, the convener’s task remains straightforward: engage participants in a conversation that is designed to achieve agreed upon outcomes—in short, do what you can to make the negotiation work.

• Finances. Where do the required resources—space; resource support (computers, mailings); professional services; and, not infrequently, participant transportation, lodging and food—come from? Even if some or all resources are provided in-kind, professionally conducted conversations cannot be done on the cheap. Some conflict resolution centers secure funding so that they can offer services without charge to parties. Whatever the format, a mediator must be proactive in exploring financing options, including private foundation or donor support. In many public controversies it is impossible and undesirable for “parties” to pay the expenses.

• Political Risks. What are the political risks of the process? Public officials might balk at having such discussions convened by a “private citizen,” let alone participate in them. Elected officials often resist supporting or participating in such forums, viewing such initiatives as providing “losing electoral contestants” with

a second bite at the apple. Other conscientious career civil servants often denigrate the process as one that proposes to use private forums for conducting the public’s business.

But that reluctance misses the point. In a democratic society, it is desirable to have broad-based, pervasive public conversations about significant community matters, for such discussions invite engagement and responsibility—i.e., they promote active citizenship. That does not mean that the citizens have the “authority” to make binding decisions; elected officials may still be the persons with ultimate decision-making authority. But there is no principled reason for leaving the discussion of such matters to legislative hearings. It is not an “either-or” situation, and public conversations can run parallel to and cross-fertilize legislative processes.

puBlIC SECTOr laBOr rElaTIOnS: a TEST CaSE

We can apply the above comments to contemporary events. In January 2010, newly elected political leadership in Ohio and Wisconsin submitted legislative proposals that fundamentally transformed the laws and practices governing public sector labor relations. The proposals triggered substantial public demonstrations. The legislative adoption of these transformative bills led, in Ohio, to a petition movement that resulted, through a public vote, in a repeal of the statute; in Wisconsin, protests led to a gubernatorial recall election that supported the legislative initiative.

I believe that a mediator could have helped citizens contribute to the public conversation and decision-making process by facilitating citizen engagement and dialogue, and that we, as citizens, would have been well served by such a process. To illustrate, I will focus on the Ohio experience.

The significant changes in the reform legislation included:

a. reducing topics of mandatory bargaining, particularly those governing health insurance and pension programs;

b. limiting the maximum length of a collective bargaining agreement on wages to one year;

c. eliminating negotiated step-pay increases and replacing that system with a state-wide created merit-based compensation scheme;

d. replacing interest arbitration procedures for police, fire and sanitation services that had included using final offer procedures with a process that permitted the public employer to unilaterally adopt its final offer; and

e. curtailing union-security clauses.

The public debate was instantly polarized. Proponents described the measures as incorporating a disciplined attempt to contain and reduce governmental expenses and also insuring that public employees shared the same financial sacrifices as their private-sector counterparts were experiencing. The bill’s opponents attacked the political leadership as being anti-union, non-responsive to alternative approaches, and elitist, and claimed that the law would eliminate the middle-class in Ohio’s communities.

What could a mediator possibly have contributed? I briefly sketch a framework as to how a mediator intervention might have been helpful by considering each design element noted previously.


a. Determine the Stakeholders. The participants in this legislative process were, initially, political leaders. The governor and the party in legislative control developed the proposed legislation and adopted it. Public demonstrations were led by public sector union leadership and their citizen supporters. The legislative process, with committee hearings and votes, proceeded in a somewhat controversial manner. The bill in committee was adopted by a strict party-line vote and the governor signed it. The protest storm ensued. What did not occur? There was a striking absence of reliable, independent information on which various claims were based. A mediator might have convened stakeholders with the goal of securing consensus, minimally, on matters relating to projected cost savings, the effectiveness and viability of merit-pay systems, and the impact on the collective bargaining process of the proposed changes to the impasse procedures. These matters were not topics of idle conversation; citizens wanted to know how the new law would impact the delivery of essential services and parents were clearly concerned about the law’s impact on the scope and delivery of educational services. Who would participate? The stakeholder representatives might have included persons from: business (e.g., the chamber of commerce); public sector employers (towns, school boards, and the like); public sector and private sector unions; parent groups; news media; academia; and policy makers. In the legislative contest, these stakeholders had to align themselves either with proponents or opponents of the proposed bill or be ignored; in a mediation process, they would talk with one another.

b. Form of Process. What process could have been designed—and helpful? One can speculate, but one format would have called for discussions aimed at gaining consensus not only on the obvious topics, such as the financial impact of the statute to local governments and taxpayers, but also on “more fundamental” issues, such as best procedures and practices for structuring the public employer-employee relationship in the 21st century. Most current models of public sector labor relations build on the framework of private sector collective bargaining. Is that a desirable model? Is the concept of a civil service system, with pay grades, defined benefits, and managerial prerogatives, desirable? Participants, minimally, could have explored what principles for service delivery they collectively endorsed. A developed consensus on such principles might have strengthened citizen confidence in the State’s capacity to compete and survive in a global economy.

c. Nature of Outcome. There could have been multiple, concrete outcomes, ranging from “task force reports and recommendations” to the development of shared “charter principles” for structuring the delivery of public services. Webcasting the discussion process itself might have contributed importantly to the public’s education.

d. Finances. The mediator—and sponsoring entity—would have to be viewed as a non-partisan, neutral source. Obvious candidates would include University centers, prominent Foundations

with an established reputation for fostering public discussion of significant public issues, or non-profit “think tanks.” The process would require significant finances, for there was a very disciplined time frame for conducting the sessions and an obvious need to secure stakeholder representation reflecting pervasive diversity along political, geographic, and ethnic lines. e. Political Risks. We should expect that elected officials and the

leadership of municipalities and state agencies—indeed, all of the potential stakeholders—would evaluate the political risks of participation. To the extent those individuals calculate that they could do “better” by letting the legislative process continue, they would resist invitations to participate. So the potential mediator must be persistent and patient in trying to appeal to their better instincts—namely, that leadership in a democratic society involves participation and accountability, not filibustering. Of course, any potential participant can assess whether it has sufficient power to achieve its objectives without the cooperation of all stakeholders. If that calculation is affirmative, the party will choose not to participate. But, as history often shows, and the Ohio experience confirmed, people often miscalculate.

