Thanks to AFOI Peter Reilly (Texas A&M) for gathering this great list of ADR Scholarship Projects our community of scholars worked on recently/is working on as of December 2020:
Hal Abramson (Touro Law Center): Beyond the Courtroom-Resolving Disputes Through Agreement (published in November). This book is a selection of my articles over my academic career, so far, organized around three subject areas: mediation representation, international mediation, and negotiations. Even though I experienced this undertaking as an embarrassing vanity project pressed to do so by our university press, it turned out to be an interesting self-reflection journey. I can vouch for the cover, which is a striking blue color with an elbow bump as a nod to the year of the pandemic. The part of the book that might be of interest to this audience, to the dismay of some family members, is that I dedicated the book “to my other family-the community of dispute resolution academics and practitioners who have inspired and taught me.” Book link: Beyond the Courtroom: Resolving Disputes through Agreement. Collected Articles and Essays by Hal Abramson — Academic Studies Press On another scholarship-related matter, the Touro University President awarded me the annual Presidential Award for Scholarship for 2020. I must admit that I have been enjoying needling the traditional legal scholars on my law faculty and the Ph.D. scholars elsewhere in the university about ADR scholarship prevailing over their work. Of course, at least one colleague felt a need to suggest I might have been the only nomination this year.
Gilat Juli Bachar (Villanova University Charles Widger School of Law): The Psychology of Secret Settlements: Using an Experimental Design to Assess Lay Attitudes towards Sexual Harassment NDAs. The #MeToo movement brought to the fore the use of non-disclosure clauses in workplace sexual harassment settlements as a tool to silence victims of sexual wrongdoing by repeat offenders such as movie mogul Harvey Weinstein and Olympic gymnast doctor Larry Nassar. The breach of such secret settlements—revealing numerous misconducts—prompted a fierce policy and scholarly debate on the legitimacy of NDAs. Though the risk of NDAs hindering accountability is hardly new, NDAs are now increasingly the subject of legislative action, in states ranging from California and New York to Nevada and Tennessee. But should all NDAs be banned by sunshine-in-litigation laws? And will such laws manage to increase accountability for sexual wrongdoing? Current scholarship tends to analyze these questions through a theoretical perspective that calls for empirical grounding. Moreover, existing legal literature on NDAs has been entrenched in a disciplinary silo, failing to benefit from the wisdom and methods that other disciplines—especially psychology—have to offer.
This article is the first to examine the psychological factors affecting lay attitudes towards secret settlements. The article uses a survey experiment conducted with a nationally representative sample of over 400 Americans. It brings to light the psychological mechanisms underlying the approval or rejection of secret settlements and identifies factors that motivate such attitudes. Findings suggest that both a minor act of harassment and a financially struggling victim increase the probability of NDA approval. Counter to psychological theories like taboo tradeoffs and deliberate ignorance, findings suggest that lay people actually preferred public disclosure of arguably the most uncomfortable information. Findings will impact how policymakers understand and regulate secret settlements, which will in turn affect both employees’ willingness to come forward about sexual harassment and employers’ inclination to settle such complaints. Specifically, these findings suggest that policymakers and victim advocates should explore ways to preserve disadvantaged victims’ bargaining power under a confidentiality ban regime, to ensure that the choice between settlement and court is still available to financially unstable victims. The findings further call for a potential bipartisan collaboration over sunshine-in-litigation laws, at least when it comes to severe acts of harassment.
Debra Berman (South Texas College of Law Houston) is working on a project to explore preferences among the various modes of communication in negotiations. She has gathered empirical data from more than one thousand students across the country that participated in the Inter-School Negotiation Practicum. These students were required to submit a post-negotiation questionnaire detailing their impressions of negotiating via email, phone, and video conferencing. Not surprisingly, many students initially thought they would feel most comfortable using email. However, a significant majority reported that video conferencing allowed them to advocate most effectively and it will be their go-to choice for future negotiations when in-person meetings are not possible.
Kristen Blankley (University of Nebraska College of Law) is working on Standing On Its Own Shoulders: The Supreme Court’s Statutory Interpretation of the Federal Arbitration Act. This work examines the tools of statutory interpretation used by the Supreme Court in every case interpreting the Federal Arbitration Act. Following the lead of Legislation scholars, Professor Blankley created a database of tools used and then compared her results with the published results of other scholars. The data show that the Court favors a limited set of tools to interpret the FAA compared to other areas of the law, and those tools result in an increasingly insular body that builds on itself, more than anything. This paper will be submitted to journals for publication in winter/spring 2021.
