Executive Summary
This report is the conclusion of an eighteen-month inquiry into the financing of the dispute resolution field (including its associated academic counterparts) and the possibilities for improvement. Its primary purposes are to begin to codify the strategies that will be necessary if an improvement is to be had, and to stimulate action, by drawing as many knowledgeable and committed people as possible into the dialogue which is the first stage of any broad-based activity.

The report begins with a description of its working assumptions and inherent biases, and continues with a discussion of the sectors considered, as well as some other possible ways of analyzing the field. The inquiry’s source material is then summarized, including over sixty interviews, a number of group meetings and seven small new initiatives started as part of the inquiry. The next and longest section discusses the strategies recommended. These begin with a brief analysis of some financing ideas which were superficially attractive but judged unlikely to produce results commensurate with the effort. This is followed by a series of substantive divisions of the field, for each of which specific financial strategies are recommended:

Teaching and research
Public policy and environmental
Community
Family
Federal government
Membership organizations

Because of the pervasive presence of the private sector throughout the field, its interests and needs are considered within each of the subject areas identified above. The courts and state government, for other reasons, are also considered in the course of the identified subject-matter sections. Brief overall conclusions complete the report, which is accompanied (in the original) by several appendices describing in more detail the initiatives undertaken during the inquiry.

 

I. Introduction
This report is the result of eighteen months’ reflection on the present, and some possible futures, of the dispute resolution field. It constitutes the final report of a consulting role with the Hewlett Foundation. But by agreement with the Foundation, its “final report” function is not its main purpose, and the Foundation is not its principal intended audience.

This is, rather, a sort of extended essay, necessarily personal in nature (for the working assumptions and caveats noted below are lengthy) but based on a kind of Cook’s tour of the field in all its diversity and internal contradiction. It is intended primarily for the practical purpose of helping the practitioners, scholars and others whose work must be funded in order for the field to reach its fullest potential. To that end the concept of “financing” is applied in its broadest sense—that of enabling work to get done.

Two successive preliminary drafts were previously circulated, and I am grateful for the insights that resulted: More than twenty experts in various parts of this field took the time to offer detailed amendments and corrections.(1) Their reviews were thoughtful, and the discussions which resulted have been extensive. This report reflects many improvements which they suggested. The errors and misconceptions which remain are my own.

The appendices referred to in the text are not included, except with the original submitted to the Hewlett Foundation. I will, however, be glad to supply copies on request.

II. Working assumptions
There are probably more of these than I would care to admit, but I can identify four principal ones:

A. The first is that the overriding purpose is to improve the finances of the field. Within this is the assumption that the subject must be approached from an identified point of view, because of its extraordinary complexity and inherent potential for sectarian competition. My approach has been to try to view the financing of alternative dispute resolution (ADR)(2) from a “public interest” viewpoint—always admitting the possibility of my own biases clouding that view.

In essence, I have assumed that by this standard, all efforts are presumptively desirable which promise to increase the public availability and understanding of dispute resolution, increase its quality and reliability, and/or reduce its cost. This of course leaves room for argument about which of these ends should be favored where they compete, and also about what particular strategies actually serve any of these ends; but it serves the salutary purpose of allowing some hard thinking about resources without immediately triggering the divisive question of who, in an environment where those resources are widely alleged to be shrinking, should get the money.

B. The second is that the best response to the shrinkage referred to above is to identify, and give priority to, approaches to using both new and existing means of support which promise both to leverage the investment and to buttress the field’s ability to generate more of its own financing in future. The consequence for this report is that I have avoided the temptation to present a laundry list of desirable ideas, and have attempted instead to identify for each sector of the field considered one or at most a few strategies which seem, on the balance of available information, particularly likely to serve the ends I have identified.

C. The two working assumptions above lead to a third: The search for “finance” in a service industry (a term which for the present purpose describes both the practice of ADR and the researching of it) had better take account of the general principle that in a field like this, something like 85% of the cost of doing business is in people’s time. Methods of soliciting time from people who are already funded therefore constitute particularly well-leveraged forms of “financing.” 

D. Finally, there is always a risk of arrogance in giving anyone a license to roam freely across a subject. The “visiting firefighter syndrome” can easily result—i.e. a tendency to produce conclusions that have no relevance to the conditions under which the intended audience must labor. For this reason, I have assumed throughout this inquiry a distinction between strategy and tactics, and will largely avoid writing about the latter. Effective financing, of course, demands both. But the requirements placed on those attempting to perform these functions differ. Strategy, to fit the term properly, must be designed with many sources of information in mind and a considerable breadth of approach. But the Charge of the Light Brigade was ordered by someone who could not see the situation on the ground at first hand. Tactics must be designed by those with much more specific knowledge of the immediate situation or problem than someone in my situation is likely (in most instances) to develop.

One practical example of the kinds of distinctions thus required is that when the working paper on community programs’ strategy (described at pp. 27-29) was to be delivered to two conferences, an attempt was made on both occasions to do this in conjunction with presentations by others, more intimately involved with community programs than I, who focused on specific tactics. Sheila Purcell’s resulting inventory of working materials on these tactics (such as articles on how to construct direct mail campaigns, lists of sources of new board members, and so forth) is an excellent example of what is needed to supplement the present kind of “bird’s eye” view. Thus even though the files accumulated during this inquiry contain a sizable collection of tactical material, I would hesitate to judge directly which parts of it are suitable under what circumstances. The consensus-building and information-exchange goals of this inquiry can be better served by making a standing offer to refer interested readers to appropriate original sources of promising tactics. In the same vein, reviewers of the preliminary draft of this report identified a need for some type of “bin” of specific funding ideas received in the course of—or generated in response to or even independently of—this inquiry. I intend to pursue that concept after this report is final, and invite the reader’s thoughts as to how best to accomplish such a goal.

III. Sectors considered
The preliminary conclusions which follow have been subdivided into six sectors:

A. Teaching and research 
B. Public policy, including environmental 
C. Community 
D. Family 
E. Federal government 
F. Membership organizations (inc. NCPCR)

The unruly and competitive private sector aspect of ADR practice is almost by definition immune to general strategizing. But it forms a significant backdrop to much of this discussion—not least because in the long run, the success of those active in the private marketplace creates an indispensable source of financial support for the membership organizations and other nonprofit entities. It will be given less space here than its economic importance would warrant, however, because only in certain respects do I believe it susceptible to organized influence. Also, because there are private practitioners serving as trainers as well as providing neutral services in public policy, commercial, government, family etc. disputes, I have not treated the private market as a discrete “sector” in the sense in which that term is used above. Comments that relate to it are thus dispersed among the subject-area sectors identified.

State government is rarely considered equivalent to the private sector, but in the present context it shares one important factor: The interviews demonstrated so remarkable a range of truths, depending on the particular jurisdiction under discussion, that it became difficult to draw any general conclusions that would be germane to this inquiry. Statewide initiatives and experiences are therefore not so much codified here, as drawn on for success stories where they impact the sectors identified above. The federal and state courts have been treated similarly to state government in this discussion, for the same reason and also because they tend to have clearly identified sources of support. Some general comments about the courts’ influence in financing dispute resolution are placed for convenience in the “family” section below.

Note that there is no way of framing a discussion of financing that does not influence the content of that discussion, and perhaps the strategies that result. Thus, for example, it might be equally valid as an intellectual exercise to divide the field along private/nonprofit/government or local/regional/nation-al/international lines—and either of these might result in a different mode of analysis.

In the face of these and other possible alternatives, I have chosen the above method primarily because it appears on its face as valid as any other, and does not unnecessarily invite a digression: Other ways of analyzing who is doing what would require a rethinking of conventional self-descriptions. (Ask a professor to identify herself and she is likely to respond first by identifying her field, and only secondarily her location or whether she works in a private college or a state university; similarly, a mediator is more likely to identify himself as an environmental mediator than as a New York mediator; and so on.) I note this here merely to underline that such a rethinking might serve a significant purpose. By electing not to pursue it here, I do not mean to slight the possibility that another approach might produce insights that my analysis will overlook. I would defend the choice made here only on the most basic of grounds—that in so broad a subject some decisions limiting the scope of discussion must be made, in order to achieve any result at all.

Two additional cautionary notes seem appropriate. One is that certain subjects, such as training, span the sectors identified above—and support a large number of practitioners as well as academics. The other is that a consequence of the limited budget and virtually unlimited scope of possible inquiry is a certain “patchwork” quality in what has been addressed or left undiscussed. I have made an effort to interview people with expertise in a wide variety of relevant subjects (see pages 8-9), including some who are not affiliated with any ADR activity at all. Yet by definition, this subject matter is relevant particularly to those with an enduring interest in the field and the perceived capacity to affect the development of one or another part of it. With such an audience I am under no illusions about the sufficiency of this discussion: Virtually every likely reader will be able to identify gaps that deserve attention. I decline to claim even a budding expertise in “everything ADR” and submit that in many cases, that attention would be better supplied by someone else—perhaps the reader.

To put it another way, this report is designed to be illustrative rather than comprehensive. One of the principal objectives of this inquiry has been to engage the interest of as many knowledgeable people as possible and to get them publicly to set forth better ideas than I could have. I look forward to the resulting corrections, and to expansion of this discussion to include people I have not spoken to and ideas not directly contemplated here.

