Christopher Honeyman

This article described the first of what became a number of meetings of this type. It was published in Alternatives to the High Costs of Litigation (CPR / New York), June 1999.

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In dispute resolution, we had better keep our wits about us: We already have made the “easy” gains in reputation and knowledge. After 20 years of growing acceptance among corporations, law firms, courts and government agencies, we are beginning to see evidence of routinization, and other signs that we are at risk of a slowing of innovation.

The Theory to Practice project, first described in these pages in July 1997, works to integrate scholars’ thinking and practitioners’ experience, partly to combat a tendency we’ve seen all too often in older professions—the formation of mutually exclusive “little boxes of knowledge” that do not respond adequately to clients’ or society’s complex needs. Juxtaposing “uncomfortable” perspectives can be a productive response, because it offers the opportunity to find whole new ways of defining what we can do.

One might think it was routine for scholars and practitioners to meet for innovative and in-depth discussions, in a field which inherently incorporates as many points of view and sources of expertise as ADR. But analyzing who comes to typical professional meetings reveals interesting patterns.

Some gatherings are identified as practitioner-oriented, so when scholars even show up at these, it’s typically the result of an invitation to speak as part of a plenary session, or in some other setting that invites them for a finite time and purpose and to expect a degree of deference. Without anyone intending it, this pattern subtly discourages open and in-depth discussion.

Other meetings are identified as “scholarly”—and when practitioners show up at these, they are regarded as interesting but somewhat peculiar specimens who don’t fit into the stream of discussion very neatly.

This article will describe one low-cost and deceptively simple approach to getting a productive ADR discussion off the ground.

Hampered by Expectations
To convene a meeting of any length specifically to try to juxtapose scholars’ and practitioners’ knowledge and ways of thinking can be a tricky proposition. One reason, as Theory to Practice project experiments have demonstrated, is that practitioners tend to see the “origin of wisdom” as deriving from accumulated and highly personal experience. Scholars, meanwhile, tend to see wisdom in much different terms, as the product of tested hypotheses that are independent of any individual’s “anecdotal” knowledge. These different perceptions of such a fundamental issue have a practical consequence: Since each group tends to see itself as being more in the role of teacher and the other primarily as there to learn something, going into a meeting each tends to expect the other group to fulfill its perceived role. This is not a great start to a collegial discussion.

The Theory to Practice project has sought ways of developing discussions that include both experienced scholars and experienced practitioners—without the pleasant but distracting enthusiasm of newcomers, which tends to be a characteristic of general conferences in so rapidly growing a field. Last fall, at the Portland, Ore. Society of Professionals in Dispute Resolution national conference, the project held its first Moveable Feast.

The Moveable Feast is a model for an informal working meeting which doesn’t require a major commitment of funds and time to convene, to which only ADR experts are invited, at which many points of view are represented, and which produces a tightly focused product—fast. I think the structure shows promise for broader use.

The subject chosen for the first foray was broad: The likelihood that we would need industry-wide “protocols” to inform the relationship between a researcher and a practitioner group. A great deal is now understood about the social psychology, economics and sociology of negotiations, along with a long list of other perspectives. And building close and continuing relationships between research and practice holds promise of our being able to delve deeper into what really happens in mediation, and other forms of dispute resolution, than when the researchers are forced to rely on surveys and other arms-length data. Practitioners and policymakers, in consequence, can expect to do better work for our clients if we become more willing to facilitate outside analysis from all these perspectives.

Yet resistance to ideas among practitioners runs deep enough that many concepts that might lead to better and bigger practices can’t get through unless we first allow for building dispute resolution-specific examples, studies and inquiries. And researchers cannot ordinarily hope to obtain sensitive data without collaboration with practitioners and program managers–we practitioners have lots of excuses for hiding anything we are afraid to see in print. A series of experiments that Theory to Practice ran, in which we worked out realistically tension-filled scenarios with leading scholars and mediators playing something close to their accustomed roles, demonstrated that researcher-practitioner relationships are fraught with possibilities for disappointment. It became clear that if any such relationships were to be started on solid ground, we had to make progress on some basic understandings.

So we invited two dozen leading practitioners and scholars to dinner.

Breaking Bread over ADR
This is more unusual than it sounds. Dinner, as a setting, has the inherently collaborative overtones traditionally associated with breaking of bread together. But normally people tend to associate with people who are quite like themselves. If our eventual product was to have credibility in some rather sensitive areas, diverse viewpoints were essential elements. We had to schedule an “event.”

