With much thanks to WFOI Peter Reilly (Texas A&M) for gathering this wonderful list of publications and/or works-in-progress from the ADR scholarly community, here is the Summer 2021 edition of ADR Scholarship Projects:
Erin Archerd (University of Detroit Mercy School of Law) Building on my recent article, Two Hearts and Brewer/Distributor Conflicts (forthcoming in the University of the Pacific Law Review, I am looking specifically at the use of arbitration clauses in wholesale distribution contracts in the brewing industry as well as the increasing incorporation of arbitration among the states in their beer franchise statutes. Do these trends show an increased appetite among states to allow private control over the relationship between brewers and distributors? Will the strong support that arbitration has received in the courts encourage an acceleration in the use of contractual or statutory arbitration clauses, or, as I suspect, will these arbitration provisions, especially in private distribution contracts, be seen as running afoul of state statutory controls over brewer/distributor relationships?
Gilat Juli Bachar (Villanova University Charles Widger School of Law): Tort Victims’ Disclosure Duties – Do tort victims have duties to disclose the wrongdoing committed against them? And if so, under which circumstances? The argument behind sunshine-in-litigation laws, which have been adopted in states ranging from Texas to California and that ban or limit the enforceability of confidential out-of-court settlements, has been that they recognize situations in which the public interest in matters relating to health, safety, and the operation of government outweighs a plaintiff’s interest in gaining a favorable settlement. But when exactly is it appropriate to limit private parties’ freedom to enter into a confidential settlement in the name of the public interest? To date, there has not been a systematic attempt to carefully delimit the type of wrongs which justify imposing such a burden of disclosure on tort victims.
The paper seeks to fill this crucial gap. I probe the relationship between confidential settlements and the goals of tort law in the context of wrongs arising from social injustice. I define social injustice broadly, as the unequal or unfair social distribution of rewards, burdens, and opportunities for optimizing life chances and outcomes, whether inflicted by abusive actors or by complacent authorities who fail to act when they are in a position to avert or prevent harm. Specifically, I discuss two examples of social injustice torts: those brought in response to sexual wrongdoing and Section 1983 police brutality cases. Using the concept of social injustice, the paper considers the extent to which imposing disclosure duties on victims is theoretically justifiable in light of, first, the expressive function of tort law and the extent to which it plays a special role in such torts, and second, the discussion in moral philosophy regarding victims’ duties to report crimes. Based on these two lenses, the paper offers parameters to define the limits of the practice of confidential settlements in tort lawsuits in a way that does not carve out an unacceptable exception to democratic publicity on the one hand, but also nuances the impact disclosure can have on victims of social injustice on the other.
Rick Bales (Ohio Northern University School of Law) has completed an article for Arbitration Law Review analyzing covid-related labor arbitration awards in Canada, and is working this summer on a similar article focusing on U.S. awards.
Debra Berman (South Texas College of Law Houston): I am currently working on a new stone stoup related project involving the compilation of specific practice tips from lawyer interviews about negotiations and mediations they have been involved in. The goal is to provide students with something tangible about the processes and skills lawyers actually utilize in the real world. The mediation “playbook,” for example, will include practice points from lawyers on the timing of mediations, mediator selection, pre-mediation submissions, pre-mediation calls, preparing the client for mediation, whether or not and how joint session is being used, the advocates’ strategies during mediation, the mediators’ strategies, who drafted the MSA, and when the MSA was drafted.
Kristen Blankley (University of Nebraska College of Law) is working on a paper, tentatively titled The Future of Arbitration Law, which is a follow-up to her paper Standing On Its Own Shoulders: The Supreme Court’s Statutory Interpretation of the Federal Arbitration Act (forthcoming in the Akron Law Review). This second paper analyzes the trends of the Supreme Court’s methods of statutory interpretation as it relates to key issues in arbitration law – notably class action cases, preemption cases, and arbitrability cases. The work will compare trends both outside of arbitration law and those within arbitration law to gain additional insight into these important areas.