IV. Content of the inquiry
By agreement with the Hewlett Foundation and with several influential colleagues who encouraged the Foundation to support this somewhat unorthodox inquiry, the exact methods to be pursued were not precisely established at the outset. What was established was that so potentially vast a subject as the financial problems and possibilities of an industry, including its academic counterparts, could not even be approached meaningfully in a conventional “study.” The agreement reached was that this would be a wide-ranging and informal inquiry which sought to use the occasion not only to look into the possibilities, but to encourage and engender any new initiatives which appeared promising even during the period of the inquiry.

One way of describing the methodology would be to liken it more to preliminary oil exploration than to any conventional concept of a “study” as such. This imagery extends to the results that may reasonably be expected: The fundamental object of this inquiry is to identify, if possible, some likely places where deeper and more sustained efforts appear to have a higher-than-average probability of improving the long-term finances of this field.

The second phase of oil exploration, of course, yields many more dry holes than gushers; pursuing the analogy once more (and probably to the limit of the reader’s patience), no one should expect all of the strategies suggested here to be successful. They are presented in all humility as the best that one author—albeit one with very wise advisers—can come up with in the first round of a discussion that has a long way to go. 

Interviews
The primary vehicle of this inquiry was the interview, of which I conducted approximately sixty. Because of the critical importance of their comments, I will list those interviewed here.

These discussions averaged about an hour. About 30% involved more than one discussion; most were in person, but about 15% were by phone. Note that I have included a few people who might be surprised to find themselves on this list, because some extended discussions weren’t characterized as interviews at the time; these are included because of comments made that became significantly helpful on later reflection. But a number of people with whom I had shorter discussions about this inquiry have not been listed, even though some of their comments were influential; the division between those listed and omitted, at the margin, is a bit arbitrary.

List of those interviewed, February 1994-August 1995. Positions were as of the date of interview; since these extended over nearly 18 months, some have since changed jobs.
Marjorie Aaron, Executive Director, Program on Negotiation, Harvard Law School

Terry Amsler, Executive Director, Community Boards of San Francisco

Margery Baker, President, National Institute for Dispute Resolution

Linda Baron, Executive Director, National Conference on Peacemaking and Conflict Resolution (NCPCR), George Mason University

Robert Barrett, Mediator/Facilitator and Consultant, Menlo Park, California, and Treasurer, Society of Professionals in Dispute Resolution (SPIDR)

Howard Bellman, Mediator, Madison, Wisconsin

Gail Bingham, President, RESOLVE, Washington, DC

Juliana Birkhoff, Instructor, Institute for Conflict Analysis and Resolution, George Mason University

William Breslin, Director of Publications, Program on Negotiation, Harvard Law School

Robert Bright, Extension Specialist, and Jerome Kaufman, Professor of Urban Planning, University of Wisconsin

Lauren Burton, Director, Dispute Resolution Services of Los Angeles County, Santa Monica, California

John Coughlin, Commissioner, Wisconsin Public Service Commission

Linda Crochet, Chief Financial Officer, J.A.M.S/ENDISPUTE, Inc., Los Angeles, California

Barbara Diamond, Counsel for Policy Development, Supreme Judicial Court of Massachusetts (with Ann Archer, Counsel, Supreme Trial Court of Mass.)

Dick Ericson, President, Citizens’ Council on Crime and Justice, Minneapolis, MN (also Kathy Alme, Director, Victim Services; Gerry Graham, Grants Administrator; Ginny Orth, Director, Volunteer Program; Bob Provost, Treasurer; and Jim Reed, tenant.

Tom Fee, Mediator, The Agreement Zone, Freehold, New Jersey

Stephen Goldberg, Professor of Law, Northwestern University

Valerie Graff, Executive Director, SPIDR, Washington, DC

Melanie Greenberg, Deputy Director, Stanford Center on Conflict and Negotiation, Stanford University

Paul Grogan, President, Local Initiatives Support Corporation, New York

William Hartgering, Vice President, J.A.M.S./ENDISPUTE, Inc., Chicago

William Hobgood, Mediator, Washington, DC

Douglas Janson, Executive Director, The Milwaukee Foundation, Milwaukee, WI

Fredie Kay, Director, Massachusetts Office of Dispute Resolution, Boston, Mass.

Michael Lewis, President, ADR Associates, Washington, DC

Carol Liebman, Professor of Law, Columbia Law School

Randy Lowry, Director, Institute for Dispute Resolution, Pepperdine University

Karl Mackie, Chief Executive, Centre for Dispute Resolution, London

Alison Macnair, Policy Advisor, Legal Aid Board, London

David Matz, Director, Graduate Program in Dispute Resolution, University of Massachusetts / Boston

Barbara McAdoo, Professor of Law, Hamline University

Douglas McNish, Family Court Judge, Wailuku, Hawaii, and President, Association of Family and Conciliation Courts (AFCC)

Christina Sickles Merchant, Director of Labor-Management Cooperation Programs, Federal Labor Relations Authority, and President, SPIDR

Ann Milne, Executive Director, Association of Family & Conciliation Courts

Robert Mnookin, Professor of Law, Harvard University

Milton Mollen, Chief Judicial Officer, J.A.M.S./ENDISPUTE, Inc., New York

Liz O’Brien, Director, San Diego Mediation Center, San Diego, California

David O’Connor, on leave from Massachusetts Department of Administration, formerly Director, Massachusetts Office of Dispute Resolution

Suzanne Orenstein, Vice President, RESOLVE, Washington, DC

Ronald Pipkin, Executive Director, Law and Society Association, Amherst, Massachusetts

(Various “students” at) Program on Negotiation for Senior Executives, two-day session December 5 and 6, 1994

Sheila Purcell, ADR Program Developer, State Bar of California

Andrea Rich, Publisher, Laissez Faire Books, New York (with Howard Rich, Fundraiser, National Term Limits Initiative and David Boaz, Executive Vice-President, Cato Institute, Washington, DC)

Leonard Riskin, Director, Center for the Study of Dispute Resolution, University of Missouri Law School

Daniel Rose, President, Rose Associates, New York

Jeffrey Rubin, Professor of Social Psychology, Tufts University

Frank Sander, Professor of Law, Harvard University

Terry Saario, President, Northwest Area Foundation, Minneapolis, MN

Margaret Shaw, Mediator, New York, NY

Allan Silberman, Executive Director, Dispute Avoidance and Resolution Task Force (DART), Washington, DC

William Slate, President, American Arbitration Association, New York. (With Richard Naimark, Vice-President).

Melinda Smith, Executive Director, New Mexico Center for Dispute Resolution, and co-chair, National Association for Community Mediation (NAFCM)

Barbara Stedman, Director, Middlesex County Mediation Program, Cambridge, Mass.

Lawrence Susskind, Professor of Urban Planning, MIT

Stephen Toben, Program Officer, Hewlett Foundation, Menlo Park, California

Roger Turner, Kleinwort Benson Securities, London

Alvora Varin-Hommen, Director, Philadelphia Office, US Arbitration and Mediation

Jon Weiss, Executive Director, Center for Conflict Resolution, Chicago

Nancy Welsh, Director, The Mediation Center, Minneapolis, MN

Linda Wilkerson, Executive Director, Academy of Family Mediators, Minneapolis

John Wilkinson, Attorney, Donovan, Leisure, Newton & Irvine, New York

Group meetings and presentations
I also met with a number of groups in this inquiry, sitting in to learn from the discussion, giving a presentation or conducting a meeting. These included;

A. Funding Roundtable of the California Association of Community Mediation Programs (twice);

B. The Wisconsin Association of Mediators (two presentations) and the Massachusetts Association of Mediation Programs (conference keynote speech);

C. A Federal interagency working group, courtesy of the Administrative Conference of the U.S. (two meetings conducted to date, with a 10-person half-day presentation scheduled for the 1995 conference of SPIDR—see appendix B);

D. The subcommittee on finance of the Massachusetts Supreme Court’s Committee on Institutionalization of ADR in the Courts;

E. A conference phone discussion, with six University of Wisconsin-Extension agents and two UW-Madison Extension specialists (tape, appendix A);

F. A conference of SPIDR’s public policy and environmental sector (see appendix D);

G. Presentations at national conferences of SPIDR, NCPCR, and the (British) Socio-Legal Studies Association.

Initiatives (and other products)

The following small initiatives have been begun or pursued during this period, as consistent with the goals of the inquiry and ripe for action at some level:

A. Assistance to the AFM/SPIDR/AFCC/FMC consortium pursuing a certification program for family mediators in the U.S. and Canada (this also relates to a concurrent effort, the Test Design Project, but has financial significance discussed below.)

B. An initiative to explore possible “convening” roles for Extension agents in local public policy disputes, and in turn to develop an experimental short training program for them.

C. An initiative to develop at least a partial consensus among proponents of different models of providing neutrals for disputes involving the federal government, as to the types of occasions and cases in which each model deserves a degree of deference from the others.

