Here is latest installment of ADR Scholarship Projects, compiled by Peter Reilly (Texas A&M). It is so wonderful to see all the fabulous work being produced by members of our community.

Ava Abramowitz (GW Law) and Ken Webb (Kenn Webb Consulting, LLC)

This is the third update on our research into what communication behaviors mediators actually use in the course of helping disputes settle.  We are still building on the Rackham and Carlisle research and methodology used to ascertain the behavior of successful negotiators (click here). We have coded both video-taped and live mediations and, in that process, have uncovered 23 communication behaviors that are:

• Neutral with no right or wrong, or good or bad implications
• Objective and mutually exclusive with no need for interpretation
• Clearly defined, supported by equally clear boundary rules, enabling inter-rater reliability
• Clearly verbal behaviors with no mix of non-verbal elements
• Used often enough to be worth coding, and
• Hypothesized to link to outcome

When Artificial Intelligence takes hold and parties and mediators are willing to be observed, all 23 behaviors can be tested and correlated with success. Until then, the demands of live-coding and the need for inter-rater reliability have required us to limit the number of behaviors to be observed to 14.

Cutting back to 14 was a challenge. We hit the books. “Trust” in the mediator, according to most of the research we read, was the lynchpin of mediation success. We used the 24 behaviors to develop “Trust Hypotheses” to be tested.  An example?

High mediator levels of Proposing Substance/Content adversely affect perceptions of   trust, but high mediator levels of Proposing Process/Procedures do not.

The 14 behaviors that surfaced the most often as either trust creators or trust busters remained as the ones to be tested in the next phase of research.

Due to RSI’s expertise, we are turning the research part of the project over to its Director of Research, Jennifer Shack. Jennifer is in the process of designing trust survey instruments for mediators, lawyers, and parties to complete both before and after the mediation. With those data, correlating communication behaviors, trust information, and outcomes may finally be achievable. In the future, research reports will come from her.

For an easy introduction to the communication behaviors, see Will Work for Food’s “Rethinking Mediation with Ava J. Abramowitz, former assistant U.S. Attorney for D.C.” YouTube video by clicking here.

Hal Abramson (Tauro Law)

Topic:  Triaging in Negotiations: What to do when you have little time to Negotiate?

There has been remarkably little written on what to do when a negotiator does not have the time to do what should be done in every negotiation. This subject came to my attention during my year at the US Air Force Academy where I realized that the off-the-shelf materials that they were using were not always suitable for its graduates. The graduates did not always have the time to do what they were taught, especially when deployed to a war zone. I realized that much of what we teach as law professors assumes that negotiators have the time to do what they are taught. But what should negotiators do when press for time? What shortcuts should negotiators take and when should the shortcuts be taken?

I am working on a two-part research project. Each part will be published separately.

Part I: Negotiation Map for the Classroom and Negotiation Room

This part is mostly done. The map is simple and appears to capture the key stages and techniques for effective negotiations. The map, devised initially by someone else, offers an easy-to-use schematic for teaching and tracking negotiations, which I have been using for the last five years.

Part II: Triaging in Negotiations

I am researching this summer and fall this new part on short-cuts. Of course, we do not know we are taking a short cut unless we are acquainted with the full negotiation map, which is the subject of Part I.

I welcome any reactions and input.

Erin Gleason Alvarez (Pace Law)

Gender Sidelining in Mediator Selection

One of the greatest advantages of mediation is the parties’ ability to construct the process to suit their needs.  In mediation, parties are free to make decisions about how the process will be structured – whether in person or online, joint session or no, etc.  Parties are empowered to design what their settlement will ultimately look like.  And, perhaps most importantly, parties decide who will serve as the mediator, the person they trust to facilitate their discussions and negotiations.

On the latter decision point, the manner in which mediators are vetted for a case certainly varies.  Having overseen an in-house ADR department, where we helped to select thousands of mediators in my tenure, there are some constants in the mediator selection process.  Parties often look for a mediator who is a successful negotiator; a good communicator; and a person who can come to the table without conflicts that might get in the way.  Further, a mediator who possesses gravitas – stature in the profession – goes a long way in assuring parties they can rely on this person to help put the case behind them.