Stephanie Blondell (Pepperdine Caruso School of Law): Starting in March, I facilitated a thinktank of Mediation Clinicians making the transition to the online environment, dubbed the New Normal ADR Clinician Think Tank. Additionally, I took on the role of Chair of the ADR Section Chair of the AALS Clinical Section Executive Committee (along with Toby Guerin.) In addition, I presented regularly including at the AIPLA Women in IP Law Committee Breakfast 2020 Virtual Annual Meeting, “Playing to Win: The Art and Power of Negotiation;” the National Association of State Treasurers Annual Conference, on “Traditionalist to Generations Z: Intergenerational Conflict Resolution.”
Baruch Bush (Hofstra University Maurice A. Deane School of Law) and Peter Miller (Institute for the Study of Conflict Transformation) Mediation, Client-Centered Practice, and the Value of Human Agency (article synopsis): Students and practitioners of transformative mediation still underemphasize the importance of client “empowerment” – the opportunity for clients to recapture the sense of agency that conflict has compromised. That is, those learning the skills of a client-centered process like transformative mediation tend to overlook and ignore the achievement of client empowerment, compared to other goals. Why does the achievement of client empowerment go unseen in this way, even when its value has been explained and emphasized in written work, training, and otherwise? Addressing this “invisibility” of client empowerment is a major challenge for those who ascribe importance to the impact mediation can have on restoring clients’ sense of agency in the wake of conflict. That is one purpose of this Article.
However, the effort to answer that question makes sense only if one accepts the premise that client agency – and human agency in general – is a core value whose furtherance should stand at the center of any client assistance process. That premise lies at the heart of transformative mediation theory and practice, and other related processes. What justifies that premise? What is it that explains the value placed by transformative mediation adherents on this phenomenon of human agency per se? Answering that question, primarily but not only in the context of mediators’ work, is a second major aim of this Article.
To achieve these aims, this Article first traces the history of transformative practice. Then the Article explores the meaning of agency, as a basis for mediation and other social processes. It is argued that the phenomenon of agency is at the core of human identity and consciousness; that is, the assertion of agency is an essential meaning of being human, regardless of whether it achieves some other specific impact in the external world. Part Three shows that, although the value of client agency and client-centered practice is mostly disfavored in the dominant practices of mediation and other “helping” professions, that value does find strong recognition in popular culture, and in the clients of transformative mediators.
Alyson Carrel (Northwestern University Pritzker School of Law): Art Hinshaw and the other authors of Dispute Resolution and Lawyers (Len Riskin, Chris Guthrie, Richard Reuben, Jennifer Robbennolt, and Nancy Welsh) are publishing a new spinoff casebook, Negotiation and Lawyers, and have brought on Alyson Carrel to write a new chapter on technology. To be published by West academic in spring 2021.
Jim Coben (Mitchell Hamline School of Law): Working up a paper based on a presentation I gave at the wonderful October 2020 Cardozo symposium on Presumptive ADR and the Court Systems of the Future. The thesis: Given the state of our democracy and the relentless assault on rule of law and civil discourse, I’m trying to answer every teaching and policy question I face as an educator by asking 4 questions:
1) will this help restore faith in public institutions and science?
2) will this vigorously promote the value (indeed necessity) of dissent?
3) will this help or hinder the surfacing and end of systematic racism?
4) will this help students (and citizens) to effectively manage/participate in difficult conversations?
I am convinced of only one “yes” (last question) with respect to a presumptive mediation rule. This paper explains why 1-3 are “no’s” or at best unclear.
