Todd Schenk: Let’s start with an introduction to what dispute systems design (DSD) is for those of us less familiar with the concept.
Bob Bordone: I think of it as second generation alternative dispute resolution (ADR), or almost the end of ADR because it really is taking a step back and diagnosing symptoms of conflict, whether within an organization or institution, or more transactionally. After diagnosis, DSD involves helping design a series of processes by which conflicts can be handled more effectively and more efficiently while also providing greater satisfaction to those involved in the dispute and other related stakeholders. Any dispute system must be sustainable over time so that the organization or institution you are designing it for continues to have an optimal and healthy way of handling conflicts.
TS: Can you give an example of an organization or institution that you have worked with to help them design an effective dispute system?
BB: We did a project with the Consumer Finance Protection Bureau (CFPB), which is a new federal agency created after the 2008 financial meltdown. Our task was to help them consider whether they ought to have a formal appeals process and, if so, what they process should look like. The agency supervises many regulated financial entities and rates how well they are doing across a set of criteria. The question CFPB asked us was: Should these entities be allowed to appeal, and, if so, what would that process look like? We did an assessment of the needs of the regulated entities, the needs of the regulators, and the needs of citizen stakeholders. We reviewed what the statue says, looked at some analogues out there at the state level and federally in other regulated sectors, and looked at what the dispute resolution literature has to say. Based on all this, we made some recommendations to the CFPB.
A really different example is a project we did with the National Institutes of Health. They’ve actually had a pretty sophisticated dispute resolution system in place for about
a decade, but had never done a systematic assessment of how it’s working and what people think about it in practice. We worked with their ombudsman, Howard Gadlin, to really help him think about where there may be gaps, what changes might improve the system and so on.
TS: Did either project involve not only helping the client to design a better dispute handling system, but also educating them as you went along?
BB: Yes, virtually everything HNMCP does entails educating our clients as well as our students. The clinical faculty works with our clients to set up the projects and establish the tasks. Much of the time what we are really doing is explaining to them what on earth we do. Most people don’t know what DSD is. We typically get projects when someone approaches us about a particular conflict that they want help mediating or resolving. In listening to the clients at these early stages, we typically come to realize that there may actually be something more we can do to get at the root cause of the problem. Maybe the particular conflict they approached us with is symptomatic of something deeper rather than just a single one-off dispute.
TS: So the DSD component grew out of these one-off disputes that were being brought to the HNMCP and you realizing that in most cases there is something deeper?
BB: Not exactly. By the time I created the clinic, I had already been in this business enough to know that many of the disputes that fell on my lap needed more than symptom-management. They needed the kinds of interventions that I designed the clinic for. I’d been teaching negotiation here for a few years and regularly received phone calls that left me thinking, “Hmm, there is a bigger opportunity here that we are missing.” My interest in DSD came from seeing many situations where I thought either the conflict wouldn’t have manifested, or at least not in the same way, if the organization had a good dispute resolution system in place. There were also many cases that left me feeling that, even if we did resolve the particular dispute, we were just going to see a new manifestation of the same problem down the road. I was left asking if we couldn’t be a bit more strategic about how we approached situations like this.
The second source of my interest was seeing that, at least in the legal arena, ADR was starting to get a questionable reputation. In the first generation of ADR there was so much excitement and a tendency to assume that mediation and negotiation were always better. My instinct, however, was that it’s not so clear that negotiation or mediation or ADR is better. Rather, what matters is ensuring that the right process is used for each individual situation.
And one thing that is clear: We simply don’t teach our students how to be diagnostic. We teach them prescriptions, and the dominant prescription we teach in law school is litigation. Thanks to the work of the Program on Negotiation and now many other places across the country, we also teach a few other prescriptions – negotiation, mediation, arbitration and so on. And I think that’s great – I teach negotiation and am certainly in favor of teaching people how to negotiate – but I think it’s more important to teach
people how to diagnose. Otherwise, it is like a medical school that teaches you three procedures – how to set a broken arm, how to do triple bypass surgery and how to clean wax out of ears. If a patient has one of those three ailments, they are in luck. If not, the patient is either going to have one of these treatments anyway, even though they have a sore throat, because the doctor only knows how to do three things and not how to diagnose. This deficit in legal education was the real inspiration for the clinic.