All of this information is often exchanged in a sort of whisper network, in which counsel informally chat about mediators who they like – and who they do not like – and make decisions based on this feedback.  The manner in which a mediator’s credentials come before the whisper network is opaque and continues to be problematic for mediators who possess diverse characteristics.

This article will review the manner in which gender sidelining occurs in the mediator selection process.  By way of background, “gender sidelining” refers to gender-focused behaviors that are not actionable nor substantial enough, on an individual basis, to warrant a coordinated response.  But this practice has a devastating impact when considered in the aggregate.

Part I will detail how mediators are selected for commercial disputes (outside court-annexed processes).  Part II will explain the concept of gender sidelining and make the connection to mediator selection practices.  Part III will provide examples of how gender sidelining of mediators adversely impacts the mediation profession.  Part IV includes suggestions for addressing and rectifying the issue of gender sidelining mediators.

Gilat Juli Bachar (Temple Law)

Just Tort Settlements: In the U.S., most legal disputes settle, often under a cloak of secrecy. But do current legal restrictions and theories about settlement align with the attitudes of litigants, such as aggrieved employees and consumers? Existing literature lacks quantitative data about ordinary people’s settlement-related attitudes, even though such attitudes are crucial to the existence and justice of settlements. Considering the media coverage of NDAs, it is especially surprising how little we know about these agreements’ impact on attitudes toward settlements. This Article is thus the first to ask whether the decision to accept a settlement offer depends on a defendant’s demand for nondisclosure, and whether settlement is less likely when it comes to repeat wrongdoers.

This Article uses a pre-registered survey experiment with two scenarios—one describing a products liability dispute and the other a sexual harassment dispute—that were distributed to a large representative sample of Americans. The Article finds, first, that litigants are more likely to accept a public settlement offer and a settlement with a first-time wrongdoer than a confidential settlement and a settlement with a repeat wrongdoer. Second, settlement goals are context dependent. Respondents were overall more willing to settle a products liability dispute than a sexual harassment case. And it was only in the sexual harassment context that a litigant’s likelihood of settling, even confidentially, increased when the wrongdoer was sanctioned as part of the settlement. Yet the offered amount of money mattered in both scenarios, suggesting that the monetary incentive eventually swallows the moral. The Article argues that these effects reflect a broadly important tendency for litigants to consider non-monetary objectives—including expressive and punitive goals—when weighing settlement offers, and suggests implications for settlement negotiations.

This Article recognizes the central role of settlement in the resolution of civil disputes alongside the key position employees and consumers hold in decisions regarding settlement. In so doing, it points to how legal and social concepts about monetary compensation and punishment for wrongdoing are intertwined in settlement decision-making, complicating the strict divide between private and public law values.

Dan Berstein (MH Mediate)

Dan is a mediator/researcher living with bipolar disorder.  His forthcoming scholarship about Overcoming Dispute Resolver Avoidance of Diversity Changes has been inspired by his ongoing work helping ADR institutions correct inadvertent mental illness discrimination in their published guidance.  Dan has collected case studies of conflict avoidance in the field, developed a six-item framework for understanding types of avoidance, and piloted a method for respecting the self-determination of the avoider while still moving forward expeditiously to address problems.  Dan has also formed working partnerships with people who were initially wary of his advocacy but have since become friends, and he will be presenting some upcoming conference workshops with them, sharing the fruits of these collaborations as well as the stories of how they all overcame their avoidance to come together and make valuable contributions to advance the dispute resolution field.  If anyone has any interest in conflict aversion from conflict resolvers, general ways to overcome avoidance in conflict, or mental illness discrimination and other types of inadvertent misconduct in ADR – please, contact Dan.  He’d love to hear your feedback, share resources with you, learn from you, and/or include you in this work.  You can reach him at dan@mhmediate.com

Kristen Blankley (Nebraska Law)

