• Maximizing the Potential of Dispute Resolution Systems

    The Twin Cities may not seem like a natural place for University of St. Thomas School of Law Professor Mariana Hernandez-Crespo to launch an international network in alternative dispute resolution. But St. Thomas’ pro-bono International ADR Research Network helps participants from Latin America, and eventually from around the world, to maximize the potential of their dispute-resolution processes by encouraging civic participation.

    St. Paul is where, in 1906 and 1976, the idea of offering alternatives to traditional litigation received a wide audience.

    During the 1906 annual meeting of the American Bar Association, a young professor from the University of Nebraska Law School, Roscoe Pound (who later became the dean of Harvard Law School), delivered a speech to almost 400 ABA members from across the country gathered at the Capitol in St. Paul. Pound based his speech on a paper he had written, “The Causes of Popular Dissatisfaction with the Administration of Justice.” He aimed to improve the current American legal system to become more efficient and equitable. The lecture was met with mixed reactions at the time, but has since become one of the most influential papers in American legal scholarship.

    In 1976 Chief Justice Warren Burger persuaded Harvard Law Professor Frank E.A. Sander to present his paper on dispute resolution at the Pound Conference in St. Paul. The conference was a gathering of legal scholars and jurists to discuss public dissatisfaction with the American legal system and how to reform it. Sander, in the same room where Pound stood 70 years earlier, gave a talk titled “Varieties of Dispute Processing.” In it, he explained his idea of the multi-door courthouse – a courthouse that routes incoming court cases to the most appropriate form of dispute resolution.

    The idea of offering alternatives to traditional litigation, such as negotiation, arbitration and the multi-door courthouse, started gaining popularity.Hernandez-Crespo asked Sander why the multi-door courthouse took off after the Pound Conference. “To borrow from a title of a recent book by Malcolm Gladwell, you reach a ‘tipping point’ when things in favor of a movement fall into place,” Sander answered.

    Now, Sander is considered to be the pioneer of ADR and his paper revolutionized the legal system. Few law schools had offered courses in negotiation or mediation; now every law school in the country has at least one (most have more) course on alternative dispute resolution.

    Hernandez-Crespo Takes Hold of the Multi-Door Courthouse Idea

    Fast forward to 1998: Sander was teaching an ADR class at Harvard Law School and asked his students each to write down an idea they wanted to take with them into their careers. Mariana Hernandez-Crespo, a law student from Venezuela, wrote “the multi-door courthouse.” “She had an idea of applying what she had learned in the United States to South American problems, such as a lack of trust in the courts and the need to help people resolve their conflicts in different ways,” Sander said.Hernandez-Crespo said “Sander played a critical role in my realization that, when citizens learn how to select the appropriate forums and develop dispute-resolution skills, they are generally better off. It is often more constructive that they take ownership, becoming protagonists in the resolution of their own conflicts; however, when that is not possible, power should be delegated to a neutral third party or the state to help resolve the conflict.”

    IADR and the Law School’s Mission

    Hernandez-Crespo was hired by the School of Law in 2006 to teach courses on ADR. Her research focuses on exploring how to maximize the potential of dispute resolution systems. She began developing a Web-based network of stakeholders, expanding on a project she originated in 2003 while still at Harvard Law. It developed into the UST International ADR Research Network.

    “An important part of our mission is to encourage faculty and educate students to bring justice, especially social justice, to Minnesota, domestically and internationally,” Dean Thomas Mengler said. “The IADR Research Network is the perfect example of a faculty member doing exactly that. We are living in a global community. Reaching out to people and countries that are in a development stage is an important part of our mission.”

    The Need is Enormous’ in Latin America

    In Latin America, there is a distinction between the laws on the books and the laws that are enforced, Hernandez-Crespo explained. She called this a “pale shadow of the law.” The judiciary, in other words, is not a place citizens can turn to for protection of the law, and this has a profound impact on how conflict resolution operates in the region. To that effect, she has published two law review articles in the Cardozo Journal of Conflict Resolution.

    Just as Sander helped establish ADR and introduced the multi-door courthouse in the United States, Hernandez-Crespo is exploring its potential in a Latin American context. The multi-door courthouse routes incoming court cases to the most appropriate methods of dispute resolution. The case is reviewed and an appointed individual or group sends it to an appropriate forum, such as the judiciary, arbitration, mediation or negotiation. The multi-door courthouse is one example of the options International ADR Research Network participants are asked to consider.

    “I simply admire the work Hernandez-Crespo is doing,” said Sander, considered by many to be the father of ADR. “It’s great that St. Thomas has given her support because what she’s doing is impressive.”

