From FOI Peter Reilly (Texas A&M), a round-up of recent scholarly projects from ADR profs:
Ava Abramowitz (GW Law) and Ken Webb (Kenn Webb Consulting, LLC)
Planned Research: Our research builds on Neil Rackham’s and John Carlisle’s 1978 paper “The Behaviour of Successful Negotiators” (which can be found here). We asked ourselves, can the same research methodology be applied to mediation?
The answer is “yes” and “no.” Yes, because if we can get access to live mediations, we can code all the participants’ communication behaviors. Fortunately, Doug Van Epps, the head of Michigan Court’s Dispute Resolution Office, allowed us to live-code some thirty mediations. On the other hand, getting access to live mediations with the intent of coding is more than difficult. We heard “no” a lot.
As a result we have hypotheses, as calling our findings “data” is more than cheeky. Some things we know. Rackham identified eleven negotiator communication categories:
- That were objective and mutually exclusive
- That were so easily understood they enabled inter-rater reliability
- That were used often enough to be worth measuring, and
- Which correlated with success.
We have uncovered twenty-three mediator communication behaviors, but have yet to prove which correlate with success.
We also identified two mediator communication styles. There were mediators whose energy controlled the process. We called then Push Mediators. And, there were mediators who activated the parties’ energy to facilitate the process. We called them Pull Mediators.
Push mediators most often-used communication behaviors were 1) Giving Information: Facts, and 2) Seeking Information: Facts with 3) Acknowledging thrown in. When they Initiated an idea, they were just as likely to use Introducing Possibilities as Proposing: Substance or Content. Pull mediators most-often-used behaviors were 1) Seeking Information (both Facts and Feelings), Testing Understanding, Summarizing, and Acknowledging. When they Initiated, they were most likely to use Building on the Ideas of Another and Introducing Possibilities, rather than Proposing: Substance or Content.
Additionally, we “found” that in those mediations that settled, mediators:
- Asked more than five times more questions
- Asked seven times more questions about the problems facing the disputants AND the implications of those problems
- Asked five times more questions about Feelings
More information on this is in the January Cardozo Law Review article entitled, “Why Recreate the Wheel? Tapping consultative selling research to expand mediator effectiveness.”
Gilat Juli Bachar (Temple Law)
Confidential Settlements and Commonsense Civil Justice (abstract below)
Confidential settlements are controversial, and they are everywhere. For years, scholars and policymakers have debated ways to limit the enforcement of NDAs in settlements related to products liability, given their adverse impact on public health and safety. More recently, confidential settlements returned to the spotlight due to their role in silencing victims of sexual harassment. Yet, despite this attention, and notwithstanding laypeople’s key position as decision-makers in the settlement process, we still know very little about a paramount question: what affects plaintiffs’ decision to accept or reject a settlement? This Article is the first to offer empirical insight into this question, focusing on the extent to which confidentiality and a defendant’s history of wrongdoing factor into laypeople’s likelihood to settle, and, more broadly, into consumers and employees’ decision to resolve legal disputes.
To tease apart this decision-making process, the Article builds on a survey experiment comprised of two scenarios—one describing a products liability dispute and the other a sexual harassment dispute—and distributed to a large representative sample of U.S. population. Through this method, the Article finds, first, that laypeople are more likely to accept a public settlement offer and a settlement with a first-time wrongdoer than they are a confidential settlement and a settlement with a repeat wrongdoer. These effects, the Article argues, reflect parties’ tendency to pursue goals beyond self-restoration—including expressive and deterrent goals—when weighing a settlement offer. Furthermore, in addition to being overall more likely to settle a products liability dispute than a sexual harassment dispute, laypeople also expressed more punitive tendencies in the sexual harassment context, as they were more willing to settle, even confidentially, when the defendant was personally sanctioned. Building on differences in liability regimes and perceived blameworthiness, the Article then provides a theory as to the psychological mechanism underlying these punitive sentiments and offers recommendations as to how such sentiments might affect settlement negotiations. This Article thus pushes our traditional jurisprudential engagement with the concept of confidentiality and with the functions of tort law, and helps develop a more nuanced account of lay attitudes towards confidentiality in products liability and sexual harassment disputes.
Richard Bales (Ohio Northern Law) and Jill I. Gross (Pace Law) are co-editing a book, to be published by Cambridge University Press in 2024, tentatively entitled The Federal Arbitration Act: Successes, Failures and Roadmap for Reform. The book will gather approximately 35 chapters of 5,000 words or less, contributed by more than 30 individual authors—a diverse array of leading scholars and practitioners—which will both celebrate the FAA’s successes and propose reforms to particular sections of the Act as well as the Act as a whole.