Kristen has recently published two articles The first, A Muddy Mess: The Supreme Court’s Jurisprudence on Jurisdiction for Arbitration Matters has been published in the Miami Law Review. This article discusses the 2022 case of Badgerow v. Waters and how it complicates the jurisdictional landscape following the Court’s 2009 case Vaden v. Discover Bank. https://repository.law.miami.edu/umlr/vol77/iss3/5/

The second article, Discussing Race in Rural and Other Non-Diverse Communities, is co-authored with Dr. Ashley Votruba, Assistant Professor of Psychology at the University of Nebraska. This article will be published in summer 2023 in the Ohio State Journal of Dispute Resolution, and it was part of the Rethinking System Design for Racial Justice & Equity symposium.

Jack Coe (Pepperdine Caruso Law)

• Jack served as an associate reporter on the “Restatement of the Law, The U.S. Law of International Commercial and Investor-State Arbitration,” which was recently published as a two-volume text by the American Law Institute.

About the Restatement from the American Law Institute: 

• Arbitration plays a very significant role in the resolution of international commercial disputes, offering a well-established and important alternative to the resolution of those disputes in the courts. This publication restates the U.S. law of international commercial and investor–State arbitration and covers, among other topics, arbitration agreements; conduct of and the judicial role in international arbitral proceedings in the United States; awards; recourse from and enforcement of international arbitral awards rendered in the United States; the judicial role in international arbitral proceedings abroad; enforcement of international arbitral awards rendered abroad; the preclusive effect of international arbitral awards; and ICSID Convention arbitration.

Noam Ebner (Creighton University) and Jennifer Reynolds (Oregon Law)

Noam and Jennifer are working together on Episode II of Star Wars and Conflict Resolution, which will eventually receive a name of its own. He also continues to nurture nascent projects on the roles of entitlement, resilience, and awe in negotiation, and other projects on pedagogy, all at a remarkably sedate pace. Having turned fifty at the beginning of the summer, Noam plans to spend the rest of it figuring out what he wants to do when he grows up.

Colleen Graffy (Pepperdine Caruso Law)

• Colleen presented “What Is Hostage Diplomacy and Why Is It on the Rise?” discussing Russia’s arrest of the American journalist Evan Gershkovich for spying and how it has shone a spotlight on hostage diplomacy in two separate podcasts below:

BBC World News:

Link to Surf report: https://law.pepperdine.edu/surf-report/posts/colleen-graffy-interviewed-hostage-diplomacy-on-the-rise-bbc-world-news.htm

https://www.bbc.co.uk/programmes/w3ct4q6h?fbclid=IwAR3p9KBGEmjEPRL72q0EQxrTIDyWMFdg90n7sLQAucKd_SiSIIiaGVaXveY

BBC Americast:

Link to Surf Report: https://law.pepperdine.edu/surf-report/posts/professor-colleen-graffy-discusses-hostage-diplomacy-bbc-americast.htm

https://podcasts.apple.com/gb/podcast/is-elon-musk-curing-twitter/id1473150244?i=1000590211334

Michael Z. Green (Texas A&M Law)

Published:

Black and Blue Police Arbitration Reforms, 84 Ohio State Law Journal 243-301 (2023) (reviewing attacks on and other negative responses to police arbitrations as a dispute resolution mechanism for officer disciplinary reviews involving racial misconduct in light of the George Floyd murder and offering a pro-arbitration posture while acknowledging needed reforms regarding police officers’ bill of rights protections, transparency about arbitration proceedings, and accessibility to allow more Black voices to be heard as part of the arbitration process including those of Black police officer union caucuses).

(A)Woke Workplaces, 2023 Wisconsin Law Review 811-872 (addressing attacks on CRT and DEI and other anti-racism efforts in the workplace through what I call anti-anti-racism narratives and suggesting ways to navigate political and legal attacks to deliver effective anti-racism initiatives and using CRT and DEI measures in light of the racial reckoning being expected in response to George Floyd protests).