D. An initiative to encourage formation of endowment funds for four major national ADR organizations.

E. One published paper, on programs’ need to set realistic priorities between the ADR field’s claims of quality, speed and volume of case handling, and cost reduction (see appendix E., “Two out of Three,” Negotiation Journal, January 1995.)

F. One working paper, on strategy for financing community-based ADR programs (see appendix C.)

G. A “menu” of options for improving SPIDR’s financing, comparing its (and NCPCR’s) offerings and costs with the Law & Society Association (see appendix F.)

V. Potential strategies
​
V.(A) Strategies wise and unwise
Better financing of a field is not created by bold new initiatives alone, but at least partly by avoiding wheel-spinning on ventures which have little chance of success in the foreseeable future. It seemed advisable to use this inquiry to try to identify not only some promising strategies, but also some ideas which give preliminary evidence that does not seem as encouraging as first thought. Those I have been able to identify are discussed briefly here, partly to get the “bad news” out of the way first.

I have no better proof for these than for their more positive counterparts which follow. What I can do, however, is to note briefly some of the objections that were raised to certain strategies, when the ideas were floated with people whose judgment I had reason to respect. These brief comments come with an open invitation to discuss these strategies, and possible cures for the objections noted, with any reader who believes that a way around a given objection is at hand.

A set of possible strategies which aroused much interest at the time this project began could be lumped together as “legislative initiatives.”(3) While the possibilities are varied, and some will undoubtedly still prove fruitful, the interviews and some other data suggest against putting too many eggs in that particular basket. In particular, several commentators, with significant knowledge of the (in at least some respects) nation-leading California efforts to build dispute resolution financing into court filing fees and other legislated systems and structures, reported that more recent experience suggested that such identifiable “pots” of public dollars may come to look, to advocates of other social needs, more like targets of opportunity than like “turf” to be respected.

In the present environment of cutbacks, competitive behavior between interests previously thought to be compatible is, unfortunately, to be expected; but even if adroit lobbying were to put dispute resolution’s advocates on top in such contests, the effort required appears to be rising. Note, however, that several of the early reviewers of this paper observed that even a brief commitment of public (or grant) funds may be enough, under the right circumstances, to get a lasting initiative going—particularly if structured so that matching funds are required as a condition of such support in the first place. This suggests that the operative principle may not be to avoid such a strategy entirely, but to consider it as a short-term expedient of suspect validity over the longer term, and to weigh the effort required in that context. The point has also been made that it may be well worth the effort required to get a new type of legislated commitment in one or two states even if the effort looks daunting from a national perspective. States tend to copy each other’s better ideas, over time.

Meanwhile, encouraging a court- or legislature-based effort toward building a market for ADR services, as was done in Florida, may engender some other problems, but is unexceptionable in terms of return on investment: Florida now supports a private ADR market well in excess of 30,000 cases annually excluding divorce and small claims actions. Minnesota and Massachusetts also appear to be examples of jurisdictions in which a certain amount of investment in getting the ADR community to work with the courts and/or legislature pays dividends in market-building that far outweigh the modest public or nonprofit investment. (See below under “family” for some related material.) 

A similar concern attaches to one of the ideas put forth for investigation in the original proposal for this project—an equivalent to the arts community’s stratagem of getting 1% of federal building projects’ funds designated on a “blanket” basis for public art. Even if the environment for such initiatives had not changed over the past two years, perspectives drawn out in the interviews suggest that dispute resolution’s advocates are not ready for a challenge of such proportions. The three objections raised by people with some knowledge of the arts campaign can be summarized as: 1) this kind of campaign requires real sophistication about politics; 2) it took a sustained effort extending over many years; 3) it required even for its inception a particular galvanizing event coupled with willingness on the part of members of a society elite to assume a practical leading role.(4)

Loans and investments by public authorities, also a possibility mentioned in the original proposal, have become more dubious in the budget environment—driven by politics on a national level but finding their echo, it seems, in local politics virtually everywhere at present—which has since developed. Similar investments from private sources do seem to be coming, at least in a few well-known instances. These, however, have uniformly required a “this is a business” attitude as a precondition, an attitude which many in the field seem ready to approach cautiously at most. Also, comments from a merchant banker to the effect that “There’s not much collateral in service industries. Banks might finance (a promising ADR-business initiative), but only if the principals have their own money at risk in large proportions” suggest the kinds of difficulties likely to be encountered.

Affinity-group credit cards are an idea whose time may not yet have come for this field. Some other professional and nonprofit groups have issued these in conjunction with VISA-issuing banks, etc. But certain factors make them of doubtful use in the present context. Even the largest national organizations in the ADR field (except perhaps for the ABA Section on Dispute Resolution, which for itself would probably be hampered in such an approach anyway by the competition it would create with a card already issued in conjunction with the ABA as a whole) are still relatively small for purposes of attracting a cooperating bank’s interest. A discussion with the largest issuer of such cards, with some 3,000 organizations under contract, revealed that the minimum number of members they were interested in per organization was ten thousand. To reach such numbers in the foreseeable future for the ADR field’s membership organizations would require either a consortium, which this bank indicated had not worked well in its experience, or that a single such organization broaden its definition of membership to include partisans interested in dispute resolution. (This has recently seemed less far-fetched, with SPIDR currently beginning an internal debate on such a step.) Also, it is apparently difficult to tell in advance how lucrative such an arrangement (which typically nets the sponsor ten cents per card transaction, though terms vary) will be; I was told there is a wide variation from one organization to another as to how many members sign up for the cards and how heavily the cards are used. Finally, several national nonprofit groups have suffered a tax challenge to their status partly on the ground that issuing these cards is a business activity—though to the best of my knowledge, the nonprofits are contesting the cases and the final result is not in.

Positive approaches
The remainder of this report is devoted to more encouraging possibilities. These are presented in outline form by category as listed above. Items included are of three different kinds. Some are of the nature of factual findings (which in a modestly budgeted and wide-ranging inquiry must be predicted to contain a substantial rate of error.) Others constitute implications for strategy that might be adopted by entities operating in the sector concerned, to improve and enlarge sources of funding. And another group discusses implications for allocation of existing sources of funding.

It bears repeating here that “funding” is used throughout this analysis in its broadest sense of enabling work to get done. It thus includes approaches to obviating the need for funds, as well as approaches to generating identifiable dollars for a line in a budget. It is also worth noting that the differences between sectors of the field are no small matter, and an attempt has been made to build on each part’s particular strengths in the suggestions made here. Eclecticism rather than any commonality of theme is one result.

Much of the reasoning behind the conclusions is omitted. A full discussion of the implications of all of these discussions would be daunting to draft, and it would also be so long that virtually no one would read it. One of the objectives of the inquiry is to build as much of a consensus as possible; with a relatively small and expert group of likely readers, this purpose is best served by dialogue. Experience with the Test Design Project supports this approach. I am fully prepared for, and encourage, the same kind of refinement and outright replacement of the original ideas which has occurred throughout that “quality control” effort.

V.(B) Teaching and research
Teaching
In the face of the extraordinary expansion of teaching of dispute resolution over the past fifteen years, it would be churlish not to acknowledge the investment that academic departments have made. This shows a responsiveness to students’ desires as well as individual faculty members’ that belies the reputation of academia generally. It also demonstrates a confidence, on the part of faculty holding wildly diverse sources of appointment, that this can be “their” subject, which is a departure from the traditional concept of an academic field. This is particularly true (as best I can determine at an anecdotal level; Baruch Bush’s report should be trusted where it may differ from mine) in the widespread use of some of the same texts regardless of whether negotiation or other ADR subjects are being taught as part of a law school, business school, or department of communication, psychology, sociology, or more than a dozen others. At the same time, the lack of universally accepted models of what should be taught in this field raises questions about what students are learning, and makes some kind of organized attention to the pedagogy of the field a logical next step.

The emergence of specialized departments and programs of dispute resolution per se seems unlikely to reverse this trend, because the interest of so many and such diverse faculty has now been caught, because the contributions to dispute resolution theory have come from so many of the subject areas, and because teaching of dispute resolution material in a plethora of otherwise unrelated departments is now firmly established. From a financial point of view, this is one of the field’s great success stories: In effect, the teaching of an incalculable quantity of dispute resolution material is being financed by other departments (though to a considerable extent these originated from investments made by Hewlett and NIDR.) The costs not only don’t show up at any door clearly marked “ADR”, but the payers seem happy to bear them, and vie with each other to offer more courses and bear more of the costs. Simultaneously, the disparate sources of ideas and cross-fertilization of thinking characteristic of such arrangements as the Program on Negotiation and the Stanford Center seem to keep everybody involved on their toes—for that matter, these might serve as a model for revamping some more traditional subjects.

The teaching of dispute/conflict resolution courses(5) thus fulfills in practice several of the aspirations with which this inquiry began. The courses are carried on a multitude of separate departments’ budgets. The departments now carrying the direct costs of teaching do not appear, by and large, to be complaining. Faculty time is widely shared across subject areas, and a refreshing indifference to departmental lines encourages new ideas. In addition, the fact that in some traditional environments(6) the bulk of the faculty have not caught the ADR bug is something that may change over time as new faculty, more and more of whom have encountered ADR concepts at an early stage in their careers, gradually come into positions of influence. It is apparent that, at a minimum, at least one ADR-related course is now available in virtually every law school. Meanwhile, the emergence of dispute resolution programs and departments shows promise of providing institutional ways of “centering” the discussion—without being so successful that they will drive out other departments. In short, this is a financial subsystem which (in general) isn’t broke and doesn’t need fixing.