Jessica Bregant (Indiana University Maurer School of Law), Jennifer K. Robbennolt (University of Illinois College of Law), and Verity Winship (University of Illinois College of Law): Perceptions of Settlement, Harv. Negot. L. Rev. (forthcoming 2021; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3868526). Most legal disputes end in settlement, but little is known about how people perceive settlement. Do people view settling defendants as responsible for the alleged conduct? Do they see settlement more neutrally, as a convenient resolution that avoids a costly trial? This article uses survey and experimental methods to begin answering these questions and to set the agenda for studying an important and mostly neglected area of inquiry: public perceptions of settlement. Survey participants report in their own words their inferences about parties’ reasons for settling legal disputes in a variety of contexts: #MeToo, police, crime, regulatory enforcement, and tort. Participants’ rich responses informed an experimental study of the tort setting that compares perceptions of settlement with perceptions of other case outcomes such as a jury verdict or the filing of a legal case. Despite common models of settlement as a cost-benefit analysis not necessarily tied to responsibility, the data suggest that lay people attribute responsibility to settling defendants. The data also highlight factors that influence people’s inferences about settling defendants, including whether the defendant is an individual or entity. Understanding settlement is key to understanding the U.S. legal system, and this empirical work on perceptions of settlement lays groundwork for analyzing the perceived legitimacy of a legal system in which settlement plays such a central role.
Michael T. Colatrella Jr. (McGeorge School of Law) has completed an article The Role of the “Norm of Reciprocity” in Leading Law Schools. This article explores the theoretical underpinnings and practical role that the “norm of reciprocity” plays in effective law school leadership. In its simplest expression, the norm of reciprocity dictates that “we should repay in kind, what another person has provided to us.” Many of the traditional constructs of organizational power, such as coercive power and legitimate power, have limited utility in the flat hierarchical organizational structure that American law schools follow. Thus, a law school leader’s most potent potential source of power is the ability influence her constituents to embrace her vision for the organization. If one is to be a leader in law school environments, formal or informal, one must accept the premise that the power to lead is one that law school constituents, especially faculty members, grants a person. At the heart of why a group grants some people power to influence them and deny this privilege to others is the norm of reciprocity. All human cultures adhere to the norm of reciprocity to a considerable degree, making it one of the few negotiation principles that transcends cultural boundaries. This article explores the ethical use of the norm of reciprocity in both its macro form as applied to a leader’s relationship to the community he serves and micro form as applied to individuals with whom he interacts, which, if properly understood, results in the ability to influence systemic change within academic institutions by motivating faculty members to execute polices, plans, and purposes that a leader believes will enhance the “greater good” of the organization. He will submit the article for publication in July 2021.
Sarah Cole (The Ohio State University Moritz College of Law) is working on an article as a part of the recent Penn State Arbitration Law Review Symposium. Sarah’s article challenges those designing Title IX processes for universities to consider principles from arbitration to guide them in their design process. The article describes the evolution of Title IX with a particular focus on the shifting advice as to dispute resolution processes. It then discusses the problems, particularly bias and conflict of interest issues, that arise with regard to decisionmaker selection and training in the Title IX setting. The article considers how arbitral providers in the private sector have approached such issues. Based on the lessons learned there, the article proposes principles to guide universities in selecting, screening, and training decisionmakers, particularly with respect to deliberation and opinion-writing, and also discusses the possibility that universities may be well served to out-source some or all of these functions.
Donna Erez-Navot (Benjamin N. Cardozo School of Law): Reimagining Access to Justice: Shifting to Virtual Court Annexed Mediation Programs During the Pandemic. During the COVID-19 pandemic, many court annexed programs across the country shifted from in-person to online video conferencing-based mediation. This paper will present the initial steps taken to transition to online mediation programs in New York City and explore the challenges faced and the opportunities created as such programs were implemented. When the COVID-19 pandemic struck, the NYS courts had just announced a Presumptive ADR Initiative. Planning and preparation for that initiative resulted in mechanisms that helped with the transition to pandemic-related online mediation. With this background, the article presents an in-depth case study of the NYC Small Claims program. This court-annexed mediation program seamlessly and quickly moved to offer online video conferencing mediation by partnering with hundreds of mediators, including law school mediation clinics, community dispute resolution centers and independent volunteer mediators. Two obstacles to access to justice will be the focus—technological limitations of parties and limited language access services. Best practices to overcome the hurdles to access to justice will be presented. Initial observations about the program’s success and viability will be offered and the relevance of the program for other such efforts.