COnCluSIOn

The world is too complex to rely on the attitude of winner-take-all, “we know best how to govern for the next four (or two or six) years.” We need thoughtful negotiations among community members on matters of public concern, and therefore we need in our communities the sustained, visible presence of seasoned mediators who have the capacity and gravitas to promote and facilitate those negotiations. I am not proposing that the mediator’s job is to engage in political activity. Of course such work is ‘political’—but with a small “p.” It is not, importantly, one more instance of partisan politics. It is not someone—or some group—playing the Lone Ranger and trying to make others behave. Instead, it is the systematic commitment to—and confidence in—the power of dialogue to constructively address public concerns.

The late Theodore Kheel played such a role in the life of New York City. Others become community leaders because they are concerned for the well-being of all and want to work actively to promote dialogue. Mediators must support such admirable efforts. After all, underlying our commitment to the principles of mediation is a fundamental commitment to dialogue. We can make a difference—we must have the courage, creativity and tenacity to try.

Joseph B. (“Josh”) Stulberg, JD, Ph.D. is the Michael E. Moritz Chair in Alternative Dispute Resolution at The Ohio State University Moritz College of Law. He chaired the ACR Task Force Study on the Arbitration Fairness Act of 2009 (2009) and served as the Reporter of the Joint Committee’s Revised Standards of Conduct for Mediators (2005).

A copy of this article including footnotes may be found at the author’s website, http://moritzlaw.osu.edu/faculty/bios.php?ID=49.

http://moritzlaw.osu.edu/faculty/bios.php?ID=49


By Jason Gershowitz & Colin Rule

Applying Information and Communications Technology to Multiparty Conflict Resolution Processes

Information and communications technology (ICT) is transforming the practice of dispute resolution. As networks expand, ADR practitioners and the parties they work with are increasingly bringing ICT into their resolution processes —whether intentionally, through process design, or organically, as parties pull out their smartphones, click on an app, and thereby make the decision themselves to engage with ICT.

Traditionally the conflict resolution field has been slow to adopt new technologies. Probably the individuals drawn to ADR practice are not usually early adopters for both personal and financial reasons. In addition, mediation and similar conflict resolution approaches have placed great emphasis on the power of face-to-face interaction with and between the parties, which may have led to skepticism about the benefits of computer-mediated communication. But as the adoption curve for technology in our society continues to rise, with almost 91% of U.S. adults under the age of 50 connected to the internet and 30% of U.S. adults using Facebook, Twitter, or other social media, it is inevitable that our field will need to think hard about how technology affects our work.

ICT is particularly relevant and potentially useful in multiparty conflicts, including Environment and Public Policy (EPP) disputes (such as those around climate change, energy regulation, watersheds,

or public lands). ICT enables interactions between people separated by both time and geography, and no dispute resolution process wrestles with the challenges of time and geography more than multiparty processes. ICT can help to convene widely dispersed groups, share complex scientific and technical information, and focus conversations toward solutions. It is widely recognized that collaborative process facilitators need to consider ethics and process, and (at a minimum) have a basic understanding of the substantive matters under discussion. We believe those facilitators should also

have at least a basic level of comfort with and understanding for how technology might be used in EPP processes. As societal adoption of ICT accelerates, facilitators should proactively engage its risks and benefits, optimizing the chance that it will aid instead of hinder their efforts.

We have collaborated with a group of EPP professionals over the past three

years to begin discussions around best practices for integrating ICT into multiparty work. We developed a website to serve as a hub for discussions, facilitated a session at the 2010 ACR EPP conference focused on the topic, and participated in a variety of online webinars and conference calls to share practitioner experiences. We also participated in a working meeting hosted by the Department of the Interior for Environmental Conflict Resolution (ECR) experts to share ideas around best practices.

"ICT enables interactions between people separated by both time and geography, and no dispute resolution process wrestles with the challenges of time and geography more than

multiparty processes."


Now, through our mutual connection with RESOLVE, we have launched the Collaborative Technology Tool Shed Program. The program provides access to innovative collaborative technology and support for multiparty conflict resolution processes. The need for facilitators to have, or have access to, specialized knowledge of collaborative ICT is rising as multiparty processes incorporate ICT. We hope to help EPP practitioners increase the value of their interactions and provide more opportunities for engagement with the process.

Assessing the opportunities for using ICT requires an understanding of different approaches for applying technologies and an awareness of the advantages and disadvantages in doing so. In this short article, we describe some of the ways we think about these tools and encourage practitioners to learn more.

hOw IT wOrkS

One of the challenges of thinking about how ICT can benefit multiparty processes is figuring out exactly how each new technological tool works and what it can do. There are so many platforms, apps, and services available that getting up to speed can be overwhelming for the uninitiated. Often conversations about ICT in conflict resolution devolve into people trumpeting the advantage of their platform over others, or explaining how they do things specifically with their collection of hardware and apps. However, not everyone has a Samsung phone, an Apple tablet, or a WebEx license, so recommendations from one person may not work in every other context.

We think a better way to illustrate how these tools can provide benefits is to tell a few stories. Here is a sampling of theoretical scenarios, based on real-world experiences we have witnessed, which demonstrate some of what is possible.

