In this inaugural “ADR Scholarship Share,” Peter Reilly (Texas A&M) gathered together short (<100 words) descriptions of recent scholarly projects by our fellow ADR scholars, with links to those works that are available online. It so exciting to read about all of the interesting work going on across the country (and the world) in our great field.
Peter hopes to do this again in about six months, so start thinking about your 100-word summaries now!
Cynthia Alkon (Texas A&M): I just published, with Andrea Kupfer Schneider, Bargaining in the Dark: The Need for Transparency and Data in Plea Bargaining and we are very excited about building on our recently published book, Negotiating Crime. I am writing an article tentatively titled Have Problem-Solving Courts Changed the Practice of Law? for the recent Cardozo Symposium on Innovations In Justice: Experiments in Restorative Processes. I am also working on an article, Increasing Empathy and Compassion to Decrease Mass Incarceration. My next big project is one where I am hoping to collect data to compare plea bargaining outcomes of public defenders and publicly appointed counsel in felony drug cases.
Gilat J. Bachar (Stanford): Sunlight Sanitizing? Confidential Settlements and Litigation as a Tool for Social Mobilization. The NYT investigation which sparked the #metoo movement exposed the use of NDAs to silence victims of sexual misconduct. The 4th Circuit recently found Baltimore’s practice of requiring NDAs to settle police misconduct lawsuits unconstitutional. The paper asks to what extent, and in what ways, does confidential dispute resolution shape the limits of these processes as an instrument for collective legal mobilization and individual redress? I rely on interviews with claimants and lawyers regarding their perceptions of the confidentiality/transparency trade-off and of lawyers’ moral duties in this space, to offer policy implications for designing NDA-related legislation like California’s STAND Act.
Debra Berman (South Texas): I am conducting research from mediators across the country about mediator proposals which are now being utilized with increasing frequency. I have created a survey which can be found here. There is little guidance for mediators on the most effective and ethical approach to the mediator proposal. Therefore, my goal is to collect and then disseminate some basic information on how mediators and lawyers are approaching this increasingly popular impasse busting tool.
Kristen Blankley (Nebraska) is working on Creating a Framework for Examining Federal Agency Rules Impacting Arbitration. This paper considers how courts should treat federal agency rules impacting arbitration, particularly those that would not enforce pre-dispute arbitration agreements. The paper suggests an analytical framework that extends the test currently with statutes in conflict with the Federal Arbitration Act to agency actions.
Jonathan R. Cohen (Florida): Negative Identity and Conflict. Identity is a factor in many conflicts. This paper examines a special feature of identity that is particularly challenging for conflict resolution: negative identity. By negative identity, I mean the situation where a person or group implicitly or explicitly defines itself by way of contrast to another party. Why are negative identities challenging? Negative identities may increase the chances of conflicts arising. Negative identities also may make conflicts more difficult to resolve, for in addition to the ordinary barriers to conflict resolution, parties may be required to rethink their very sense of self. If anyone has suggestions for related research that I should read, please let me know: firstname.lastname@example.org or (352) 273-0919. Thanks!
Robert Condlin (Maryland): I’m working on an article arguing that ADR methods and systems have not taken over the dispute resolution universe completely because they are based on a not always warranted trust in the ability and willingness of humans to act communally; an incomplete understanding of the origins and purposes of social cooperation; a not always justified faith in the capacity of precedent-less and algorithm-driven systems to deal adequately with issues of fairness and justice; and a Eutopian belief in the possibility of a conflict free social world.
Noam Ebner (Creighton): (1) Elayne Greenberg and I completed our article on lawyers’ potential roles in Strengthening ODR Justice delivery (forthcoming, Washington University Journal of Law and Public Policy). Next, we engaged ODR and court leaders, exploring Where Have All The Lawyers Gone? instead of filling these roles, and how to return them to the table (forthcoming, International Journal on ODR). (2) Sharon Press and I are writing on mediation in eviction cases, following DRI’s symposium on this challenging topic. (3) Jen Reynolds and I have received thrilling chapter proposals in response to our Call for Proposals on Star Wars and Conflict Resolution, with more on their way!