Clark Freshman (UC Hastings School of Law): Project One: he Inner and Outer Negotiation of Sound: A Theory and Pilot Report: This project explores broadly the way that individuals negotiate over “sound,” including volume levels and music in public (such as restaurants) and private places (such as shared living space). The pilot report involves a negotiation exercise in which students use an app that measures and publicly reports decibel levels to negotiate over sound levels in public places. Project Two: The Critical Dynamic Duo of Mindful Self-Compassion and Negotiation: The project addresses how mindful self-compassion and negotiation may benefit each other. From a narrow performance perspective, negotiators, including students, informed by mindful self-compassion may do better by conventional metrics of results as well as by less conventional metrics of mental health and well-being. From a narrow perspective, those seeking to advance their own mental health through mindful self-compassion may do even better at that goal by learning some broader tools from negotiation for working with others rather than a relatively primitive response, such as “assertiveness” and “setting boundaries.” For both mindful self-compassion and negotiation, the combination may work especially well for those from historically disempowered groups who face both external sanctions for seeking fair results (such as being labeled “pushy” or “uppity”) and internalized sanctions (such as feeling bad for seeking what seems like “selfish” ends). Project Three: Bridging The Happiness Gaps in Negotiation and Deception Detection: The gist of the article is to explain why it would seem that teaching people negotiation and deception detection would make people happier, but often don’t. This is partly for general reasons and partly for reasons that affect some groups more than others, such as less privileged people who come to recognize the prejudices and biases they face.
Sean Galliher (USC Gould School of Law): THIRD-PARTY FUNDING IN INTERNATIONAL ARBITRATION. Third-party funding of legal actions has been around, in one form or another, for years. Such funding has been particularly effective in financing litigation in the United States. Third-party funding is also increasingly popular in international arbitration, largely as a result of the broadening scope and therefore cost of arbitration. Arbitral institutions are grappling with the financial complexities inherent in third-party funding and the impact of such funding on international arbitration. Legislation, rules, case law, and regulations are being revisited in light of the issues presented by third-party funding. After discussing the nature and types of funding currently being used in international arbitration, this article in The California International Law Journal evaluates the current state of international litigation funding mechanisms, assesses the impact these funding mechanisms have on international arbitration, and discusses the financial future of international arbitration.
Farshad Ghodoosi (Cal State Northridge) and Monica Sharif (Cal State LA) : Justice in Arbitration: the Consumer Perspective, forthcoming at International Journal of Conflict Management (a leading peer-reviewed conflict management journal): (Journal Link & SSRN Link): In this paper, we empirically examine the ex-ante justice perceptions of consumers. Unlike the current emphasis on win-rates, our study establishes that consumers prefer court regardless of the outcome for their disputes. For consumers, mandatory arbitration is not fair even if the outcome is to their liking. Moreover, contrary to the prevailing narrative, our results show that it is not costs but familiarity and legitimacy that drives consumers’ view of arbitration. The current law and policy approach view the perceived costs of this risk-taking behavior as central and prohibitive. Current research does not provide an adequate explanation for consumers’ underutilization of arbitration nor does it focus on correct factors. Studies in psychology and law primarily focus on ex post feelings of individuals after dispute resolution, ex post favorable outcomes, and ex ante cost-benefit analysis. The present study for the first time analyzes ex ante consumer perception of justice. Our results dispel the overemphasis on win-rates and costs. What’s prohibitive and has resulted in the underutilization of arbitration by consumers is not perceived costs and fear of losing. It is the poor perception of justice.
Elayne E. Greenberg (St. John’s University School of Law): I am in the process of writing a three-part series on Settlement Fever for my Ethical Compass Column in the NYSBA Dispute Resolution Lawyer that I expect will become part of a more comprehensive piece about a settlement-dominated legal culture. The first is published, the second is at the press and the third is in development. The first, Three Different Judicial Treatments for Settlement Fever, highlights how judges might confirm or overrule a party’s choice of settlement process.
