ADR Scholarship Share (Summer 2020 edition)

Last winter, Peter Reilly (Texas A&M) compiled a list and shared brief descriptions of projects ADR scholars were then currently working on or recently completed. Below is the Summer 2020 edition. Thanks to Peter for gathering this really valuable information in one spot and keeping us all informed about ADR research happening around the country.

ADR Scholarship Share (Summer 2020)

Hal Abramson (Touro Law Center) (1) Singapore Mediation Convention. Late fall, we published The Singapore Convention Reference Book that offers chapters by UN delegates who helped draft the new mediation treaty. The book was published as a dedicated issue of the Cardozo Journal of Conflict Resolution. I served as the faculty editor and a contributing author. We hope the issue will prove to be a handy reference for states contemplating adoption and users interpreting the Convention. It explains why there is a need for the Convention and why the choices were made in key provisions. The Convention opened for signature last August. Forty-six countries signed at the ceremony in Singapore, and in record time, the Convention will become effective in the fall now that at least three countries have ratified the Convention; and (2) Repeal of Don’t Ask, Don’t Tell. Another project that has been percolating for a couple years is now moving forward, an article on the backstory of the nine-month multi-party negotiations that lead to the repeal of the Don’t Ask, Don’t Tell (DADT) federal statute. I am co-authoring the article with General Linell Letendre, Dean of the Faculty at the US Air Force Academy and who was part of the Pentagon’s DADT working group. A massive amount of substantive work and process took place below the public radar screen that might be of interest to people in the dispute resolution field. The effort resulted in repeal that opened the U.S. military to gay and lesbian service members.

Cynthia Alkon (Texas A&M School of Law) is continuing to work on her article, How to Care More and Imprison Less: Empathy and Compassion in the Criminal Legal System about the need for better empathy skills in the criminal legal system, focusing on how prosecutors and judges do their jobs. In addition, she has created a survey for criminal defense lawyers, prosecutors, and judges, on how COVID-19 has changed criminal practice, including plea bargaining. The Survey is being distributed as of this writing. The work is tentatively titled, COVID-19 Goes to Court: Survey Examining Changes in Processing Criminal Cases Due to the Pandemic.

Henry Allen Blair (Mitchell Hamline School of Law) I published a textbook this spring, International Litigation and Arbitration (with Thomas Carbonneau and William Butler). I also just published an article, Anticipating Procedural Innovation: How and When Parties Calibrate Procedure Through Contract (forthcoming 72 Okla. L. Rev. __ (2020)). The article develops a typology of contracting environments to predict situations in which parties are most likely to engage in fine-grained procedural customization as a means of offsetting litigation opportunism. I’m also catching up on arbitration law developments on my blog, Finally, I’m currently working on an article tentatively entitled Arbitrating Claims for Public Injunctive Relief: A New Battleground for Disparate Party Arbitration. This article focuses on the evolution of the Broughton-Cruz rule in California, which has been interpreted most recently by the California Supreme Court to mean that parties cannot waive the recourse to public injunctive relief in any forum, including arbitration. That conclusion is, itself, noteworthy, as recourse to public injunctive relief can amount to an end-run around class action waivers. But more importantly, the line of cases dealing with this evolution puts a spotlight the rickety jurisprudential framework supporting the Supreme Court’s expansion of subject matter arbitrability.

Kristen Blankley (University of Nebraska College of Law), Lisa Pytlik Zillig (University of Nebraska Public Policy Center), and Ashley Votruba (University of Nebraska Department of Psychology) Working on a multidisciplinary project exploring lay people’s preferences for how disputes should be resolved. As an initial part of the project, the team surveyed lay and expert audiences to validate terminology that the alternative dispute resolution community has always presumed to be accurate and consistent. The broader project will ask participants about preferences for various features of dispute resolution processes, as opposed to using process labels, to better understand how clients would ideally like to resolve conflict.