The in-person, technology empowered working group

A group of thirty-five stakeholders comes together in person to discuss plans from a local developer to transform a vacant lot into a movie theater with adjacent parking. After a brief introduction, the stakeholders use their mobile devices to submit a list of top concerns about the project, which the facilitator then collects and distributes to all the participants back on their mobile devices. The stakeholders then rate each concern by importance from one to five. The facilitator then ranks all the topics by aggregated importance on an LED projector in the front of the room, and the participants work together to hone the list down to eight key concerns, which serves as the agenda for the meeting. The participants then use the LED projector to view videos and satellite images of the vacant lot. The developer provides computer generated images of what the building will look like if built to the current plan. An environmental scientist shows an animated schematic that demonstrates potential problems from runoff from the parking lot draining into a local creek. The facilitator then brings up a word processor on the projector and the parties collaboratively draft a summary of the concerns that emerged during the meeting. The meeting then adjourns. The next day the developer re-designs the plan to address the concerns, and the re-design, highlighting changes made from stakeholder input, is shared with all the stakeholders via email for review and comment.

How ICT Made a Difference:

Mobile Polling and Ranking Saving time

Projector Achieving a common understanding

Video and Satellite Imagery Varying learning media; Common understanding

Collaborative Writing Reinforced support for solutions

The online/offline regulatory process

A facilitator convenes an expert group to discuss regulations for acceptable recreational motor vehicle use in a state park system. The facilitator introduces himself via email to all the participants prior to the first in-person meeting and asks them to complete a short survey to gather their perspectives and relevant research on the issue. The facilitator follows up with a series of emails, telephone chats, and in-person one-on-one meetings ensuring participants with all levels of technological capacity are engaged. The participants select a workable meeting time with free online scheduling services. The parties meet together for the first time and introduce themselves. They identify key issues (on old-fashioned flip charts) and organize into working groups to tackle each major issue in sequence. The meeting breaks up but the working groups continue to collaborate online in web-based meeting rooms provided by the facilitator, who monitors progress in each working group. The facilitator spends much more time focused on the wildlife impact working group because the science there is much less developed, which generates more disagreement. The other working groups quickly answer the key questions and then draft and agree to a set of recommended rules. Finally, the working groups all finish their assigned tasks and the participants select another in-person meeting time. At the meeting, each working group presents its final recommendations, and the facilitator knits their work together into a two-page consensus report, which is jointly edited by all participants in real time. All participants (except for one) agree to support the final set of recommendations, which are sent back to the state environmental protection regulator for approval.


Online Survey Efficient information gathering; Broad participation

Online Scheduling Tools Efficient logistics; Consensus/participant-lead logistics

Web-based Meeting Rooms Increased progress between meetings

Collaborative Writing Reinforced support for solutions

A geographically dispersed public feedback initiative

A university-based center for environmental studies receives a grant from a foundation to address conflict around pollution of a section of a major river that crosses three states. It is clear that many thousands of people are fiercely passionate about the issue, as it affects everyone from recreational users of the river, to agricultural interests, to businesses and municipal utilities. The team managing


the process for the center launches an outreach campaign in magazines, newspapers, social media, and websites to notify likely interested parties in the project, which they give a catchy name. The team’s outreach points interested individuals to a single landing page, which features a compelling and inspirational animated video about the future of the river. Visitors are encouraged to complete an anonymous deliberative survey that collects and prioritizes participants’ concerns while presenting up-to-date scientific information (shared in open standard data formats) on the state of the river. Interested participants register for online discussion groups, mixing individuals with diverse perspectives, to address key questions about the optimal path moving forward. The center manages the project for two months, sharing results dynamically as more information is collected. The project culminates in the production of a documentary film about the challenges identified and likely solutions, which is presented online and in local showings across the affected geographies. The participants also elevate the visibility of the documentary by sharing links and announcements through the same social networks the team initially used for outreach.


Social Media Outreach Broad participation; Empowered participants

Online Survey Efficient information gathering; Broad participation

Online Discussion Groups Increased progress between meetings

Video Documentary Varying learning medias; Empowered participants

The computer-powered science task force

A team of researchers is convened to determine the impact of pesticide use on bees in a particular agricultural area. The project facilitator creates a secure online repository for all participants to upload confidential information and relevant research, which leads to a large volume of scientific data sets and studies, which are indexed so that they can be searched in real time inside the repository. Several researchers volunteer to set up monitoring stations across the geography in question, with webcams and real-time data read outs available to task force participants in open data formats. These results are automatically visualized using open source mapping software, so that increases and decreases appear in time-lapse format, which may generate insights (perhaps correlating changes to known periods of pesticide spraying.) Another researcher designs a mathematical model for bee populations that can project outgrowth and declines for 30 years. This model is made available via a private website to all the task force participants so that they can tweak and improve it, and use it to test different proposed scenarios. The researchers generate several scenarios using the collected data and the model, eventually crafting a set of recommendations back to the state Department of Agriculture and writing a series of research papers based on the data collected. The project is such a success that the researchers receive funding to keep the monitoring stations active and to distribute bi-annual reports via their project web site, along with making their data sets publicly available to researchers around the world.


Online Document Repository Secure data collection; Accessible information sharing

Webcam and Real-time Monitoring

Instant shared data collection; Increased data depth

Open Source Mapping Software

Accessible data visualization; Robust data analysis

Secure Project Website Secure working area

DISTIllInG BEST praCTICES

These stories illustrate some of the ways ICT can help multiparty conflict resolution processes work more effectively. They show that ICT doesn’t always mean online interaction. On the contrary, ICT can be used in-person very effectively, as the initial example demonstrates. Projectors and wireless devices can streamline in-person meetings to save time while continuing to focus participants on the key issues, providing instant alternatives to hand written flip charts (electronic flip charting) and organizing information with colored sticky dots (mobile polling). ICT can also help to ensure buy-in from participants through efficiently engaging large groups and synthesizing feedback into documents jointly drafted by everyone in attendance.

The second example shows how online interaction can work hand in glove with face-to-face interaction. Effective use of ICT can turn what might be five face-to-face meetings into two, focusing the conversation in advance of the first meeting, increasing capacity to engage and make progress between meetings, and generating clear recommendations for online distribution and approval at a follow-on meeting. Technologies also enable the facilitator to focus his or her energy on the conversations that require the most attention and time, which minimizes the frustration and delay that might be experienced by other working groups that are able to make quicker progress.