(available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3864284). The second, Settlement Fever: Lawyers, Have you Updated your Philosophical Map?” identifies the mindset lawyers need to be effective in an increasingly settlement-dominated legal culture. The third, The Unintended Justice Consequences of Settlement Fever: The Blurry Intersectionality of Settlement and the Rule of Law raises the changing reliance on the rule of law in some settlements. I welcome your insights.
Jill Gross (Pace University School of Law): This summer, I will be drafting a chapter for a forthcoming book entitled The Jurisprudential Legacy of Justice Ruth Bade Ginsburg, specifically focusing on her majority, concurring and dissenting opinions interpreting the Federal Arbitration Act or otherwise addressing arbitration.
Harvard Negotiation & Mediation Clinical Program: The students and faculty at the HNMCP engaged in a broad range of scholarship over the past year. During the fall 2020 semester, two student teams in the Dispute Systems Design Clinic wrote public reports as part of their clinical projects: Rethinking Boston’s Public Safety System explores and provides recommendations for designing an alternative system for public safety in the City of Boston, and Power, Protest, and Political Change brings together insights for (and drawn from) activists on building power to get into the negotiating room, and wielding it effectively at the table. We encourage you to share both of these resources with students, colleagues, and practitioners across disciplines. In addition, HNMCP Clinical Fellow Oladeji Tiamiyu ‘20 created and hosts a new podcast, Convergence, which explores the intersection between dispute resolution and technology. Past and upcoming topics include artificial intelligence, blockchain technology, and ethics in ODR. HNMCP Clinical Instructor Lisa Dicker ‘17 co-authored, with HLS alum C. Danae Paterson, “COVID-19 and Conflicts: The Health of Peace Processes During a Pandemic” in the Harvard Negotiation Law Review (Spring 2020). HNMCP Clinical Instructor Deanna Pantín Parrish will publish in the “New Directions” edition of the Journal of Law & Policy at Washington University School of Law; her article identifies design considerations for court-connected eviction mediation programs responding to the surging housing crisis exacerbated by the COVID-19 pandemic. In addition, Deanna and Oladeji also each authored two public guides that draw lessons and learnings from the past 15 years of HNMCP clinic projects. The guides, which capture key themes while preserving client confidentiality, focus on our work with ombuds offices and in the area of restorative justice. We’re putting the finishing touches on these two guides and will be posting them shortly to the Scholarship page of our website. Finally, our blog featured two student contributors this spring semester: Patrick Maxwell ʼ21 wrote a series on the dynamics of “inter-bubble” conflicts, and Zekariah McNeal ʼ21 authored pieces reflecting on the role of identity commitments, and unpacking core concepts in negotiation such as “win-win” and “value creation.”
Michael Helfand (Pepperdine Caruso School of Law): Recent projects include What Is Jewish Law? A Conceptual View from U.S. Courts, Oxford Legal Handbook on Jewish Law (Zev Eleff, Roberta Kwall & Chaim Saiman eds. forthcoming 2022), which considers how United States courts treat Jewish law—and the obligations Jewish law generates for its adherents—as religion. This sort of conception of Judaism and Jewishness solely through the prism of religion is deeply modern. While this unremarkable underlying assumption—that Jewish practices qualify as religion—remains consistent in the high-profile landscape of religious liberty litigation, it also has significant consequences for how U.S. courts treat—and don’t treat—Jewish law. The article delves into litigants entering into arbitration agreements and submitting matters implicating Jewish law to a beth din, a rabbinical court. Professor Helfand has written extensively on religious arbitration and continues to serve on the board of the Beth Din of America, one of the most prominent contemporary rabbinical courts.
Barry Kaye (USC Gould School of Law): THE ENFORCEABILITY OF CLASS ACTION WAIVERS IN ARBITRATION AGREEMENTS – THE PITFALLS IN DRAFTING AN ENFORCEABLE ARBITRATION CLAUSE AFTER LAMPS PLUS V. VARELA. Co-authored with California Court of Appeal Justice Richard Fields, this article was published last year in The Los Angeles Daily Journal, as part of a special supplement entitled “The Resolution Issue – The Changing Face of Arbitration.”