Debra Berman (South Texas College of Law Houston)
Debra Berman published an article in the Washington University Journal of Law and Policy entitled A Hybrid Model for Teaching Settlement Skills (with Catherine Burnett). The article examines the primary limitations of using hypothetical face to face roleplays in a controlled setting in class. The authors recommend a simulation model built on four specific pillars that provides authentic, real-world cases in a delivery format that mirrors contemporary practice environments.
I am currently working on the regional fact patterns for the ABA Representation in Mediation Competition this spring. Students in each round will be mediating actual lawsuits and they will receive the relevant court documents along with short memoranda detailing confidential notes from their client.
This spring, I will be spearheading two new projects with my co-chair of the Legal Education in Dispute Resolution (LEDR) Committee, Casey Thomson. The first will be a nationwide practitioner survey regarding the DR skills that litigators would like their new associates to have. The second project is a live database of pending or settled lawsuits that professors can use for simulations. If you are interested in assisting with either project, please reach out.
Stephanie Blondell (Pepperdine Caruso Law)
“Legal Advice, Legal Information, Legal Fiction: Rethinking Mediation Table Skills with Pro Se Litigants.” Abstract (presented at the 2022 WIP Conference): The temptation for new mediators, as well as experienced ones, to become directive and evaluative when working with pro se litigants is compulsive. This troublesome dynamic invokes questions at the heart of mediation ethics. When teaching in the professional skills or clinical setting, bright lines have been drawn around largely suspect categories, such as legal advice and legal information. In addition, instilling the fear of the unauthorized practice of law is commonplace. The author’s assertion is that the development of advanced mediation table skills circumvents the need to rely on the suspect categories of legal advice and information. This paper proposes a three-part analysis to categorize mediator interventions with pro se litigants, including the regulatory context of the litigation as well as specifics of both the litigant and the mediator context. The paper appeals to clinicians to teach the “carrot” (an evolved and ethical approach to table skills) as an alternative approach to the “stick” (fear-based rubrics).
Jack Coe (Pepperdine Caruso Law) published a review of the book Procedural Issues in International Investment Arbitration by Jeffery Commission and Rahim Moloo (Oxford University Press, 2018). The book review was published in the July 2022 ICSID Review—Foreign Investment Law Journal.
Michael Colatrella (McGeorge Law)
- Leading Law Schools: Relationships, Influence, and Negotiation, 91 University of Cincinnati Law Review 82 (2022): This article explores how quality relationships with one’s constituents, especially faculty, lie at the heart of successful law school leadership. Achieving meaningful institutional goals is a group endeavor, and a law school leader must have the skills and abilities to focus faculty energies and enthusiasms to a unified vison. To marshal those energies and inspire those enthusiasms, a leader must master the triumvirate leadership skills of (1) relationship building, (2) influential power, and (3) negotiation with faculty. If one is to be a successful leader in law school environments, formal or informal, one must accept the premise that the power to lead is one that law school faculty grants a person. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4086895
- Mediation—Skills & Techniquesby Laurence Boulle, Michael T. Colatrella Jr, Anthony Piccioni (Carolina Academic Press, Second Edition 2023) To be published this spring, the second edition of Mediation—Skills and Techniques includes new chapters on balancing power among parties in mediation, evaluative mediation, and virtual mediation. As with the first edition, this new edition offers a comprehensive course of study of the mediation process, from convening the mediation to formalizing the settlement agreement. The book provides practical examples and case studies to illustrate the skills and techniques necessary to become a proficient mediator. Importantly, the book adopts an interdisciplinary approach to mediation that incorporates scientific principles from law, psychology, conflict management, and sociology. It also surveys careers in mediation and explains how to market a mediation business. Whether you are a student, mediator, lawyer, psychologist, businessperson, clergy, or social worker, this book answers the call for a broad and systematic education in mediation with an emphasis on practical, science-based mediation skills and techniques.
Noam Ebner (Creighton) and Jennifer Reynolds (Oregon Law) have published Star Wars and Conflict Resolution: There are Alternatives to Fighting (DRI Press, 2022). 25 authors participated in the book, supported by input from an even broader network of contributors.