Forthcoming:

Submitted draft paper, “Arbitrator Reversal Under Federal Arbitration Act Section 10(a)(3) for Excluding Evidence,” for consideration as a chapter in forthcoming book edited by Richard Bales and Jill Gross, tentatively entitled The Federal Arbitration Act: Successes, Failures and Roadmap for Reform.

Draft paper currently titled, “Arbitration’s Racial Two-Step Around Sex,” that addresses the racial implications of the Ending Forced Arbitration Sexual Assault and Sexual Harassment Act’s ban on pre-dispute agreements to arbitrate sexual assault and harassment claims.  The draft argues that a consequence, maybe intended or unintended, is that racial harassment and assault cases involving workers and consumers will also be prohibited from being arbitrated through pre-dispute agreements for various identified reasons related to intersection, res judicata, and the fallout presented to companies and employers insisting upon (possibly via a two-step around sex) to continue to arbitrate racial harassment and assault claims when the new statute prohibits such claims based upon sex.

Served as keynote speaker at Louisville Brandeis School of Law’s 34^th Annual Carl A. Warns, Jr. & Edward Render labor conference and discussed new research currently titled, “Organizing Black Labor Matters,” arguing to enhance joint synergies between new (Amazon/Starbucks) labor movements and BLM movement.

Jill Gross (Pace Law) and Rick Bales (Ohio Northern Law)

Jill and Rick will be spending their summer editing chapters for the forthcoming book The Federal Arbitration Act: Successes, Failures, and a Roadmap for Reform (Cambridge University Press). They are grateful to the many wonderful folks who are contributing chapters.

David Hoffman (Boston Law Collaborative, LLC) and Helen Winter (Pepperdine Caruso Law)

David and Helen’s article, “Follow the Science: Proven Strategies for Reducing Unconscious Bias“, published in the Harvard Negotiation Law Review, emphases the prevalence and detrimental impact of unconscious bias.

The article highlights the challenges posed by biases for professionals who are expected to remain impartial, including mediators, arbitrators, judges, and lawyers.

Recognizing the importance of addressing unconscious bias, the authors present a comprehensive “user’s guide” based on peer-reviewed social psychology research. Their work not only provides insights into bias reduction strategies but also offers practical suggestions on how to implement these strategies in everyday life.

Drawing from the vast body of social psychology literature, the article identifies seven primary categories of promising interventions to combat unconscious bias. These categories include awareness, motivation, individuation, perspective-taking, contact, stereotype replacement, and mindfulness. Each strategy presents unique opportunities to address biases at both the individual and systemic levels.

By raising awareness about biases, enhancing motivation to overcome them, encouraging the practice of seeing others as individuals, fostering perspective-taking, facilitating positive intergroup contact, and promoting mindfulness, individuals can actively work towards reducing bias in their decision-making processes.

The article also acknowledges that there are still unanswered questions regarding bias reduction strategies, highlighting areas for future research. Nevertheless, the findings provide valuable insights for professionals and individuals alike, empowering them to make conscious efforts in combating biases and promoting fairness and equity.

By implementing these strategies, individuals can actively work towards reducing biases, fostering fairness, and promoting a more equitable society.

Note: If you want to watch a PON LIVE! webinar with the authors entitled, “Follow the Science: Proven Strategies for Reducing Unconscious Bias,” please click here: https://www.pon.harvard.edu/events/pon-live-follow-the-science/?amp

Nicole G. Iannarone (Drexel Univ. Law)

Losing, Explained? Pro Se Parties in Mandatory Securities Arbitration:  When first established, simplified securities arbitration was presented as a cost-effective, straightforward, and efficient means for regular investors to represent themselves and recover if a stockbroker depleted their nest egg.  The average American investment account is under $25,000, and a loss of that amount can move them from making ends meet to needing social services in retirement.  If harmed by a stockbroker, will they be able to find an attorney to represent them? If they cannot find an attorney and decide to proceed pro se, how will they fare? This Article assesses the experiences of investors with smaller claims in the mandatory securities arbitration forum.  Prior work treats all cases in the forum are the same no matter the amount of damages sought.  This Article takes a different approach, analyzing awards by the size of claim.  The findings are striking – investors with damages up to $50,000 represent themselves in 45% of cases whereas only 14% of investors with damages above $100,000 proceed without a lawyer.  In addition to this statistically significant representation differential, the study uncovers that representation in these smaller claims cases may make a difference: pro se investors only win in 24% of cases.  Only one type of representative can obtain recovery near the 50% success rate that can be expected in a fair forum: law school clinics who prevail in 56% of the simplified cases they bring.  These findings underscore the need for counsel in smaller claims arbitration cases. The Article contributes to regulatory and legislative debates by providing empirical evidence supporting the urgency for counsel in these regulated industries and providing solutions for solving the increasing access to justice gap in mandatory securities arbitration.