Amy J. Cohen (The Ohio State University Moritz College of Law): I recently published an article on political economy and negotiation theory: A Labor Theory of Negotiation: From Integration to Value Creation, 1 Journal of Law & Political Economy 147 (2020). And I published an article on global value chains and negotiation theory: Negotiating the Value Chain: A Study of Surplus and Distribution in Indian Markets for Food, 33 Law & Social Inquiry 503 (2020). I have an article under review about bargaining inequalities in contract farming: Living under Value Chains: The New Distributive Contract and Arguments about Bargaining Inequalities, Journal of Agrarian Change (with Mark Vicol and Ganesh Pol) (forthcoming 2021). Last year I published a genealogy of restorative justice: Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States, 104 Minnesota Law Review 890 (2019) and I am building on the project in draft paper tentatively called: The Rise and Fall and Rise Again of Informal Justice and the Death of ADR (oh dear!). I have a short piece on Against Settlement forthcoming in Discussions on Dispute Resolution: The Formative Articles (eds. Art Hinshaw, Andrea Kupfer Schneider, Sarah Cole, OUP forthcoming 2021). And I published another short piece that uses dispute resolution examples to think with Mariana Mota Prado & Michael J. Trebilcock’s concept of the institutional bypass, called Thinking with the Institutional Bypass?, 6 Brazilian Journal of Institutional Studies 718 (2020) in English and Portuguese. Finally, I’ve joined the third edition of International Dispute Resolution: Cases and Materials (Carolina Academic Press) with Mary Ellen O’Connell and Anna Spain Bradley (forthcoming 2021).
Sarah Cole (The Ohio State University Moritz College of Law) is working on an article as a part of the recent Ohio State Journal on Dispute Resolution symposium entitled A Conversation on the Role of ADR in Resolving Issues of Gender-Based Violence. Sarah’s article focuses on the potential for the new Title IX regulations to permit greater use of informal processes, like mediation and restorative justice, for sexual misconduct claims. She is also finalizing the publication of her article on methods for increasing arbitrator diversity, entitled Arbitrator Diversity: Can It Be Achieved? It will be published early in 2021 in volume 98 of the Washington University Law Review. Finally, along with Andrea Schneider and Art Hinshaw, she is finalizing Discussions in Dispute Resolution: The Foundational Articles. They are all very excited about seeing this in print.
Charlie Craver (The George Washington University Law School) has authored the 9th edtion of Effective Legal Negotiation and Settlement (Carolina Acad. Press 2020) which provides a detailed description of the factors that influence bargaining interactions. The book covers the impact of negotiator styles, the stages of the negotiation process, various bargaining tactics, verbal and nonverbal communication, the impact of ethnicity and gender on bargaining interactions, and relevant ethical issues. He also authored the 2nd edition of The Art of Negotiation in the Business world (Carolina Acad. Press 2020), which covers the same basic issues for persons focusing on business negotiations. In addition, he authored the 4th edition of Skills & Values: Legal Negotiating (Carolina Acad. Press 2020), which covers the basic concepts relevant to bargaining interactions and contains a number of negotiation exercises designed to demonstrate the concepts being covered. This is an excellent book for teachers in general law school and business school courses who would like to incorporate bargaining skills in their courses.
Maria Cudowska (University of Bialystok (Poland)) The title of the project is Mediation in action: Personal injury as a pathway to teaching compassion and ADR in the academia.
I will be conducting research pertinent to personal injury and mediation at Michigan State University (Jan – June 2021). The research is generously funded by the Polish-American Kościuszko Foundation.
The idea for a comparative study between the dynamics of ADR and personal injury came about as accidents just as conflict are ever-present phenomenon. By virtue, comparative research of Michigan no fault law relating to car accidents/and other with polish tort law may open up a bigger discussion for the effective use of ADR tools and the rule of law. Assuming the effectiveness of the American system, what lessons are to be learned in Poland? The purpose of the project is not only to benefit the academic community, but also to change the mindset of law school students on mediation and empathy in the realm of law. The expected short case study will be used as a classroom component to academic debate and discussion while meeting the requisites of a scientific article.
If there are any personal injury law/mediation practitioners who would be willing to share their experiences/insights I would very much appreciate it!
Bio in English: Maria Cudowska, Faculty of Law, University of Bialystok. Professor Cudowska has a Ph.D. in law, an LL.M. in the American Legal System from Michigan State University, and a postgraduate degree in translation. She is a certified civil-facilitative mediator in the state of Michigan and she teaches courses on commercial law and ADR, both in polish and English.
