ADR Scholarship Projects (Winter 2021-22)

Thanks to BFOI Peter Reilly (Texas A&M) for gathering this winter’s compilation of current ADR scholarship projects:

Kelly Browe-Olson (University of Arkansas Little Rock William H. Bowen School of Law)

In progress:

Family Dispute Resolution Handbook, co-edited with Peter Salem for Oxford University Press, Including Intimate Partner Violence and FDR, co-written with Nancy Ver Steegh and Gabrielle Davis.

Chapter on Family Engagement and Alternative Dispute Resolution in Child Welfare cases for the NACC Red Book, 4th Edition.

Alyson Carrel (Northwestern University Pritzker School of Law)

DELTA MODEL: I started a new blog, Design Your Delta, with Cat Moon (Vanderbilt) to explore the Delta Model (a new competency model for legal professionals that was developed in 2018 to understand the holistic set of skills necessary to succeed as a 21st-century legal professional) as an actionable tool to support individual and organizational understand, adapt to, and thrive in moments of change an uncertainty. The blog covers four main issues:

1) the current state of the legal profession, which we are calling the Liminal Age of Legal,

2) the failings in legal education to effectively engage and support students from diverse backgrounds and diverse career goals,

3) how and why the Delta Model might address these failings, and

4) reactions and testimonials from individuals using our new Design Your Delta tools.

ADR as 1st CAREER: I recently updated the ADR as 1st Career video blog for the ABA-Dispute Resolution section’s mediation week and put together a discussion with four individuals from the blog to revisit their video, provide an update, and talk about their ongoing journey.

Sarah Cole (The Ohio State University Moritz College of Law)

Published an article as a part of the 2021 Penn State Arbitration Law Review Symposium.  https://elibrary.law.psu.edu/arbitrationlawreview/vol13/iss1/3/. The article, entitled What Title IX Dispute Systems Designers Can Learn from Arbitration 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 regarding dispute resolution processes.  It then discusses the problems, particularly bias and conflict of interest issues, that arise when the Title IX decisionmaker is selected and trained. 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.

Sarah’s article Arbitrator Diversity:  Can It Be Achieved?, which was originally published in the Washington University Law Review in January 2021, was serialized in CPR’s Alternatives Newsletter in its October, November and December 2021 issues.  The final installment will be published in January 2022.

Elayne E. Greenberg (St. John’s School of Law) 

I am working on Harnessing the Paradox of Racial Stressors: Re-imagining Racism Education While Reducing Cancel Culture Casualties As the public outrage for a more truthful accounting of our country’s racist history becomes more politicized and incendiary, law schools, too, are being drawn into the fray for perpetuating this false narrative of “justice for all.” Law school administrators and professors are now being compelled to rethink their law school curriculum so that it more accurately reflects how systemic racism is the foundation of the law.

For law schools and their individual professors, the stakes are high to get it right. Get it wrong, law schools will suffer immediate consequences – prospective law students will migrate to those schools with greater educational integrity about racism in the law, law schools’ rankings will tumble and individual law professors risk being cancelled. Get it wrong, law schools will perpetuate the status quo replete with false narratives about racism and the law and continue to graduate students who are ill-prepared to manage the systemic racism that they and their clients will experience.

How can law schools be sure to get it right? This first-of-its-kind paper shifts the conversation about racial inclusion and equity in legal education from an arms-length intellectual discussion to a more honest discussion about the individual stressors that are evoked when we talk about racism This paper focuses on the human stress that members of the law school community experience when they are confronting whether or how to educate about racism. Building on the interdisciplinary research about racism, racial stressors, trauma pedagogy, and the principles of restorative justice, this paper provides a dispute process framework for law school administrators, faculty, and students to help constructively manage the inherent stress and challenges of integrating education about racism into legal education.

Jill Gross (Pace University Elisabeth Haub School of Law)

For presentation at a spring symposium at Stetson Law School and the ABA Section of Dispute Resolution Spring Conference, I am working on an empirical analysis of FINRA arbitration awards to compare pre-COVID and post-COVID award outcomes in customer cases, focusing on any differences in customers’ recovery in videoconference vs. in-person hearings. I will convert that to an article for publication in the symposium volume.