Practicing negotiators, mediators, lawyers, and managers will enjoy this book, as well students, teachers, and academics in the fields of negotiation and dispute resolution. All it takes is for them to have seen a Star Wars movie or three and enjoy thinking about their work in a new light. However, the book’s primary audience is the general public: Star Wars fans from all walks of life. Reading it, they will enhance their conflict literacy, fluency, and capacity while seeing Star Wars through a brand-new lens. Noam and Jen are recharging over the break, after which they intend to provide a conflict resolution -themed answer to the question “what is the most Star Wars-iest thing of all?”
On other fronts, Noam also played a modest role in Thompson, J., Grubb, A.R., Ebner, N., Chirico, A. & Pizzolante, M. (2022), Increasing Crisis Hostage Negotiator Effectiveness: Embracing Awe and Other Resilience Practices, Cardozo Journal of Conflict Resolution 23(3), 615-685.
Jacqueline Font-Guzmán (EMU) and Bernard Mayer (Creighton Law)
The Neutrality Trap: Connecting and Disrupting for Social Change (John Wiley and Sons, 2022). In The Neutrality Trap, we examine the relationship between conflict work and social activism. We discuss how effective social movements require both communication across our differences and disruption of existing systems of oppression and exploitation. We are concerned that the instinctive reaction we often have to any social crisis—such as to George Floyd’s murder, the invasion of the US Capital, or the conflicts surrounding the truckers’ occupation of Ottawa —is to want to bring people together in dialogue. But if these well-intentioned efforts are disconnected from a commitment to confronting the systems that underlie these crises, they can easily contribute to maintaining the status quo rather than changing it.
By addressing this tension, we address what is a foundational challenge for peacemakers and mediators, but for many other professionals as well—social scientists, journalists, lawyers, psychotherapists, and others, and that is one of identity. Is what we offer rooted in a self-identification as objective, dispassionate neutrals, with all the values and practice standards this implies or as transparent, authentic, and rounded participants in the struggles of our times? This is not a new challenge, but it remains an important one and how we answer it is critical to the impact we have on social change efforts.
To address these issues, we consider the role of professionals, the nature of social change, the importance of our intersectional identity and those of the people we work with, and the interaction between efforts to connect across our differences and to disrupt systems of oppression in building movements for change. We consider the relationship between chaotic and spontaneous efforts at system disruption and strategic and long-term approaches to change systems. We bring to this effort a long history as students of conflict, activists, and conflict interveners and share both our personal experiences and our observations of both small scale and global efforts at social change.
Eve Hanan (UNLV Boyd Law) and Lydia Nussbaum (UNLV Boyd Law) are working on a co-authored Essay, Taking Account of “Community Accountability” for a symposium on restorative and transformative justice at UC Law/San Francisco (formerly UC Hastings).
Advocates of restorative and transformative justice frequently describe one of their aims as achieving “community accountability.” From the early theorists of restorative justice to the new abolitionist thinkers committed to dismantling criminal legal systems, “community accountability” is discussed as a way to respond to instances of harm without invoking the destructiveness of the state’s punitive apparatus.
This Essay first describes the development and use of the phrase, “community accountability” within the restorative and transformative justice movements with particular attention to variation and ambiguity. The nascent and improvisational meanings of “community accountability” resist definitive categorization. The Essay then analyzes the benefits of ambiguous terms within the framework of counter-epistemologies. In projects intended to create alternatives to existing institutions, terms like “justice,” “community,” and “accountability” may be intentionally vague so that their meaning can be developed free from the gravitational pull of the rejected norms. Undefined terms are epistemically rich areas for what the theorist Lauren Berlant has called “alternative world-building.”
Yet, it is nevertheless important to interrogate this idealized intersection of community and accountability in restorative and transformative justice and to identify when these non-state systems of conflict resolution mimic the harms of criminal systems. In its final section, this Essay addresses the pitfalls of the ambiguous framework for “community accountability,” drawing on earlier critiques of concepts like community and informal justice that raise questions about representation, authentic self-determination, and substantive and procedural fairness. With these cautions in mind, the hope is that restorative and transformative justice advocates can avoid replicating the very systems they seek to dismantle.
Michael Helfand (Pepperdine Caruso Law) presented “Who Decides? Arbitrator Qualification Clauses in Religious Arbitration Agreements,” at the Canopy Forum at Emory Law School Center for the Study of Law and Religion. The presentation explored arbitration qualification clauses and how various courts have navigated their application in religious arbitration agreements.
Art Hinshaw (Arizona State Law) and Roselle Wissler (Arizona State Law)
Art Hinshaw and Roselle Wissler currently are working on a manuscript that examines the relationships between how the initial mediation session begins and other aspects of the mediation process and its outcomes. The findings are based on the survey responses of over 1,000 civil and family mediators in eight states across the country.