John Lande (Missouri Law)

Real Mediation Systems to Help Parties and Mediators Achieve Their Goals, 24 Cardozo Journal of Conflict Resolution 347 (2023).  My blog post, Bush’s and Lande’s Differing Perspectives of Mediation Theory, summarizes my article and contrasts it with an article by Professor Robert A. Baruch Bush in the same issue of CJCR.

This series of blog posts addresses various aspects of the Real Practice System Project, related to my 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 am conducting 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.

How Can Courts – Practically for Free – Help Parties Prepare for Mediation Sessions? (forthcoming August 2023).  This builds on my short piece, 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, 16 New York Dispute Resolution Lawyer 14 (2023).

Some short unpublished articles and blog posts:

• The Importance of Really Listening – For Ourselves, Others, and Democracy
• The Gift of Really Listening
• The Deplorable Vanishing of Fox’s Trial
• The Deplorable Vanishing of Fox’s Trial-Part 2
• Tales of Five Women

Collections of materials:

• What I’m Reading Series
• Resources for Teaching About BATNA, Bottom Lines, and Litigation Interest and Risk Assessment
• 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
• Post-Pandemic 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

Ariana Levinson (Univ. of Louisville Law)

Chapter 18, Expanding the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act to Protect Workers’ Rights, in The Federal Arbitration Act: Successes, Failures, and a Roadmap for Reform, Richard A. Bales & Jill I. Gross, editors, forthcoming 2024 Cambridge University Press (invited). Suggestions for cutting around 2,500 words are welcome.

Updating Arbitration Advocacy (NITA & Wolters Kluwer Pub. 3d ed. forthcoming 2024).  Suggestions from users welcome.

Are you interested in ascertaining whether attributes of labor arbitration such as the service provider, attorney representation, and type of dispute influence whether an award cites to prior awards, or in other words – the use of precedent in arbitration?  Do you have the ability to run statistical analysis of a large data set of awards?  If so, please reach out so we can explore whether you would like to co-author my work in progress, Arbitral Reliance on “Precedent” with me.

Andrew Mamo (Northern Illinois Law)

Andrew has two forthcoming papers:

Object Lessons: The Materiality of Dispute Resolution (38 Ohio State Journal on Dispute Resolution) still remains forthcoming. The article draws upon Bruno Latour’s actor-network theory to suggest that 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 Latour explained 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.

Unsettling the Self: Rethinking Self-Determination in Mediation (93 Mississippi Law Journal) is also forthcoming. The article argues that traditional ideas of self-determination, which focus on protecting the mediation parties’ abilities to make uncoerced decisions, are inadequate because they fail to account for how parties come to define their goals and how they engage with the mediation process. Instead, the article proposes a new understanding of self-determination that emphasizes how parties engage in work upon themselves within the mediation process. By rethinking self-determination in this way, the article recognizes that the “self” of a mediation party is not necessarily fixed and stable, but rather may be fluid and socially influenced. This approach to self-determination invites critical analysis of parties’ interests and goals, highlighting the ethical stakes of mediation. This approach also avoids unproductive debates about how mediators exercise power in mediation to focus on how mediators can support the parties.

My next project involves studying the work disputants perform in navigating dispute resolution systems, and in working around existing procedures – what I’m describing as their counter-design function, in opposition to the usual idea of design in DSD. I’m using Sara Ahmed’s work on complaint and on use as tools with which to study these phenomena.