Toby Guerin (University of Maryland Francis King Carey School of Law)

(With colleagues Sara Gold and Kerri Lowery): A Holistic Approach to Eviction Prevention Work During the COVID-19 Pandemic: Challenges and Opportunities for Future Landlord-Tenant Work. Washington University Journal of Law and Policy (forthcoming spring 2022). Anticipating a wave of evictions when the nationwide and various state eviction moratoria were lifted, from August 2020 through May 2021, the University of Maryland (UMB) Carey School of Law collaborated with the UMB School of Social Work to administer the Eviction Prevention Project (EPP), an interprofessional response to acute housing needs of low-income renters in two of Maryland’s largest jurisdictions. The paper describes the EPP’s holistic approach which combined upstream and downstream legal, social work, and dispute resolution services to address the complex and varied needs of clients. Under faculty supervision, law students in four clinics of the Maryland Carey Law Clinical Law Program (Public Health Law, Medical-Legal Partnership, Fair Housing, and Mediation) and social work students provided legal and social services and support to improve short- and long-term outcomes for families facing housing crises due to COVID-19. The paper describes the formation and work of the EPP and outlines the model of holistic service delivery. The paper concludes with the challenges of the holistic, interprofessional, trauma-informed approach to eviction prevention, particularly within the context of clinical legal education, and shares recommendations for other programs seeking to perform similar work.

Timothy Hedeen (Kennesaw State University)

Novel and Emergent Models of Organizational Ombuds Practice 

The field of organizational ombuds practice is approximately fifty years old. The professional standards and ethical practices of the field contemplate ombuds offices internal to the organization served, which deliver independent, confidential, impartial, and informal services to specified constituencies. Ombuds practitioners are employees of their host organizations, albeit unique ones: their communications and any records are not reviewable by anyone in or beyond the organization, their reporting lines are outside of any chain-of-command other than a top executive or body, there are few (if any) exceptions to their pledged confidentiality, and their roles and procedures are codified in a Charter or Terms of Reference. Whether employed full-time or part-time in their ombuds capacity, ombuds have usually served a single organization, although that often has been a large and complex organization.

For many years this model of organizational ombuds practice was the usual model of practice; in the past decade, however, novel approaches have emerged. Among these have been outsourced ombuds services, provided on a contract basis with an individual practitioner or a firm​​, and professional association roles, for example being available to conference participants during a conference. There are other variations, too: ombuds who are employees but serve entirely online from outside the organization, and ombuds who focus only on a single set of issues, like harassment. In addition there are organizational ombuds who serve clients and others who are external of the organization, as well as employees.
​
​This research project seeks to understand these emergent practices through analysis of data collected by semi-structured interviews of ombuds practitioners identified through key informants, literature- and web-based searches, and snowball sampling.​ Anticipated preponderant themes include dimensions of accessibility, compensation, quality, reporting practices, professional standards, and constituents’ perceived reception.

Michael A. Helfand (Pepperdine Caruso School of Law)

Spoke on “The Future of Religious Liberties” at a Jewish Currents Futures Forum on the growing role of religious liberties discourse and litigation in American legal culture on October 5, 2021.

He provided commentary in the Los Angeles Times on November 28, 2021, in the article, “Can Former Scientologists Take the Church to Court? Or Are Religious Tribunals the Only Recourse?”, link here, as well as on November 3, 2021 in “Scientology Accusers Ask Court for a Trial, Not a Religious Arbitration” link here.

He is currently working on Spiritual Damages and Contract Remedies (with Nathan Oman), addressing whether and how courts can take spiritual or religious harms into account when evaluating breach of contract claims.