Farshad Ghodoosi (Morgan State): My research lies at the intersection of arbitration, technology, and behavioral economics. In a forthcoming empirical article at Oregon Law Review, I analyze arbitral and judicial decisions in commercial cross-border disputes over the last three decades. This article shows the historical trends, frequency, and outcomes of decisions that implicate public policy in international arbitration. In two other articles, I put forward a theory of behavioral arbitration in which I (and my co-author) analyze the behavioral factors prohibiting consumers and employees from bringing arbitration claims. Lastly, in an article that can be found here on SSRN, I frame a novel on-blockchain ADR mechanism.
Michael Z. Green (Texas A&M): In Arbitrarily Selecting Black Arbitrators (forthcoming 2020), I address the dearth of black arbitrators in workplace disputes by suggesting a system of selection through neutral service providers that resembles the selection of federal judges for court resolutions. In Mediating the Accommodation of Workplace Mental Illness (forthcoming 2020), I consider legal challenges in determining appropriate accommodations for employees with a psychiatric disability and suggest a framework to use mediation in this process. I recently published an article, A New #MeToo Result: Rejecting Notions of Romantic Consent with Executives, 23 Employee Rights and Employment Policy Journal 115 (2019).
Jill I. Gross (Pace): In Arbitration Archetypes for Achieving Justice, forthcoming in Fordham Law Review, I argue that the modern critique of arbitration incorrectly assumes arbitration is a “one-size-fits-all” process. The article identifies key factors that suggest an arbitration process is more likely to be fair: low cost, availability of same rights and remedies as in court, access to representation, published arbitration outcomes, and, in industries where virtually all transactions are subject to mandatory arbitration, explained awards. This last factor stems from the loss of bargaining endowments while negotiating, as I explained in Bargaining in the (Murky) Shadow of Arbitration (Harvard Negotiation Law Review).
Tim Hicks (Connexus Conflict Management): My recently-published book, Embodied Conflict: the neural basis of conflict and communication (Routledge, 2018) is a study and explanation of the neural roots of conflict behaviors, providing a perspective on why conflicts happen and why they can be so difficult to resolve. The book focuses on insights available from neuroscience that shed light on our perceptual biases and our communication and relational experiences. It ends by asking how an understanding of the neural basis of conflict might inform our conflict resolution practices. For a 30% discount on the book, click here and use the code ADS19.
Andrew Mamo (Harvard): My forthcoming article, Three Ways of Looking at Dispute Resolution, situates the development of ADR within a political economy context—locating contemporary ADR’s formative moment in the 1970s amidst the decline of mid-century liberalism, and seeing in our present moment of social and political transformation an opportunity to revisit the principles of our discipline. My next project dives deeper into that point of origin in the 1970s to contrast the relationship of rights and interests in interest-based negotiation with the relationship defined in critical race theory’s interest convergence argument.
Michael L. Moffitt (Oregon): Settlement Malpractice, 86 University of Chicago Law Review 1825 (2019). Lawyers help clients settle all the time. Clients virtually never complain about settlement-related aspects of their lawyers’ conduct, even though clients complain about almost everything else their lawyers do. This article (1) supports the empirical claim that clients’ complaints about settlement malpractice are infrequent and futile, (2) offers a theoretical framework for understanding the doctrines contributing to this dynamic, and (3) suggests what shifts might need to occur to account responsibly for a world of Lawyers-as-Settlors, rather than just one of Lawyers-as-Litigators.
Lauren A. Newell (Ohio Northern): Reducing Stress in the Digital Generation. Research has linked digital technology use with a host of negative psychological and physical effects, including stress. Stress is already a significant issue in the legal profession. The problem is compounded as the Digital Generation become legal professionals. In this paper, I will examine stress in the legal profession and the link between digital technology and stress, explain how the Digital Generation are more susceptible to tech-induced stress than prior generations, and offer suggestions for how the legal profession can combat this problem, including ways in which the legal profession can harness digital technologies to improve mental health.
Luke Norris (Richmond): I recently published an article, The Parity Principle, on the Progressive-era origins of and theory behind section 1 of the FAA. I’m currently at work on a project on how arbitration stunts both “small c” constitutional development and the public’s ability to shape its own law under complex, modern conditions.