The third example demonstrates how ICT can enable participation across a wide geographic area. Groups that would be impossible to convene face-to-face can be brought together easily via online public participation processes. Groups can learn about the complexity of tradeoffs and decisions through well-designed deliberative polls and interactive exercises. Online tools also allow team members to create and distribute compelling multimedia experiences while empowering participants to share work products to a much larger audience than in-person only processes.

The fourth example shows how confidential scientific and technical information can be gathered, processed, and disseminated via ICT in ways that allow expert working groups to more effectively address complex substantive issues. Computer modeling can enable groups to reality test different scenarios to estimate impacts of different policies and strategies. Data sets can be gathered and widely distributed. The same technological systems are available to monitor solution effectiveness and provide ongoing governance after the consensus-based process ends. The front-end investment in ICT infrastructure can provide long-term returns beyond the scope of the project.


ExpanDInG ThE TOOl BOx

There is no one right way to integrate technology. As with hand tools, there may be four or five tools in the box that can solve a particular problem (e.g., saw a hole in a board, unscrew a pipe, etc.) and each may have its own adherents. The same is true with technologies—one person may think that Apple iPads are the best solution, another may argue for Google Docs, another may argue for a LinkedIn group. It can be a challenge for practitioners to make heads or tails of all the suggestions.

At the 2010 Department of the Interior meeting, the experts in attendance came up with high-level categories for different kinds of ICT tools useful to multiparty processes:

1. Surveys / polling / comment collection and analysis

2. Social networking services

3. Web forums / email lists

4. Trade off analysis / decision aiding / online deliberative tools

5. Modeling / simulation

6. Project management / scheduling

7. Visioning / scenario development

8. Mapping / visualization

9. Governance support

The attendees then devised rough phases that are typical in multiparty processes (which is not easy, because every multiparty process is unique). Not every process goes through all these phases, but every process usually touches one or two of the phases, at least:

1. Explore/inform

2. Consult

3. Advise

4. Decide

5. Implement

We then created a matrix that demonstrated the consensus view of the value of that particular tool in that particular phase of a multiparty process, which is available as Figure A. (The size of each circle corresponds to the tool’s perceived value in that phase.)

Figure A: Estimated value of ICT tools as different stages of multiparty processes


aDvanTaGES anD DISaDvanTaGES

ICT can bring many advantages to multiparty processes. Most obviously, when used right, it can make processes operate much more efficiently, which lightens the load on facilitators and participants alike. Documents can be centrally stored, searched, and version-tracked, which makes distributing up to date information to participants very easy.

Some of the other benefits of ICT are less apparent. One capability ICT introduces is the possibility of conflict resolution via asynchronous, or text-based, interaction, like email. Interacting asynchronously can empower parties to be at their best, and to keep them focused on the key issues and avoid unnecessary escalation. Asynchronous communication also enables facilitators to target their communications to particular parties, even enabling caucusing with parties as the joint discussion goes on concurrently. Quite a bit of scholarship on the advantages of asynchronous communication exists in the ODR literature, which mainly focuses on two-party disputes, but those advantages are equally if not more true in multiparty contexts.

However, the introduction of ICT into multiparty processes is not all wine and roses. Some parties feel threatened by technology, and pushing them to use it can lead them to check out, or worse, to resist the process and feel like they are being railroaded. Facilitators can also lose control as parties start to communicate through technological channels inaccessible to the neutral. In addition, as a corollary, facilitators can sometimes overreact and misuse their technological powers, which can frustrate parties and make them rebel against the process. Some parties who are very comfortable with ICT may get an advantage, particularly if they are on fast internet connections that allow them to check email a hundred times a day, versus other participants who may access the system through shared computers or dial-up. Of course, inappropriate exercise of the facilitator’s role and unevenly distributed resources can also occur in disputes that do not use ICT, but the technology’s power can magnify their effects. Finally, the inclusion of whiz-bang technology sometimes reorients the conversation to focus on the features of the technology as opposed to the issues that really need to be discussed.

COnCluSIOn

We believe the benefits that result from the integration of ICT into multiparty processes outweigh the liabilities. Our society is digitizing, and as a result, parties will expect to be able to use ICT tools in their conflict resolution processes. Users will demand easily accessible platforms that are open, transparent, trustworthy,

and well documented. They will also expect processes to adapt and provide different roles and engagement opportunities for parties with different levels of interest. Federal, state, and local government offices and agencies will increasingly use ICT to facilitate their rulemaking, policy dialogues, public participation, and case management obligations. It may take longer for change to occur in government, but eventually ICT will be as commonplace in these public processes as it currently is in private processes.

What will the future look like? It seems clear that multiparty dispute resolution practitioners will come to depend upon ICT, both to ease administrative burdens and to improve the frequency and specificity of their communication with their parties. ICT will become routine in pre-meeting preparation, post-meeting follow up, and in keeping processes and parties engaged and moving towards solutions. Facilitators will find that participants engage each other using technologies with or without the group’s consent. Facilitators who are not tracking these dialogues will be disadvantaged in both in-person and asynchronous multiparty processes. The RFPs that service providers respond to will specifically require ICT to be addressed in the proposals, and funders will request ICT that is sophisticated, user friendly, well integrated, and thoroughly tested for stability.

It is incumbent upon all of us in the conflict resolution field to get smarter about information and communications technology, and to anticipate the needs of our parties and customers. Practitioners should think through how they plan to leverage and manage ICT within the process, in advance of implementation. You do not want to experiment on your parties, with fingers crossed that nothing will go wrong. If you are not confident in your ability to manage the technology effectively for your process, find a collaborative technology specialist who will help you.

