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2017 Conference Keynote
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 Joseph Popcun                                                                                             October 23, 2017

New York State Dispute Resolution Association 2017 Annual Conference Remarks

 

Introduction.  Thank you, [Charlotte], for the kind introduction.  Good morning – association members, dispute resolution center representatives, mediation professionals, distinguished presenters, and guests.  I am honored to be here to kick-off the Dispute Resolution Association’s Annual Conference. 

Before I begin, I must admit that I was surprised by the invitation.  While I am not a trained mediator [or a renowned orator], I am well practiced in clearly communicating and managing expectations.  Last month, I got married to my beautiful wife, Meghan, and it would not have been possible without a fair share of mediation.  In keeping with those principles, I set out with three objectives for my remarks today.  First, I want to explore the significance of dispute resolution as a personal vocation and interpersonal skill.  Second, I would like to share insight about the value of dispute resolution in society.  Finally, I want to conclude with some perspectives on the future of the field, particularly at the state and local level.  My hope is that I come close to expressing how important the work you do is to New York State – and how necessary it is to improve the lives of those in need.

Reflection.  As the Assistant Secretary in the Office of Governor Andrew Cuomo, I have the responsibility of overseeing the State’s criminal justice agencies – including the Division of Criminal Justice Services, Department of Corrections and Community Supervision, State Commission of Correction, Office of Victim Services, and the Office for the Prevention of Domestic Violence.  It is uniquely humbling to serve alongside such dedicated public servants.  Through this role, I also have the privilege of working with advocacy groups, not-for-profit organizations, and other stakeholders on their policy priorities.  The perspectives of both agency colleagues and public constituencies frame, focus, and fuel action on the public safety agenda, and, more specifically, on the most pressing criminal justice policy problems.

It was with this backdrop that I first heard of the Dispute Resolution Association and met with Executive Director Charlotte Carter and representatives from several Community Dispute Resolution Centers.  Little did they know, but I was enrolled in a doctoral seminar at the time called Law and Policy which explored how the judicial system could be considered a policy-making body given the landmark cases that helped explain societal change – such as same sex marriage, campaign finance, and affirmative action.  What bothered me about the course, however, was the revelation that “adversarial legalism” was the predominant mode of resolving conflict in the United States.  Robert Kagan, the author of Adversarial Legalism: The American Way of Law, described our legal system as a “process by which policy making, implementation, and dispute resolution are dominated by lawyers and litigation.”  The cost associated with our litigious society creates uncertainty and inconsistency and, it could be argued, frustrates the search for justice.  It seemed to me at the time, and even more so today, that alternate forms of conflict resolution – such as facilitation, mediation, evaluation, and arbitration – could more effectively and efficiently build consensus, form coalitions, and restore justice where it was lacking most. 

And so, you can imagine my delight when I learned the statistics, which I am sure you are all familiar with: the Association has a statewide presence of 20 community dispute resolution centers, as well as numerous individual mediators, handling over 28,000 cases in 2016 featuring 70,000 people.  I’m from Syracuse, so to provide context for that figure, that is roughly double the number of people who fit into the Carrier Dome for the Syracuse vs. Duke basketball game.  For a more striking comparison, these cases cost the State roughly $300 each with 75% resolved in agreement and 92% satisfied by the process.  That figures equals the cost of two days of incarceration at a state correctional facility with a 60% success rate (as defined by an individual’s release to community with no return to state custody over three years).  While this is not a perfect comparison, it does illustrate that the less-formal system of alternative resolution has extraordinary impacts. 

Importance.  As a vocation and skill, conflict resolution directly improves critical social service areas, such as housing, education, re-entry, and judicial diversion while meeting the needs of vulnerable populations, including veterans, the elderly, juveniles, and individuals involved in the justice system.  The way that you mediate conflict makes a difference that reaches far beyond the individual circumstances of a particular dispute, it teaches the craft of communication and empowers people to address other issues and relationships in their lives.  I can think of few lines of work that are more noble in their calling or more caring in their purpose.  Indeed, your efforts are made all the more remarkable when you consider that you and your colleagues collectively volunteer approximately 40,000 hours or $2.3 million worth of time each year. 