Noam Ebner (Creighton University School of Law): Elayne Greenberg and I have recently published an article in Negotiation Journal titled Designing Binge-Worthy Courses, borrowing motivation and engagement insights from the neuroscience of binge-watching. Bonus: this might be a step forward in the struggle against student (and teacher!) Zoom fatigue.
I’m currently working on a chapter for the new edition of ODR: Theory and Practice edited by Dan Rainey, Mohammed Abdul Wahab and Ethan Katsh. Tentatively titled “The Human Touch in Online Dispute Resolution,” the piece takes on a rallying cry of resistance to conducting negotiation and mediation processes online, back in the Old World, before we all moved here to Zoom: Our core processes depend on some ineffable human touch, which is inherently denied to us online. I suggest that whatever the human touch is, learning how to bring it online is not only possible but imperative. The chapter discusses challenges and opportunities in operationalizing three quintessential human touch areas of negotiation and mediation: trust, empathy, and social intuition.
Brian Farkas (Cardozo School of Law): Arbitration at the Supreme Court: The FAA from RBG to ACB. In recognition of the passing of Justice Ruth Bader Ginsburg and the appointment of Justice Amy Coney Barrett, the Cardozo Law Review published a special edition to discuss the Court’s shifting dynamics. My piece examines Justice Ginsburg’s legacy in arbitration law, with a particular focus on employment arbitration. I also review Justice Barrett’s arbitration-related decisions from her tenure on the U.S. Court of Appeals for the Seventh Circuit, and discuss the potential impact of her appointment on the Supreme Court’s arbitration jurisprudence in the years ahead. My hope is that this article will be a useful teaching tool for arbitration, civil procedure, and ADR professors in the year ahead.
Farshad Ghodoosi (California State University, Northridge, Nazarian College of Business): I am working on several projects related to arbitration and ADR generally. One of them that I would like to report here is my forthcoming piece with Washington Law Review related to smart (digital) contracts. In summary, this Article argues that the reliance theory should guide both the (smart) contract formation and resolution of (smart) contractual disputes. In addition to its contract theory aspect, this Article explores what I call ‘network dispute resolution.’ (see also Machine Lawyering blog post on this Article).
Smart contracts lie at the heart of blockchain technology. The Article identities two problems with smart contracts: first, the enforceability of smart contracts remains ambiguous. Second, smart contracts remain limited in scope and capability barring more complex contracts from being executed via blockchain technology. Drawing from the existing literature on contracts and smart contracting, this Article suggests new approaches to address these two problems. First, it proposes a framework based on reliance-based contracting to analyze smart contracts. Second, the Article analyzes the seismic shifts in contractual disputes, and offers new insights into its features including decentralized decision-making, network-based dispute resolution, and extrajudicial enforcement of decisions. This Article makes two principal contributions. First, it contends that a reliance-based (tort-like) approach better fits and explains the nature of smart contracting. The Article argues the reliance theory best describes smart contract transactions that are concluded largely absent of any human involvement. Second, it shows that, in smart contracts, the human connection can only exist in ex post dispute resolution. This Article argues that ex post dispute resolution should utilize a large pool of users (proof-of-work model) and not a handful of select users (proof-of-stake model). With this structure, this Article argues, several of the existing problems such as repeat players and consumer arbitration can be minimized.
Michael Helfand (Pepperdine Caruso School of Law): Recent projects include The Peculiar Genius of Private-Law Systems: Making Room for Religious Commerce, 97 Wash. U. L. Rev. 1787 (2020), which addresses the interpretation and enforceability of religious contracts and religious arbitration agreements; The Future of Religious Arbitration in the United States: Looking Through a Pluralist Lens, in Oxford Legal Handbook on Global Legal Pluralism 901 (Paul Schiff Berman ed. Oxford University Press 2020), which considers recent challenges in the United States to religious arbitration and Privatization and Pluralism in Dispute Resolution: Promoting Religious Values Through Contract, in Christianity and Private Law 219 (Robert Cochran & Michael Moreland eds. Routledge 2020), which compares the relative benefits of religious disputes resolution as conducted under public law and private law umbrellas. Helfand’s current work-in-progress is titled Community and Custody: Religious Institutions and the LGBT Family and will address the enforceability of religious upbringing clauses in divorce settlement agreements. In addition to his academic articles, Helfand also continues to publish general audience articles, including Discrimination Without Discriminating, Wall Street Journal (Jan. 16, 2020); Washington Should Fund Ministers’ Salaries, Wall Street Journal (April 16, 2020); and The First Amendment and the Vocabulary of Freedom, Jewish Review of Books (June 24, 2020). Helfand also continues to serve on the board of the Beth Din of America, one of the most prominent contemporary rabbinical courts.