- Two other articles reporting findings from the same study were published this fall/will soon be published.
- Joint Session or Caucus? Factors Related to How the Initial Mediation Session Begins, 37 Ohio State J. Disp. Resol. 391 (2022), is the first study to examine whether a wide range of factors – including dispute and mediator characteristics as well as pre-session communications and other aspects of the mediation – are related to the use of initial joint sessions versus initial separate caucuses. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4228303
- Mediators’ Views of What Can Be Achieved Better in Initial Joint Sessions and in Initial Separate Caucuses, which explores mediators’ views of the specific benefits of initial joint sessions relative to initial separate caucuses, and vice versa, will appear in the January 2023 issue of the Washington U. J. Law & Policy.
David Hoffman (Boston Law Collaborative, LLC)
- “Follow the Science: Proven Strategies for Reducing Unconscious Bias”– Mediators and arbitrators are ethically required to be impartial. And yet all humans have biases – some conscious and some unconscious. Much controversy swirls around the question of whether unconscious biases can be measured accurately, whether they are malleable, and, if so, what are the best methods of reducing them. My co-author Helen Winter and I reviewed the growing body of social psychology research looking for answers to these questions, and this article (see link below), which will be published in the Harvard Negotiation Law Review, contains our conclusions. https://blc.law/our-team/davids-articles-and-publications/follow-the-science-proven-strategies-for-reducing-unconscious-bias-draft-2022-12-02/
- “The Self-Led Mediator: Using the Internal Family Systems Model in Dispute Resolution”– This article is a work-in-process, based on a plenary talk (see link below) that I gave in October 2022 for the IFS Institute’s annual conference. The IFS model is based on a theory of mind that is not new – namely, that our minds have multiple “parts” (some schools of psychology call them subpersonalities). One of the goals of IFS therapy is to help clients be more Self-led, and this is a valuable aspiration for all of us, including mediators. https://www.dropbox.com/s/x9naolz0x7tfo9f/The-Self-Led-Mediator-Using-IFS-in-Dispute-Resolution-4415.mp4?dl=0
- “Law as a Spiritual Practice”– This is currently just a germ of an idea for a book in which some essays would be excerpted from existing publications and some solicited (much like the collection of essays in “Bringing Peace into the Room”). The core idea is that there are deeper dimensions of law practice than utilitarian problem-solving or conflict management. For some lawyers, those deeper sources of meaning in connection with serving clients arise from religious conviction. For others (myself included) the spiritual dimension arises less from religion than from a more universal sense of connection with the sacredness/divinity that lies within each person, and indeed all living beings. These ideas are discussed briefly in the following blog post: https://blc.law/blogpost/law-as-a-spiritual-practice/
- “In Praise of Mediation Observers”– I published this short article in CPR’s “Alternatives” journal (see link below). CPR also published, as companion pieces, commentaries from two recent mediation observers, describing their experience and what they learned from observing. https://blc.law/our-team/davids-articles-and-publications/hoffman-in-praise-of-mediation-observers-june-2022/
Carolyn Kaas (Quinnipiac Law) and Kim Wright (Quinnipiac Law)
Carrie Kaas and Kim Wright are working on an article called, What’s Integrative Law Got to Do with Dispute Resolution?
With metaphor anchored in a graphic of a garden, it explores how DR grew in the fertile soil of the Integrative Law movement. We propose the idea that ADR and its branches are firmly rooted in the Integrative Law Garden, fed by values common to all the growing ideas and approaches that have sprouted up in the wild fields of legal practice and theory.
We assert that Integrative Law is a paradigm shift in the legal system that represents a change of values and perspectives that lead to a shift in being. That shift in being
impacts what we do and has sprouted integrative approaches that include legal well-being efforts, trauma-informed law, various models of legal practice, and shifts toward professional identity. The garden is growing!
This article grows from the Project for Integrative Law in Legal Education, a project of the Quinnipiac Center on Dispute Resolution. We took it to the AALS ADR Section’s WIP in October and have been accepted to the ABA DR conference’s Legal Ed Colloquium.
For more on the Project: https://www.qulawdisputeresolution.org/new-page-2
Real Mediation Systems to Help Parties and Mediators Achieve Their Goals, 24 Cardozo Journal of Conflict Resolution (forthcoming 2023). This series of blog posts is related to this article.
I am encouraging faculty as well as program administrators, continuing education program sponsors, and practitioners to use a practice systems framework involving mediation, advocacy in mediation, or negotiation.
