Wednesday, October 14, 2015

Fallacies Underlying Common ADR Career Advice Given to Young Professionals



As a lecturer who teaches Negotiation at Harvard Law School and a clinical instructor who supervises dispute systems design projects in the Harvard Negotiation and Mediation Clinical Program, I am frequently asked by my students how to secure a job in ADR.

In my experience, law school career offices do not know what to do with students who want to pursue ADR as a career. For these bright, passionate students, career counseling is often left up to ADR faculty (who are also trying to balance our teaching load, clinical supervision, research, committee assignments, and other duties!).  I consider it a privilege to meet with these students, especially when I end up countering bad advice they’ve received from other, often well-meaning, lawyers who know little about ADR as a field.

The most common narrative goes something like, “Nice, kid, that you want to be part of the dispute resolution field. Go to a firm for 15 years, get some experience under your belt, then come back and you can start mediating on the side. Once you’ve built up an excellent reputation as a mediator, people will hire you often enough so that maybe you can cut down to half-time at your firm. Then, when you retire, you can mediate full-time.”

How disheartening.

For me, the way to grow the dispute resolution field is to welcome these eager, intelligent, skilled students into the field from the beginning of their careers. So, I was thrilled to receive the Spring 2015 Dispute Resolution Magazine (“the Magazine”) on the topic of careers in alternative dispute resolution (ADR).1 I cheered as Nancy Welsh and Zena Zumeta mused about the next generation of ADR “pioneers” and posed the question, “What do they experience as they try to enter the field at fairly young ages?” (p. 5) This is the conversation about ADR careers I want to be having!

But as I read the Magazine, most of which seemed to mirror the common narrative, I began wondering if the discouragement law students or recent graduates experience as they try to enter the field is actually symptomatic of a deeper problem in the way we think about ADR. Considering potential diagnoses, perhaps the common narrative stems from half-truths and fallacies that we ourselves—those in the ADR field—often believe, consciously or unconsciously, and thus promote. We may be our own worst enemies, stunting the growth of the field at the “ground” of law school.

So, to further the next generation of ADR pioneers, it seems we need to first name and begin to dismantle some of the fallacies that unnecessarily slow the next generation’s entrance into the ADR field.2 I’ll do so here in five segments.

Fallacy #1. ADR = Mediation

In my opinion, this is the most common and most impactful fallacy; if one believes this, the belief leads to concluding that the other four fallacies are mostly true.

Most career advisors or well-meaning attorneys I speak with seem to presume that ADR = high-value mediation. They see law as bifurcated into “litigation” and “transactional” or “commercial” law. Since they view mediation as a small part of some litigated cases, they view ADR as a sliver of what lawyers need to know to practice law and thus, delimit ADR to a brief discussion in law school, career advising, and practice.

The ADR field itself is guilty of promoting this fallacy, as many resources use “mediation” and “ADR” interchangeably. Even in the Magazine’s article about “Choosing ADR Careers at the Start” (p.30), “private commercial mediator” seemed to be code for “ideal ADR job.” Certainly, if one’s primarily focus on ADR is private commercial mediation, much of the advice in the Magazine about practicing law first makes sense. But to talk only, or primarily, about ADR as mediation actually contracts, rather than expands, the field and the “outside world’s” view of and embrace of ADR. Why limit ourselves, and our field, in the ways we can serve the legal profession?

As people in our field understand, litigated cases and transactions are simply long chains of processes—dispute management systems, if you will. The processes involved in these systems include negotiations, facilitated decision-making meetings, evaluations, and yes, sometimes mediation.  What our field can do so well—what we offer the legal profession (and others!)—is the opportunity to be diagnostic and choose or design what process works best.

Moreover, what draws people to this field may include but goes far beyond what draws people to mediation. As Robert Rhudy aptly points out in his article (p. 6), the umbrella of income-generating ADR work encompasses much more than being a neutral, and especially a private one. ADR is a wide, interdisciplinary field that spans public, private, and not-for-profit contexts. It is local, national, and international. It involves negotiation, facilitation, conciliation, arbitration, and dozens of other processes that encourage people to communicate better with one another about conflict. People in this field have a variety of roles: dispute systems designer, manager, neutral, case coordinator, ombuds, coach, facilitator, consultant, legal advisor, investigator, convener, trainer, etc.

To continue to use “mediation” when our field actually includes a much broader set of principles and processes is like saying “eggplant” when we actually mean “vegetable.”  We rob clients, lawyers, and law students of the richness of ADR’s many flavors.  Let’s start reframing the conversation so law students and recent graduates see a broader range of possible places to employ their skills, and clients see the full value we ADR folks can add.

1Throughout, I will use the term “ADR,” cognizant that the term neither fully captures the conflict management field, nor enjoys a consensus definition in the field itself. Here, it is easy short-hand that is meant to be read to encompass negotiation, conflict management, dispute resolution, etc.
2For the purpose of this article, I’ll reference the Magazine, but the messages I reference are not only, or even primarily, found in the Magazine. The DR Section of the ABA does much great work for young ADR professionals, including the Young Lawyers group and the recent addition of a young ADR professionals fellowship. I applaud its efforts and encourage its membership to further encourage young professionals.

Next week: Fallacy #2!