Alyson Carrel (Northwestern Pritzker School of Law) Reports on three projects:

  1. Mediation Technology: Recently published the article on the Journal for Technology and Intellectual Property blog looking at the impact of private settlement in the area of sexual harassment and the use of multi-party computation (MPC) as a means for providing a public component to private settlement. I am expanding on this article by partnering with a computer science professor to build a model using MPC in settlement. Article:
  2. Technology in our Teaching: I updated the teachers manual to the casebook Dispute Resolution and Lawyers to include a new section on remote teaching and learning, as well as couple videos on YouTube with tips for students on the logistics for negotiating via zoom. Here are links to the videos if anyone wants to use them:
  3. Legal Education Reform: I am working on a new set of tools for students to more intentional chart a path towards a thriving life in the law using the Delta Model to make curriculum choices ( Cat Moon from Vanderbilt and I have been testing our prototype and would love the chance to work students at other schools. So far we have presented to students at UNLV, GSU, Vanderbilt, and Northwestern, and we will be doing a session at this summer’s Passport to Practice program:

Jack Coe (Pepperdine Caruso Law) Two near-complete projects in which I am involved are as: (1) Principal author of Arbitration’s Actual and Perceived Features—Cases and Commentary, in Franco Ferrari (ed.) International Commercial Arbitration: A Global Perspective (forthcoming, 2021 under the auspices of NYU Law School Center for Transnational Litigation, Arbitration, and Commercial Law); and (2) Associate Reporter, Restatement US Law of International Commercial and Investor-State Arbitration (ALI-approved; forthcoming in updated and final form 2021).

Sarah R. Cole (The Ohio State University Moritz College of Law) I will be publishing an article addressing the importance of diversifying the arbitrator corps in the Washington University Law Review in early 2021. The article, entitled Arbitrator Diversity:  Can it be Achieved?, describes the current state of arbitrator appointment processes and their consequences for diversity, and then offers several different mechanisms that arbitrator provider organizations could implement to increase diversity both in the arbitrator corps and, more importantly, in the diversity of arbitrators selected to hear cases. The article is the first to provide data supporting the theory that expanding the use of direct appointment of arbitrators will increase the numbers of female and minority arbitrators selected to hear cases. AAA shared with me that adopting a direct appointment process for consumer disputes increased the appointment of women and minorities by almost 10% over more traditional selection mechanisms. As we all know, arbitration is under fire from all angles. Because arbitration will continue to be one of the primary means for consumers and employees to resolve their disputes, one way to improve arbitration’s legitimacy would be to ensure greater diversity among those empowered to make decisions. Increasing diversity of neutral rosters, and more importantly, of the arbitrators ultimately selected from those rosters, will likely improve the public’s perception of the fairness and impartiality of the arbitration process. Increasing arbitrator diversity will have other benefits as well, including enhancing equal protection, opportunity, and complete participation norms.

Charles Craver (The George Washington University Law School) has authored the 9th edition of Effective Legal Negotiation and Settlement, the 4th edition of Skills & Values: Legal Negotiating, and the 2nd edition of his The Art of Negotiation in the Business World, all of which were published by Carolina Academic Press.

Brian Farkas (Cardozo School of Law) Arbitration Shaming. Legal culture is built from laws as well as norms. Over the past few years, a new norm is slowly developing that seeks to interrupt a central aspect of modern arbitration law. Employers who use mandatory arbitration clauses in their employment agreements are being publicly shamed. The rise of the #MeToo Movement, along with far greater public awareness of arbitration, has resulted in increased scrutiny. This has yet not impacted all employers, all employees, or all genres of employment agreements. But increasingly, employers are running the risk of being “called out” on social media and elsewhere for their use of arbitration. What makes this emerging norm particularly interesting is that it stands in direct opposition to controlling law. The U.S. Supreme Court has said, with little equivocation, that mandatory arbitration clauses are entirely enforceable under the Federal Arbitration Act (“FAA”), including in the employment context. If anything, the Court’s jurisprudence has only expanded the enforceability of such clauses in recent years. After reviewing the current state of applicable law on arbitration clauses and class action waivers, this Article explores the development of arbitration shaming as an emerging norm within employment law. It then proposes several possible solutions for resolving the burgeoning conflict.

