Summary of Managing Construction Conflict: Unfinished Revolution, Continuing Evolution (Part III)

In part III of Managing Construction Conflict: Unfinished Revolution, Continuing Evolution, Professor Stipanowich highlights “five trends that are likely to have a growing impact on our lives, on law practice and the management of conflict.” Those five trends are: increasing use of technology, increasing globalization, expanding understanding and insights through behavioral science and “big data,” longer productive lives (active retirement), and increased opportunities for ADR education and credentialing in the professional practice.

He starts with some examples of the benefits technology brings to the dispute resolution context:

Arbitration hearings in complex construction cases are often high-tech events, with arbitrators and counsel utilizing digital displays on two or three monitors at once. Lawyers and arbitrators are deriving important benefits from services such as LiveNote, which permits the viewing, highlighting and annotating of testimony in real-time, and may feature streaming video feeds permitting testifying witnesses to be observed long-distance.   Electronic transcripts available via cloud offsite storage enable practitioners to search the content of transcripts from anywhere in the world with internet access.    Moreover, transcripts in electronic formats are easily searchable, helping counsel locate and direct a witness’s or arbitrator’s attention to key portions of the transcript, and saving arbitrator time during award preparation.

He also states that “despite the growing embrace of various forms of technology in arbitration, we have yet to see significant transplantation of mediation or arbitration hearings from in-person settings to online.” He goes on to discuss the possibility and potential benefits of online appearances for international arbitrations and high-volume, low value disputes between parties separated by great distance.

In discussing globalization, Professor Stipanowich recognizes that more and more business transactions (and therefore disputes) are happening between parties from different cultures, and these different cultures do not always have the same approach to dispute resolution.  He states,

Legal practitioners and mediators are thus being drawn into a global conversation—face-to-face and online–regarding virtually every aspect of mediation theory, doctrine, procedure and practice. The same is equally true of arbitration. On occasion this dialogue (when systematically conducted by reputable organizations) has produced procedural solutions that help to bridge differences among systems and modes of practice, such as the International Bar Association’s widely embraced Rules on the Taking of Evidence in International Arbitration and other evolving “soft law” guidelines.

Professor Stipanowich then turns to insights through behavioral science and “big data” where he comments: “Thanks to the work of behavioral economists and others, we are coming to understand that far from being engines of rationality, human beings operate subject to the dictates of mental processes that skew our perceptions and steer us onto unpredictable paths.” Professor Stipanowich notes that through behavorial science and the collection of “big data” we will be able to “glean new insights into group behaviors by analyzing masses of information,” and that “many of these insights are relevant to managing and resolving conflict.”

He next discusses the growing number of professionals (both practicing and retired) wanting to practice as mediators and arbitrations. He suggests that while they may “not all be equally successful in promoting dispute resolution practices,” they may contribute to: “helping develop guidelines for managing conflict, producing blogs, participating in continuous online discussion and debate regarding developments in related law and practice, teaching as adjunct instructors, and even offering their services for online evaluations…”

Finally, regarding education and credentialing in the professional practice, Professor Stipanowich notes that there is increasing pressure on lawyers to shorten dispute resolution cycle times and reduce costs.  He writes that law schools, inspired by this trend, have been “expanding all kinds of skills instructions,” and that “prominent among these offerings are courses aimed at counseling and advocacy in negotiation, mediation and arbitration…” He also discusses the matter of credentialing for dispute resolution professionals:

 As discussed earlier, many current and former litigators and transactional lawyers are marketing themselves as dispute resolution professionals. Even with training, however, not every lawyer (or non-lawyer) possesses the skill set and instincts to function effectively as a mediator or arbitrator, and concerns about informed choice and transparency have driven a growing international dialogue regarding professional credentialing.    As noted above, even some countries that lack substantial demand for mediation have already established a regulatory framework for the process, including professional certification.    Moreover, the very presence of a raft of regional, national and international organizations seeking to engage the attention of the field and the energies of participants adds momentum to such efforts. Nevertheless, many questions remain about how credentialing should be done and, equally importantly, who should do it. Ultimately, one must ask: What organization or group of organizations are most likely to be responsive to the needs of users in specific sectors or settings (including, for our present purposes, construction owners and those engaged in design and construction) and are broad enough to embrace the full range of potential dispute resolution professionals, including non-lawyers?

Read the summary of part I

Read the summary of part II

For more information, please read Professor Stipanowich’s full article.