Beyond Court-Ordered Mediation: Should the Dispute Resolution Section Create A Task Force to Evaluate Future Dispute Resolution Needs of North Carolinians?
By Jim Cooley
The NCBA Dispute Resolution Section (DR Section) started as a committee of the NCBA which imagined a future, first, of court-ordered arbitration for small claims matters and, later, of court-ordered mediation of civil cases throughout the State’s Superior Court Division. Over time, the Committee successfully developed and implemented programs for the court-ordered mediation of most civil disputes in the Superior Courts and many family law disputes in the District Courts. But the world of dispute resolution is being transformed before our eyes, as Colin Rule reminded the participants in the 2021 Conflict Resolution Day program sponsored by DRC.
True to its roots, the DR Section must think about how the “Fourth Party” (technology and AI) is, and will continue to, rapidly change how disputes are resolved. To adopt Richard Susskind’s now famous query: “Is Court a service or a place?” The world of DR has expanded well beyond the court system where it is regulated by the DRC. Universities and other entities are employing ombudsmen to address a variety of internal disputes. An increasing array of contractual provisions are giving rise to required pre-suit mediation and arbitration of a wide array of commercial disputes, including online mediation and arbitration of a multitude of small dollar consumer disputes. Our communities experiencing violence, public health issues, and change would benefit (often on a pro bono basis) from skilled mediators to help resolve conflicts between law enforcement and residents, between school officials and parents, and between school boards and boards of commissioners. And the list goes on. In short, dispute resolution skills and insights can be — and in some cases already are — employed far outside the traditional court-ordered mediation context with which the DR Section has been so deeply involved since 1985-89. And then there was/is Covid-19 and its variants. We have just been through a two-year crash course on how to do court remotely. What have we learned during this huge, unscheduled pilot program?
The mission of this task force, should we choose to pursue it, would be: (1) to explore the new ways of doing DR which were emerging pre-pandemic, as well as the lessons learned during the pandemic about providing dispute resolution services in a time of plague, and (2) to then educate the section and the Bar (and the Legislature where needed) on best practices in this new age of technology-driven, pre-litigation, and early-resolution DR practice.
This is not a new mission. It is an extension of the thought leadership — the task of “looking around the corner” — which the DR Section has been about since its beginning.
At its Sept. 7, 2022 meeting, the Council of the Dispute Resolution Section discussed a range of possible topics which a task force of the section might consider. In fact, the Council actually took a survey in which it ranked seven “tasks” which a task force might pursue, including the personal interest of Council members in exploring each of the seven tasks outlined. I am happy to report that among Council members there was a high level of interest in seeing the section undertake such a task force, and in personally participating in its work.
Next, Council needs to hear from section members about their interest in continuing to pursue the mission outlined above. Look for a blog post soon from me which will describe the “tasks” already outlined and discussed by Council. And then look for a survey in which we try to determine how you as a section member would like to actively participate in the mission.
In the meantime, email me if you have a view as to whether the mission is something which we should pursue, or not.
Jim Cooley is the Chair of the NCBA Dispute Resolution Section.