Peter Reilly (Texas A&M): My recent article, “Sweetheart Deals, Deferred Prosecution, and Making a Mockery of the Criminal Justice System: U.S. Corporate DPAs Rejected on Many Fronts,” addresses corporate Deferred Prosecution Agreements (or contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial). I discuss how numerous countries—including Australia, Canada, France, Ireland, Singapore, and the United Kingdom—are rejecting U.S.-style corporate DPAs as they work to build DPA programs ensuring comparatively greater levels of transparency, judicial oversight, and public interest accountability. Columbia Law School’s Blue Sky Blog summary here.
Peter Robinson (Pepperdine) reports that he has completed his book titled, “Apology, Forgiveness, and Reconciliation for Good Attorneys and Other Peacemakers.” It contains the material from the class by the same title that he has been teaching for the last ten years and is designed to empower others to teach a similar class. The contents include various definitions of and how to apologize and forgive as well as how to advise others to do the same from the perspective of an attorney and mediator. He will mail a free copy of the book and/or course syllabus to any full-time faculty member on the AALS ADR listserv who requests one by email at email@example.com.
Andrea Kupfer Schneider (Marquette): I just published, with Cynthia Alkon, Bargaining in the Dark: The Need for Transparency and Data in Plea Bargaining and we are very excited about pursuing more in the DR and criminal legal world also building on our book, Negotiating Crime. And, with my new position as the director for the Institute for Women’s Leadership at Marquette, I am focusing on researching and creating other metrics for gender, equality, and diversity that complement the work I’ve already done on gender and negotiation.
Jennifer L. Schulz (Manitoba) has written Mediation & Popular Culture, to be published by Routledge in 2020. It examines impartiality, self-determination and fair outcomes through popular culture lenses. Popular television shows and award-winning films are used to illuminate under-represented topics such as feelings and expert intuition; conflicts of interest and repeat business; and deception and caucusing. American television shows and movies and Australian, French, Indian and Chinese films bring important mediation insights to life. Schulz employs research from Australia, Canada, China, Europe, India, Israel, Singapore, South Africa, the UK and the USA to demonstrate that real and reel mediation may have more in common than we think.
Carrie (Shu) Shang (California State Polytechnic): (1) ODR and China: This project concerns the rise of ODR in China and its impact. It examines the meaning of ODR in China and how that differs from that in Western literature. It also surveys and examines major technologies implemented by Chinese courts, to understand whether the use of technology advances justice. (2) Teaching ADR in Business Schools: There is a need to develop curriculum standards and materials on law-related topics better designed for business students. For example, Alternative Dispute Resolution have become mainstream. In this project, topical coverage and pedagogical approaches for implementing this new paradigm are discussed.
James H. Stark (Connecticut) and Maxim Milyavsky (Ono Academic): Towards a Better Understanding of Lawyers’ Judgmental Biases in Client Representation: The Role of Need for Cognitive Closure, 59 Wash. U. J. Law & Pol’y 173 (2019): This is the first empirical study to investigate individual differences in susceptibility to overconfidence bias and biased judgments of fairness in a representative lawyering role. We examined whether differences in law students’ Need for Cognitive Closure (NFC) — a motivational desire for clear answers over ambiguity — would affect their judicial outcome predictions and their assessments of the “fair settlement value” of a personal injury case when assigned randomly to the role of plaintiff’s or defendant’s counsel. This study provides an easy-to-administer method for law teachers to expose students to their potential biases in a lawyering role, as well as suggesting methods to overcome bias.
Nancy A. Welsh (Texas A&M): Nearly completed: Research examining the information that state and federal courts gather and report on the extent and effects of court-connected mediation and its effects. Ongoing: Articles calling for greater data collection and transparency regarding court-connected or court-supported dispute resolution processes; article with Donna Shestowsky using empirical research to compare litigants’ perceptions of court-connected negotiation and mediation processes; book with Howard Gadlin that draws upon the personal histories of founding practitioners and academics in the dispute resolution field to locate the principles and aspirations that have actually guided them and their careers.