A similar conclusion attaches to a survey of the non-academic training courses now being run in virtually all ADR subject areas by people who identify themselves primarily as practitioners. Not only have these proliferated to the point where some kind of market “shakeout” might actually be desirable on quality grounds, but they appear to be one of the most consistent sources of support for professionals who in many cases are still struggling to make a living from mediation and other ADR case handling per se. One possible strategic response, however, might be to devise materials and course elements which would help to shift more of these courses toward an emphasis on the needs of future ADR customers (including lawyers) and less toward the creation of an expanded supply of unemployed mediators.(7) The Program on Negotiation course discussed below is an example, though as yet it does not specifically devote significant time to how to use a neutral effectively when bilateral negotiation fails.

Another example comes from the experiences of Michael Lewis and Linda Singer, nationally-prominent practitioner-trainers, who have found in the last few years an increasing demand for training from law firms primarily interested in effective representation of clients in ADR proceedings. The potential for such courses to build a broader market for ADR providers in general is obvious. One heartening measure of that potential is the recent RAND Corp. study of the dispute resolution “market” in Los Angeles, a locale notable for the vigor of both its commercial and nonprofit ADR providers.(8) A conclusion of that study was that ADR had increased so rapidly in the Los Angeles area that its “market penetration” of the civil litigation universe there had reached five per cent. It is not a criticism of the study to note that a market penetration of five per cent implies that ADR is far from reaching its “industrial capacity.”

Finally, I am again drawn to the same conclusion with respect to public-school-based mediation courses. These courses are increasing in numbers quite rapidly; in some areas of the country they are apparently reaching a significant percentage of the student population; and despite tight school finances across the country, the costs of these services are seen as low enough, and the benefits sufficiently important, that the costs appear to be willingly absorbed in school districts’ regular budgets.

Research
The financing of research in dispute resolution is another matter. In part, the tone of complaint evident in many of the discussions I have been privy to is consistent with concerns about the funding of basic research in other subjects in recent years: ADR is not the only subject in which the big dollars needed to do the most massive studies have been lacking. But some of the concerns seemed more manageable, albeit with a fair degree of effort. Two in particular struck me, because they kept coming up in discussions with different people.

The first of these is the shortage of funding to pay for the graduate students who do much of the actual work in research projects. Even the comparatively well-funded and financially astute Program on Negotiation was a locus of such complaints. Prior efforts to shore up this subsystem were noted by some I interviewed, but these efforts were described as half-hearted.

From a labor economics point of view, this is an exceptionally attractive problem to devote effort to. The graduate students/research assistants at the elite institutions get much of their “compensation” from doing the work itself and from its concomitant effect on their future careers; while actually working on a project, they are paid relatively little—yet the competition for places in these programs is fierce, and the quality and quantity of work correspondingly high. The net effect of these conditions, to my eye, is that finding additional ways to fund these positions is likely to generate more “bang for the buck” than virtually any other investment that could be made in an academic setting. Yet faculty almost everywhere see themselves as underpaid and under-resourced, and at any departmental dining table, graduate students sit “below the salt;” so if resources are to flow in their direction, they will have to be specifically targeted. Designing these funds in the form of dissertation fellowships would be a particularly effective way of using them, since this would tend to draw promising scholars toward dispute resolution research for a career.

The second concern is the disparity in resources between different departments and particularly between different academic institutions. On this issue it’s probably inevitable that there would be a difference in the tone of the discussions as between faculty at what are normally described as elite institutions and others. It bears repeating, without attribution, that some very eminent faculty believe that there was some “terrible” research funded and performed in the first wave of enthusiasm for ADR nationally, and that the entire field is now enduring the consequences in the form of greater skepticism among potential funders. In the view of these researchers, an elite institution serves a purpose, and some kinds of work should not be funded too broadly for fear of diluting its quality. At the same time, this assertion has been challenged from elsewhere, and I have not encountered (much) enthusiasm for the destruction of relationships involved in publicly naming names, dates and titles of specific studies. It remains possible that this perception, though held in good faith, is partly a manifestation of a continuing difference in point of view that is, literally, institutional.

And the disparity in resources unfortunately does not affect only the less-than-stellar. It is, instead, a serious drag on the scope of work of some faculty who (in my own and others’ opinion) are every bit as eminent as those located at “elite” institutions, but who work in relative isolation from any corps of similar talent.

It will surprise few people likely to read this report that the Harvard-MIT-Tufts Program on Negotiation has been far and away the most successful institution at developing a degree of financial self-sufficiency. An obvious response to the conditions identified above was to search for a way to replicate the PON’s successes. PON faculty and staff identified the teaching of crash courses at significant fees, to large numbers of nontraditional students, as a particularly efficient method of generating funding to cover overhead, as well as some research costs. With their consent, I spent a little time studying the PON’s longest-established and most lucrative venture of this kind—the Program on Negotiation for Senior Executives.(9) 

This course alone is worthy of a business-school monograph, and this is not the place for it. But a few numbers may illustrate the potential. Three faculty members (only one of whom is present the entire time) conduct a day-and-a-half course to about 170 “students,” each of whom is paying $1,200. Far from complaining about the cost, the students (mostly midlevel corporate managers) refer others, so that this course is now taught seven times a year, and has spawned versions geared to lawyers and human resource managers. Logistics are handled almost entirely, except for the initial course design work and some continuing substantive revision, by an outside conference-management firm, which also supplies audio-visual and other assistants. While the firm is doing nicely off this arrangement—in which the students pay the firm and the firm in turn pays a set fee to the Program, rather than the other way round—this setup ensures that the faculty, and Program on Negotiation staff, spend a minimum of time on work that doesn’t interest them. Initially setting up this kind of contract also ensured that the Program on Negotiation did not have to assume any of the financial risk of beginning such an ambitious series. 

Discussions with faculty there and elsewhere, and in particular with a number of students at one of the PON’s Senior Executives sessions, were illuminating. Before these encounters, several people had indicated a belief that such a course could be sold so effectively only if the student’s certificate of completion, suitable for framing, arrived with the word “Harvard” at the top. I now believe that this perception is false. While the prestige of the sponsoring institutions is clearly a motivating factor for some of the students, their motivations overall appear more substantive, and I was offered examples of lesser-known institutions which have built up a reputation in one specific subject or another which allow them to sell very successful courses in that subject—at similar prices. This suggests that there may well be room for at least one additional national course provider, or alternatively, more than one regional provider organized on similar principles.(10) Such a provider could be structured to seek, as well as broadened understanding of and markets for ADR, to develop research funds for a first-rate faculty, participating because they happen to be located on a variety of campuses that by themselves could not develop an equivalent to the PON. While the “opportunity cost” of such a structure must be admitted, this could be kept manageable by cycling individual faculty in and out of the training role. Meanwhile, the potential for such courses to develop the market for ADR services means that an investment of this kind helps to create expanded pools of both clients and practitioners. Both of these groups can in turn become, in due course and with the adoption of some of the other strategies outlined here, potential contributors to endowment funds and other sources of research dollars.

A third concept derives from a theory of my own, but seemed to get a welcome response in a variety of different discussions. I have not been able as of this writing to identify the data that would confirm or deny the analogy I am inclined to make (a planned interview concerning this had to be cancelled), so I will discuss it only in the most general terms.

It seems intuitively probable that offering a large prize for dispute resolution research would generate more work of quality than the dollar value of the prize alone would suggest. This is, I admit, a guess; but the volume of work performed in biology or physics or economics in this century, and the quality of the minds attracted to research in those fields which might have been drawn instead to more lucrative commercial pursuits, may have something to do with the potential for personal validation and fame associated with the possibility of a Nobel prize someday. Furthermore, it seems reasonable to infer that grantors’, academic departments’ and entire institutions’ coffers have been disproportionately made available to persons who showed potential to be A Contender. 

From a labor economics point of view, the probability that many of those who, disappointed in their personal pursuit of the prize, nevertheless used these funds to perform work which was a credit to their fields, represents a remarkably efficient way of multiplying resources. This kind of “upping the ante” could even help younger faculty resist reported pressures to return their research toward their departments’ “core” concerns as they approach a tenure decision. (One particular way of making this effective, suggested by Craig McEwen, would be to design the prize as an award of time as money, as in the MacArthur Foundation individual prizes—so that it becomes productive for the future, not just a reward for past performance.) The Nobel Peace Prize does not serve any of these purposes, despite its title, since it has generally been perceived as a prize to be awarded, in effect, for unusual achievement in politics, rather than as a true equivalent to the science prizes.