TS: The clinic obviously provides a different experience than that in conventional law school classes. What challenges do you face when you are trying to teach DSD in a law school, or anywhere else for that matter?
BB: One challenge is getting appropriate clients. The other challenges are internal – getting your colleagues and students to understand what you are doing. In the first few years of the clinic we struggled with that a bit. Part of the problem was that the clinic is named ‘negotiation and mediation’, while we are not really focused on negotiating on behalf of people or facilitating mediation. We would get feedback from students saying ‘this was valuable, but not what I expected.’ Eventually the reputation of the clinic spread and this is no longer an issue. Truth be told though, a better name for our clinic would be the ‘Harvard Diagnosis and Design Clinic.’
TS: Is this kind of clinic common?
B: As far as I know, we are the only one. There are a few individual faculty members at other law schools that have DSD classes in which they might have students work on a project over the course of a semester for a client. You might call that a clinical experience. But there are no other formal clinics – I would love to see that change.
TS: It seems easier to teach negotiation and mediation in the classroom; we have role-play simulation exercises and so on that allow students to learn and practice these skills in a relatively limited amount of time. Conversely, it seems harder to teach DSD in a traditional classroom environment. Among other challenges, it is hard to simulate a system with recurring conflicts. How can you teach DSD without the clinic element?
BB: Part of what we do in our class is break down the component pieces a bit. We might present some problem and then stop and ask: ‘OK, so you’ve been brought in as an expert, here is a presented conflict, who do you think the stakeholders are?’ The students identify the plaintiff and the defendant. You then say: ‘OK, so those are the disputants, but who are the other people that are affected by this?’ You work them through a case scenario, asking various questions, including: ‘Who are the people you would want to interview?’ and ‘Let’s imagine that you have some buy-in to do this assessment project, but a key stakeholder doesn’t want to talk to you, how would you handle that?’ You can break it down over the course of a semester so they see the different component pieces. Ideally, there is both a theory, or framework, piece and a behavioral performance piece.
This is where our new book, Designing Systems and Processes to Manage Disputes, comes in. The book provides guidance, case examples, questions, and a structured approach to teaching this material in the classroom.
TS: How about those teaching one or two classes on dispute systems design within a broader course on negotiation – How do you effectively convey the key concepts in a very short amount of time?
BB: In those cases, when this is a topic for one day, you are not going to teach them how to do anything – you are simply going to describe some of the things in the way I am describing them now.
TS: So you are delivering the punch line that conflicts are often persistent, they are part of bigger systems, and there is this world out there of looking at systems, which is obviously much more complicated. That’s what you are trying to present in such contexts?
BB: Yes, and I think that lawyers would be much more productive in helping clients actually solve their problems and meet their interests consistent with expectations around self-advocacy if they took a deeper systems approach. The outcomes would be more sustainable for their clients. So, I think DSD represents a very different take on conflicts and their effective resolution.
TS: Do you ever teach dispute systems design in the context of more traditional executive education courses? One challenge in that context, which Movius and Susskind talk about in Built to Win, is that it’s pretty hard to change a culture when you are only training or working with a couple individuals in any given organization or institution. It seems like this challenge could be particularly germane in DSD. Do you find that to be an issue?
BB: I’ve never done an exec ed course on DSD, but with the publication of the book I would like to develop a course for business executives and others. I actually think it could be a pretty attractive sell for important demographics in companies – people who serve as general counsel, ombuds, or in human resources are obvious candidates. But really, taking this DSD approach can help any manager who sees the costs of conflict skyrocketing because it is badly managed. Certainly a key message in a DSD course would be that you are not likely to succeed changing your organization if your leadership is not on board, if you forget organizational training, or if you just impose it top-down. This is part of explaining what a successful DSD looks like, and of exploring what we mean by ‘successful’, and it is covered systematically in Designing Systems and Processes for Managing Disputes.
TS: Are these typically the kinds of people you work with via the HNMCP? Obviously the CFPB example you gave is a bit different I assume, as you are talking about wider institutional conflicts, but are you usually dealing with general counsels, ombuds and HR?