David A. Gantz (University of Arizona Rogers College of Law) An Introduction to the United States-Mexico-Canada Agreement: Understanding the New NAFTA (Edward Elgar Publishers) is expected to be available around August 31, 2020. The chapters of the book discuss the major provisions of the USMCA (contrasted with NAFTA), and assess my views of the pluses and minuses. The book’s eleven chapters are based on a series of reports published by the Center for the United States and Mexico, Baker Institute at Rice University over the past 18 months. The reports are available here:

Michael Z. Green (Texas A&M School of Law) published two articles: Arbitrarily Selecting Black Arbitrators, 88 Fordham Law Review 2255 (2020), and Mediating Psychiatric Disability Accommodations for Workers in Violent Times, 50 Seton Hall Law Review 1351 (2020),  Also, West published the 4th Edition of the textbook, ADR in the Workplace (2020), with me as one of the co-authors with Laura Cooper, Dennis Nolan, Rick Bales, Steve Befort, and Lise Gelernter.

Jill I. Gross (Pace Law School) This summer, I am finishing up The Final Frontier: Are Class Action Waivers in Broker-Dealer Employment Agreements Enforceable?a paper I presented at a symposium at Penn State Law earlier this year. The paper, to be published in the 2020 volume of the Arbitration Law Review, argues that class action waivers (CAW) in broker-dealers’ agreements with their employees are not enforceable. The paper distinguishes these CAWs from others that the Supreme Court has enforced under the Federal Arbitration Act in light of a “contrary Congressional command” in the federal securities laws (as delegated by Congress to the Securities and Exchange Commission, and implemented through FINRA rules barring class actions from its arbitration forum).

Michael Helfand (Pepperdine Caruso Law) My forthcoming publications are  ‘The Peculiar Genius of Private-Law Systems’: Making Room for Religious Commerce, 97 Wash. U.L. Rev. (forthcoming 2020) and From Public Law to Private Law: Promoting Religious Values Through Private Dispute Resolutionin Christianity and Private Law (Robert Cochran & Michael Moreland eds. Routledge Press) (forthcoming 2020). Here is an excerpt from my chapter synopsis: “Contract law, and more specifically religious forms of arbitration, allow parties to empower third-party neutrals to resolve disputes in accordance with shared religious values. And in so doing, parties can not only access an alternative form of religious dispute resolution, but they can do so within a framework that allows courts to enforce those resolutions on their terms and to police them for procedural fairness.” Lastly, The Future of Religious Arbitration in the United States: Looking Through a Pluralist Lens, will be published in Oxford Legal Handbook on Global Legal Pluralism (Paul Schiff Berman ed. Oxford University Press) (forthcoming 2020).

David Allen Larson (Mitchell Hamline School of Law) ODR Accessibility for Persons with Disabilities: We Must Do Better, Online Dispute Resolution: Theory and Practice (2nd ed. Eleven International Publishers, Forthcoming Fall 2020).

Court systems, government agencies, private businesses, mediators, and arbitrators are feeling tremendous pressure to provide online dispute resolution (ODR) systems because of the COVID-19 pandemic. As they rush to design and implement ODR systems, however, it is critical that everyone makes digital accessibility a priority. Because many aspects of our lives may remain online for the long term, it is important that persons with disabilities are not excluded from our “new normal” version of life. Effective access to dispute resolution processes is one part of life that must remain accessible to persons with disabilities. We cannot dismiss these features as mere details that can be added later. It is more efficient to include accessibility features when an online platform is first being designed and constructed. And more importantly, if the plan is simply to add those design features later, sometimes “later” never arrives.  This chapter discusses best practices for ODR accessibility, relevant law, and organizations that can help achieve this goal.

Lydia Nussbaum (UNLV Boyd School of Law) I just published ADR, Dynamic (In)Justice, and Achieving Access: A Foreclosure Crisis Case Study, 88 Fordham L. Rev. 2337 (2020) as part of the ADR & Access to Justice: Fact or Fiction? Symposium organized by Jackie Nolan-Haley.  I am working on a couple of new projects: testing a hypothesis of why legislators increasingly include mediation mandates when enacting new substantive laws; scrutinizing the historic rationale for institutionalizing mediation in the Courts and seeing whether the rationales still hold true today.  I am also in the very early, tentative stages of a dispute systems design project addressing prison grievance procedure, the internal administrative remedy process created by the Prison Litigation Reform Act and by which inmates’ concerns are raised and (in theory) addressed.