Finally, significant walls continue to exist between academics and practitioners, and the consequences are atrocious in terms of financial efficiency, as well as on other grounds. Research studies that are concocted without benefit of “real world” exposure to disputants’ and practitioners’ critiques are a luxury, while practitioners’ routine failure to read research reports that might change some of their habits is equally inefficient. A preliminary discussion of these problems as part of the SPIDR public policy and environmental sector’s 1995 conference yielded some ideas, noted in Appendix D. But because these have not yet been circulated for critiques and are still in draft form, they are “not ready for prime time.” For this reason they are not included in the recommended strategies below.

None of these ideas is meant to suggest that it is time for the original sources of research funds in this field to relax or turn their attention elsewhere; indeed, a strong case can be made that foundation monies serve certain goals which will remain difficult or impossible to meet using other strategies. Over the long haul, it is desirable to create one or more new foundations specifically for this purpose; the American Bar Foundation is one model of what might be done. That requires a long-term commitment of effort, however, as well as a level of sophistication which might be developed for the future by starting with more immediately attainable measures, such as the endowment funds referred to in the section below on the field’s membership organizations. In the meantime, expanding the group of foundations supporting the field is an important goal, which may be easier to reach as more care is taken to document the successes the field has already had. The forthcoming Bush analysis of what the Hewlett research centers have produced over the years may be at least a partial answer to this need for proof.

Recommended strategies
For the reasons outlined above, there appear to be three strategies, each admittedly difficult to accomplish, which would create benefits disproportionate to the (significant) investments required:

A. Establishment of a series of graduate research or dissertation fellowships in dispute resolution, either to be allocated among research centers or for open competition.

B. Creation of one “road show” equivalent (or several regional equivalents) to the Program on Negotiation’s Senior Executives course, with a nationally prominent institution as “registrar”, (most probably) a commercial firm as contractor to handle the logistics, a faculty entirely composed of eminent scholar-teachers in the field from diverse campuses, and (initially) a small but prestigious set of participating academic institutions across the country where the course would be offered, at first on an experimental basis.

C. (Particularly tentative, pending further inquiry:) A major and sustained search for a benefactor willing to endow one major prize for dispute resolution research. 

A fourth strategy is simpler, could be applied unilaterally by a variety of researchers, and derives directly from an eminent researcher/practitioner’s assertion that he had not found it especially difficult to raise money from groups that do not generally fund research in dispute resolution: “You have to reframe the issues you raise so that it’s not asking for money for dispute resolution research, but asking for dollars for something the funder cares about that generates disputes.” This drew strong support from one early reviewer, who noted that the principle also applies to certain kinds of practitioner work. But another, also eminent, researcher was concerned about the potential for some kinds of subjects to prosper through this means while other equally important areas might languish for want of groups whose interests feature a usable overlap. My own tentative response to this concern is to view the field’s existing funders as engaged, to some extent, in a permanent “triage” analysis, so that funds attracted to ADR-related work by such means help to take some of the strain, and leave more from the field’s original sources available for other subjects.

V.(C) Public policy and environmental
The sources of funding for public policy and environmental cases are quite diverse;(11) the interviews did not reveal any small group of strategies likely to improve the overall picture very greatly. And the costs of these cases, while substantial, are picayune compared to the likely cost to the parties of other ways of resolving the disputes—so that economic logic is a powerful friend of the dispute resolution community. (Better documenting of these advantages would, however, be useful to practitioners who are trying to expand this market.) As to how severe the shortfalls in funding may be, there is disagreement; it is worth noting here the opinion of some eminent practitioners to the effect that “everyone I respect is very busy.” While some will dismiss that as mere elitism, the fact that substantially the same phrase cropped up in several conversations suggests, at least, that at a certain level of proficiency these cases are no longer hard to finance and that the marketplace is working.(12)

Some of the same people, however, demonstrated nervousness about potentially excessive enthusiasm for sloughing off complex problems quickly, which in their view may lead some cases to be referred to mediation without anyone stopping to think very hard about whether they have any chance of success. The threat of skipped “convening” phases was a continuing refrain in these discussions. This section will focus on two possible kinds of response to that concern. Both of these responses also address, at least in part, Michael Lewis’s observation that at state and local levels of government these cases may still be quite hard to finance. A diverse and more institutional convening system provides at least the potential for parties to be drawn towards either directly paying for, or lobbying for public payment for, the neutral’s time for the “substantive” phase of a case. 

A national convening fund
Several people supported the concept (which I credit to Tom Fee) that known “repeat players” might be persuaded to establish a fund that could be used to pay for a mediator’s time in the all-important phase known as “convening.”(13) The term as used here refers to a pre-case investigation into who the parties to a complex, multi-party case are likely to be; whether they show signs of willingness to engage in a mediation; what the ramifications and costs of the proceeding are likely to be; and what design of process might be acceptable to all parties. Such a fund would probably have to be (primarily) supported by industry, because of disparate resources compared to environmental and other interests often opposing industry; but because of the threat that a mediator serving as convener, who accepts funds primarily or solely from one party or side, may be perceived by other parties as tainted, a mechanism would have to be developed by which the mediator/convener was shielded from such implications. The most probable such structure identified to date would be for the fund to be administered, and the conveners appointed, via an intermediary, ideally an institution with a broad base and a recognized neutrality of approach.

Development of an existing corps of professionals into a convening function
A modest familiarity with the University of Wisconsin’s Extension system led to a series of discussions which suggested that Extension agents (who work under varying job titles in virtually every county in the U.S.) have many on-going contacts and functions which lead them to be witnesses to, and sometimes quasi-neutral participants in, a great variety of local public disputes. I was able, with the cooperation of UWEX faculty, to organize an hour-plus conference call with six agents in as many counties of northern Wisconsin, a rural base far different from the urban or campus locales more typical of others interviewed in this inquiry. They confirmed that partly because there are few other neutral resources available in their locales, they often end up “in the middle” in local land use, environmental and other public issues. They expressed an appreciation for the possibility that it might be safer for them if the disputes were handled in the main by outside mediators, and a keen interest in better training that might help them handle adroitly a pre-case phase.(14)

In the wake of this discovery, a team of three (one very experienced public policy mediator, one Extension specialist, and myself) have offered an experimental training session for Wisconsin Extension agents for 1995-96.

In the same period, and in the same vein, I became aware of a two-hour videotape produced by the Extension system of North Carolina in cooperation with the North Carolina Mediation Network. This (quite thorough and well-produced) production illustrates, at a minimum, that interest in such a role is not confined to one state. Also, upon seeing the discussion above, the early reviewers identified some additional related initiatives of which I had not been aware, including a prior Iowa Extension initiative in this area, and also a California Extension faculty member who, using invited facilitators, organized conferences among all sides of disputed land use issues, apparently with considerable success in reducing the scope and bitterness of the issues—at least once, in a case of considerable importance.(15)

Recommended strategies
A. While this is bound to require patience and a sustained effort, enlisting industry support for, and designing or reconfiguring a suitable candidate to hold, a national convening fund would probably lead to considerable leverage later, as the kinds of dollars in which industry thinks started to become more available. Also, better-financed and better-managed convening of major cases would serve as a bulwark against the possible loss of public confidence in the field that may yet result from cases that, some investigation would show, should never have been begun as mediation cases.

B. The Extension faculty interviewed gave examples of remarkably simple and economical steps which cannot be paid for under existing budget lines, but which they felt would avert many local disputes at an early stage. (An example identified by one agent was a dispute which got out of hand because she could not get the parties into the same room in time—which, she said, would have been possible, if she could simply have paid for a dinner for them all…) These conversations gave preliminary evidence that if state Extension systems could be persuaded to allocate relatively small amounts of money, for training and for mini-grants that could be obtained with a minimum of time invested, the results would be disproportionate to the investment.

C. As with several of the other sectors discussed below, devising better methods of documenting public and party savings would give the many practitioners now trying to expand this market more to work with, at relatively modest cost. Similarly, developing better mini-courses and materials specifically on marketing ADR might increase practitioners’ efficiency at getting business, and impliedly help to shift more of their weekly effort into actual provision of service.

D. A determined effort should be made to interest the roughly 350 community foundations now active throughout the U.S. in serving as and/or supporting convener functions in their respective spheres of interest.

V.(D) Community
A small case study
A modest degree of previous exposure to community-based programs early suggested that levels of financial sophistication vary widely among them. Because “community” mediation encompasses such a range of activities, structures and financial bases, I concluded that the best way to use a limited amount of available time would be by interviewing as broad a range of community program leaders as possible. The early interviews in turn suggested that it would be worthwhile to identify one unusually successful program and study it in at least a little more depth. In consultation with the Hewlett Foundation’s Steve Toben, the program suggested for this review was the Citizens’ Council on Crime and Justice of Minneapolis, Minnesota. The Citizens’ Council staff proved more than helpful, and a paper resulting from this small case study is appendix C to this report.(16)

The sum and substance of the case study and the other “community” interviews was surprisingly uncomplicated: In the wake of these exposures, I am convinced that the primary reason for the sharp variation in fortunes among the community-based programs is that many of these programs actually represent a demographically skewed version of the communities they inhabit, in the sense of not drawing from all points of view and all parts of the population served. A sense of difference from and even discomfort with business people, in particular, was a feature of the conversation of even the managers of most of the programs. The conspicuous exceptions tended to be those programs which had earlier been identified to me by other observers as financially successful.