John Lande (University of Missouri Center for the Study of Dispute Resolution)

I wrote short articles and blog posts about dispute resolution issues including:

I wrote a chapter, “Varieties of Early Negotiation Processes,” which will be published in the forthcoming book, The Family Dispute Resolution Handbook, edited by Peter Salem and Kelly

I wrote commentaries about books, articles, movies, tv shows, and podcasts with a dispute resolution perspective including:

Katrina Lee (The Ohio State University Moritz College of Law)

I am working on an article as part of the Ohio State Journal on Dispute Resolution’s 2022 Symposium Series (series hosted in partnership with OSU Moritz College of Law’s Divided Community Project, the Harvard Negotiation and Mediation Clinical Program, and Stanford Law School’s Gould Center for Conflict Resolution). I am working on it with my OSU research collaborators Simone Drake of English and African-American and African Studies Departments, Kevin Passino of College of Engineering, and Hugo Gonzalez Villasanti of the College of Education and Human Ecology.

Our research project, currently titled Improving Police Interactions with Black Civilians through Racial Sensitivity Training Technology, is funded with a $50,000 grant from OSU’s Seed Fund for Racial Justice. Our community partner is the Columbus Division of Police. The project seeks to wed critical race and gender studies with negotiation and mediation tools via computer software development that augments in-person law enforcement training related to DEI and cultural competency.

I am interested in connecting with dispute resolution academics about any similar or related work they’ve done or are planning to do in partnership with law enforcement. Also, our team looks forward to receiving feedback on our project and draft work at the symposium series.

Also, I am sharing this personal essay, the first personal essay I’ve had published during my time in legal academia: An Asian American Mother’s Sadness and Hope. It was published in the Columbus Monthly in Fall 2021. I invite your reactions and thoughts.

Andrew Mamo (Northern Illinois University College of Law)

Has two ongoing projects: Object Lessons: The Materiality of Legal Practices uses ODR as a lens with which to understand the role of objects in traditional (i.e., face-to-face) mediation practices. Technology does not only matter for ADR in the context of shiny, high-tech ODR systems; I argue that our practices have always been technological. As Bruno Latour understood decades ago, a face-to-face conversation is the result of many more actions than just those of the speakers. This project offers a framework for understanding what these nonhuman actors do, so that they can be explicitly brought into our dispute resolution practices and analyses. I suggest that the ethical framework of mediation can only be understood with reference to the multiple sources of action that are present.

A Practice of Pedagogy: Self-Determination as A Positive Obligation rethinks the ethical principle of self-determination in facilitative dispute resolution. Centuries of lessons from such diverse sources as religion, psychology, advertising, the arts, and social theory teach that our desires and wants are imposed upon us (by Madison Ave., or Instagram influencers, or “the culture,” etc.). If we give any credence to the notion that interests are externally imposed on us, in the first instance, rather than freely chosen, then interests become arbitrary reference points for facilitative dispute resolution that do little to advance self-determination. Party control over procedural decisions may recapitulate received scripts of conflict behavior rather than reasoned choices. It is not enough to understand the ethical principle of self-determination in “thin,” purely negative terms (e.g., not imposing a resolution on the parties, or preventing one party from dominating the other), because such an approach does nothing to challenge parties always already being externally-determined. Instead, I offer a positive theory of self-determination that requires cultivating opportunities for parties to make freely reasoned decisions.

Jennifer Robbennolt (University of Illinois College of Law)

Leslie C. Levin & Jennifer K. Robbennolt, To Err is Human, To Apologize is Hard: The Role of Apologies in Lawyer Discipline, 34 Geo. J. Legal Ethics 513 (2021) (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3923055). The lawyer discipline system is often the only recourse for complainants when lawyers misbehave. Yet it is also deeply unsatisfying. Most grievances are dismissed and even when a sanction is imposed, the complainant receives no monetary compensation. Lawyers rarely even apologize for the harm they caused. Yet apologies can repair relationships and trust, decrease distress, restore the victim’s standing, and affirm important values. In this article, we explore whether and how apologies might be more systematically incorporated into the lawyer discipline system to address lawyer mistakes and misconduct. We detail how apologies are currently sporadically used and evaluated by disciplinary authorities. We explore the psychological, educational, and signaling benefits of apologies and the beneficial features of apologies for complainants, lawyers, and disciplinary authorities. We then consider the various junctures at which apologies could productively be incorporated into the discipline process and the psychological and legal impediments to doing so. We conclude by considering how lawyers could be better educated about the benefits of making meaningful apologies in the context of lawyer discipline and how they might be trained to do so.