I will conduct an assessment of how well these efforts worked and what might be improved. This will be similar to faculty assessments of the Stone Soup assignments in their courses. This post summarizes insights from Stone Soup assessments.
I am compiling pre-mediation-session resources following my post, The Critical Importance of Pre-Session Preparation in Mediation.
Early Negotiation Processes, in Family Dispute Resolution (Peter Salem and Kelly Browe Olson eds., forthcoming 2023).
Think DSD, Not ADR, New York Dispute Resolution Lawyer (forthcoming 2023).
Recent blog posts:
- Slices of Conflict in Life
- Suggestions for Dying
- The Normal New Normal in the US, Circa September 2022
- Mediators Help Save the Economy
- Problem Resolution Lawyering Across the 21st Century Law Curriculum
- Inside a High-Profile Plea Bargaining: Part I (Cynthia Alkon wrote Part II)
- A Long, Hard Road to “Yes”
- Shestowsky’s Study Supports Value of Lawyers’ Early Education of Clients About Their Procedural Options
- How Many Friends Do You Want?
- Humor Theory for When Everything Seems Like it is Going to Hell
- Is the World Really Falling Apart, or Does It Just Feel That Way?
- Retrofuturism on the Supreme Court
- Study of ODR in Family Cases with Positive Results
- A Heartwarming TV Series
- Gay Couples Can Teach Straight People a Thing or Two About Arguing
Collections of materials:
- What I’m Reading Series
- Resources for Teaching About BATNA, Bottom Lines, and LIRA
- Stone Soup Resources
- Readings and Resources for Teaching
- Materials About Multi-Stage Simulations
- (Some of) My Favorite Resources
- Theory of Change Symposium and Book
- Tower of Babel Symposium Articles and Resources
- New Normal Series
- Reading List About Our Racial History
- Resources for Truth and Reconciliation
- Posts About Good Friends and Colleagues
- Dispute Resolution Community Photo Album
- Improving Internal Police Negotiation and Communication Tools to Improve Police-Civilian Interaction (research project: Lee (PI), Simone Drake, Judson Jeffries, Terrance Wooten)
Work continues on this project, funded with a $250,000 grant from AAA-ICDR. Its focus is on assessing internal climate dynamics and social relations within the Columbus Division of Police and developing culturally-informed negotiation training modules that will help to improve internal communication, diverse recruiting, retention, and police-civilian interactions.
- A Multidisciplinary Approach to Improving Police Interactions with Black Civilians (article forthcoming in the Ohio State Journal on Dispute Resolution)
Looking forward to having this article finalized, with co-authors OSU Profs Simone Drake of English, Kevin Passino of College of Engineering, and Hugo Gonzalez Villasanti (now at Michigan, formerly at OSU). Will be an honor to have this article published in one of the issues dedicated to the symposium series Rethinking Systems Design for Racial Justice & Equity Symposium Series (hosted by 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). The project discussed in the article is funded with a $50,000 grant from OSU’s Seed Fund for Racial Justice.
- OSU Business of Law Series (serving as moderator)
The 2023 OSU Law Business of Law Series will take place Jan-March 2023. I am organizing and will moderate each program. Perhaps of particular interest to DR colleagues: The February program is titled Politics and the Legal Workplace in Polarized
Times. Leslie McCarthy, who will teach Difficult Conversations in Polarized Times at OSU Law this Spring, will be a featured speaker. Her course is part of a new university-wide Civil Discourse Courses initiative spearheaded by OSU’s Provost. OSU Law’s Program on Dispute Resolution played a leading role on the initiative launch team.
- A Holistic Approach to the Business of Law (chapter forthcoming in Antiracist Development Institute’s Book Series)
- The Guide to U.S. Legal Analysis and Writing, with Deborah McGregor and Cynthia Adams (3d ed. 2022).
Carrie Menkel-Meadow (UC Irvine Law)
- Book: Very Short Introduction to Negotiation(Oxford Press) available here.
- Book chapter: “Cross cultural disputes and mediator strategies” in Routledge Handbook of Intercultural Mediation(Dominic Busch) (2022): doi: 10.4324/9781003227441-4.
- Articles: (with Ji Li), “Dispute Process Choices Among Chinese Companies in the United States: Some Preliminary Data and Analysis, 27 Harvard Negotiation Law Review295-336.
- Review: “Every Problem Wants to be Solved”: Review of The Peacemaker’s CodeNegotiation Journal (Spring 2022): doi: 10.1111.nejo.12391.