Carrie Menkel-Meadow (UCI Law)

ADR scholarship for the summer (and fall, while a Visiting Scholar at Oxford University Centre for Socio-Legal Studies):

1. Finishing International Conflict Resolution text with Andrea Kupfer Schneider.
2. Book chapter on history of ADR as civil justice reform for Research Handbook on Civil Justice  (Elgar Publ., edited by Anne Bloom, David Engel and Richard Jolly).
3. Entry on Conflict Resolution for Encyclopedia of Law and Peace  (Elgar, edited by Louise Mallinder, Rachel Killean and Lauren Dempster)
4. “Scarlet Letters of Accountability or Censorship of Lawyers—When are Lawyers Responsible for their Representation?” for Research Handbook on the Sociology of Legal Ethics  (edited by Scott Cummings, Ole Hallerslev, Tamara Butter & Sergio Anzola.

Michael Moffitt (Oregon Law)

Truth, Regardless of Reconciliation? Nevada L. J. (forthcoming).

Responses to historical injustices have typically taken one of two fundamental forms in the past hundred years. The first is a familiar, retributive style process in which an adjudicative body measures the conduct of alleged wrongdoers against some set of established standards. (Think Nuremberg Trials.) The second is labeled “alternative,” despite is broad prevalence within the last generation or two, and it focuses on broad inclusion, shared responsibility for the outcomes, and a forward-looking perspective on next steps beyond or in lieu of traditional criminal sanctions. (Think Truth and Reconciliation Commissions.) What, though, of cases of historical injustice in which clarifying foundational factual matters is essential, but that backward looking inquiry does not lend itself either to an adversarial hearing or to broad, open-testimony by people with first-hand knowledge of the incidents in question?

This article takes up the case of the 1850 wrongful execution of those who became known as The Cayuse Five. Despite considerable evidence that some or all had no involvement in the murder of missionary Dr. Marcus Whitman in what would eventually become the Oregon Territory, the Cayuse Five were convicted, executed, and buried. Where they were buried is unknown, and that fact stands in the way of any prospect of a non-adjudicative process aimed at reconciliation, justice, healing, or whatever the living may deem the best course of action.

After providing background on the under-told history of the Cayuse and white settlers in the mid-19^th century, my article makes two arguments. First, I argue that the incomplete search for the still-unknown burial locations of the Cayuse Five stands as an impediment to either an adjudicative or alternative response to this historical injustice.  Second, I argue that this non-resolution-focused work belongs nonetheless under the broad umbrella of Dispute Resolution, Peacemaking, and Conflict Resolution. Although it does not share the familiar process trappings of a classic TRC or restorative justice initiative, the Tribe’s ongoing search (as well as the assistance others are providing to them) is best understood through the ethical and practice lenses of Dispute Resolution.

Kelly Browe Olson (Arkansas Law-Little Rock) and Peter Salem (Univ. Denver)

Family Dispute Resolution: Process and Practice by Peter Salem and Kelly Browe Olson has been submitted and will be published in 2024 by Oxford University Press book. Its 29 chapters cover multiple FDR topics including the history of family mediation, arbitration, IPV, working with self-represented parties and the parents of special needs children, and many more topics, it will be a resource for graduate and law students as well as all types of family system practitioners. I am currently working on the teacher’s manual.

Peter Reilly (Texas A&M Law)

1. Working on an article analyzing DOJ’s use of a Deferred Prosecution Agreement (“DPA”) to resolve charges against Boeing related to two separate 737 MAX airplane crashes, killing 346 people.
2. The Unfulfilled Promise of Self-Determination in Court-Connected Mediation, Florida State University Law Review (Forthcoming). Click here to download the Article. 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)