Amy J. Schmitz (University of Missouri School of Law)

  • In January, 2022, Professor Schmitz will join The Ohio State Moritz College of Law and Program on Dispute Resolution as the John Deaver Drinko-Baker & Hostetler Endowed Chair in Law. Recent scholarship includes joining with Stipanowich, Golan, Folberg, and Reynolds on Resolving Disputes: Theory, Practice and Law (Aspen/Wolters Kluwer 2021). Forthcoming with Tom Stipanowich is Arbitration: Theory, Practice and Law (Wolters Kluwer 2022). Recently, Amy joined Jan Martinez on ODR and Innovation in the United States, in Online Dispute Resolution: Theory and Practice: A Treatise on Technology and Dispute Resolution (2021) and ODR and Innovation, 1(2) International J. on Online Dispute Resolution 2021 (8) 1, pp. 39-40 (2021). Forthcoming articles include Amy J. Schmitz and John Zeleznikow, Intelligent Legal Tech to Empower Self-Represented Litigants, __ Columbia Science and Technology Law Review __, (2022), Amy J. Schmitz, Lola Akin Ojelabi and John Zeleznikow, Researching Online Dispute Resolution to Expand Access to Justice, __ Giustizia Consensuale (Consensual Justice) __, (2022) and a piece for the Divided Communities Project Symposium with Oladeji Tiamiyu and Colin Rule. Trade publications include blog postings for Arbitrate.com and Will the United States Remain Exceptional in Enforcing Predispute Arbitration Clauses in Consumer Contexts?, MARC. Revista de Medios Alternativos de Resolución de Conflictos, no 2, 34-39 (2021) at https://issuu.com/cedca/docs/marc_2_2021 and Discovering Documents from Nonparties in Online Arbitration?, ABA Dispute Resolution SectionNewsletter, Winter 2021.
  • At the same time, Amy has reached 100 episodes of The Arbitration Conversation, including an interview of Chairman Bobby Scott regarding recent arbitration legislation. She also hosts Arbitration Tips-n-Tools (TNT): A weekly publication of “tips and tools” from top arbitration experts on hot topics. See e.g. https://arbitrate.com/category/arbitration-tips-and-tools/ Amy has also been very busy presenting on dispute resolution topics – including AALS, Ministry of Justice of Japan in conjunction with UNCITRAL, CONFERENCIA WEB INTERNACIONAL ADR / ODR, Paris Arbitration Week, The Ohio State University, Cyberweek, Arbitrate.com/Texas A&M, ABA Mediation Inst., American Society of Comparative Law’s Annual Meeting, Conference on Construction and Hospitality Disputes Post-Covid, University of Lausanne, Switzerland, Cyberjustice Lab in Montreal, CA, and more.

Jean Sternlight (UNLV William S. Boyd School of Law)

 Published Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making. (ABA Publications, 2021, 2d ed.) (with Jennifer K. Robbennolt). Also, her latest take on one of her previous articles, Panacea or Corporate Tool: The Aftermath, is featured in the new book Discussions in Dispute Resolution: The Foundational Articles (Hinshaw, Schneider, and Cole, eds.,) (Oxford Univ. Press 2021). Sternlight’s latest article, High-Tech Dispute Resolution: Lessons from Psychology for a Post-Covid-19 Era (with Jennifer Robbennolt) was part of the Clifford Symposium and will be published in the DePaul Law Review in 2022. She has given presentations in 2021 to audiences in London, Fiji, Australia, Houston, and Connecticut.

