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<xTITLE>Imagining the Future</xTITLE>

Imagining the Future

by Joe Markowitz
November 2011

Mediation's Place by Joe Markowitz

Joe Markowitz

Congratulations to my fellow SCMA board member, and new president Barbara Brown, for pulling off a very successful SCMA fall conference at Pepperdine this weekend!

Forrest (Woody) Mosten led a presentation yesterday called Mediation in the Year 2030, imagining what the world of ADR might look like 20 years from now. Apparently, in the courthouse of the future, there will be 10 mediation rooms for every traditional courtroom. All judges and staff will be trained in mediation. Mediators will be credentialed, and highly skilled. Clerks will be helpful and friendly, seeing themselves as consumer representatives. Many disputes will not even enter the courthouse. Mediators will be the first point of contact in resolving many disputes, and will assemble the necessary team of professionals appropriate to address each conflict. The values of mediation will pervade business and government, indeed all of society. We will have a Department of Peace, in addition to the Department of Defense. All in all, a very encouraging and hopeful picture for those of us interested in expanding the role of mediation.

This vision, which might seem a bit utopian, is actually only an extrapolation of current trends in ADR, and is not too different from ideas others, including myself, have advanced for the dispute resolution systems of the future. I asked the judges on the panel I moderated later in the day whether they agreed with this vision of the future, and while a bit skeptical of all the specifics, they agreed that ADR has an expanding future.

The talk that was really eye-opening for me, however, was one by Colin Rule, who has been building an online dispute resolution system for eBay and Pay Pal, that now handles many thousands of transactions. (He now heads his own online dispute resolution company.) Because the amount in controversy in these disputes is small--often less than $100--and because they involve buyers and sellers in different jurisdictions, often on opposite sides of the world, they are completely beyond the capacity of any "earth-bound" judicial system to administer, and they are also of no interest to lawyers. These disputes can only be resolved in the virtual world. The system that Rule and others have developed demonstrates that by allowing needed communication between the parties to occur, the vast majority of these disputes can be resolved satisfactorily by negotiated agreement. One thing that seems to make such a system work, without any need for courts, or agreed-upon rules, or enforcement mechanisms, indeed without any of the trappings we traditionally think are needed for a legal system to operate, is that eBay has built powerful incentives into its system to encourage sellers to worry about preserving their online reputations. In this age of social networking, online reviews, and other kinds of easily-accessible public information about all of us, everyone now has to be concerned about protecting their reputations. That should create opportunities to use these same kinds of incentives to build dispute resolution systems of much broader application.

What struck me was not so much the online aspect of this new dispute resolution system--the high techiness of it all--but the possibility it demonstrates for creating a new alternative dispute resolution community in a globalized economy that is beyond the control of any nation, and that has no need for police officers, or authority figures wearing robes, or jails, or courthouses, or law books. Such a system of conflict resolution might work for many kinds of disputes, because it is based on forces that might be just as powerful as the powers of the traditional justice system: our common desire to get along with one another, our shared humanity, our wish to avoid the strife of conflict, and our self-interest in preserving our reputations as decent and fair people. I don't think that such a system is going to replace the courthouse anytime soon, but it is still amazing to watch how fast it is growing.


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   

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