Because the topic of immediate concern was national in scope, we decided to do this in tandem with a major conference. This way, enough people of every persuasion already would be present, and travel expenses were already accounted for. (The Theory to Practice project only paid for the meal.) We also decided on a less-than-formal oyster bar as the gathering site, rather than a typical buttoned-down business dinner establishment. This strategy worked, because we were able to attract a remarkable degree of intellectual horsepower from both sides of the fence, and an informal atmosphere was immediately visible.

But there’s more to designing a good encounter than that. For example, what is the quality of discussion on a serious topic likely to be, at a table that includes two dozen people? My organizer colleagues, University of Missouri-Columbia School of Law Prof. Bobbi McAdoo and Dickinson School of Law (Carlisle, Pa.) Prof. Nancy Welsh, and I concluded that basic acoustics virtually guarantees that a gathering set up that way will devolve into separate discussions, in which the topic is gradually lost in an entertaining but unproductive series of diversions. Does that seem familiar?

We settled on a structure in which the whole group would assemble briefly for a short grounding in the problems at hand, in the form of a scholar and a practitioner recounting some relevant personal experiences. Earlier Theory to Practice events had identified two who combined some emblematic—and troubling—experiences with a willingness to discuss them, semi-privately, among a select audience.

Following this orientation, the group divided into four tables of six, which we concluded to be the ideal size for an intense discussion. A couple of hours later, the group got back together for a quick rundown on which table had produced what insights, and we retired for the night. Rough notes were produced on the spot by four “reporters,” one at each table. And interest has remained high enough that many who were present for this one-time encounter took the time to write detailed comments during the drafting of the resulting document.

The Resulting “Protocols”
There isn’t space here to print what we are now calling “not quite protocols.” The protocols continue to be a work-in-progress. But I will illustrate a few of the results of a lively and straightforward talk among proficient people who rarely get to draw from each other’s expertise.

For example, the development of project-specific protocols represents an important occasion for the practitioners to judge the character and trustworthiness of a particular researcher. The group concluded that no boilerplate protocols should substitute for that process of explanation and negotiation, so that one side won’t feel blindsided later. Some of the things that should emanate from this kind of initial discussion with practitioners:

• A sense of reciprocity. Without this, the project is unlikely to endure beyond the first few glitches. The researcher needs to build something into the research that most, if not all, of the practitioners involved view as beneficial (e.g., the opportunity for intellectual discussion or introspection, feedback on their own practice, opportunity to improve practice, publicity). The researcher also needs to understand that practitioners are busy and that they need to allocate time efficiently.

• Advance provision for reality testing with practitioners. Research has a way of producing results that surprise practitioners, or even alarm them if disclosed prematurely or without opportunity for feedback. Where the subject matter is sensitive, it may increase confidence in the researcher for an explicit offer to be made that conclusions will be shared initially with the program, and in person or by telephone rather than in writing.
• Discussion of data collection instruments. Early and frank discussion of how these will work, and what options there may be for incorporating information that is of secondary interest to the researcher but important enough to the program to offset the opportunity costs of becoming involved in research, may be important elements of building practitioners’ trust in the research and the researcher.

The Design Encourages Constructive Discussion
In our first effort, the design of the encounter had a lot to do with the constructive quality of the interaction. The frankness and informality of the discussion are reflected in the tone of the resulting text. Both frankness and informality have been in short supply, in the often-stilted settings in which ADR scholars and practitioners tend to meet. Yet this is a meeting design that’s relatively easy for other groups to replicate. After all, there are many more local and regional issues that need addressing than broad-scale ones like the “protocols” issue we picked. When everyone involved in a discussion is from the same geographic area, it should be easier to arrange a meeting.

The characteristics of a Moveable Feast are not, when you stop to analyze them, all that hard to arrange: A deliberately ephemeral group; a selective invitation list; an informal setting including some sort of food; a “working party” orientation rather than a typical symposium or conference; and a “laborer” who undertakes to codify the results and check back for corrections following the discussion. This is enough to get a good-natured but blunt discussion going. (The project now has another Moveable Feast slated: Later this month at the U.S. Justice Department, we will take up a different subject—the search for “practical theory” in the dusty archives of researchers whose work has all too often been ignored, when it might yet help to improve practice.)*

If researchers and practitioners can feel freer to be forthright about the problems, they are more likely to discover why they hold different perspectives. This can lead both to understand better the value of working together in novel and challenging combinations of interest and background.

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*2013 note: This type of meeting became successful enough over the ensuing years that we have lost count of the occasions that have used it.