Andrew Mamo (Northern Illinois University College of Law) has two forthcoming articles. 1) Against Resolution: Dialogue, Demonstration, and Dispute Resolution (Ohio State Journal on Dispute Resolution) brings interest-based principles of dispute resolution into dialogue with Derrick Bell’s interest convergence thesis and his theories of protest. 2) Negotiation Pedagogy as Democratic Praxis (Negotiation Journal) examines John Dewey’s studies of experiential education and of the connection between democracy and education, and then considers opportunities for negotiation education to contribute to the cultivation of democratic practices.
Carrie Menkel-Meadow (University of California Irvine Law School): Recent projects include:
Books and Monographs:
Negotiation: Very Short Introduction (Oxford University Press, in preparation)
Negotiation: Processes for Problem Solving (with Andrea Kupfer Schneider and Lela Love) 3rd ed. (Wolters Kluwer 2021).
Articles and Book Chapters:
“Too Much Litigation? Quantification, Qualification and Differentiation: What Is An Appropriate Measure of Litigation?,” 10 Onati Socio-legal Studies Series (2020); https://doi.org/10.35295/OSLS.IISL/0000-0000-0000-1146. Presented at ADR WIP conference, Oct. 2019!
“Hybrid and Mixed Dispute Resolution Processes: Integrities of Process Pluralism,” in Comparative Dispute Resolution Research Handbook (Michael Palmer, Marian Roberts & Maria Moscati,eds. Elgar Publ, 2020)
“Institutionalizing ADR: Clashing Values,” in Discussions in Dispute Resolution ( (Sarah Cole, Art Hinshaw and Andrea Kupfer Schneider, eds), Oxford University Press 2021.
“The Origins of Problem-Solving Negotiation and Its Use in the Present,” in Discussions in Dispute Resolution (Sarah Cole, Art Hinshaw and Andrea Kupfer Schneider, Oxford University Press, 2021).
“Genealogy of a Globalized Socio-Legal (and Feminist) Scholar,” in Invisible Institutionalisms: Collective Reflections on the Shadows of Legal Globalization. (Swethaa Ballakrishnen & Sara Dezlay, eds. Hart-Bloomsbury Publ. 2021).
“When Should I Be in the Middle? I’ve Looked at Life From Both Sides Now,” in Evolution of a Field: Personal Histories in Conflict Resolution. (H. Gadlin & N. Welsh, eds., DRI Press 2021). (Just out!! Great book for teaching from!!)
“Critical Moments Reconsidered: When We Say Yes and When We Say No,” 36(2) Negotiation J. 233-241 (2020; https://dx.doi.org/10.1111/nejo.12311)
“Dispute Resolution Mechanisms” in Essential Concepts of Global Environmental Governance, 2nd ed. (Amadine Orsini & Jean Frederci Morin, Earthscan) (2020).
“Deconstructing Henry: Negotiation Lessons from Kissinger’s Career,” 35(3) Negotiation Journal 337-361 (2019).
“Negotiating the American Constitution (1787-1789): Coalitions, Process Rules and Compromises,” in Landmark Negotiations From Around the World: Lessons for Modern Diplomacy (Emmanuel Vivet, ed.) (Intersentia, 2019)
Deborah Jones Merritt (The Ohio State University Moritz College of Law) and Logan Cornett (Institute for the Advancement of the American Legal System) published “Building a Better Bar: The Twelve Building Blocks of Minimum Competence” in late October. The report draws upon research with 50 focus groups nationwide to propose evidence-based changes in legal education and licensing. Among other changes, the report recommends that students need more knowledge of ADR processes and that states should require all candidates for the bar to complete 3-credit courses in both negotiation and client counseling. The report summarizes the first national study to probe in depth the work that new lawyers do, as well as the knowledge and skills they need for that work.