Along with this came the realization (the “bottom line” of the case study paper) that within each of the most successful programs there is a difference in orientation: Some among the staff are focused on service delivery, but others derive their fun as well as their sense of purpose primarily from management, with all that entails. A show of hands at a meeting of community-program managers was revealing; only a small number identified themselves primarily as managers rather than mediators—and disproportionately, those were associated with programs I already knew to be unusually successful. Both of the recommended strategies below derive from the perception that the most cost-efficient way to beef up community programs across the country is to focus on methods of addressing these two kinds of imbalance. (This discussion is necessarily focused on the less sophisticated programs—the vast majority. Programs which have found their own ways to the strategies discussed below may be ready to consider and apply for their own use the discussion of endowment-building in the “membership associations” section of this report.)

The scope of consideration of community programs’ issues fell prey to the volume of other areas for investigation in this inquiry, and I am aware of the high “gap” level here in particular. One response, as noted above, is to invite others to weigh in. Another is to use this objection to reiterate the need identified by one reviewer of the preliminary draft of this report for a “bin” of specific funding ideas, and to note again my intent to follow this up.

Those who do not expect to read the case study paper may wish to note here that I have not attempted to address the many very useful programs which have attained success by embedding themselves within a specific financial structure, such as by a single large contract with a court system or local government. This is deliberate. While no one should doubt the value of these programs in case-handling terms, I am convinced that such “sole source” arrangements create vulnerability to the vagaries of other institutions’ fortunes. The bias of this inquiry is toward multiple sources of revenue, because of their ability to help programs survive the sudden changes in the fiscal or political climate to which any given locality is subject. This concern is discussed in some detail in the case study paper. A sidelight to that paper worth repeating here, however, was cast by a highly sophisticated community program manager who happened to hear the paper both times it was presented. He noted that after hearing it twice, he began to wonder whether some types of programs might unduly compromise their original goals by following the methods of the program used as the paper’s model. This led to a philosophical discussion of the intriguing possibility that for some programs, there might be a kind of natural “life cycle”, and that acknowledging this by allowing their demise might better serve their founders’ intent than converting them into a “survivable” species would.

Recommended strategies
A. Institutions already engaged in information exchange and training concerning community mediation (a broadly defined group ranging from NAFCM to SPIDR to certain academic programs) should devise training courses and materials specifically directed to fundraising and management issues, with a focus on means of drawing in business and other “establishment” perspectives and people without unduly compromising such programs’ vision and purpose. Creating an award for the best such course or material collection might spur the necessary activity, and generate publicity that would help in getting the winning models more widely adopted.

B. Community programs should be encouraged to engage in periodic self-examinations of their “business” practices, possibly using an outsider as devil’s advocate, but involving all parts of the organization so that resulting reforms will be accepted and acted upon. A model facilitated program for performing this (admittedly, potentially painful) function should be developed to help each program to face up to its state of development along five criteria: clarity of vision; determination; willingness of the internal culture to learn from people and institutions the program managers don’t admire; flexibility; and the sense of fun of the managers.(17) 

C. Business schools should be encouraged to develop case studies and materials drawn from community-based nonprofit mediation centers’ problems. Productive contacts with mediation centers are more likely if the assertive culture of these students is enlisted than if the initiative is expected entirely from the other direction. One approach would be to sponsor a competition for the best student-designed business plan for a local community mediation center, stipulating that the award be made jointly to the school and the mediation program, that the mediation center staff participate in the planning—and that the award commit the student(s) and at least one sponsoring faculty member to assist in the plan’s implementation. Requiring a publishable report thereafter would, over time, help to develop an information base of what did and didn’t work under given circumstances.

V.(E) Family
Because of prior contacts and lengthy discussions during the Test Design Project deliberations (1990-95), I felt there was a clear priority among the needs of this sector, and had already invested a certain amount of effort on it. I therefore spent relatively little time in interviews concerning the family sector as such, and the first recommended strategy below derives primarily from that prior exposure to the field. It is based on the perception—by now, I believe, widely accepted among the organizations associated with the family mediation field—that this part of the overall ADR field has great potential to supplant more of the strife and litigation associated with divorce and other family disputes than it already does, and that the primary factor holding it back is the lack of any ready means for consumers to distinguish between practitioners capable of being of real help, and those who can claim to be practitioners only because no one is in a position to say conclusively that they are not competent. Enacting a voluntary but rigorous certification program would increase public confidence in family mediation practice at a certain level, and I believe it can be done without raising inappropriate barriers to entry.

The need to remain sensitive to the field’s concern for openness and flexibility during such market-building quality control initiatives as certification is extensively described in other documents, notably the 1995 report of the SPIDR Commission on Qualifications as well as the Test Design Project’s Methodology (NIDR, 1995). But since the 1994 joinder of SPIDR, the Association of Family and Conciliation Courts, and Family Mediation Canada with the Academy of Family Mediators in a formal consortium to pursue the design and funding of a certification examination for family mediators throughout the U.S. and Canada, it is now fairly clear that there is a broad base of agreement that with suitable funding and careful design, these objectives are compatible.

A second strategy derives from the perception that in those states where the courts have not taken the lead in establishing a market for family mediation,(18) mediators have not yet been successful at articulating their message to a mass base which contains few “repeat players” (though the recent emergence of articles favorably describing divorce mediation in mass-market publications—”Cosmopolitan” among them—can hardly fail to have an impact in future.) There is at least anecdotal evidence that mediators in general do not understand the basic principles of marketing a service. This part of the field, in particular, features a large proportion of practitioners who are not part of larger organizations and do not have ready access to the kinds of business structures and methods that J.A.M.S./ENDISPUTE, for example, has been able to develop in the commercial-dispute end of the mediation business. A focus on designing a short standard course in marketing might produce a disproportionate improvement, as a larger number of practitioners learned how to make the best of their situation and client base. 

The tension between public and private provision of services echoes in several other parts of the field, and the comments which follow apply broadly, not just to family mediation. In the course of this inquiry I have heard considerable criticism from private providers concerned that a significant number of publicly- and grant-financed institutions are, in effect, using their sources of funds to compete with private providers. More than one of the commentators on drafts of this paper argued that this is a diversion of resources from needs (including some kinds of market-building) which the private market cannot fulfil, and therefore constitutes a lost opportunity.

One thoughtful commentator suggested that this tension might have five to eight years to run before the field and its backers are generally ready to make policy choices such as: existing staff (court or administrative agency) vs. outside contractors; unfettered market vs. price regulation (which already exists in the form of maximum allowed rates in a number of publicly-supported programs using outsiders); and even paid vs. volunteer. That commentator came down firmly on the side of a private market, with secure provision for pro bono services and court participation in setting quality standards.

I myself have doubts that these issues are headed for a conclusion over any foreseeable time frame. It is just as easy to imagine the dispute resolution field maintaining these internal contradictions indefinitely—as has our higher education system, in which public and private providers compete for students under two sharply different price structures, with neither maintaining a consistent quality advantage over the other and neither appearing ready to drive the other out of business any time soon. It is equally easy to imagine the attempt to reach a clear solution to these questions becoming a highly divisive series of debates, and a major diversion of effort from more productive ventures.

The consequence for strategy is that I would advocate that attention be focused on those possibilities which seem most likely to expand the market for all types of providers. For family as well as for many other kinds of practitioners, the courts are a key player. State and federal court structures include policy-setting arms, which may move slowly but move with great consequence. In several parts of the country (Florida, Massachusetts and Minnesota come to mind) the courts have already enacted policies which can be expected to produce or already have produced major increases in the caseload for private mediators. Anecdotally, the level of effort required of the ADR community to help these discussions along may actually have been significantly less than the effort required to produce comparable results in more democratic (small “d”) but also more besieged legislative bodies. There seems to be, in addition, a significant tendency for initiatives supported by a chief justice and state court administrator to receive a more respectful hearing in the state’s legislature than if less august figures are making a request for something that will cost public money. The implication here of the RAND study noted above—particularly its finding that in one of the most vigorous private ADR markets in the U.S. the level of use of ADR had reached five per cent of the civil litigation universe—is that “room enough for multiple ways of doing this” would be the appropriate attitude for dispute resolvers to adopt.

Recommended strategies
A. The primary need in family mediation, and the most cost-efficient means of building up that field’s financial independence, is to support the four-organization initiative to create a North America-wide certification program for accomplished family mediators. Because of the historically small budgets to which this field is accustomed, because of the significance of this initiative to other parts of the ADR field, and because of the skepticism and often dismay with which quality control initiatives have been greeted in this field, it is particularly desirable that this initiative be assisted to obtain funding at a level which will ensure that corners will not be cut in design and administration.

B. Encouraging the design and promulgation of a model marketing course, with materials, for use and adaptation by trainers and family mediator organizations, would encourage such training and thus help to build the market for these mediators’ services. This would probably not require a major or on-going investment.