Thomas Stipanowich (Pepperdine Caruso School of Law)

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. 265 (2021), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3689389

Dear 1L: Five Guideposts for Your Future Professional Practice, 22 Cardozo J. Conflict Resol. 529 (2021) (Symposium Issue) (with Lela Love), available at  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3889873

 Multi-Tier Commercial Dispute Resolution Processes in the United States, contributed as a chapter for Multi-Tier Approaches to the Resolution of International Disputes: A Global and Comparative Study (Anselmo Reyes & Gu Weixia, eds.) (just published), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3601337

Synchronicity, Paradox and Personal Evolution: Riding the Wave of the Quiet Revolution in Dispute Resolution, Chapter in Evolution of a Field: Personal Histories in Conflict Resolution (Howard Gadlin & Nancy A. Welsh, eds.), available at https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=846541

Jay Folberg, Dwight Golann, Thomas Stipanowich, Jennifer Reynolds & Amy Schmitz, Resolving Disputes: Theory and Practice for Lawyers (Aspen Publishers / Wolters Kluwer 4th ed. 2021))

International Task Force on Mixed-Mode Dispute Resolution, Practice Guidelines for Business Users, Counsel and Neutrals (just published, available on International Mediation Institute website)

Foreword for John Burritt McArthur, The Reasoned Arbitration Award in the United States: Its Promise, Problems, Preparation, and Preservation (forthcoming)

Lincoln’s Affairs of Honor: Courts, Dueling Codes and Community Mediation in Frontier America (article in progress)

Selected presentations:

“Mediation, Arbitration and ‘Mixed Modes” Indian Association of Legal Professionals JAMS Webinar, Jan. 12, 2021

“Healing a Conflicted Humanity,” Hong Kong University School of Law, Jan. 28, 2021

Brazilian National Bar Superior School of Advocacy, April 8, 2021

“Symbiosys between Mediation and Arbitration and the Role of Instituitons,” International Chamber of Commerce (ICC), Sao Paulo, Brazil, May 28, 2021

“The Future of Dispute Resolution: Key Questions,” in Symposium, “The Singapore Convention Two Years On,” UNCITRAL Academy, Singapore, Sept. 9, 2021

“The Perfection of Arbitration System and the Enhancement of the Credibility of Arbitration,” 2021 China Arbitration Summit, September 14, 2021

“The Impartiality and Independence of International Commercial Arbitrators,” as Distinguished Affiliated Global Faculty, Peking University School of Law, Oct. 26, 2021

“Launch of the International Mixed Mode Task Force Papers,” Fordham School of Law School, November 19, 2021

S.I. Strong (Stacie), (University of Sydney Law School)

Stacie published the findings from a large-scale, international empirical study funded by the AAA-ICDR Foundation, with additional support from the University of Missouri School of Law.  The analysis was published in book form by Oxford University Press, as noted below, along with other recent works.

  • Legal Reasoning Across Commercial Disputes:  Comparing Judicial and Arbitral Analyses(Oxford University Press 2020)
  • “Large-Scale Arbitration:  Class, Mass and Collective Arbitration,” in Kluwer Arbitration Practical Insights(Kluwer International, 2021)
  • “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 225 (Oxford University Press, 2021)
  • “Collective Redress Arbitration in the European Union,” International Arbitration and EU Law 176 (Edward Elgar Publishing Ltd, 2021)
  • “International Commercial Courts in the United States and Australia: Possible, Probable, Preferable?,” 115 AJIL Unbound 28 (2021)

Maureen Weston (Pepperdine Caruso School of Law) 

  • The Anxious Athlete:  Mental Health and Sports Duty and Advantage to Address, Harvard Sports Law Journal (Jan. 2022)
  • A New Era in College Sports, LawInSport  (Dec. 2021)
  • Legal Aspects of Daily Fantasy Sports in the United States, 21 Int’l Sports L. J. 121 (2021)
  • Buying Secrecy:  Non-Disclosure, Arbitration, and Professional Ethics in the #MeToo Era, Ill. L. Rev. (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. (2020-21)

Various Presentations for Sports Lawyer Association – Mock Arbitration of Athlete Eligibility Dispute; Mental Health & Sport;  Section on Dispute Resolution – Arbitration Law Update