Jason Gershowitz uses his collaborative technology expertise to identify opportunities for more efficient and effective engagement and internal practices. His expertise includes information sharing, information gathering, information analysis, and event / meeting logistics technologies. He is a Program Associate at RESOLVE and also the EPP Web & Communications Committee Chair.

Colin Rule uses his online dispute resolution (ODR) expertise to design and implement ODR systems that resolve more than 60 million disputes annually. He is CEO of Modria.com and a RESOLVE board member.


Facilitation of Public Policy Conversations; A Discussion with Thomas J. StipanowichBy Kendall C. Reed, LL.M, IMI, C.Arb.

Thomas J. Stipanowich is known in the dispute resolution field as an energetic leader, dedicated teacher, and successful practitioner. He is currently the William H. Webster Chair in

Dispute Resolution and Professor of Law at Pepperdine University, as well as Academic Director of the Straus Institute for Dispute Resolution. From 2001 to 2006 he served as president and CEO of the New York-based International Institute for Conflict Prevention & Resolution (CPR Institute), a coalition of leading corporate general counsel, senior attorneys, scholars, and judges, and one of the world’s leading dispute resolution organizations. He has extensive experience as a commercial and construction arbitrator, mediator, facilitator and special master, with emphasis on large and complex cases. He is the author and co-author of numerous articles and texts, including the groundbreaking five-volume treatise, Federal Arbitration Law: Agreements, Awards & Remedies Under the Federal Arbitration Act.

I spoke with Professor Stipanowich about his experience in the area of public policy conversations, with an emphasis on the process employed in these efforts.

KCR: Professor Stipanowich, there is much talk today about the use of dispute resolution processes and principles to address our many significant public policy issues. Have you been involved in any such project or effort?

TJS: Over the years I’ve worked with teams to facilitate a number of broad-based public conversations, including recent discussions about how we resolve disputes. The “National Summit on the Future of Arbitration” was an effort to bring together stakeholders to consider ways of addressing the perception that costs and delays have robbed commercial arbitration of its appeal as an alternative to litigation. Under the auspices of the College of Commercial Arbitrators, we designed an extended process to elicit active participation from corporate and outside counsel, arbitrators and representatives of provider organizations. The exercise affirmed that excessive costs and delays are a shared, multi-faceted problem that requires collective action, and that as a choice-based process, arbitration affords multiple ways of addressing these issues. Our eventual product was a set of practical guidelines for all stakeholder groups published in 2010.


The “National Roundtable on Consumer and Employment Dispute Resolution” delves more into the realm of public policy—specifically, the debate over the use of pre-dispute arbitration agreements in adhesion contracts. This ad hoc initiative has its roots in a project of the ABA Section of Dispute Resolution, the Consumer Arbitration Study Group, which convened diverse stakeholders in early 2010 to engage in a “free and frank exchange” about the landscape of consumer disputes and to brainstorm on the wide spectrum of possible approaches to resolving consumer disputes. The National Roundtable (co-sponsored by Pepperdine School of Law, the Straus Institute for Dispute Resolution, and Pennsylvania State University, Dickinson School of Law) builds upon this effort by promoting a better understanding of current approaches to consumer disputes, identifying priorities for empirical research and practical initiatives.

KCR: What was the process followed for each of these projects? Was the process the same or were there significant differences?

TJS: Each process was carefully customized to meet the challenge of bringing wide-ranging interests to the table, advancing dialogue on complex issues and, hopefully, having a practical impact. In the case of the National Summit on commercial arbitration, for example:

• Co-chair Curt von Kann and I began by creating a task force composed of small working groups from key constituencies—corporate counsel, outside counsel, and arbitrators. Each group brought its own perspectives and insights on the barriers to achieving efficiency and economy in arbitration, and possible solutions.

• Their collective contributions underpinned the creation of a set of draft protocols—recommended guidelines aimed at their respective constituencies. The idea was to present a large group convened from all over the country with a single text to critique and debate (akin to the approach sometimes used in mediation and diplomatic negotiations). This document was shared with over 180 people in advance of the National Summit, which was held in Washington in the fall of 2009.

• Using electronic voting devices, Summit participants affirmed that businesses do frequently seek efficiency and economy in arbitration but often fail to achieve these goals. They also identified key causes of excessive cost and delay in arbitration, including discovery and inappropriate motion practice, and acknowledged that the problem requires action by all stakeholder groups.

• During the Summit’s “town hall” meeting, attendees offered detailed comments about the proposed protocols and suggested amendments and additions. Later, electronic voting devices were used to gauge the opinion of participants concerning specific action steps.

• Over the next several months, participants were invited to provide additional input into the Protocols, which were eventually published by the College of Commercial Arbitrators as an open source document in 2010. The Protocols have been distributed to the general counsel of all Fortune 1,000 companies and have had significant impact on the arbitration practices and procedures nationwide.

KCR: In what ways was the approach to the dialogue on consumer disputes different?

TJS: This is a much trickier, more challenging conversation. The debate over pre-dispute arbitration agreements in consumer and employment contracts has been raging for years and many appear to be hardened in their positions.

The first major effort to address this seemingly intractable conflict was the ABA Section of Dispute Resolution’s Consumer Arbitration Study Group, chaired by Homer LaRue, Larry Mills and Nancy Welsh, which convened in early 2010. Lisa Bingham and I worked with this team to facilitate the exercise, and we learned a lot about framing this kind of difficult conversation. Although the Study Group did not attempt to achieve a consensus on solutions to the key issues, participants collectively identified a series of important propositions to frame further discussion, as well as proposed action steps.

The current National Roundtable builds on this exercise in order to advance the discussion about resolution of consumer and employment disputes through a series of facilitated discussions. The planning committee (which began with the same nucleus of folks that produced the ABA effort) hoped to design a process to identify areas of current or possible consensus, gaps in knowledge that require empirical research, and promising practical initiatives:

• Participants were selected on the basis of pertinent background, experience, and ability to engage in informed, constructive discussion about consumer justice.