Amy J. Schmitz (University of Missouri School of Law) is working on a book with Stipanowich, Golan, Folberg, and Reynolds, Resolving Disputes: Theory, Practice and Law (Aspen 2021).  She is also finishing up 3 book chapters, Enforcing Consumer and Capital Markets Law in the United States, in Enforcing Consumer and Capital Market Law – The Diesel Emissions Scandal (forthcoming 2020), Emphasizing Efficiency in the Digital Age, in Discussions in dispute Resolution: The Formative Articles (Hinshaw, Schneider, and Cole, eds.) (2020), and ODR in the United States, in Online Dispute Resolution: Theory and Practice: A Treatise on Technology and Dispute Resolution (with Jan Martinez)  (Mohamed  S. Abdel Wahab, Ethan Katsh and Daniel Rainey Eds. 2020).  She is also finishing a book Preface, Considering Technology in Arbitration’s Promise for Access to Justice, in ___ (forthcoming 2020), and 3 law review articles:  Amy J. Schmitz and Leah Wing, Beneficial and Ethical ODR for Family Issues, 59 Family Court Review ___ (forthcoming 2021), Amy J. Schmitz, Measuring “Access to Justice” in the Rush to Digitize, 88 Fordham L. Rev 2381 (2020) and Amy J. Schmitz, Addressing the Class Claim Conundrum with Online Dispute Resolution (ODR), 2020 J. of Dispute resolution  (forthcoming 2020).  She is also working on blogs and podcasts on arbitration (see, and an article in Spanish for conference proceedings in Colombia.  The hope is for time to finish another work-in-progress, Arbitration in the Age of Covid as well as other items in the works! Projects for Amy are available here:

Andrea Schneider (Marquette University Law School) Under the rubric of the Institute for Women’s Leadership, I’m engaging in a few interdisciplinary research projects related to dispute resolution and the courts.  First, we are studying the summer the impact of online/remote temporary restraining orders for intimate partner violence survivors.  In Milwaukee, while TRO’s have been completely remote, permanent restraining orders are still only being issued at the courthouse so there is a natural comparison between the two processes; how it worked (or did not); and survivor access to advocacy services during the pandemic.  Second, with my business school colleague, we are examining the perception of work-family conflict by supervisors and their employees in a paired study and then seeing if this also impacted willingness and effectiveness to ask for and be granted a raise or promotion in the last year.  Finally, with my colleague from the communication department, we are examining the last three months of answers from the Marquette Law School poll (March, May and June) to open-ended questions about how the pandemic is affecting respondents to see how gender, location, and political leaning might impact those answers.

Jennifer L. Schulz (University of Manitoba) has written Mediation & Popular Culture, published by Routledge in March 2020.  Bernie Mayer, John Lande and Debbie Kolb describe it as “essential reading” and “highly recommend it.”  Sarah Cole reviewed it here: The book 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.  Mediation & Popular Culture is available here:

Carrie (Shu) Shang (California State Polytechnic) Has two pieces forthcoming: (1) Embracing Lex Mercatoria Through Resistance: Courts, Arbitration and Customs Governing Commercial Relationships in China (forthcoming Asia Pacific Law Review): We posit here that the lack of consistencies of lex mercatoria in judicial applications and public adjudicative features of institutional arbitrations in China have limited the usage and growth of customary law in resolving business disputes involving foreign parties through informal means. Email for copies:; and (2) Online Mediation under the COVID-19 in the People’s Republic of China and The United States – Two Paths Leading to the Same End? (forthcoming World Arbitration and Mediation Review): The recent COVID-19 crisis has set the stage for a significant increase in the use of online dispute resolution. Building on the comparative analysis, the paper unpacks different roles of both public and private stakeholders play towards promoting the wider acceptance of online mediation initiatives, speaking against any pre-fixed preference in dispute resolution for state-led or community-based approaches. Email for copies:

Matthew A. Shapiro (in transition to Rutgers Law School) (1) My recently published article The Indignities of Civil Litigation, 100 B.U. L. Rev. 501 (2020), argues that scholars’ criticisms of increasing secrecy in dispute resolution are complicated by a new defense of civil litigation being offered by some of those same scholars, a defense I dub the “dignitarian turn.” The dignitarian turn maintains that civil litigation can promote one aspect of plaintiffs’ dignity, but I show how it can simultaneously undermine another aspect. Given the complex trade-off between secrecy’s dignitarian benefits and costs, the article contends that plaintiffs should be given more control over how much of their personal information is disseminated beyond the immediate parties to a lawsuit, a prescription with implications for the structure of civil litigation and the place of ADR in civil justice; and (2) A forthcoming article, Distributing Civil Justice, 109 Geo. L.J. (forthcoming 2021), argues that proponents of access to justice advocate a more egalitarian distribution of not just one single good, but rather several distinct goods, with potentially conflicting implications for many of the policy issues that currently preoccupy civil procedure and ADR scholars, particularly arbitration. I then trace the various goods associated with access to justice to different, and likewise conflicting, functions of the modern liberal state. Given the inevitable conflicts among various political goals in the civil justice context, I suggest that we restructure procedural rulemaking institutions to better capture the diversity of views on how to make civil justice more accessible in an age of inequality.

Sukhsimranjit Singh (Pepperdine Caruso Law)  My recent article, “Access to Justice and Dispute Resolution Across Cultures,” examines ADR’s role in the access to justice continuum for underserved and disenfranchised communities and was prepared for the Fordham Law Review’s annual symposium on this topic. I am also working on an article for the Pepperdine Dispute Resolution Law Journal that delves into broad global trends in ADR, and specifically, those that emerged from our discussion at Straus’ Global Dispute Resolution Conference last fall. Additionally, I have been working on an arbitration casebook specific to India, through Thomson Reuters (forthcoming in 2020), and in collaboration with my co-editor, Dr. Rajinder Kaur of Panjab University. The book focuses on the potential of arbitration in India and examines the intersection of international commercial arbitration and the Indian legal system. May it be possible for India to emerge as a seat for ICA given the sizable market for ADR in the country? Lastly, I will be researching and writing on how dispute resolution principles may inform the work of business leaders for an article in the Willamette Law Review.

Jean Sternlight (UNLV Boyd School of Law) (1) Pouring a Little Psychological Cold Water on Online Dispute Resolution, an article that examines the strengths and weaknesses of ODR from a psychological perspective. The article is available here:; and (2) Justice in a Brave New World. According to the abstract, “As science fiction has become reality, we should consider the implications of our new technologies for our system of justice. In addition to DNA, we are now regularly using cameras, geo-tracking, facial recognition software, brain scans, computers, and much more to discern and record our physical and mental surroundings. Existing technology and more we cannot yet imagine will increasingly take the place of often unreliable evidence, such as that provided by eyewitnesses. Yet, we have given far too little thought as to how these advances should impact our civil and criminal dispute resolution systems.” The article is available here:

Tom Stipanowich (Pepperdine Caruso Law) My research on mixed-mode dispute resolution processes led to a chapter, Multi-Tier Commercial Dispute Resolution Processes in the United States, for a new book Multi-Tier Approaches to the Resolution of International Disputes: A Global and Comparative Study (Anselmo Reyes & Gu Weixia, eds.)(forthcoming from Cambridge U. Press), and an almost-completed article with the working title Arbitration, Mediation and Mixed Modes: Seeking Workable Solutions and Common Ground on Med-Arb, Arb-Med and Settlement-Oriented Activities by ArbitratorsAnother article-in-progress, tentatively titled Worthy of Their Esteem”: Abraham Lincoln’s Affairs of Honor, explores a pivotal period in Lincoln’s life and career in which he grappled with two critical conflicts involving his honor and reputation.  I also contributed an autobiographical chapter entitled Synchronicity, Paradox and Personal Evolution to Evolution of a Field: Personal Histories in Conflict Resolution, edited by Howard Gadlin and Nancy Welsh (forthcoming).