As you listen over the next few days to seminars ranging from “conflict coaching” to “messaging matters” to “narrative sensemaking,” please remember the people you work with and how each seminar might make your mediation more accessible in their conflicts and applicable in their daily lives.  You meet people where they are when they are dealing with problems that they often cannot see beyond.  In search of more inspiring words than my own on the matter, please permit me to quote Robert Kennedy, Jr. speaking at the University of Cape Town, South Africa in 1966.

“Few will have the greatness to bend history itself, but each of us can work to change a small portion of events, and in the total of all those acts will be written the history of this generation… It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man [or woman] stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he [or she] sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring those ripples build a current which can sweep down the mightiest walls of oppression and resistance.”

Your vocation places you at the intersection of “numberless diverse acts of courage and belief.”  Each time a farmer reconciles a difference with a purchaser ensuring the livelihood of their family, each time a parent released from incarceration re-establishes a relationship with their children, each time a young person sets aside their grievances in favor of their own education, and each time a veteran adjusts to civilian life and learns to bridge the divide between them and their coworkers and friends.  Through your acts of courage – and a profound belief that you can make a difference in the lives of others – you send a ripple that strengthens the common bonds of community.

Societal value.  As a society, dispute resolution is a fundamental pillar of democracy.  Two of the three institutions of government are designed specifically to resolve conflict and mitigate discord: the legislature and the judiciary.  In fact, public policies can best be understood as the commitment of public resources to actions to achieve certain goals – all within the context of conflicting interests.  We elect legislators to embody those interests and select judges to apply the remedy of justice when those interests are maligned or misaligned.  However, there are certain issues that generate significant controversy, divide the public into bitter factions, and lead to political gridlock – placing government operations at risk and threatening public trust in the political system.  [While not covered in the recent Broadway hit of the same name,] Alexander Hamilton saw within the American people, an “amazing violence and turbulence of the democratic spirit [and…] when a great object of government is pursued, which seizes the popular passions, they spread like wildfire.”  As the federal government has shown over the past decade, this impassionate polarization persists and can grind the gears of government to a halt.  So, we are left with a paradox: how do we resolve our differences when the institutions designed for that purpose sometimes fail?  Do we abandon our connections to one another and forsake the notion that our lives are interdependent?  Fortunately, our system of government has provided us with alternative venues at the state, local, and personal level.  State and local governments provide avenues for formal petitions of grievances – and New York is fortunate that is also has your contributions at the personal level to resolve conflicts where they require the most engagement.

Justice.  As you know, most criminal cases are handled at the state level.  New York has remained the safest large state in the country while also successfully reducing the state’s prison and jail population by nearly a third in fifteen years – from 104,926 at the end of 1999 to 76,619 at the beginning of 2015.  This allowed the Governor to close 13 prisons – more than any Governor in state history – since 2011.  Despite this progress, more reforms are necessary to the system of bail and pretrial detention, the right to a speedy trial, and the structure of criminal sentences.  Amid calls to reduce mass incarceration, these reforms become all the more significant.  However, these reforms continue to rely upon the traditional, reactionary criminal justice system that views crime and punishment as the harm and debt, respectively, that an individual must reconcile and pay to society.  For generations, we have oriented our system to answer three questions: what law was broken, who broke it, and what is their punishment?  Oftentimes, this punishment, this debt to society meant incarceration within a state facility.  I contend that we are in the midst of a reorientation toward a modern, responsive justice system that seeks to concentrate on behavior instead of bad actors.  In this new system, when an individual breaks the social contract by harming the community, the questions become: what happened, who was affected, and how can it be made right?  The punishment transforms into a debt that is owed to the community instead of the state.  In this way, the system maintains the integrity of community connections and addresses the underlying criminogenic factors.  The markers of this system can be seen in restorative justice services, victim accountability dialogue, and alternatives to incarceration.  It may not be readily apparent, but these practices are dispute resolution in another mold – and, like mediation, they are cost-effective and evidence-based with some ATI programming returning more than $4 in public benefit for each dollar spent.