• Whatever their affiliations, all were present in their individual capacities and not as representatives of their respective organizations. In order to promote free and frank interchange it was agreed beforehand that no statements made during the meeting would be attributed to any individual participants.

• In preparation for the first Roundtable (focused on consumer financial and investment disputes), the planners conducted individual interviews with participants to understand their interests and concerns and learn what resources they thought might be useful to the group. This information was summarized in a preliminary report (without individual attribution).

• A Dropbox library of relevant resources was also developed with active input from participants.

• Based on these responses, the planning committee developed an agenda for a two-day meeting.

• The meeting began with a summary of the interviews, after which a facilitated large group exchange helped create a “taxonomy” for discussion of different consumer dispute scenarios.

• Reports and facilitated large-group discussions helped develop a shared appreciation of the scope of consumer conflict, existing alternatives for resolving consumer disputes, and current empirical research.

• Large-group “story-boarding” exercises allowed collective brainstorming on a range of issues; written comments were posted and “clustered” along the walls of the main conference room. This method, supplemented by small group discussion,


helped the group identify and prioritize needed research and promising practical initiatives and develop working groups to carry forward the work of the Roundtable.

Following the meeting, the planning committee prepared a report of the proceedings and identified chairs for working groups. Meanwhile, a second Roundtable meeting focusing on employment disputes was planned for September, 2012, and a third meeting in early 2013.

KCR: Given the obvious differences in these initiatives, is it possible for you to distill certain basic lessons about facilitating conversations?

TJS: Although much more might be said, I’ll venture a handful of observations. One must begin by identifying a convening authority—the right convener is often a critical determinant of the success or failure of the process. One needs a skilled, creative team that will make a preliminary assessment of the situation and design and facilitate the conversation—that is, both the subjects or

problems to be discussed and the process by which the discussion will proceed. The roles and responsibilities of various team members must be clearly understood; like mediators, facilitators are normally focused on managing a process and are not active participants in the substance of the conversation—but there are exceptions. There must be an appropriate method for identifying key stakeholders or perspectives and bringing them to the table. Moreover, it’s essential to have a process that makes effective, efficient use of participants’ time and provides a “safe place” for a candid conversation. There must also be an understanding of what level of consensus or buy-in constitutes a successful endpoint for the discussion. During each stage of the conversation, the tools or methods used by facilitators must serve the present needs of group and the overriding goals. Facilitators must constantly listen, observe, and be prepared to modify the agenda and resort to different techniques if necessary. Facilitators must keep one eye on next steps, maintain group momentum and keep the process moving toward the ultimate goal.

As Professor Stipanowich’s experiences illustrate, facilitation of public policy conversations is a challenging and dynamic process, which must be customized for each discussion, evaluated for possible modification during each stage, and regularly re-focused on the goal of the conversation.

Kendall C. Reed, LL.M., IMI, C.Arb, is a mediator and arbitrator located in Los Angeles. His work focuses on employment, intellectual property, and business disputes. He is associated with Alternative Resolutions Centers, 310-284-8224, www.kendallreed.com

"The debate over pre-dispute

arbitration agreements in consumer and employment

contracts has been raging for years and many appear to

be hardened in their positions."

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By Lawrence Susskind & Patrick Field

Dealing with an Angrier Public

In 1996, we published the book Dealing with an Angry Public. In it we raised concerns about the distrustful attitudes that citizens have toward government and corporations, and the inability of

these institutions to respond to public concerns in a robust, inclusive, and effective way. We put forward six principles that might help win back the public’s trust. We expected that leaders and organizations that adopted these principles would be better off.

We can now cite hundreds if not thousands of cases in which our Angry Public principles and related tools and techniques increased trust, decreased public anger, and resulted in positive results. For instance, Chevron, embroiled in hundreds of community disputes in Nigeria, decided to stop negotiating community by community as mineral extraction proceeded. Instead, Chevron decided to negotiate region by region to increase fairness and consistency. And when that change was not enough, they engaged in a careful evaluation of their community benefits program, calling on 75 leaders across the country to conduct almost 1,000 interviews that led to the recommendation that they negotiate regional compacts.

As another example, after almost a decade of denial, delay, and controversy, the U.S. Air Force took one of the most controversial Superfund sites in the country and transformed it into a model regulatory partnership, featuring inspiring examples of citizen engagement, community restoration, and creating a showcase for energy efficiency and renewable energy.

More broadly, many corporations and governments around the world are now incorporating a serious commitment to sustainability

in their operations, addressing social, economic, and environmental issues simultaneously. Corporate stakeholder engagement efforts have led to the adoption of voluntary standards for human rights. The U.S. military has not only become the most trusted institution in the county (though not necessarily always overseas), but it has also deployed intensive community engagement and non-combat efforts as part of its counter-insurgency efforts, learning the hard way, that social capital (soft power, as Joseph Nye and Samantha Powers call it) is often more effective than hard, military allocations.

Yet in most respects our desire to spur a different kind of public discourse has not panned out. We have not seen substantial changes in government or corporate behavior. Our six key ideas have been

DEalInG wITh an anGry puBlIC: ThE muTual GaInS framEwOrk

1. Acknowledge the concerns of the other side

2. Encourage joint fact finding

3. Offer contingent commitments to minimize impacts if they do occur; promise to compensate unintended effects

4. Accept Responsibility; admit mistakes, and share power

5. Act in a trustworthy fashion at all times

6. Focus on building long-term relationships


incorporated into the operating manuals of all kinds of organizations, across a great many geographies, but the overall effect has been sporadic and too often invisible or ineffective. We continue to work with groups trying to do better, but we appear to be surfing on deeper American political currents rather than transforming them.