C. (Applicable to other parts of the field also, and placed here for convenience:) In every state, appropriate representatives of the dispute resolution field should be encouraged to make assertive contact with the judiciary and its administrative arm, to foster the formation of advisory panels which the courts could then draw on for advice and support for a range of court-backed ADR initiatives. Logically, this would be a good opportunity for the membership organizations to collaborate—a collaboration which would necessarily imply diversity of representation, and potentially help to defuse some of the looming squabbles over “turf” issues.

V.(F) Federal government
The federal government’s roles in, and diverse relationships with, dispute resolution add up to a special case in many ways. One of these is the fact that—despite the travails and reverses of recent and current budget battles—the federal government is a set of institutions with extraordinary resources. In the context of the “service industry” mode of analysis referred to at the outset of this report, the government is particularly strong in availability of people who support the idea of ADR in general, are interested in getting involved in it—and may, even in an era of cutbacks, actually enjoy increasing institutional “cover” for doing so on company time. These conditions early suggested that such time as could be devoted to the federal government under the rubric of this inquiry be spent in a way tailored to the government’s “culture”—to the extent that so variegated a set of agencies can be said to share in a single culture.

The sheer size of the federal government means that those agencies that pursue ADR vigorously, and take the messages of the ADR Act and the Negotiated Rulemaking Act seriously, are capable of achieving numbers of cases resolved and litigation dollars saved that are quite startling by most people’s standards. For two quick examples, the Resolution Trust Corporation claimed a savings of $115 million in legal costs between 1991-94 as a result of its extensive use of ADR, and so small an agency as the U.S. Mint has used ADR methods in two hundred and twenty EEO disputes alone.(19) An encouraging recent development is the Attorney General’s recent initiative to increase the level of institutional commitment to and use of ADR within the Justice Department. At the time of this writing Justice appears poised to make a greater commitment both in on-going funding and—significantly—in administrative changes, such as making it easier for the department’s 6,000 civil litigators to access funds for paying mediators. But not every agency has made use of dispute resolution to an equal extent; the level of enthusiasm varies widely from one agency to the next, and sometimes from one office to the next within a single agency.(20)

One response to this situation appeared ripe for action during the period of this inquiry. Background knowledge dating from the passage of the ADR and negotiated rulemaking bills suggested that rivalries were likely to develop between advocates of different sources of neutrals for handling disputes within and/or involving the many administrative agencies. Constituencies seemed to be about to form around in-house, outside contracting, and cross-agency sharing arrangements for providing neutrals, which history suggested might become an excuse for those agency officials less sympathetic to ADR as a whole to go slow on adoption and use of dispute resolution in a wide variety of contexts.

In an attempt to forestall as much as possible of such a debilitating wrangle, and with the enthusiastic cooperation of the Administrative Conference of the U.S., the author tried to encourage an open discussion of the differences in approach, and to perform, essentially, a mediator’s or facilitator’s function in helping the proponents of different structures find and develop common ground. ACUS arranged a first informal lunch for this purpose in July, 1994, which brought together an array of knowledgeable professionals both in and working with government agencies, and which attracted an audience representing about twenty-five federal agencies. This meeting began to reveal possibilities for forming some degree of consensus, on fine distinctions between which sources of neutrals might be generally conceded best for what circumstances, which exceeded the participants’ expectations. A follow-up meeting was held in February, 1995. The original group of presenters involved in the first two meetings has now been augmented to a total of ten for a forthcoming 3 hour preconference workshop at SPIDR’s 1995 conference (which, providentially, will be held in Washington this year.)

This workshop, entitled “What every government official needs to know about finding and hiring quality neutrals” is geared to an audience of Washington-style ADR “consumers,” partly to contribute to market-building in that environment. The material produced for the workshop, in turn, will be reformatted as a monograph on the subject afterwards. A copy of the prospectus for the workshop, together with notes from the first two meetings, is appendix B to this report. But it is worth noting here that merely to get this far required and has receivedcooperation among dispute resolution specialists and other experts from the Justice Department, the State Department, the Department of Health and Human Services, the American Bar Association, the non-profit environmental mediation provider RESOLVE, Inc., the SPIDR Commission on Qualifications, the Federal Deposit Insurance Corporation, the Environmental Protection Agency, and the Federal Mediation and Conciliation Service, with ACUS attorney Charles Pou and myself serving as co-chairs.

Recommended strategies
A. There should be consistent further development of the recent initiatives to use neutrals from within the affected agency as well as the Shared Neutrals project (which uses government-employed neutrals across agency lines to reduce conflict of interest and related problems.) These promise knowledgeable and economical handling of large numbers of relatively routine disputes, particularly interpersonal disputes, and more occasional suitability for more complex matters. For applied-research and development purposes, longer-term “details” should also be encouraged, because such cross-fertilization helps to overcome tendencies to rigidity of thinking. In the same vein, because of their national and long-term perspective, and because their staff sizes tend to make the temporary addition or subtraction of a few people relatively manageable, federal agencies are very good candidates for academic/practitioner exchanges. 

B. Agencies should be encouraged not to treat the above solutions as “one size fits all” panaceas, but to define types of disputes in which conflict of interest and other concerns make it wiser policy to support arms-length outside contracting and related arrangements, and to broaden use of those arrangements.

C. Agencies should be encouraged to adjust the incentives of government employment to favor ADR. (For an example now long ago, the author was once employed for a period of years by a federal agency which used the same attorney to settle and litigate a case. Despite the agency’s vaunted emphasis on voluntary compliance and on working out settlements acceptable to all parties, it was well known that excessive success at settling cases was a potential detriment to an attorney’s career: Promotion standards required a certain number of cases tried, and made no offset for adroit negotiation or mediation…)

D. The final strategy was suggested by a commentator concerned with a state government issue, but is listed here because it applies equally to the federal government and because for reasons noted above state government is given no separate section in this paper. This is to encourage agencies and legislatures to consider the distortions in incentives created by the common accounting practice of requiring agencies to pay for mediation services out of their own operating budgets—while obtaining litigation expenses out of someone else’s budget, such as an attorney general’s. The same appears to be true of a department within an agency vis-a-vis the agency’s general counsel.

V.(G) Membership organizations (including NCPCR)
The national membership organizations (I am including NCPCR because it serves many of the purposes of such an organization, even though it does not, strictly speaking, have a membership structure) already enjoy considerable support from the Hewlett Foundation, which is consequently familiar with them. I will focus on one or two particular issues derived from interviews with the executive directors of five of the major such organizations and with some others knowledgeable about the organizations’ history, but this is not a thorough analysis of such well-known entities and is intended merely as supplementary to existing reports.

The primary such issue is caused by conditions reminiscent of the community programs discussed above: By and large, the members and directors of these organizations see themselves as dispute resolvers, and their eyes tend to glaze over at the prospect of extended and arduous financial planning. The consequence is—with the notable exception of the executive directors themselves, in whose selection these organizations have in recent years taken a turn toward the businesslike—that few in positions of authority in these organizations seem to have the stamina to keep the directors’, much less the members’ focus anywhere near long-range financial planning. The further consequence has been a hand-to-mouth existence in several of these organizations, accompanied by an undesirable degree of dependence on the Hewlett Foundation.

The national membership organizations have reason to be grateful for the Foundation’s steadfastness of support, but recognition has been slow in coming—even if understandably in view of the real-world difficulties—that someday they should be more capable of standing on their own. By and large, the executive directors appear to know this, as do at least some of the directors and other influential people within each organization, and that is a beginning. But absent an immediate reason to act, on any given occasion, action on such a difficult and long-range subject as self-reliance is likely to be deferred, while attention gets focused instead on matters which promise more immediate gratification.

In the course of this year and a half’s inquiry, I became convinced that something resembling an endowment fund is an important component of a financially secure future for all of the major national membership organizations in this field, and that none of them has one.(21) I have undertaken a small offer to SPIDR for the express purpose of encouraging this trend for at least one organization, and will be glad to discuss its design with interested readers.

Recommended strategy
Encouraging all of the membership organizations to think about their longer-term needs and to start to plan for those needs would, I believe, serve to draw others together toward that end. Part of this process should include encouraging all of these organizations to find ways of bringing in clients as well as practitioners. This would markedly expand the pool of people committed, in a larger sense, to the organizations’ purposes, and in turn provide a new level of access to sources of funds that go beyond the personal pockets of ADR practitioners. The affinity-group credit cards discussed above are not the only example of a financial resource which becomes practicable only when a certain critical mass of membership is achieved.

There is evidence that several of the organizations have in fact already begun to redesign themselves in ways related to these ideas, but the level of commitment to these efforts is uneven. The trend, if it is one, should be encouraged and supported. These steps should help these organizations reach a level of financial self-sufficiency, which may be increasingly important as other social needs make themselves heard in the demands placed on the Hewlett Foundation.

VI. Overall conclusions

When this inquiry was first mooted in 1993, most of those I talked with in or near the ADR community seemed to feel a sense of impending peril for the field. Much of the infrastructure that other professional and even nonprofit fields take for granted (including enforceable systems of ethics and reliable systems of qualifications as well as regularized financing) had yet to be developed in ours. Some efforts to develop that infrastructure had suffered from indifference among ADR-organization managers and ADR practitioners, who found it difficult to focus on the long view when confronted with constant immediate needs. A wave of criticism of both some of the field’s practices and some of its guiding theories had begun to roll in, on a shoreline broad enough to encompass the Law & Society Review and the Wall Street Journal. And most of the major foundations that had supported some of the most innovative and far-reaching work seemed to be turning to other social concerns.