Future.  As a millennial, I feel slightly uneasy talking about the future of any field, let only one where I am clearly not the expert.  (For those wondering, yes, the Association is older than I am.)  But if you’ll indulge me, I’d like to share three thoughts. 

First, this year, the Governor succeeded in passing Raise the Age legislation which will raise the age of criminal responsibility to 17 years of age in October 2018 and, then, 18 years of age in October 2019.  Between now and then, there is a tremendous amount of work to do and the opportunity to reorient the juvenile justice system.  In the past, the criminal justice system was ill-equipped to deal with youth.  For example, a young person could have had an initial interaction with the police for shoplifting where the officer decided to not make an arrest and instead send the child home.  Upon the second theft, the judge released the youth on their own recognizance citing a lack of a criminal record.   However, by the time, the third and most serious offense of robbery took place, there were no options left other than incarceration.  The Raise the Age law is designed to afford more opportunities to intervene with youth before they become entangled in the adult criminal justice system.  This effort will require a comprehensive approach at the local level where schools, law enforcement agencies, probation departments, social service departments, and elected officials build the capacity to serve these minors.  The State is working with local governments to provide technical assistance and ensure that appropriate treatments, including family reintegration, housing assistance, health and mental health care, workforce training, and education supports, are in place.

Second, the State’s Council on Community Re-Entry and Reintegration has achieved a number of reforms over the past three years to guarantee that individuals who paid their debt to society have a real chance to succeed and lead productive lives.  With over 22,000 people returning from incarceration to their neighborhoods each year, it is important that their needs are met.  The Division of Criminal Justice Services funds twenty (20) county re-entry task forces which coordinate community service providers to help high-risk individuals remain crime-free during their transition.  Each of these task forces uses a case management approach to align the resources and services available from law enforcement, community supervision, social services, mental health, and substance abuse treatment providers. 

Third, the field of victim assistance organization has continued to attract significant attention over the recent past with more federal resources than ever dedicated to the prevention and response to victims of crime.  However, as the resources have expanded, problems of sexual assault on college campuses and cyberbullying in primary schools have proven difficult to combat.  The Governor has taken immediate action through landmark legislation, such as the Enough is Enough campaign and legislation, but, as you know all too well, these issues begin and are resolved locally.  The State is fortunate to have a network of over 200 victim assistance providers and numerous domestic violence service organizations, but they are only as strong as the partnerships they forge with other providers. 

The Association and its members should explore ways to support the continuum of service providers and intervene (where appropriate) with youth, justice-involved individuals, and victims.  As there is a continued policy focus in these areas, expanding partnerships with these service providers (or potentially becoming a provider yourself) could provide a promising platform to expand and enhance dispute resolution services.

Conclusion.  We are all here today because of uncertainty.  We have come to learn and educate one another so that we can make sense of an ever-changing, unpredictable, and complex future.  Through this conference and the work at hand, we continue to discover our most authentic selves – what brought us to serve others and promote positive outcomes.  This future is not without challenges and dilemmas – and, in many ways, today marks the beginning of the difficult work that needs to be done.  Yet it is your distinct privilege to use knowledge and skills to improve the standing of our fellow citizens.  An Italian philosopher said, “there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things.”  As you lead your organizations and mediations, please remember that your craft is crucial to the community of New York State.  Thank you for the chance to be with you today – I hope I have done a modest job conveying the earnest appreciation of New York State for all the work that you do.  Enjoy the conference.

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