Exemplars 10

Tapping into Potential

School of Law

Mariana Hernandez Crespo on maximizing conflict resolution systems to foster innovation in emerging markets.

My mother’s words still resonate in my mind: “You are a fish in a tank and the poor are fish in the ocean. Fish in tanks have to be fed, or they will perish. Fish in the ocean, on the other hand, have to develop all sorts of skills in order to survive.” Years later, I realized that, ironically, the system did not allow fish in the ocean to contribute their numerous and valuable skills to society at large–skills such as teamwork, creativity, and critical thinking. Despite having so many skills, the marginalized, who constitute the majority of the population in Latin America, lack the capacity to effectively participate in the decision making that affects their lives. They put their hope in politicians who promise a different way of life, but when those in power fail to deliver, riots ensue and a revolution begins; a new government takes over and the cycle continues. Looking at this volatile situation and its severe effect on investment, I asked myself, “How can we break the cycle?”

   One of my favorite quotes is, “What would you do if you knew that you could not fail?” Whether we succeed in the end or not, we will not know unless we try. With this in mind, I began to wonder what contribution I could make to the situation I observed as a child. My concern for the plight of the marginalized eventually prompted me to study law, as I saw the legal field as a vehicle through which sociopolitical structures could be altered. I embarked upon a journey of research that started in Latin America, where I obtained my first law degree and gained substantial experience in the legal system. Later, during my studies in the J.D. and L.L.M. programs at Harvard Law School, I realized that laws alone could not produce the necessary change, but that an experience of participation could have a powerful transformative effect on society.

   This led me to focus on the study of Alternative Dispute Resolution (ADR) and Dispute System Design (DSD), the fields in which I specialize and teach today. The field of ADR examines how issues can be addressed through a broad spectrum of options beyond litigation, potentially empowering citizens to become protagonists in resolving their own disputes, and learning when they need to take their case to a third party neutral to have their rights adjudicated. DSD allows organizations to tailor a system to resolve their conflicts before they become disputes and to address disputes in a way that is satisfactory to the parties. I have explored how DSD can create more participatory models that lead to broader inclusion in conflict resolution systems, using these models as catalysts for innovation through integration in Latin American emerging markets. This line of research has led to local, national, and international speaking engagements, and publications in English, Spanish and Portuguese.

   Building upon my Harvard research, I founded the UST International ADR Research Network, which I have led as executive director for the past five years. The research network allows stakeholders and experts to collaborate in real time from across the globe. A fascinating aspect of this endeavor has been to work with founders of the ADR field, such as Professor Frank Sander of Harvard Law School and Professor Lawrence Susskind of MIT, and also push the field forward to engage with local citizens in some of the emerging markets–in other words, linking the past to the future. It has been inspiring to see the commitment of all participants of the network who have contributed their time and expertise pro bono.

   One of the research network’s most significant projects was carried out from 2007-2008. Together with a team of Brazilian mediators, we coordinated a consensus-building process that aimed to maximize the country’s dispute resolution systems by affecting national policy, and at the same time provide an experience of participatory decision-making processes for stakeholders in Latin America. The project brought together citizens from seven different sectors of society: business, judicial, legal, non profit, favelas (slums), students, and academics. The outcome of the project was published in the Cardozo Journal of Conflict Resolution, and the Brazilian collective vision has been reflected in a recent resolution issue by the National Council of Justice. After completing the Brazil consensus-building project, members of the research network continued their collaboration, contributing their expertise to some of the role simulations I am drafting for the American Bar Association Representation in Mediation National Competition.

   Reflecting on how maximizing conflict resolution systems can provide an experience of collective decision making has set the trajectory for my scholarship. I have come to realize that citizen participation is essential to the optimization of dispute resolution systems in Latin America. Processes such as consensus building could create channels for meaningful participation in public decision making, which could in turn supplement representative democracies. There is untapped potential in Latin America in the form of already existing architectural design for conflict resolution (casas de justicia)–if this design were expanded to include not only the poor but also all citizens, and were linked through regional and national committees, it could contribute to developing channels of communication, best practices and greater accountability. The development of this potential could help to advance systemic inclusion and participation, thus contributing to building a foundation for rule of law in the region, which is a necessary step to promote innovation.  

   Developing this scholarship has led me to experiences at the national and international levels. Nationally, as a co-chair of the ABA Law School Committee of the ADR Section, I help coordinate for the Regional and national competitions of Representation in Mediation of the American Bar Association, as well as the ABA National ADR Educators’ Colloquium. I also serve as part of the Scholarly Award Committee of the ABA Section of Dispute Resolution. Internationally, I have worked with the Trust for the Americas at the Organization of American States (OAS), leading DSD capacity-building programs with the labor and non profit sectors in El Salvador and the Dominican Republic. This work has also taken me to the United Nations Conference on Trade and Development (UNCTAD) World Investment Forum in China, where I participated as an expert on investor-state disputes, and to the United Nations headquarters in Geneva, where I was part of the Drafting Group for International Bar Association Rules on Investor-State Mediation.

   Throughout this research journey, I have endeavored to bring my national and international experiences to the classroom, and to engage students in research. To this end, I also make an effort to craft opportunities to integrate students in research projects, even after graduation. My hope is to broaden their perspective of what they can do with a law degree–in the process I have also greatly benefited from their input, both in and out of the classroom.

   As I continue to explore the complex field of conflict resolution and its potential to foster innovation through integration in Latin American emerging markets, I often turn back to the beginning of my journey–the vision of so many people struggling under the yoke of poverty. Next to my office computer, I have a picture of a shantytown with the caption, “This situation can be changed. What can I do about it?” My research is not a matter of statistics. It is about real people with names and faces, who have much to contribute to society, but who will go to bed tonight without opportunity. Their tomorrow will be the same as today, unless a change is made; therefore, with my today, I attempt to improve their tomorrow.

“My research is not a matter of statistics. It is about real people with names and faces…”

Mariana Hernandez Crespo
“My research is not a matter of statistics. It is about real people with names and faces…”