Jackie Nolan-Haley (Fordham University School of Law): (1) I am beginning preliminary research on exploring/developing the role of lawyer as peacemaker; (2) I finished a chapter on lawyer representation in mediation for a mediation ethics book published by the ABA and edited by Omer Shapira; (3) I am working on the 5th edition of ADR in a Nutshell (West Pub.)
Amy J. Schmitz (University of Missouri School of Law) continues to work on a book with Stipanowich, Golan, Folberg, and Reynolds, RESOLVING DISPUTES: THEORY, PRACTICE AND LAW (Aspen 2021). Her book chapter, Enforcing Consumer and Capital Markets Law in the United States, in ENFORCING CONSUMER AND CAPITAL MARKET LAW – THE DIESEL EMISSIONS SCANDAL is published, as well as 2 law journal articles: 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, 2020 J. OF DISP. RESOL. 361-390 (2020). She also published a book chapter translated into Spanish, Promoviendo la protección del consumidor a través de la solución de conflictos en línea, en Agudelo Mejía, D. A. et al. (Coordinadores académicos), Nuevas dinámicas del Derecho Procesal (Sello editorial Universidad de Medellín: Medellín 2020) and contributed Resolving a New Kind of Trade War Through ODR in Theories of Change for the Dispute Resolution Movement: Actionable Ideas to Revitalize Our Movement (John Lande, ed., 2020). She has taped over 55 Arbitration Conversations, her article Arbitration in the Age of Covid will be out early in 2021 in the Cardozo J. of Conflict Resol., and she has articles coming out in European and Canadian Journals. She also published 2 shorter pieces Making Smart Contracts “Smarter” with Arbitration, at https://go.adr.org/technology-adr.html & Real Feedback from Real People: Emphasizing User-Centric Designs for Court ODR, DISPUTE RESOLUTION MAGAZINE | VOL 26, NO 2, pp. 6-12 (2020) (with Heather Scheiwe Kulp) available at .https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3615820. Most of the articles noted above for Amy are available here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=522704. Amy also has delivered over 20 presentations since May, including https://vimeo.com/472683866, https://www.cyberjustice.ca/2020/10/29/arbitration-in-the-age-of-covid-examining-arbitrations-move-online/. She also continues to Co-Chair the Technology Committee of the Dispute Resolution Section of the ABA and the ODR Task Force.
Matthew A. Shapiro (Rutgers Law School) (1) My article Distributing Civil Justice, 109 Geo. L.J. (forthcoming 2021) won the AALS 2021 Scholarly Papers Competition. The paper 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. (2) A new working paper, entitled Procedural Wrongdoing, interrogates the ubiquitous charges of “abuse” in debates about “civil justice reform,” tracing such rhetoric to the civil justice system’s structure for regulating disputing parties’ procedural conduct. The paper focuses, in particular, on the many procedural rules that forbid parties to act with certain motives or for certain reasons. According to these rules, which I call motivation-sensitive restrictions, the very same procedural conduct can either constitute abuse or not, depending on a party’s motivations for engaging in it. The motivation-sensitive restrictions, the paper suggests, have ambiguous consequences for civil justice. On the one hand, the restrictions can foster a thin but nevertheless valuable form of procedural civic virtue, prodding parties to attend to important public values even as they pursue their own private ends through the civil justice system. On the other hand, precisely because they focus on parties’ subjective purposes, the motivation-sensitive restrictions risk inflaming public discourse about civil justice by inviting participants in policy debates to transmute their disagreements into moralized accusations of abuse or bad faith. A more fine-grained account of the civil justice system’s approach to regulating parties’ procedural conduct might provide the necessary conceptual resources to help to confine abuse talk to its duly circumscribed, but still potentially salutary, role in debates about civil justice.