    “A key to her success is that she plugged in with people who provided good counsel on how to go about this,” Mengler said.When developing the project, Hernandez-Crespo consulted professor Archon Fung, whom she met at the Harvard Kennedy School of Government in the early 1990s. Fung had a strong influence on the participatory nature of Hernandez-Crespo’s projects. “We have a common interest in the quality of democratic institutions, especially civic engagement,” Fung said. “I [admire] her leadership in organizing projects. She’s an extremely capable, involved and dedicated individual.”

    Hernandez-Crespo commented, “Growing up in a Latin American country, you learn early on that life is challenging and there is little we can accomplish alone. I have always thought that the success to any worthwhile project rests in the team of people you gather together to work toward a common goal.

    “This project has been successful because Latin Americans are so eager to participate. It is simply enough to open a small space where they are invited to come and participate, facilitate their development of conflict-resolution skills, and the response is overwhelming. The need is enormous. Any little thing we can do to help will make a big difference.”

    Collaboration Among Countries

    What some may consider obstacles are precisely the very assets that the UST International ADR Research Network values. This includes preserving the richness that comes with allowing the stakeholders to express themselves in their native language and appreciating culturally diverse perspectives.

    The network is an academic collaboration among American academics and stakeholders in foreign countries. Hernandez-Crespo leads the American academic team, which includes a board of advisers and technical and administrative teams. The board of advisers includes Sander and Lawrence Susskind, director of the Public Disputes Program at Harvard Law School and founder and senior adviser of the Consensus Building Institute, and other faculty members. The network is distinctive because participants and experts collaborate via a virtual real-time forum from different parts of the world.

    Using ADR in Brazil

    In 2007 and 2008, the IADR pilot project took place in Brazil where there is a backlog of nearly 20 million cases – almost a 10-year wait for adjudication. Due to a shortage of public defenders and an endless right of appeal, the system favors the wealthy and connected. The Brazil project connected citizens to first assess the current dispute resolution system and then examine the multi-door courthouse and its potential to rehabilitate the current system’s ills.

    The Brazilian participants were from seven different sectors: academic, business, favelas (slums), judicial, legal, non-profit organizations and students. With a wide array of citizens deliberating about how to best implement alternative dispute resolutions in their country, the outcome of the country’s consensus building is more likely to be a solution that is realistic for the country and its citizens.

    The 16-week Brazil program started with four weeks of training in consensus-building methods. The training took place through online videos and real-time seminars. The following 12 weeks were the heart of the project when participants built consensus about the state of their country’s current conflict resolution system. Next, they explored the potential of the multi-door courthouse in the Brazilian context. Finally, the participants built consensus about the systemic approach necessary for the implementation phase to maximize their dispute resolution system.

    Brazilian participants agreed that they would like to implement the multi-door courthouse in their country. They also documented their different perspectives, interests and values in the project, which will be used in the ongoing consensus-building process.

    After the project was completed, experts, collaborators and participants convened at the St. Thomas School of Law in Minneapolis to compile and discuss the project’s outcome. The project’s consensus was published in the Cardozo Journal of Conflict Resolution. Now it is up to the Brazilians to move toward the collective vision they expressed. “There has not been one person who has implemented and developed a project the way Mariana has been able to in Brazil,” Sander said. “Other students have applied some of what they learned [at Harvard], but the scope of what she’s doing is larger than anything I know of.”

    Other ADR Projects

    Since the completion of the Brazil consensus-building project, the UST International ADR Research Network has taken on other projects, such as collaborating in the drafting of role simulations for the American Bar Association Representation in Mediation National Competition. Participants from various countries continue to work together to create simulations that reflect some of the real-world issues that lawyers and parties face in mediation every day.

    Author: Joanna Salmen, 3L, is the editor of the School of Law’s newspaper, Tommie Law News, and she works in the Communication Department.

    ADR Expert Fits with School of Law Mission

    When Mariana Hernandez-Crespo was looking for faculty positions, many law schools wanted to hire her. Her credentials were strong – she earned a law degree at the Universidad Catolica Andres Bello in Caracas, Venezuela, and holds J.D. and LL.M. degrees from Harvard Law School.

    In 2006 she joined the University of St. Thomas School of Law faculty. Dean Thomas Mengler attributed the successful recruitment of Hernandez-Crespo to her connection to the law school’s mission.

    When visiting campus, Hernandez-Crespo said she found St. Thomas to be a warm community in which the faculty and students interacted closely. She noticed a faculty member engaged in friendly conversation in the hallway with the cleaning staff, calling them by their first names. For Hernandez-Crespo, such details were living examples of the university’s commitment to firm principles of social justice. She thought it was important to be a part of a community in which people are not seen as fungible but as unique individuals.“She is effective at bringing the right people together to share ideas,” Mengler said. “The UST International ADR Research Network helps to educate a lot of lawyers, judges, academics and others to better understand how they could establish and implement ADR processes in their country.”

    Read more from St. Thomas Lawyer.

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