“The Next Level for ADR”

By Antoinette Raheem

Many of us cannot count the number of times we have looked at the day’s news, been saddened, discouraged and sometimes overwhelmed by it, and felt helpless to do anything about what we witnessed.  Our feeling of helplessness no doubt arose from seeing no better response to the problems the thousandth time they recurred than we saw the first time the problems emerged.  But why should those of us whose profession is dispute resolution feel helpless in the face of unresolved problems and disputes?  The answer is because we were trained to focus Alternative Dispute Resolution (ADR) on private, personal conflicts with usually no more than 2 or 3 people or entities involved.  But is ADR limited to that? Could our skills as ADR professionals, or as advocates who use ADR processes, be applied in a broader context? In short, is there a viable way to take ADR to the next level?

In researching an answer to this question, some interesting articles came to my attention.  One was by Martina Vandenberg about the availability of alternative consequences for those convicted of human trafficking that goes largely untapped in the U.S.[1]   In 2015 Congress passed the Justice for Trafficking Victims Act.  This law requires the federal Government to seize assets from those convicted of human trafficking and use it to pay restitution to victims.[2]  In situations where this law has been followed, the victims have reaped significant awards, in the thousands and even millions of dollars. Some examples of how this restitution looks include an award of $3,892,055 for 4 minor sex trafficking victims, $916,635 for one worker held in domestic servitude for 19 years, and $51,844 for one victim held in forced labor in a restaurant.  Yet despite this required restitution, federal courts, for a variety of reasons, rarely order restitution.

Why is this restitution important? Vandenberg answers that question as follows:

Financial compensation obtained through criminal prosecution can catapult a trafficking victim forward in the path to survival.  It can preempt the need for civil litigation. It can restore dignity to a trafficking victim unable to support ________________________________________________________________

[1] M. E. Vandenburg, ‘Palmero’s Promise: Victims’ rights and human trafficking’, Anti-Trafficking Review, issue 6, 2016, pp138-141, www.antitraffickingreview.org

[2] Id.
his or her family.  It may be used to go to college, to buy a home, to purchase a car, to support family members at home. Prosecution with restitution takes a step beyond punishment and retribution.[3]

Vandenberg further found that restitution built into prosecution can serve as a major deterrent to human trafficking. It deprives the perpetrators of their “ill-gotten gains” and returns it to the victims who earned it.[4]  Long prison sentences, Vandenberg concludes, are not enough.[5]  The tools for restorative justice in human trafficking are in place.  What is needed is educated judges, prosecutors, victims’ advocates and ADR providers to make the justice a reality.

Another article on human trafficking reports that research shows that “most trafficking survivors favor prevention and victim healing over incarceration of those who committed the crime.”[6] The research further reveals that sex trafficking victims see justice mainly coming from preventing perpetrators from doing future harm to others, rather than just incarcerating perpetrators for the sake of incarceration. As an alternative to the traditional focus on sentencing, the researchers, after letting the survivors tell them what their interests were, recommended three alternative models of justice that they believe will “improve survivor perceptions of justice and reform the system in ways that better accommodate the rights and needs of victims.”[7] The 3 models are: 1) procedural justice which focuses on the process, engages the victims and lets them tell their story; 2) restorative justice which focuses on bringing victims and offenders together to decide how to repair the harm the offender caused; and 3) transitional justice which favors responses from the larger community with a view toward long term impact. Through the use of ADR, systemic changes are being made in response to human trafficking.  Could ADR be used to address other major societal challenges?

Yet another article answered this question in the affirmative.  The story was about an Oregon resident who was convicted of conspiracy to traffic protected turtles from Oregon to China. The perpetrator was sentenced by a federal judge to 5 years on probation, a $15,000 fine, $2,000 in restitution to groups that help smuggled animals, and community service.  It may sound fairly typical, but the community service was unique. In this situation, the perpetrator was required to spend at least part of his community service working with a college professor whose research focuses on understanding and preventing wildlife crime.  For his community service, the perpetrator had to scour the internet to identify illegal trafficking and share the results with the professor.  “Sentencing that obligates convicted traffickers to participate in wildlife crime research is a new tactic being tried out… with the backing of the U. S. Attorney’s Office in Oregon and the Fish and Wildlife Service.”[8]  Meredith Gore of the University of Maryland notes that this is
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[3] Id.
[4] Id.
[5] Id.
[6] nij.gov/topics/articles/human-trafficking-survivors-justice-moreabout-healing-and- preventing-future
(National Institute of Justice, 4/7/21)
[7] Id
[8] www.national geographic.com/animals/article/Wildlife-traffickers-in-oregon-sentenced-to-help-researchers-understand-wildlife-crime, July 6, 2022