Sukhsimranjit Singh (Pepperdine Caruso School of Law) Recent projects: Access to Justice and Dispute Resolution Across Cultures, 88 Fordham L. Rev. 2407 (2020) examines ADR’s role in the access to justice continuum for underserved communities. His article, Global Dispute Resolution Conference: Reflections, Trends, and Continued Development 20 Pepp. Disp. Resol. L. J. 252 (2020) highlights the major dispute resolution topics and trends, as well as key takeaways for the continuous development of the field. He is co-authoring an arbitration book that focuses on the intersection of international commercial arbitration and the Indian Legal Systems (Forthcoming, Thomas Reuters). He recently published a peer reviewed international collaboration on The New and the Old: A Qualitative Analysis of Modes of Conflict Resolution in Saudi Arabia, 25 Int’l Negotiation 329 (2020) and discussed how culturally responsive student curriculum can aid student success. Sukhsimran delivered international talks with ADR Center, Italy alongside Leonardo D’Urso on Culture, Apology and Mediation and is available here. With emphasis on the impact of COVID-19, he moderated a discussion on Mediating the Moment with Judge Daniel Weinstein and Judge Ann Williams and is available here. He also delivered a special session with Rebecca Westerfield and Ann Williams on Cross-Cultural Challenges in Communication for Senior Fellows, Weinstein International Foundation and is available here. He discussed Negotiating Well Across Cultures for Natalie Armstrong-Motin and Will Work for Food and is available here.
Jim Stark (University of Connecticut School of Law) is continuing with empirical research that explores law students’ susceptibility to judgmental biases in a simulated lawyering role. His previous study found that “consider-the opposite” (“list the weaknesses of your case”) prompts were highly effective in reducing overly optimistic arbitral predictions by students placed in a plaintiff or defense lawyer role, but not effective in reducing self-serving assessments about what negotiation outcome would be “fair.”
The current project, with new collaborator Ashley Votruba (University of Nebraska-Lincoln, Department of Psychology) will investigate self-serving fairness assessments in case evaluation and negotiation, and whether these can be mitigated by perspective-taking prompts. The new research will also investigate the extent to which law students rely on fairness norms when they counsel their clients about settlement. Jim reports: “Ashley is a graduate of Arizona State, where she was a JD/PhD student and studied with Roselle Wissler and Art Hinshaw. She’s a great collaborator, I love working with her, and I want to welcome her to the community of ADR scholars!”
Thomas Stipanowich (Pepperdine Caruso School of Law) and his co-authors Jay Folberg and Dwight Golann are joined by Professors Amy Schmitz (University of Missouri School of Law) and Jennifer Reynolds (University of Oregon School of Law) in preparing the 4th edition of their book and materials Resolving Disputes: Theory, Practice and Law (Aspen Publishers / Wolters Kluwer).
Recent works include the autobiographical chapter Synchronicity, Paradox and Personal Evolution for Evolution of a Field: Personal Histories in Conflict Resolution (Nancy Welsh & Howard Gadlin, eds.) (DRI Press 2020), a compendium of narratives by leaders in the field of conflict resolution. The chapter offers a personal retrospective on a unique career now in its fifth decade. Linked at http://ssrn.com/abstract=3750308
Stipanowich’s in-depth examination of scenarios in which dispute resolution professionals “switch hats” (med-arb, arb-med, etc.), Arbitration, Mediation and Mixed Modes: Seeking Workable Solutions and Common Ground on Med-Arb, Arb-Med and Settlement-Oriented Activities by Arbitrators, will be published in volume 26 of the Harvard Negotiation Law Review (2021). Link: https://ssrn.com/abstract=3689389 He also wrote Multi-Tier Commercial Dispute Resolution Processes in the United States, a chapter in Multi-Tier Approaches to the Resolution of International Disputes: A Global and Comparative Study (Anselmo Reyes & Gu Weixia, eds.) (forthcoming), linked at https://ssrn.com/abstract=3601337
Stipanowich’s scholarship is influencing the development of international practice guidelines by the International Task Force on Mixed Mode Dispute Resolution, an initiative co-sponsored by the International Mediation Institute, the College of Commercial Arbitrators, and Pepperdine’s Straus Institute. He has also played a leading role in developing parallel guidance for U.S. practice under the auspices of the College of Commercial Arbitrators.
Stipanowich’s wide-ranging research on Abraham Lincoln as a problem-solver and manager of conflict is focused on two articles in progress. Lincoln’s Affairs of Honor: Courts, Dueling Codes and Community Mediation in Frontier America (article in progress) examines a critical period in Lincoln’s life and career and how Lincoln came to grips with two key challenges with the help of his friends. Negotiating Emancipation: The Lincoln Way (article in progress) explores how Lincoln’s evolved into the transformational leader who played a critical role in the abolition of slavery.