Neither of us imagined in 1994 and 1995, when we wrote the book, how much angrier the public would become in the ensuing years. When we look at the broadest national canvas—American politics—it is practically impossible to find collaboration, civility, or a commitment to building consensus anywhere. Trust in institutions, other than the military, is lower than it has ever been, and that includes negative attitudes toward the Congress, the Presidency, the Supreme Court, banks and corporations. From outrage about health care reform, to packed public meetings opposing hydraulic fracturing, to conspiracy theories of Barak Obama as an African-pan-nationalist foreigner or Bush and Cheney engineering the World Trade Center collapse, citizens say, “We’re mad as hell and not going to take it anymore.”

Public anger can sometimes be constructive when it leads to a consensus on the need for change. But that has not happened. A recent Pew poll found attitudes about the environment, government, the social safety net, and many other issues have never been more polarized than they are today.

Why are we more divided than ever before? We believe there are three reasons: 1) distrust of science and expertise as a neutral foundation for policymaking has grown dramatically; 2) engagement with public and common activities has eroded; and 3) a deep economic and demographic anxiety has infected the country.

DISTruST Of SCIEnCE

Many people no longer perceive scientific expertise as a legitimate, neutral basis for decision making. Where once people thought of science and scientists as central to our nation’s progress, now many think of ”mainstream science” as just one more interest group. In fact it now seems like there are scientists lined up with interest groups on all sides of every controversial question, and some have explicitly joined the political fray. They surely have the right as citizens to do that, but the result has been to undermine the claim to neutrality and non-partisanship—not only of those individual scientists but, in the minds of many, all scientists.

This is especially true when it comes to the issue of climate change. Various national surveys, including Gallup’s 2008 Environment Poll, have looked at how many Americans believe that most scientists accept global warming as empirically established. Among Democrats, the percentage has increased since 1998 from 52 to 75 percent; among Republicans the increase was only from 42 to 54 percent—a difference of 21 percentage points! Instead of relying on the expertise of scientists, the public now channels what scientists are saying through a political filter. Science becomes no longer what we know, it is what we believe—or want to believe.

DEClInE Of puBlIC SpaCE

We believe that the trends identified by Robert Putnam in 2000 in Bowling Alone: The Collapse and Revival of American Community have to continued to accelerate. There are fewer and fewer physical places in American life where people of different socio-economic backgrounds are likely to get to know each other. The wealthy have retreated to gated communities, private home theaters, and private car services. We receive and communicate information in private, and every citizen can find a website, Facebook friend, or chat room that reinforces their particular views and prejudices, avoiding the uncomfortable opinions of others and feeding our outrage and frustration. We are not only bowling alone, we are blogging alone. We don’t have to listen to people whose views and values are different from our own, and increasingly we don’t know how.

ECOnOmIC anD DEmOGraphIC anxIETy

Third, and perhaps most important, a rapidly changing economy and broad demographic shifts have triggered deep anxiety. Vast and rapidly moving global capital flows and sweeping technological change have left a new set of Americans with declining living standards and little hope of jumping on the technological superhighway. In addition an aging population that lived through a period of expanding affluence now feels threatened by the rapid growth of a younger, increasingly non-white population. Many Americans are deeply afraid things will continue to get worse; that they will fall further behind, and their children will be left with no way to make a comfortable life for themselves. In response they lash out at bankers, the government, immigrants, and corporations.

The public is angrier than ever. Do the principles we outlined more than 15 years ago still hold in this mad, mad world? Do we need to revise them? We stand by our six principles and believe, more than ever, that our basic ideas about the importance of acting in a trustworthy fashion, sharing information, and engaging in joint fact-finding and collaborative problem-solving are essential. But we must expand the way they are used to address the rage that characterizes most public discourse today. That will be the subject of the next installment of this article. Stay tuned.

Lawrence Susskind is Ford Professor of Urban and Environmental Planning, MIT; Director, MIT Science Impact Collaborative; Visiting Professor and Vice-Chair for Instruction at the inter-university Program on Negotiation at Harvard Law School; and Director of the Water Diplomacy Research Network at the Tufts University Fletcher School of Law and Diplomacy.

Patrick Field is Managing Director at the Consensus Building Institute (CBI), Associate Director MIT-Harvard Public Disputes Program, Senior Fellow at the University of Montana Center for Natural Resources and Environmental Policy. He has helped thousands of stakeholders reach agreement on organizational mergers, realignments, regulations and permits, across the United States and Canada.


Dear ACR Members:

as chair of ACR's Elections and Nominations Committee, I am pleased to announce the results of the election for President Elect, Chapters Director and the open board seats for the 2012-2013 year. This election cycle, we were

fortunate to have had a wonderfully diverse and highly talented slate of candidates. ACR depends heavily on its volunteer leaders who are so giving of their time and so deeply committed to advancing our field. Please join me in thanking and congratulating all of those individuals who have offered their time in service to our association. The successful candidates in this year's election are as follows:

President Elect | Cheryl Jamison

Board Members At-Large | Sheri Callahan Tricia Jones Donzell robinson

Chapters Director | Julie Denny

By virtue of her election to President-Elect of ACR, Cheryl Jamison will serve as President for the year 2013-2014.

The following board members are continuing their service on the ACR board of directors for the 2012-2013 term:

President | marya kolman Immediate Past President | perri mayes Sections Director | Jonathan S. rosenthal

Jeff Cohen, Bill Drake, nancy flatters, Tajaé Gaynor, mary miller, frances mossman, Gigi robson, Jetta Todaro, and John windmuller.

The Nominating Committee wishes to honor the following outgoing board members for their service: Kim Bunker, Lewis Dabney, Russell Gerrard, Lou Gieszl, Tamra Pearson d'Estree, and Susanne Terry.

Elections for one open board seat and officers will take place during the board's meeting in New Orleans just prior to the ACR's Annual Conference.

Respectfully submitted,

Lou GieszlNominations Committee Chair | Immediate Past PresidentAssociation for Conflict Resolution

Election Results



Conflict Resolution Day is celebrated on the

third Thursday in October. It was conceived in 2005 by the Association for Conflict Resolution.