BB: It depends, but it is often someone in a general counsel or ombuds office. Sometimes it is someone in corporate management who realizes they are spending huge amounts of money resolving disputes. We recently finished a project with a New York City councilman looking at how the City handles claims against itself. New York City pays out 735 million dollars a year in legal claims and has more than 1,200 lawyers on staff – those are gargantuan numbers. The question is, is this a good use of money? There is obviously a system in place, but what happens in practice? How do things get stuck? Perhaps it is actually very efficient already – we don’t know yet – but it’s worth investigating. In another case, we worked with a corporate social responsibility person who was interested in grievance mechanisms for factories in countries where the rule of law is not particularly strong. So our clients vary widely. The thing you want to make sure of is that the person that you are working with has enough clout and legitimacy to get other stakeholders to participate in the process. The entry and contracting phase of our projects is critically important – you really need to do a fair amount of vetting to make sure that you have the right partners, which is incredibly time and resource-intensive. We might end up with five or six projects in a semester, but we probably talked with 30 potential clients before pairing it down.
TS: You are making sure there is buy-in at higher levels. What else are you vetting for?
BB: Another factor is availability. A client that says ‘we are really excited about this, but are tied up the first two weeks in September’ is not going to work – that’s 15% of the semester gone. You are also looking for work that can be scoped out such that there will be some closure for the students after three months. It’s unlikely that the whole story will be over, but at least they should be able to produce some kind of a work product that can be graded and so on. You are also looking at what the students will actually be doing. How feasible is it? Designing a peace process for the Israel-Palestine crisis sounds really exciting, but is probably too complicated. On the other hand, sometimes it’s clear that what the organization really wants is an intern to reorganize their files – we are not doing that either. We are also looking for a balance between value and risk. Ideally, it’s a project that the client really wants to see done, but that they just don’t have the internal bandwidth to do themselves right now. We don’t want projects that might place the organization or people’s jobs at risk in case things don’t go so well.
TS: How much of the work is done by students? How much do you have to work with them in training, supporting and so on?
BB: The students do a pretty substantial proportion – I would say most. It varies by supervisor, but once a project is going students do probably 90%. I meet with them at least once a week, but they are really doing the work.
TS: We talked about the lack of clinical programs elsewhere. If a professor at another law school called to ask for some advice because they are thinking of doing something like this, what would you tell them, beyond what we’ve already talked about?
BB: I’d first of all say ‘great! Go for it!’ But, I’d say take it slow. Start small. Make sure that your dean knows how resource-intensive the task is. It’s a great, rewarding project in which to engage. Also, be open to interdisciplinary influences and collaboration because most of the contributions and opportunities are not in the legal area per se, although I think it’s very helpful and important for lawyers and law students.
TS: On that note, we’ve talked a lot about DSD in the context of law schools. Obviously negotiation is taught in many other contexts – business schools, public policy schools and so on. Is DSD also taught, and relevant, in these other contexts?
BB: DSD is being taught in some of these schools. And it is incredibly relevant for all of these. There is no reason why law should have a monopoly on this work and it is really important for anyone who is working with other people in an institutional setting.
TS: Tell me more about the new textbook you just authored called Designing Systems and Processes for Managing Disputes, with Nancy Rogers, Frank Sander and Craig McEwen. Who should use it and why?
BB: It’s the first textbook on DSD, and I feel very honored to have written it with three amazing coauthors. The result of our collaboration is that there is an interdisciplinary feel to the book. I think there are aspects of it that could be used in many classes, but it is really designed to accompany someone that wants to teach DSD, whether in a law school or elsewhere. That being said, I recently gave a presentation to the International Academy of Mediators and their excitement about HNMCP made me realize that this book could be useful to practitioners as well. It seems like the mediator community may find this book relevant, as they see DSD as an opportunity for more business, and to make a bigger impact. HR, ombuds and general counsels might also find it helpful. There are not a lot of DSD courses, but it did occur to me after the presentation that there are more people than I originally thought that could benefit from this book.
TS: And that could benefit from DSD courses too, so hopefully there will be more taught soon, using your textbook of course! Thank you for your time.