Many interviews and other discussions later, I am now convinced that what we were seeing was a sea change in the field, not an impending shipwreck. Dispute resolution’s advocates, teachers, researchers and practitioners can adapt to these changes, and many have given evidence of doing so.

This paper has reported examples of innovative approaches to financing many programs throughout the field—examples learned from the hard-won experience of some very able and determined people. They, not I, have shown what can be done. Replicating those successes, enlarging on them and adapting them to different circumstances cannot be as difficult as it was to create them for the first time.

Beyond these remarks, I decline to draw grand conclusions at the moment. That is partly because (like, I expect, the reader) I have read too many reports in which the text was undermined by pomposity in the conclusions. But also, this report is “final” only in a narrow sense. I expect it to constitute the opening phase of some continuing work—an early part of which will be the creation of the “bin” of specific tactics identified as necessary by an early reviewer and noted above.

I look forward to hearing from the reader with ideas, or questions, for that next stage.

VII. Appendices
A. University of Wisconsin-Extension, Office of Radio & Television (1995). Audio tape of nine-person conference phone discussion of potential dispute resolution convening and other roles for Extension agents. 75 minutes.

B. Administrative Conference of the U.S. (1995). Publicity material for “What every government official needs to know about finding and hiring quality neutrals.” 2 pp.

C. Honeyman, C. (1995).”Service providers and resource getters: A small case study.” Working paper on the financing of a community dispute resolution program. 

D. Honeyman, C. and Birkhoff, J. (1995). Working notes of a discussion at the 1995 meeting of SPIDR’s public policy/environmental sector. 1 page.

E. Honeyman, C. (1995). “Two out of three.” Negotiation Journal 11: 5-10.

F. Honeyman, C. (1994). Menu of options for financing a membership organization (SPIDR), with comparison chart of costs and offerings relative to Law & Society Association and National Conference on Peacemaking and Conflict Resolution. 2 pp. 

Copies of the above are available on request.

NOTES

1.While those who were generous with their time were too numerous to permit a full listing here, I must at least note my gratitude to five people in particular—four who were instrumental in organizing this effort (Bob Barrett, Tom Fee, Mike Lewis and Steve Toben) and one other who is concurrently doing a related analysis, also as a consultant to the Hewlett Foundation (Baruch Bush.)

2.For purposes of this draft I will assume readers’ familiarity with most of the acronyms of the field, and will not necessarily spell them out. Please note also that I use “ADR”, “conflict resolution”, “alternative dispute resolution” and “dispute resolution” interchangeably. While some within this field use these as separately defined terms of art, I have found no consistency of such definitions from one part of the field to another, and will stick with the vernacular usage.

3.This refers to attempts to secure money for ADR from public coffers, and is distinguished from attempts to secure legislative support for market-building initiatives; see below. But Bob Barrett has pointed out that dollars allocated to ADR development in the federal courts pursuant to the Civil Justice Reform Act appear to have been highly leveraged, and to have produced good results per dollar expended. Similarly, there appears to be evidence that DRPA money in California has engendered disproportionate additional investments in the field by others, a form of leverage much to be encouraged. Barrett has postulated that the atmosphere of gloom resulting from the recent environment of cutbacks may be unwarranted, to the degree that where a certain amount of such public funding is used to get new programs off the ground, subsequent support by other groups may well continue even if the original source dries up. I am no expert on either the federal or the state courts’ efforts in this area, and I am unaware of any hard financial data demonstrating the accuracy of Barrett’s perception or the converse. But I acknowledge the possibility that this “even one-time money may have a lasting effect” argument may militate against the skepticism concerning legislative initiatives which I have registered.

4.More than one of the early reviewers has objected that this is too pessimistic for at least some locales, and also that there is a small but increasing number of socially concerned businesses whose possible willingness to invest in a related manner in this field should not be overlooked—such as the Ben & Jerry’s “1% for Peace Fund.”

5.in regular courses: crash courses are discussed below under “research” for reasons stated there.

6.Law schools (with one conspicuous exception) came in for particular criticism on this point by law-trained as well as other academics involved in ADR. That exception, the University of Missouri-Columbia Law School, some years ago revamped its curriculum to incorporate ADR concepts into every first-year (i.e. required) course. It appears, however, that six other law schools are now beginning to examine the possibility of doing something similar.

7.Peter Szanton’s 1989 report on public policy ADR financing (see below) recommended this within that context, and I believe the concept is more broadly applicable.

8.Rolph, E., Moller, E. and Petersen, L. “Escaping the courthouse: Private alternative dispute resolution in Los Angeles.”

9.I would like to thank the PON faculty and staff concerned for their generosity in letting me examine the methods and means by which, arguably, a competitor to their own hard-won success might be created. While I think the early inquiries suggest there is room for more than one such effort—not everyone wants to go to Cambridge, Massachusetts for such a course, and direct competition need not be a result of creating a “road show” of the kind advocated below—many in their position would not have been so forthcoming.

10.Pepperdine’s course series, which draws in some talented faculty from other parts of the country to its southern California courses, is an example. The Pepperdine series is also notable for its focus on training future business and other users of neutrals’ services.

11.See Public Policy Mediation: Status and Prospects (Peter Szanton & Associates, 1989) for a description of these and also of the various types of provider; also Attitudes Toward Regulatory Negotiation (Szanton Associates, 1991). The 1989 Szanton report in particular is significant background reading for much of this discussion, although some of the needs identified in that study have been at least partially met in the intervening years. For example, the need for a professional society is now met partly by the public policy / environmental sector of SPIDR and partly by the International Association of Public Policy Practitioners, and some of the purposes of a professional journal are met by RESOLVE’s newsletter and by the MIT-Harvard Public Dispute Program’s Consensus; Negotiation Journal has also moved to fill part of the gap. Other needs of the field identified in 1989 remain; only those that promise to expand its financing are referred to here.

12.One of the early reviewers remarked that the picture may look very different in Canada and Britain. I was not able to look into conditions in this part of the field beyond the U.S., and make no representation beyond its borders.

13.One reviewer opposed this concept on the ground that an institution set up with such a prestigious role might be hard to keep in check, and might siphon off resources on priorities and facilities of its own. While I acknowledge that our society is replete with examples of such institutions, and thus that the concern has merit, I believe that such an early warning can set the stage for “run lean” requirements to be designed into the setup. An alternative also exists—beefing up the state offices’ existing capacity for convening functions—though some of the reviewers of drafts of this paper have registered the same concern about some of the state offices of mediation.

14.This hour-plus discussion was taped by the University’s educational telephone network; a copy of the tape (appendix A to this report) is available on request.

15.Extension services are not the only possible players of this kind. Community foundations could also perform this kind of convening service, and are well-placed to do so—not least because they have ready access to the modest funds necessary. One commentator notes that because of the restricted geographic scope of each community foundation, this will probably not be useful in regional, statewide and national cases. The fourth strategy listed under “teaching and research” above, however, may also be applicable in the public policy arena, and may help to draw in the broader range of foundations noted as necessary elsewhere in this paper.

16.The paper, “Service providers and resource getters: a small case study,” was delivered orally to the California Association of Community Mediation Programs and also at NCPCR. It has not yet been redrafted for proposed publication, and this is expected to involve a considerable revision, since the paper as currently structured relies heavily on oral delivery.

17.This last requires a note for those who will not see the associated paper: The program chosen for detailed examination demonstrated clearly that the program managers got their enjoyment of work within their roles as managers, and were not prey to the common frustrations of program managers who really think of themselves as mediators or service providers. This appeared to be a key to their sustained success.

18.Some have, particularly for divorce mediation, while in other locales the courts employ mediators directly. This reflects an unresolved tension between public and private sources of funding for this work, discussed in more detail below.

19.See Toward Improved Agency Dispute Resolution: Implementing the ADR Act. (Washington, DC: Administrative Conference of the U.S., Office of the Chairman, 1995.) This is ACUS’s report to Congress on the first several years under the Act, and contains many other examples of the rapid but (between the lines) uneven growth of use of ADR within and around federal agencies.

20.While this may seem an odd juxtaposition to some readers, I have often worked with large corporations and have been struck by their internal similarities, in many ways, to the federal government—which many of them affect to despise as a model of organization. This experience (along with certain writings by Deborah Kolb and others) suggests that the kind of division of labor discussed in federal terms here may have its counterpart in private corporations—and that encouraging corporate officials to think in these terms might help to resolve many more in-house disputes, open up potential new sources of grant and endowment funds, and expand markets for independent practitioners.

21.There are signs that this is starting to change. SPIDR, for example, has built up a reserve fund of some $60,000 over the last two years, though plans to divide this formally between a “venture capital” fund and a rainy day fund appear to be still in the talking stage; the Association of Family and Conciliation Courts appears to be making determined use of a large Hewlett grant to build up its long-range ability to generate more funds directly; the Academy of Family Mediators has experimented with a Minnesota form of approved lottery known as “pull-tabs.”