- Book: (with Andrea Kupfer Schneider), International Conflict Resolution (Carolina Press, forthcoming).
- Article: “Choices: The Many Routes to Justice and Peace with Dispute Resolution, Ethics and Feminism,” forthcoming in 10 Texas A & M L. Rev. (symposium on Carrie Menkel-Meadow: Renaissance Woman of Dispute Resolution).
“Truth. Regardless of Reconciliation?” Using my ongoing experiences working with Cayuse tribal leaders on the search for the gravesites of five tribal members wrongfully executed 170 years ago as a springboard, I am exploring a web of questions that may (?) connect to our field’s conception(s) of justice and reconciliation. What appetite should we have for postmodern skepticism of “facts” or “truth?” What appetite should we have when one potential party to a dialogue sets preconditions for that dialogue? What stance could (should? must?) legal educators have when working with tribal clients, in particular, in light of standard 303 and its call for cultural humility? What risks and opportunities arise for students working with tribal clients on questions of historical justice, particularly in this era of racial reckoning? What options exist when some stories or perspectives are missing from public narratives linked to public processes? Are the interests of the living the only ones that matter, and if no, who speaks for those who cannot participate? For those in state universities, to what extent do (should?) government-to-government relations questions drive interactions with tribes? What kinds of collaboration, and what kinds of approaches to collaboration, honor the challenges facing tribal communities? Is establishing a singular, shared “truth” a necessary precondition to reconciliation? Do (should?) truth-seeking processes look different if the events in question are distant in history? Do (should?) reconciliation-seeking processes look different if the events in question are distant in history? (And who am I / who are we to answer ANY of the above questions?)
The Unfulfilled Promise of Self-Determination in Court-Connected Mediation, Florida State University Law Review (Forthcoming, 2023). Below is the abstract:
In the context of mediation, party self-determination refers to the ability of disputants to have power, control, and autonomy in the process. There are numerous process design questions involved in running a mediation, no matter its subject matter. Consider just one example: “Should the mediation be conducted in-person, or virtually?” The answer to this question can have a profound impact on the direction and course of a mediation, including its outcome. Yet, in the context of court-connected mediation, disputing parties are not consistently provided the opportunity to give input on how such process design questions are resolved. In fact, these decisions are typically made by mediators, courts, program administrators, counsel, or others—all of which conflicts with the Model Standards of Conduct for Mediators’ declaration that disputing parties may exercise self-determination at any stage of a mediation, including process design. In effect, this dynamic represents a significant failure regarding one of mediation’s core promises. The paper proposes a novel solution to this unfulfilled promise: the institution of an Opening Negotiation Session at the start of every court-connected mediation. This joint meeting would involve all participants (mediators, disputants, and counsel) to ensure party interests are accounted for in deciding how four specific process design questions, all explored in the paper, will guide the mediation. This opening negotiation can immediately impact how the mediation will be run as it moves forward, thereby dramatically enhancing party self-determination and leading to a more tailored, empowering, and accountable resolution process for all participants.
Amy J. Schmitz (Ohio State Law) was recently elected into the American Law Institute. She also gave many publications is fall, including 2 Keynotes (Quinnipiac/CT Bar & AFCC Australia) and presentations with Northwestern, Cyberjustice Lab, Cyberweek, TDAI, ICODR podcast, Arbitrate.com, and others. Additionally, Amy added new podcasts to The Arbitration Conversation, 14 new podcasts on iTunes, Spotify, Amazon, Podbean etc.; see https://arbitrate.podbean.com/ to add to the 100 on UTube.
Amy also published a new book with Tom Stipanowich, Arbitration: Practice, Policy and Law, 1st Ed. (Aspen 2022); available in print and as part of the connected ebook series, along with teaching materials and resources. See https://www.aspenpublishing.com/StipanowichArbitration1. Additionally, she has a couple of new book chapters and two forthcoming:
- Amy J. Schmitz, Evolution and Emerging Issues in Consumer ODR, The Cambridge handbook on Emerging Issues at the Intersection of Commercial Law and Technology (Cambridge 2023, Edited by Nancy Kim).
- Amy J. Schmitz, Resolving NFT Disputes, The Cambridge handbook on the law and policy of NFTs (Cambridge 2023).