David Allen Larson (Mitchell Hamline School of Law) I recently signed a contract to write a new book for the Law in a Nutshell series. The combination of improved technology and the COVID-19 pandemic has forced court systems, arbitrators, mediators, and other dispute resolvers to provide their services online. It appears now is the right time for the Online Dispute Resolution in a Nutshell. The book can be used as a supplemental text in courses dedicated to online dispute resolution (ODR), ADR in general, civil procedure, arbitration, and any other course focused on dispute resolution. Court systems and dispute resolution practitioners also may be interested. Although I prepared an outline and submitted a formal proposal to West Academic Publishing, I now need to get serious and begin writing. I believe (hope) I am well-positioned to write this book. I was one of the first individuals to work in the ODR field and have been involved with online dispute resolution for more than 20 years. I have published numerous articles concerning ODR and made many ODR presentations. I am a Fellow in the National Center for Technology and Dispute Resolution and have strong connections with leaders in the ODR field around the world. I will gratefully accept ideas and support from all of you.
Carrie Menkel-Meadow (UC Irvine School of Law): Scholarly projects for the summer:
- Book on International Conflict Resolution with Andrea Kupfer Schneider
- Article (with my colleague Ji Li) on dispute resolution preferences (empirical) of Chinese owned corporations (FDI) in US
- Book chapter on Intercultural Mediation for Routledge Research Handbook series
Jackie Nolan-Haley (Fordham University School of Law): I will be finishing the 5th edition of ADR in a Nutshell, writing a book review on the newly published Discussions in Dispute Resolution: The Foundational Articles, and working on a paper dealing with identity, culture and conflict in the context of the current conflict in Northern Ireland.
Lydia Nussbaum (UNLV William S. Boyd School of Law): Mass Breaches of Contract and Aggregate Dispute Resolution. This project examines why mediation is deployed by legislatures as a modern response to economic crises. During the 2008 foreclosure crisis and now again in the face of a looming eviction crisis, state and local jurisdictions around the U.S. have turned to mediation as a policy solution. The vast majority of foreclosure and eviction cases involve neither questions of liability (they are contract cases involving breach for nonpayment) nor questions about the non-breaching party’s right to exercise available legal remedies (to foreclose, to evict). Yet, the sheer volume of these cases means that the binary legal outcomes, when taken in the aggregate, have serious societal ramifications: homelessness and housing insecurity, interruption to children’s schooling, loss of tax revenue, economic market disruption etc.
Of all the available public policy interventions, why rely on mediation? Why divert these breach of contract cases away from public adjudication in courts or administrative agencies and into the private realm of mediation? Mediation is a confidential, consensus-based mode for facilitating information exchange and negotiation between disputing parties. As scholars have documented over the past four decades, mediation’s potential to bring efficient, creative, and humanistic problem-solving to polycentric problems is offset by its lack of regulatory oversight and vulnerability to pre-existing power differentials.
This project posits three rationales for why policymakers repeatedly turn to mediation to address these “mass breach of contract” emergencies: 1) empathic magic of mediation; 2) neo-liberal efficiency; and 3) political will. It demonstrates how each of these rationales, while deeply flawed, does provide some utility to address societal consequences of mass breaches of contract. Finally, the project concludes by exploring how publicization theory can help policymakers make better use of mediation as an effective policy intervention.
Nathan O’Malley (USC Gould School of Law): THE IBA RULES AND U.S. COURTS. The IBA Rules on the Taking of Evidence in International Arbitration have enjoyed considerable success as the pre-eminent set of evidentiary standards in international arbitration. The application of the Rules throughout the world indicates that most arbitrators, counsel and parties find them to be both useful and reflective of good practice, but can the same be said of courts sitting in review of arbitration-related matters? This article in the IBA addresses that question from the perspective of United States Federal courts by reviewing several recently published decisions that consider the standards set forth in the Rules.
- Just Settlement? Rethinking the Mediator’s Goals, published in Discussions in Dispute Resolution, comments on Josh Stulberg’s foundational 1981 article.
- The Paradox of Informal Justice (https://www.ombudsassociation.org/assets/docs/JIOA_Articles/2020-JIOA-J.pdf), published in the Journal of the International Ombudsman Association, explores the tradeoffs Organizational Ombuds must make navigating their ethical standards while handling issues of sexual misconduct.