S.I. Strong (The University of Sydney): This year, I have finished a new book, S.I. Strong, Legal Reasoning Across Commercial Disputes: Comparing Judicial and Arbitral Analyses (Oxford University Press, 2020) ( https://global.oup.com/academic/product/legal-reasoning-across-commercial-disputes-9780198842842?cc=au&lang=en& ), which is a large-scale empirical study of legal reasoning across the judicial-arbitral, national-international and common law-civil law divides, using three overlapping methodologies (semi-structured interviews and survey of judges and arbitrators in addition to a quantitative (coded) analysis of decisions and awards). I am currently writing some follow-up articles using empirical research that didn’t make it into the book. I also wrote three chapters – “Promoting International Mediation Through the Singapore Convention,” in New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution 337 (Kluwer International, 2021), “Judicial Education and International Courts: A Proposal Whose Time Has Come?” in Identity and Diversity on the International Bench (Oxford University Press, 2020) and “Collective Redress Arbitration in the European Union,” International Arbitration and EU Law (Edward Elgar Publishing Ltd, 2021) – and three articles: “International Commercial Courts in the United States and Australia: Possible, Probable, Preferable?,” 115 AJIL Unbound __ (forthcoming 2021), “Legal Authorities and Comparative Law in International Commercial Arbitration: Best Practices Versus Empirically Determined Actual Practices,” 1 Ius Comparatum 92 (2020), and “Past as Prologue: Arbitration as an Early Common Law Court?” 57 Houston Law Review 985 (2020).
Shauhin Talesh (University of California, Irvine School of Law) and Peter Alter, Esq., 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, 42 Law & Policy 315-343 (2020) (lead article). Abstract: This article demonstrates that arbitration system design and the training that arbitrators receive shape the extent to which repeat players gain advantages in arbitration hearings. While prior arbitration research does suggest that arbitrator training matters, this is the first article to show how it matters, as 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) neoinstitutional organizational sociology studies of how managerial values influence the way in which organizations construct law. We bridge these literatures by showing how arbitrator system design and the occupational socialization that arbitrators receive in private arbitration are primary mechanisms through which managerial values influence the arbitration process, ultimately providing 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.
Liz Tippett (University of Oregon School of Law) is finishing up an article tentatively titled Enslaved Agents: Business Transactions Negotiated by Slaves in the Antebellum South. The article explores the law of agency as applied to enslaved workers in the antebellum South between 1798 and 1863. Southern courts generally accepted that an enslaved worker could serve as business agent for a slaveholder, which often meant binding a third party to a transaction negotiated or performed by an enslaved person. These cases provide a window into business practices in slave states, where enslaved workers conducted business on behalf of slaveholders in a variety of contexts. While agency law served the economic interests of individual slaveholders – who could then avoid hiring paid labor for the same work – it also at times conflicted with the ideology of white supremacy and the associated Southern laws meant to enforce racial dominance.
Stephen Ware (University of Kansas School of Law) published Arbitration (Foundation Press University Casebook, 4th ed.) (with Alan Scott Rau), and its Teacher’s Manual, along with Paternalism or Gender-Neutrality?, 52 CONN. L. REV. 537 (2020). From a symposium at Penn State, Steve is completing Labor Unions, Cartelization, and Arbitration: Replacing At-Will Employment with Arbitration of Employee Grievances, and for a forthcoming symposium at Cumberland, he is writing Labor Grievance Arbitration’s Differences. He is about to take a sabbatical to write the 4th edition of Principles of Alternative Dispute Resolution (West Concise Hornbook Series, 3d edition 2016).
Maureen Weston (Pepperdine Caruso School of Law): Recent scholarship includes:
* Daily Fantasy Sports & The Law in the United States, International Sports L. J. (forthcoming 2021)
* The Lasting Impact of COVID-19 on Sports: Financial, Legal, and Innovation, 60 Santa Clara L. Rev. (2020)
* Ethical Issues for Lawyering and Representing Organizational Clients in a Public Health Crisis, Gonzaga L. Rev. (forthcoming 2020)
* Buying Secrecy: Non-Disclosure, Arbitration, and Professional Ethics in the #MeToo Era, forthcoming Ill. L. Rev. (2021)
Works in Progress: The Anxious Athlete: Mental Health, Addiction, and Accommodation Considerations for Sport (forthcoming 2021)