- Amy J. Schmitz, Arbitration in the Age of Covid, The Impact of Covid on International Disputes (Brill 2022, Edited by Lalani and Shapiro); https://brill.com/view/title/62243?rskey=DNkvdt&result=1
- Schmitz, Amy J., “Tornando Contratos Inteligentes ‘Mais Inteligentes’ Com Arbitragem” in Dierle Nunes, Paulo Lucon and Isadora Werneck (eds), Direito Processual e Tecnologia: Os Impactos da Virada Tecnológica no Âmbito Mundial, vol 1 (1st edn Editora Juspodivm 2022).
Publications in Law Journals and Reviews:
- Amy J. Schmitz and John Zeleznikow, Intelligent Legal Tech to Empower Self-Represented Litigants, 23 Columbia Science and Technology Law Review 142-190 (2022) at https://journals.library.columbia.edu/index.php/stlr/article/view/9391/4800
- Amy J. Schmitz, Lola Akin Ojelabi and John Zeleznikow, Researching Online Dispute Resolution to Expand Access to Justice, Giustizia Consensuale (Consensual Justice) 269-303 (2022).
- Oladeji Tiamiyu, Amy Schmitz, Colin Rule, Technology Driven Reconciliation: A practical guide for the use of technology in truth commissions, Ohio State J. on Disp. Resolution ___ (forthcoming 2022).
Sukhsimranjit Singh (Pepperdine Caruso Law)
Singh’s article, “In the Shadow of the Pandemic: Unearthing Unequal Access to Justice Vis a Vis Dispute Resolution” was recently published in the Washington University Journal of Law and Policy. The article is featured in the Journal’s winter volume, “New Directions in Dispute Resolution and Clinical Education in Response to the Pandemic Crisis,” with a direct or indirect focus on race, ethnicity, gender, and poverty.
I continue to be interested in de-biasing strategies that hold hope of improving lawyers’ judgment when evaluating cases for settlement. In a 2019 empirical study (with Maxim Milyavsky), we found that a simple “consider the opposite” (CTO) prompt (“list the weaknesses of your case”) was highly effective in reducing law student participants’ overly optimistic predictions of the most likely trial outcome in a personal injury case but was NOT effective in reducing self-serving judgments about what a “fair” settlement would be. This is significant because previous studies have shown that negotiators’ differing assessments of fairness are even better predictors of impasse than their differing predictions of the most likely trial outcome.
We were also interested in determining whether a simple-to-administer psychometric scale—The Need for Cognitive Closure Scale, which measures motivational tolerance for ambiguity versus desire for certainty —could be used to help law students understand their own susceptibility to partisan role biases in a prospective lawyering task. We found that a high need for closure intensified self-serving bias in both trial predictions and fairness assessments, and that the CTO prompt mitigated overly confident trial predictions even among this group. Once again, however, biased fairness assessments persisted despite our de-biasing efforts.
I am at it again, this time working with Ashley Votruba, a psychology professor at University of Nebraska-Lincoln, a graduate of ASU Law School and a protégé of Roselle Wissler and Art Hinshaw. (She is a GREAT Colleague.) Picking up just where we left off, we are investigating whether a different de-biasing prompt, based on perspective-taking (e.g., “think about this case from the other side’s point of view”) will mitigate student participants’ self-serving assessments of what a “fair” settlement would be. (It works for mediators, at least sometimes. Can lawyers train themselves routinely to think this way?)
If you are potentially interested in teaching your students about this topic through a fun, experiential exercise, please let me know at firstname.lastname@example.org. We have a new divorce problem we need to pilot in the spring. We plan to launch the study in the summer or fall. Thanks for considering this!
Tom Stipanowich (Pepperdine Caruso Law)
“The Lincoln Way: Abraham Lincoln as Negotiator, Problem-Solver and Manager of Conflict.”
Abstract (presented at the 2022 WIP Conference): Abraham Lincoln is perhaps the most familiar figure in U.S. history, and the most written-about. Often ranked as America’s greatest President, he presided over the Union throughout the crucible of conflict that was our Civil War, and played the pivotal role in ending the enslavement of four million African Americans. At a time when unprecedented attention is focused on the causes, management, and resolution of conflict, consideration of Lincoln’s character, virtues and evolution provide a uniquely valuable focus of study. His life and career, culminating as a transformational leader, is an appropriate curtain raiser for a new avenue of investigation that views historical leaders through the lens of our recent exploration and growing understanding of the dynamics of problem-solving, negotiation and conflict resolution.
Stephen Ware, Principles of Alternative Dispute Resolution (4th ed.) is in page proofs, so should be out early 2023, and same for Ware & Levinson, Principles of Arbitration (2d ed.). Both are Concise Hornbooks suited to skills-oriented courses and others who want the basic principles and law quickly and clearly.
