Just Court ADR by Susan M. Yates,Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.
If you caught the 2016 Grammys, I hope you got a glimpse of the live-from-Broadway performance of the opening number from the smash hit Hamilton. One of the show’s many highlights, “In the Room Where It Happens,” is a show-stopping ode to backroom negotiation and the art of compromise that focuses on New York Senator Aaron Burr’s desire to get to the table. Though Burr serves as the foil to protagonist Alexander Hamilton and (spoiler alert) the source of Hamilton’s ultimate defeat, he is not an unsympathetic character; there are many moments throughout where the audience empathizes with Burr’s dreams. Case in point, Burr’s goal of being part of the action mirrors a recurring theme we see parties deal with in ADR: who gets a say in the matter when there are lots of parties involved and/or many different interests at stake? In other words, who gets to be in the room where it happens?
A couple examples illustrate some of the issues involved. In one, a Charleston, South Carolina real estate development that threatened to disrupt the historical character of its neighborhood led to a contentious showdown between the developers and local residents. The case made its way to mediation after the developers appealed a rejection of their plans by the city’s Board of Architectural Review and the judge ordered the developers and the Board to mediation. Representatives from local neighborhood associations and preservation societies were allowed to participate after voicing concerns, notwithstanding a finding that they had no legal standing in the case. Still, this was not enough for others in the community, who thought the “secrecy” of the mediation discussions was at odds with the public’s interest in their neighborhood. This highlights an internal struggle many of us in the ADR community — particularly those involved in system design — often face as we balance the benefits confidentiality offers in helping parties resolve their issues candidly with the risks of depriving individuals and communities of their access to procedural justice.
A slightly different take on the participation problem occurred in Hawaii. There, a suggested use of the traditional Hawaiian conflict resolution method Ho?oponopono fell apart as the number of parties and the complexity of their relationships to one another and the case at hand grew. A highly publicized protest of the construction of a telescope on sacred ground resulted in numerous arrests, and 21 arrestees requested the unique ADR process instead of a trial. The judge and prosecutor approved the request, contingent on all parties agreeing to participate. However, as the summer progressed and more arrestees joined the request to participate in Ho’oponopono, the state attorney general withdrew support, believing it would no longer be a constructive option. Part of me wonders if anything could have been done differently to make the Ho’oponopono process workable in this case.
Participation is also an issue we at RSI are pondering as we start up our new Child Protection Mediation Program in Kane County, Illinois. These cases, which invite parties to come together when children have been removed from their parents due to alleged abuse or neglect, by their nature involve many different people: the children, their biological parents, other family members, government agencies, foster parents and attorneys for most if not all parties. As we work to formulate the rules for our program, we have to be mindful of making sure that we not only get all of the relevant parties to the table, but also that all parties have the support they need to adequately address their needs and interests.
Not being in the room where it happens (or being there without the support to advocate effectively for yourself) can be an incredibly frustrating experience. “We dream of a brand new start,” Aaron Burr sings in the song’s final verse, “but we dream in the dark for the most part.” As decision makers who design dispute systems, we hope we can take a page from Burr and Hamilton, and strive to shine a light on those parties and interests that need it most.
Can the TKI Conflict Model (i.e., the five conflict modes along with the assertiveness, cooperativeness, distributive, integrative, and protective dimensions) shed some (healing) light on the political behavior in the countries throughout...By Ralph Kilmann