“the first time that any country or authority has used restorative justice to fight wildlife crime in this way.”[9]  Andrew Lemieux of the Netherlands Institute for the Study of Crime and Law Enforcement” called this project “groundbreaking.”[10]

The project focuses on, not just punishment, but understanding what causes people to get into wildlife trafficking in the first place.  Understanding the etiology of wildlife trafficking allows researchers to take steps to prevent the trafficking.  Vermont Law School Professor Delcianna Winders points out that, for a long time, restorative justice approaches have been overlooked in wildlife crime.[11]  Through creativity, the range of sanctions is being expanded from fines and imprisonment to community service that makes a difference in impeding the trafficking before it starts.

Given all the major issues our society is facing, why can’t ADR professionals and attorneys with experience as advocates in ADR processes do more to apply concepts from their ADR toolboxes to some of society’s ballooning crises?  This may not necessarily mean using traditional mediation, restorative justice or arbitration to attack the challenges that threaten our society.  But whatever the forum, ADR skills could be invaluable in crafting new approaches to issues that so far seem insurmountable.

What ADR skills have the potential to take on this challenge? Negotiation skills, collaboration skills, the ability to help people in conflict listen to each other, the ability to help people look past positions to identify interests, the ability to form or help others form creative solutions to address those interests. ADR practitioners also model peace in a highly-fractured environment, help people be their best selves when addressing others with whom they disagree, restore relationships, and help perpetrators and victims work together to carve out solutions to the harm the perpetrator caused, and perhaps to address the problem that motivated the perpetrator’s misdeed. The list of ADR skills goes on.

The potential issues that could be addressed are likewise myriad. Some that immediately come to mind include homelessness, gun violence, eradicating the deep chasm between political parties so that collaboration can replace filibusters and stalemates, climate change, abortion access, police shootings, which agencies are best situated to address which community issues, how or whether to teach race related issues in schools, disparate imprisonment of minorities, treatment of undocumented workers and would-be immigrants of color, disparate and sometimes violent treatment of members of the LGBT community, the disabled  community, women and people of color, ageism, the erosion of basic civility by members of society and by too many of our leaders, human trafficking, and much more.

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[9] Id.
[10] Id.
[11] Id.

The purpose of this article is not to dictate to anyone how ADR principles should be used to tackle the prevailing issues of today.  Its goal is to encourage each of us to consider what our role might be in developing ways to apply ADR skills and principles to some of our more daunting societal conflicts. Some of us in Michigan have already gone to the next level, helping reach resolutions of claims brought by a region of victims of polluted drinking water, reforming Detroit’s cash bail system, and halting systemic sexual abuse of inmates by prison guards, to mention a few.  But there is much more to be done, and many potential ways to do it.

Some may take ADR to the next level through formation of new panels of ADR professionals to specialize in one or more societal issues of importance to them. For others, it may be creative volunteer work or collaborations with politicians, legislators, or lobbyists to help bring about positive change.  For yet others, it may be the creation of educational tools, such as think tanks, blogs, articles, and research.  The point is to open your minds; use your skills; give of your time; give of your experience.  And this time don’t do it for the paying client or a single pair of parties or to resolve a one-time conflict. Do it for the greater good– whatever you define that to be. Let’s all take some time to think about this question: How can I take ADR to the next level?

Toni Raheem has more than 30 years of experience in the practice of law, more than a decade of which she has served exclusively as a mediator, arbitrator or other alternative dispute resolution (ADR) neutral.

She has taught ADR as an adjunct professor at Wayne State University Law School, Michigan State College of Law, and Western Michigan University Cooley Law School.