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Evolution of New Normals in Dispute Resolution

by John Lande

April 2022

Indisputably

John Lande

On April 1, the Stetson Law Review sponsored an excellent symposium, Is Remote Justice Still Justice?  It featured FOUR (!) Indisputably bloggers (Cynthia Alkon, Sarah Cole, Jill Gross, and Andrea Schneider) as well as Erin Archerd, Deborah Eisenberg, Elayne Greenberg, Nicole lannarone, and Kelly Browe Olson.  Speakers focused on dispute resolution in various contexts including special education, domestic violence, criminal law, employment, commercial, and stockbroker issues.

The speakers analyzed how dispute resolution processes have changed since the covid lockdown began two years ago.  They noted that it is hard to untangle the effects of virtual processes from the effects of the pandemic and public health measures as well as the differing circumstances of various parties, professionals, and institutions.

The question “Is remote justice still justice?” implies that in-person justice really is justice.  Of course, that’s not always true.  In our field, we often are especially concerned about the effects on weaker, one-shot parties – the “have-nots” – and whether “haves” come out “ahead” in various dispute resolution processes.

When doing a “haves” analysis, we should start with the assumption that “haves” generally come out ahead – sometimes far ahead – in most situations.  Thus, when analyzing an alternative, the issue is whether “have-nots” generally come out further behind than the status quo or not as far behind.  Equality would be ideal but often it is not a realistic possibility.

We can’t make strong generalizations about whether “haves” come out ahead in virtual processes as compared with in-person processes.  Speakers said that “it depends” on various factors.

Speakers discussed how to design dispute systems in the “new normal” to take advantage of the benefits of virtual processes and minimize the problems.  Managing adjustments to a new normal is likely to be challenging.  Stakeholders are likely to have different conceptions of justice as well as various goals in addition to justice such as efficiency, accessibility, convenience, and procedural quality.

Evolving New Normals

Two years ago, when the pandemic was just beginning, I wrote several posts describing what I called the “crisis new normal” (CNN) and the “normal new normal” (NNN).  As the pandemic progressed, people developed CNN expectations similar to mindsets during long wars or extended economic downturns.  Because of the pandemic, we recognized significant constraints in our lives that might last for extended periods.  We developed new routines to manage under the new circumstances, expecting that we would “return” to a more normal new normal at some point.

But we aren’t “going back” to some “old normal.”  Rather, as public health threats recede, we are shifting into NNNs in which organizations and individuals use or adapt some CNN procedures.

During the CNN era, for example, as people became comfortable with video communication, mediation through video became normalized.  Using video avoided the need for all participants to convene at a mediation site at the same time, which sometimes required many people to travel significant distances in the “old normal.”

During the pandemic, mediators sometimes took advantage of video capabilities to break mediations into several stages as there was less pressure to complete them in single sessions.  Using video, mediators could more easily conduct mediation using two or more sessions tailored to the parties’ needs and specific issues in their cases.  Mediators could schedule separate times with each side, avoiding parties’ dead-time waiting while mediators caucus with the other side.  Breaking the process into separate stages on video also enabled participation of ultimate decision-makers for the limited, critical times when their input was necessary.

Going forward, some people are likely to take advantage of mediation by video to mediate in several stages as an NNN in some contexts.  Some may adapt the CNN process by doing hybrid multi-stage mediations with some stages by video and others in person.

The symposium issue of the Stetson Law Review presumably will include analyses of CNN dispute resolution dynamics and recommendations for the NNN.

It should be a boffo issue.  Keep an eye out for it.

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



Website: www.law.missouri.edu/lande

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