For Arbitration courses, Ware & Rau’s Arbitration casebook (4th ed. 2020) has a 2022 update covering mass individual arbitrations, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, (which was added to the FAA in 2022,) as well as the recent Supreme Court cases: Viking River Cruises, Badgerow, Southwest Airlines Co. v. Saxon, Morgan v. Sundance, ZF Automotive, and GE Energy Power.
Only a few folks write on arbitration and bankruptcy, so I figured I’d tackle Arbitration Agreements as Executory Contracts in Bankruptcy After Mission Prod. Holdings, Inc. v. Tempnology, LLC, 96 Am. Bankr. L. J. 769 (2023).
I’m working on a broader piece about tensions between the FAA and the Bankruptcy Code, so I’d welcome your thoughts on that or even a willingness to read a draft (which I hereby offer to do for anyone else on this list!)
And finally, I may not be able to resist writing an article entitled So-Called “Forced Arbitration” Isn’t, so I welcome anyone who uses that quoted phrase to engage me in friendly discussion.
I am presenting at the ABA DR Section conference on a panel entitled, What’s Going On?: An Overview of Dispute Resolution Diversity, Equity Inclusion Initiatives Across the US, with Margaret Huang, ADR Coordinator for the New Hampshire State Court System. We are collecting information about local and national efforts in Diversity, Equity and Inclusion efforts in dispute resolution across the US. We welcome any information about local and national efforts in DEI dispute resolution that could be included in presentation. Margaret and I are also planning to write a companion article that will summarize all of the initiatives we find, and share them with members of the field.
Maureen Weston (Pepperdine Caruso Law) presented her article, “The Anxious Athlete: Mental Health and Sports’ Duty and Advantage to Protect,” at Harvard Law School on April 12. Weston’s presentation on athlete mental health was followed by a panel discussion offering the perspectives of Harvard golf team’s head coach Kevin Rhoads and student-athlete Chloe Royston. Weston’s article is published in an edition of the Harvard Journal on Sport & Entertainment Law that the editors dedicated to the memory of her son Cedric Halloran. Weston and her husband Brian Halloran have established the Cedric Weston Halloran Scholarship Fund in Cedric’s honor to help Pepperdine Caruso Law students. Additionally, she presented “Using ADR Skills to Adjust the Sports Mindset and Promote Mental Health” at the 2022 WIP Conference. Abstract: Problem-solving and collaborative conflict resolution techniques used in dispute resolution can be applied to increase awareness of mental health issues. These techniques can also be used to promote a governance system designed to a promote positive mental health culture in sports.
Mitchell Zamoff (Minnesota Law)
“Criminalizing” Depositions in Arbitration: Civil litigation-style deposition practice is preventing commercial arbitration from reaching its potential as an economical, efficient alternative to a civil lawsuit. Although there is consensus among ADR experts that meaningful limits must be imposed on arbitration discovery to unlock the benefits of arbitration, depositions continue to feature prominently in commercial arbitrations for at least three reasons. First, civil litigators reflexively propose overdone deposition practice in arbitrations that replicates their litigation experience. Second, arbitrators may hesitate to disallow deposition discovery for fear that their awards will be vacated for failure to hear material evidence. Third, arbitrators are justifiably concerned that they will be punished in the arbitral marketplace if they deny the deposition requests of the parties and lawyers that select them. These dynamics dictate that consequential change will remain elusive in this area unless the rules regarding deposition practice in commercial arbitrations are amended. While these rules currently are more restrictive in some ways than the rules of civil procedure, they often allow some depositions as a matter of right and grant the arbitrator discretion to permit an unlimited number of depositions upon a modest showing of “cause” or “need.” This article is the first to propose that the rules of federal criminal procedure—which flatly outlaw discovery depositions—be used as a model for amending arbitration rules concerning the availability of discovery depositions. The fact that prosecutors and defense counsel routinely try high-stakes criminal cases without the benefit of discovery depositions provides strong evidence that arbitration parties can effectively represent their interests without the need for discovery depositions. Further support for this proposal can be found in the cases which hold that the cross-examination of prosecution witnesses by criminal defense counsel at trial (without the benefit of a prior deposition) satisfies a criminal defendant’s Confrontation Clause rights. If criminal defendants can be deprived of their liberty without deposing the prosecution’s witnesses prior to trial, it certainly seems fair to require the parties to an arbitration to examine witnesses at a hearing without the added layers of delay and cost associated with discovery depositions.