- Competition & Collaboration: Title IX Coordinators and the Barriers to Achieving Educational Equity (https://doi.org/10.1177/13582291211014403), published in the International Journal of Discrimination and the Law, describes how organizational compliance officers create institutional legitimacy while competing with multiple professional groups.
- Designing Informal Mechanisms for Claims of Campus Sexual Misconduct (with co-authors Jennifer Reynolds and Art Hinshaw), will appear in the upcoming symposium edition of the Ohio State Journal of Dispute Resolution. The article explores how dispute system design may be used to implement informal dispute systems under the new Title IX regulations. https://moritzlaw.osu.edu/osjdr/symposium/
Works in Progress:
- A Prison Peer Facilitated Mediation Study to investigate the impact of three mediation trainings conducted in Michigan Prisons to train inmates to be peer mediators is nearing the approval stage.
- The Organization-Agent: Street-Level Bureaucrats and the Contours of Title IX Compliance. The article analyzes Title IX Coordinators using Street-Level Bureaucracy Theory and will be submitted for peer review this fall.
- A Multi-Country Fulbright. In Winter 2022 I will be training academic administrators in three countries (Denmark, Greece, and Japan) and studying the impact on how they handle academic conflicts.
Jen Reynolds (University of Oregon School of Law) is working on four things: one, the teacher’s manuals for Resolving Disputes: Theory, Practice & Law, 4th ed. (Folberg, Golann, Stipanowitz, Schmitz & Reynolds) and Lawyer Negotiation, 4th ed. (Folberg & Reynolds); two, a book review of Evolution of a Field: Personal Histories in Conflict Resolution; three, a short article on teaching criminal-side ADR; and four, with Noam Ebner, an edited volume of essays on Star Wars and conflict resolution. She has also started reading broadly about forgiveness, with an interest in seeing whether and how forgiveness works in social media contexts.
Jennifer K. Robbennolt (University of Illinois College of Law) and Lesley Wexler (University of Illinois College of Law): Service Members’ Reactions to Amends for Lawful Civilian Casualties, 2021 Illinois L. Rev. 399 (https://www.illinoislawreview.org/print/vol-2021-no-2/service-members-reactions-to-amends-for-lawful-civilian-casualties/). When states engage in armed conflict, militaries often kill or seriously injure civilians. Sometimes the actions that lead to these harms violate the law, but often the laws of war that govern collateral damage permit them. As a practical matter, when civilians are lawfully killed during armed conflict, states tend neither to directly acknowledge causal responsibility nor to make promises of non-repetition, though they may provide small monetary payments as an expression of sympathy to affected families—disbursements known as condolence or solatia payments. Making amends for lawful harm, however, offers both the injured and the injurer a more fulsome mechanism for addressing that harm. Civilians and their families and communities may benefit from a recognition of their loss, an explanation of the circumstances that led to the harm, attention to the prevention of future harm, financial repair, and a showing of respect. From states’ perspectives, offering amends has the potential to further important military objectives, address soldiers’ moral injuries, and contribute to the professionalization of the military. In the study we report here, we use experimental and survey methods to explore service members’ views of amends making and their reactions to different forms of responding in the aftermath of a lawful civilian casualty. We find that most service members did not see the lawfulness of harm to civilians as a barrier to offering a response, nor did it preclude their feelings of remorse. We find substantial support for various aspects of amends—particularly for apologies and policy review. In contrast, service members tended to see a typical—relatively low-dollar—solatia payment as an insufficient response to lawful harm. Our results demonstrate the ways in which remorse, moral values, and emotion, along with a tendency to shift obligation to victims following an official response, play important roles in the reactions of service members. The questions that we raise speak more generally to other settings in which the law permits harm to others, including non-negligent police uses of force that result in death or serious harm.