Shauhin Talesh (UC Irvine School of Law) The Devil is in the Details: How Arbitration System Design and Training Facilitate and Inhibit Repeat Player Advantages in Private and State-Run Arbitration Hearings is forthcoming in Law and Policy Review (2020) (with Peter Alter).  This empirical article demonstrates that arbitration system design and the training arbitrators receive shape the extent to which repeat players gain advantages in arbitration hearings.  Whereas prior arbitration research suggests arbitrator training matters, this is the first article to show how it matters because we observe actual arbitration hearings in private and state-run arbitration systems in two states.  Our comparative analysis links three literatures interested in how seemingly interest-neutral institutions like disputing forums serve in practice to reinforce dominant norms, values, and hierarchies: (1) socio-legal studies of repeat player advantages in disputing; (2) studies of occupational socialization in educational settings; and (3) neo-institutional organizational sociology studies of how managerial values influence the way organizations construct law.  We bridge these literatures by showing how arbitrator system design and occupational socialization arbitrators receive in private arbitration are primary mechanisms through which managerial values influence the arbitration process and consequently, provides a pathway for repeat player advantages in hearings.  Because our analysis compares two distinct arbitration systems, we identify variation in these processes and offer preliminary but tangible policy recommendations for the design and implementation of arbitration systems that best protect civil and consumer rights within arbitral forums that the Supreme Court continually upholds.

Jeff Trueman (Jeff Trueman, Esq., Mediator & Arbitrator) The Washington University Journal of Law & Policy will publish my article entitled Mediation in the World of Commercial Dispute Litigation: An Inside Look at the Challenges for Counsel, Mediators, and Insurance Claims Professionals in its next edition. The article documents qualitative responses by interviewees to challenges, frustrations, and concerns they face in mediation of litigated disputes. For the purposes of this study, “challenges,” “frustrations,” and “concerns” are defined as anything that impedes the parties from achieving their goals in mediation – whether the parties intend to resolve a dispute, repair relationships, improve communication, or send signals to each other concerning the litigation. The broad, subjective nature of the inquiry prompted free-flowing insights from participants in my survey. The practice of commercial mediation has aged, and it has changed—rightly or wrongly—in response to the demands of users who pay handsomely for mediation services. This survey suggests that, with increasing frequency, mediators and parties do not control the process—attorneys and insurance claims professionals do. What emerges from this project is a study in contrasts, similar in some respects to the paradox Professor Bernard Mayer describes between competition and cooperation, although “there is no cookbook formula” that can integrate or transform the polarities of the parties’ positions.

Maureen Weston (Pepperdine Caruso Law) Recent scholarship includes Buying Secrecy:  Non-Disclosure, Arbitration, and Professional Ethics in the #MeToo Era, forthcoming Ill. L. Rev. (2020), Ethical Issues for Lawyering and Representing Organizational Clients in a Public Health Crisis, Gonzaga L. Rev. (forthcoming 2020),  and The Lasting Impact of COVID-19 on Sports:  Financial, Legal, and Innovation60 Santa Clara L. Rev. (forthcoming 2020).

Roselle Wissler (Arizona State University Sandra Day O’Connor College of Law) and Art Hinshaw (Arizona State University Sandra Day O’Connor College of Law) We have in process several articles reporting the findings of an empirical study of what mediators do during the early stages of mediation — both before and during the opening mediation session. The findings are based on a survey of over 1,000 mediators in eight states across different regions of the country who primarily mediate civil or family disputes in state court, federal court, and private settings. The articles will report: whether mediators have non-administrative communications with the parties or their lawyers before the formal mediation event and the content of those discussions; whether the formal mediation event begins in a joint session or separate caucuses, and what happens and what is discussed during those initial sessions; what outcomes, benefits, or risks are associated with different approaches; and how different case characteristics and settings are related to mediators’ practices and mediation outcomes. An additional article will illustrate the variation in mediation practices across states as well as across courts within individual states.

Douglas H. Yarn (Georgia State University College of Law) I am writing a book on the biology of conflict entitled, Reconciliation: The Natural History of Conflict Resolution. I’m drawing on evolutionary and behavioral biology, neuroscience, ethology, ethnology, and complexity and network theories in an attempt at consilience between science and the more humanities-focused aspect of our field. I hope this will yield a more comprehensive underlying theory for the work we do. I’m struggling with the proper “voice,” unsure about the target audience, and getting to the point where I could use some feedback on the draft for those of you who have nothing better to do or are pathologically generous. Also working on the challenges of conflict management systems design for campus sexual assault.

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