JUST RESOLUTIONS NEWSLETTER article by the American Bar Association · Dispute Resolution Section
This article reflects on a panel discussion that took place on April 14, 2021, as part of the ABA Dispute Resolution Section Virtual Spring Conference, titled "Dispute Resolution Pandemic Pivot: Systems Design for Socioeconomic Inequality issues.” The panel presenters called on professionals in dispute resolution, law, and public interest work, both practicing and academic, to commit to a higher affirmative duty of professional social responsibility that would proactively engage in and serve systemic social justice change. The panel called on us to apply system design learning in the following ways:
To change roles and norms, to see, develop, and engage in proactive, self-starting, systemic, inter-disciplinary conflict prevention, management, and resolution practice, and education for social justice; To understand and address systemic inequitable conditions and aspects of individual situations and disputes, and connect them with systemic solution elements and paths; To scale up from individual, single silo dispute resolution to systemic, multi-disciplinary analysis and change at all levels, from statutory and legal rules and standards to community attitudes, behaviors, relationships, and values, in education and in practice; To understand, design, and build systemic change to cultivate meaningful diversity, inclusion, equality, and empowerment for those most marginalized, undervalued, and underserved; and To foster an environment of social responsibility, social trust, and social change.
The panel presenters included Professor Lisa Blomgren Amsler, Dean Danielle Conway, Mediator Charles Crumpton, Mediator Jessie Lawrence, and Professor Larry Susskind. Dean Conway set a framework for the discussion with comments on Penn State Dickinson Law's anti racist legal education curriculum work. That work reflects, affirms, and instills a special, higher duty, an extra layer of social responsibility, and higher skills in dispute resolution and legal professionals, educators, and students to become our most powerful resource to systemically serve and empower those most marginalized, undervalued, and underserved. That higher duty includes a call to develop education and practice models to counter systemic national inequity in all sectors where inequity has been accelerated and aggravated by intersecting crises of multiple pandemics (health, economic, racial, and others), in which there has been national complicity, and the rule of law has been used as a tool. Instead, we should work to embed systemic equity through a system design approach and affirmative determinations of responsibility. Our work should empower a social justice movement to overcome social inequity and to connect the rule of law with social equity through meaningful diversity, equity, inclusion, and empowerment for those excluded and disempowered.
From here, the discussion went to the need to examine and change social responsibility norms and roles. That change would individually and institutionally affirm, take, and model professional social responsibility to proactively see and understand the connection between individual inequity and systemic inequity. Those new norms and roles would connect systemic inequities with systemic solutions, engage and cultivate corporate, community, academic, and institutional responsibility, and direct individual and collective social responsibility to empower the marginalized, undervalued, and underserved.
The panel discussed the need for dispute resolvers to draw on and expand existing and additional professional standards and guidelines for social responsibility to others, especially those most marginalized and underserved. This could take the form of "statements of responsibility" or adaptation of the existing guidelines and principles through system design. There is a need for responsible, equitable, multi-disciplinary solutions that foster an environment of social responsibility, trust, and justice. Systems are interrelated, and the discussion touched on the need to scale out from understanding the individual conflict to understanding the systemic conflict and engage system design principles and methodologies to see "beyond the room you're in." Law can and has created and perpetuated systems that foster systemic racism and inequity.
Examples discussed included Ferguson, Missouri, where tax cuts fostered economic and professional evaluation incentives for police to maximize citations and fines for minor violations, which increased arrests, incarceration, and socioeconomic and legal suppression disproportionately for people of color/minorities. Examples also included "cracking" and "packing" to gerrymander electoral districts and limit the representation of people of color, as well as statutes, ordinances, laws, and rules that disempower localities from countering these inequitable strategies.
Ideas discussed to counter these issues on a systemic level included: New electoral system design models such as ranked choice voting, multi-partisan redistricting/reapportionment commissions, and changes in the structural elements and processes of the system to enable systemic solutions that empower marginalized people and communities. Incorporating and applying system design and consensus building learning and methodology at all levels in reforming inequitable system elements and processes to establish equitable models and solutions. Systemically engaging and furthering ABA 2011 Resolution 108's endorsement of civil discourse in all arenas as a higher obligation of legal, dispute resolution, and public interest work professionals. Incorporating and building civil discourse models and principles to counter systemic racism in legal educational curricula, both in law schools and in CLE, and in practice models. Incorporating and instilling system design and consensus building learning in legal education through works like Dispute System Design, The Consensus Building Handbook, and other resources in legal education and training and in practice applications. Applying system design learning to scale out from reactive, individual case resolution to proactive, systemic social change as a higher, affirmative social responsibility of dispute resolution, legal and public interest professionals.
Panelists called on other professionals to join in commitment to a higher affirmative duty to engage individually, collectively, and collaboratively to apply system design learning to expand proactive, interdisciplinary, collaborative, systemic social justice change at all levels in all sectors. New norms of socially responsible action models such as guerilla facilitators and models of breakthrough mediation may cultivate innovation in systemic change. Community foundations can be a resource of support for those different norms and reforms and in building models for systemic change. By applying system design learning, professionals can find opportunities to scale out from more limited norms and roles to broader, socially responsible norms and roles dedicated to serving social justice change.
By committing as agents of systemic social justice change, we as dispute resolution professionals must recognize that in systemic racism and inequity, there is no neutrality, and that changes in roles and norms to scale up to engage and build the voices and empowerment of the marginalized and underserved are critical, and that enabling those changes is our higher affirmative duty. We must consciously engage, individually and collectively, in the shift of roles and norms from individual dispute resolution to value-driven facilitation of systemic social justice change. Leadership should be engaged to flatten the hierarchy of systemic racism and inequity, cultivate systemic solution perspectives and paths, and engage in cooperative work that breaks down competitive silos and works from the bottom up. Conflict prevention, management, and resolution action models should be expanded to shift from individual to systemic understanding of change.
We must commit together to that higher duty and role to apply system design learning in systemic change to meaningfully empower those most marginalized, undervalued and underserved. If not us, then who? If not now, then when?