Amy J. Schmitz (University of Missouri School of Law): Professor Amy J. Schmitz has been publishing blog posts and curating articles for Arbitrate.com, including Arbitration Tips-N-Tools, and over 85 interviews as host of The Arbitration Conversation. She is also co-author with Stipanowich, Golan, Folberg, and Reynolds, Resolving Disputes: Theory, Practice and Law (Forthcoming Aspen/Wolters Kluwer 2021). Two recent book chapters: Amy J. Schmitz and Jan Martinez, ODR and Innovation in the United States, in Online Dispute Resolution: Theory and Practice: A Treatise on Technology and Dispute Resolution (Mohamed S. Abdel Wahab, Ethan Katsh and Daniel Rainey Eds., Eleven International Publishing, Netherland: The Hague, 2021) and Amy J. Schmitz, Dangers of Digitizing Due Process, in AI and Law: A Critical Overview, Karim Benyekhlef editor, Les Éditions Thémis (2021). Recent Publications in Law Journals and Reviews include Considering Uber Technologies, Inc. v. Heller Under U.S. Law, 1(2) CAN. J. COM. ARB. 163 (2021) (peer reviewed), Reviving the “New Handshake” in the Wake of a Pandemic, Mediation Theory and Practice, 32-54, Vol. 5, issue 1 (2021) (peer reviewed), Arbitration in the Age of Covid: Examining Arbitration’s Move Online, 22 Cardozo J. Conflict Resol. 245-92 (2021), with Leah Wing, Beneficial and Ethical ODR for Family Issues, 59 Family Court Review 250 (2021). For more information on presentations and other research projects, see https://law.missouri.edu/person/amy-j-schmitz/ And for the SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=522704
Andrea Schneider (Marquette University Law School): I am working on three projects this summer. The first builds on the series of blogs that I posted this March about women and negotiation. I hope to have a finished proposal for a book on negotiating while female, outlining female role models for each of the negotiation skills we should have. As part of a grant received last year, I was the principal investigator for a longitudinal study interviewing domestic violence survivors as they navigated the newly-remote court system during the pandemic. We will be analyzing the data this summer to look at remote v. in-person court filings; outlining best practices for the court and social services moving forward as more processes stay remote; and also examining the linkage between employment, well-being, and hope after experiencing domestic violence. Finally, with a colleague from the business school, we are examining data collected last year between employees and their supervisors to see if there are correlations between perceptions of work-family conflict and the likelihood and success of salary and benefit negotiations. The teacher’s manual for our Negotiation: Processes for Problem-Solving textbook (with Carrie Menkel-Meadow & Lela Love) is now available through Wolters Kluwer and, to our delight, the long-awaited Discussions in Dispute Resolution was published by Oxford University Press in May.
Daniel Serviansky (Columbia Law, adjunct, Miami Law, visiting) – I am writing on recent developments in the psychology of needs, with a particular interest in how those developments have already (or should in the future) influence the way we mediate. This year, I’ve presented on the topic at the New York City Bar Association ADR committee, as well as in legal and bioethics ADR courses. I would love to hear from those interested in learning more together and exploring possible collaborations.
Sukhsimran Singh (Pepperdine Caruso School of Law): My recent projects include: Working with Corporate Culture: Best Practices for Attorneys in Business, 56 Willamette Law Rev. 101. In this essay, I define corporate culture and introduce a theory on how corporate culture matters in legal decision-making. My goal is to come up with ideas that help attorneys in practice grow as leaders within the framework of business corporate culture by managing it, understanding it, and at times, by changing it. I am co-authoring an arbitration book that focuses on the intersection of international commercial arbitration and the Indian Legal System (Forthcoming, Thomas Reuters). This summer I will be working on “Unequal Access to Justice: Lessons Learned for Dispute Resolution from the Shadow of the Pandemic,” for New Directions in Dispute Resolution and Clinical Education in Response to the Pandemic Crisis, a volume of the Washington University Journal of Law and Policy.
This past spring, I gave quite a few presentations internationally on various ADR topics, including speaking at the Third International Mediation and Arbitration Conference in Athens Greece, at an international forum, 30 Años de la Conciliacion, which centered on the past, present, and future of conflict resolution in Colombia, and as a Panelist with Judge Tiffany Williams at Symbiosis Law School, Pune at a National Seminar on Gender, Culture, and Spirituality in Dispute Resolution. And this week, I will be giving a plenary talk for the annual conference of the Center for Alternative Dispute Resolution, “Managing Conflict and Understanding the Implicit Barriers and Underlying Sources.”
Lastly, as many of you know, this past April we hosted ADR at the Roots: Exploring Diversity and Equity in the field, a symposium that brought together scholars to consider the role of dispute resolution in advancing fairness and justice within the legal system and for society at large. More information about the event and video may be found here.
Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making, 2d ed. (ABA Publications, 2021) (with Jennifer K. Robbennolt) (providing lawyers with insights from cognitive and social psychology that will help them represent clients more effectively in a variety of litigation and non-litigation contexts)
Jean R. Sternlight, “Justice in a Brave New World?” 52 U. Conn. L. Rev. 213 (2020) (examining how changes in technology such as increasing prevalence of cameras, digital records, genetic testing and brain scans should lead us to reform our justice system)
I have the following work in progress, to be published as part of the Clifford Symposium sponsored by DePaul University College of Law:
Jean R. Sternlight & Jennifer K. Robbennolt “High-Tech Dispute Resolution: Lessons from Psychology for a Post-Covid-19 Era” __ DePaul L. Rev. ___ (2021) (considering how courts, lawyers, and neutrals should draw on psychology to choose among in-person, video conference, telephonic and written dispute resolution, and also to tailor those processes to their liking)
Thomas J. Stipanowich, Arbitration, Mediation and Mixed Modes: Seeking Workable Solutions and Common Ground on Med-Arb, Arb-Med and Settlement-Oriented Activities by Arbitrators 26 Harv. Neg. L. Rev. (forthcoming 2021), available at
Jay Folberg, Dwight Golann, Thomas Stipanowich, Jennifer Reynolds & Amy Schmitz, Resolving Disputes: Theory and Practice for Lawyers (Aspen Publishers / Wolters Kluwer 4th ed. 2022))
Lela Love and Thomas J. Stipanowich, Dear 1L: Five Guideposts for Your Future Professional Practice (forthcoming in the Cardozo Journal of Conflict Resolution (2021))
Mixed-Mode International Commercial Dispute Resolution, Practice Guidelines for Business Users, Counsel and Neutrals (forthcoming)
Thomas J. Stipanowich Lincoln’s Affairs of Honor: Courts, Dueling Codes and Community Mediation in Frontier America (article in progress)
Thomas Stipanowich & Amy Schmitz, Arbitration Practice and Law (Aspen Publishers / Wolters Kluwer 4th ed. 2022))
Stephen J. Ware (University of Kansas School of Law): From a symposium at Penn State, Steve published Labor Unions, Cartelization, and Arbitration: Replacing At-Will Employment with Arbitration of Employee Grievances, 12 Penn St. Arb. L. Rev. 19 (2020), and from symposium at Cumberland, Steve will soon publish Labor Grievance Arbitration’s Differences, Cumb. L. Rev. (forthcoming 2021) (symposium article). Steve is currently writing Arbitration Agreements as Executory Contracts in Bankruptcy, and the 4th edition of Principles of Alternative Dispute Resolution (West Concise Hornbook Series, 3d edition 2016).
Katia Yannaca-Small (USC Gould School of Law): Corporate Social Responsibility and the International Investment Law Regime: Not Business As Usual, 17 U. St. Thomas L.J. (forthcoming 2021). The increasing criticism of the legitimacy of the system of investor-state arbitration has brought the issue of corporate social responsibility of foreign investors into the frontline of international investment law. The current international investment law regime, through its network of international investment agreements (IIAs), is ill-equipped to respond to calls for holding investors accountable for potentially harmful behavior related to human rights, labor risks, environmental impacts, or corruption. Some new generation IIAs try to rebalance, in order to both ensure the effective protection of investors and to secure and enlarge the policy space for host states to regulate in the public interest, by holding these investors accountable in various degrees. Attempts to create a binding instrument on business and human rights are well underway, but differences among participating governments currently make this a far-fetched endeavor. At this time, investor-state arbitral tribunals have limited tools to delve into claims related to investors’ responsibilities, given the limitations of counterclaims. In light of this, the mechanism established under the soft law OECD Guidelines for Multinational Enterprises through mediation and consultation as provided by its National Contact Points may be the best option currently available to manage conflicts between foreign investors and the community in which they operate. Accompanied by the application of due diligence requirements, as also advocated in the context of UNGPs, the observance of this requirement by businesses can provide the best current answer to the question of securing observance of CSR obligations by investors.