The goals of Conflict Resolution Day are to:

• Promote awareness of mediation, arbitration, conciliation and other creative, peaceful means of resolving conflict;

• Promote the use of conflict resolution in schools, families, businesses, communities, governments and the legal system;

• Recognize the significant contributions of (peaceful) conflict resolvers; and

• Obtain national synergy by having celebrations happen across the country and around the world on the same day.

Groups and individuals across the United States and abroad organize events and programs. Conferences, tele-seminars, workshops, book fairs, receptions, art contests for students, breakfasts, lunches, dinners, awards programs, proclamations by mayors, governors

and university presidents, are just a few of the ways in which Conflict Resolution Day has been celebrated. Groups have partnered with book stores, courts, community mediation centers, religious organizations, government agencies, and others on previous Conflict Resolution Day events.

And supporters in Canada, France, Moldova, Portugal, Jamaica, Venezuela, have organized Conflict Resolution Day events over the years.

New this year is a free Conflict Resolution Education Activity Calendar available as an iPad app. The iPad app provides a rich collection of resources and suggested learning activities for use throughout the year. Go to: http://snipurl.com/crecalapp

The Conflict Resolution Day poetry contest will again be open to all elementary, middle, and high school students in the United States and abroad.

For resource information and ideas for organizing Conflict Resolution Day events in your community, go to the ACR webpage on Conflict Resolution Day, www/acrnet/.org/crday.

aCTIvITIES

7th ACR Spirituality Section

Retreat NEW LOCATION

Institute of Noetic Sciences Petaluma, CA

Keynote Workshop Leader Thomas Moore, author of Care of the Soul, Dark Nights of the Soul and The Re-Enchantment of Everyday Life.

This year’s retreat theme is all about the Care of YOUR Soul…

making sure you have all the inner resources you need to continue to make a difference in the work you do and the life

you live! Come early or stay late to enjoy the culinary delights of San Francisco or the enchanting vineyards of Sonoma.

Friday Feb. 1, 2013, - Sunday Feb. 3, 2013

EARLY BIRD PRICES GOOD ’TIL OCT 1, 2012

$395, Section Members $495, General

Optional Pre– and Post-Retreat Days

TO REGISTER: Visit mediate.com/acrspirituality

ACR’s annual Conflict Resolution Day will be on October 18, 2012.


Creating Connections: Conflict Resolution in Deeply Divided Times | September 12–15 | Sheraton New Orleans | New Orleans, Louisiana

2

ACR Deeply Appreciates the Following Contributors for their Direct Cash Support in the Form of Donations to ACR.August 1, 2011 – July 31, 2012

grantsCalifornia State University Fresno Foundation, $6,000 James B. Boskey Memorial Foundation, $2,500JAMS Foundation, $5,950

sUPPOrting DOnOrs *Jeffrey M. CohenJulie DennyMarvin E. Johnson*Mary N. Miller*Frances I. MossmanNational Conflict Resolution CenterJames A. Rosenstein

*100% of current Board members have made direct, cash donations to the ACR Annual Fund.

Every effort has been made to ensure the accuracy of this list. If you think an error has been made, please contact Suzanne Burnett at [email protected]. In addition to the above names, the Board of Directors and staff of ACR also deeply appreciate those who have supported ACR indirectly by in-kind donations and in so many other different ways.

ACR Greater New York ChapterACR Hawaii ChapterLaury AdamsCynthia T. AlmMartha Patricia ArgomedoRachel E. Barbour*Kimberly BunkerCharlene BuntsShirley A. CochranLouis Cohen*Lewis M. DabneyRaquel DavenportEllen DeBenedettiTheodore A. Deckert*Bill DrakeTara Fishler*Nancy A. FlattersLynn A. GaffiganJohn C. Gartland*Tajaé A. GaynorTimothy Lane Germany*Russell Gerrard

*Lou GieszlDon Edward GreenStanley Harmon*Cheryl L. JamisonGary V. JavitchLeigh Jones-BammanDiana D. JuettnerDouglas Kleine*Marya Cody KolmanSara Dunham KraskinPamela Lane-GaronDeborah Schick LauferIngrid LenzRichard LutringerBarbara Manousso *Perri E. MayesEllen McCambleyVictoria H. MenningerPenny MillerSusan NorthLinda Toyo ObayashiJ. Philip O’Hara

*Tamra Pearson d’EstreePrathamesh D. PopatPriscilla PrutzmanAvis Ridley-Thomas*Gigi Robson*Jonathan S. Rosenthal Joy S. RosenthalColin RuleJohn J. RuskMaria SimpsonRebecca Ann Storrow*Susanne Terry*Jetta A. TodaroHector ValdezLilian Edith VargasClaudia VieraBill WartersTerrence Wheeler*John Windmueller

CONFLICT. You can make it better.

Thinking about graduate school? Consider UO's master’s degree in conflict resolution. In today’s world, what could be more important?

You can make a difference.

UO's Appropriate Dispute Resolution center ranked sixth in the nation.

Contact Director Tim Hicks at 541-346-1604 or [email protected].

See our website at conflict.uoregon.edu

EO/AA/ADA institution committed to cultural diversity

UNIVERSITY OF MASSACHUSETTS BOSTON

McCORMACK GRADUATE SCHOOL OF POLICY AND GLOBAL STUDIES

World-class education in a world-class city Offering master’s degrees and graduate certificates Evening and weekend classes to accommodate working professionals

www.conflict.umb.edu

Graduate Programs in Conflict ResolutionInsights and Skills for Managing Conflict


October 9–12, 2013 Minneapolis, MN

To be added to the ACR mailing list, please contact membership @ACRnet.org

Save the Date!ACR 2013 ANNUAL CONFERENCE



association for Conflict resolution 12100 Sunset Hills Road, Suite 130Reston, VA 20190

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