Completing her book, The Arbitration Conversation: Lessons Learned Through 100+ Interviews (American Bar Association forthcoming 2023), as well as several book chapters: 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 forthcoming 2023 or 2024); Amy J. Schmitz, Resolving NFT Disputes, The Cambridge handbook on the law and policy of NFTs (Cambridge forthcoming 2023 or 2024); Amending FAA Section 7 to Accommodate OArb (book edited by Bales and Gross); and a book project with Externado University in Bogota, Colombia. New law journal articles include: Amy J. Schmitz, Resolving Blockchain and NFT Disputes, Stanford Journal on Blockchain Law and Policy ( peer reviewed with Stanford CodeX), forthcoming 2023; Oladeji Tiamiyu, Amy Schmitz, Colin Rule, Technology Driven Racial Reconciliation: A practical guide for the use of technology in truth commissions, 38 Ohio State J. on Disp. Resolution 59 (2023) and David Larson, Amy J. Schmitz & Alan Weiner, ABA ODR Guidance Has Been Adopted, Ohio State J. on Disp. Resolution ___ (forthcoming 2023). Other shorter works include Amy Schmitz and Colin Rule, OArb Enters the Age of Artificial Intelligence, American Arbitration Association Dispute Resolution Magazine and Schmitz, et. al, Arbitrating and Mediating Smart Contract Disputes, TX Bar Association Conference Proceedings, April 18, 2023. Presentations include University of Ghent, Belgium, Toronto Commercial Arb Assoc., Radboud University, Netherlands, AI4A2J Workshop she is co-organizing in Braga, Portugal, as part of the AI and the Law Conference, E-Justice keynote in Portugal, Aspen Leading Edge Podcast, AI: Building the Human + Machine Workforce, CIO Tomorrow Conference, University of Turin, United Nations Training Center, Externado University in Bogota, Colombia, 2023 Annual Texas A&M Dispute Resolution Symposium, ABA DR Conference, Conflict Resolution Podcast for the Netherlands Sectorplan (Leiden, Utrecht, and Radboud), The Conflict Analytics Lab @Queen’s Law and Smith School of Business, Brandeis University Department of Mathematics, Texas State Bar Association, The Ohio State Moritz College of Law Summer Institute, and more interviews for The Arbitration Conversation – now a podcast (after 100 webisodes). See many of the papers on SSRN by clicking here.

Andrea Kupfer Schneider (Cardozo Law)

My scholarship projects this summer include: working on a draft of an International Conflict Resolution textbook with Carrie Menkel-Meadow; writing a book chapter on reforming the FAA regarding the conflict of interest disclosure and vacatur requirements (and then expanding that into a law review article) with Brian Farkas; finishing a law review article on gender equity (based on the research into Milwaukee law firms) about what law students should be asking regarding women in leadership positions and compensation structures as law firms vary widely in terms of retaining and rewarding women; and working on the next edition of the Discussions in Dispute Resolution: The Next Generation with Sarah Cole and Art Hinshaw.

Jennifer Shack (RSI Dir. of Research) and Rachel Feinstein (RSI Researcher)

At Resolution Systems Institute, we are conducting an exciting project to help people with low-income and low-literacy have better access to court services. With the increase in text-based online dispute resolution (ODR), courts are hoping to improve the administration of justice. However, in ODR program evaluations we conducted with Donna Shestowksy of UC Davis, we found that ODR use was low and that many self-represented parties were unaware of ODR as an option, and unsure how to use it. Parties with low-literacy and low-income may be at a particular disadvantage for interpreting and using court ODR resources. The ODR Party Engagement Project (click here for more information) aims to address this information gap by hearing from potential parties themselves about their communication needs and their level of understanding.

We will conduct six focus groups with people around the country who have low-incomes and low-literacy. With the valuable insights from the participants in our focus groups, we hope to improve our understanding of how people interact with court documents, what information they want and need when receiving their notice of ODR and on the court’s website, and the methods of communication that would be most helpful. Ultimately, we aim to use this research to create a broadly applicable guide for courts to use when developing their ODR communications in an effort to increase party engagement and reduce the percentage of self-represented litigants who are defaulted and/or miss their court date.

If you would like more information on this project, please contact Rachel Feinstein at rfeinstein@aboutrsi.org. For more on RSI, please visit www.aboutrsi.org.

Sukhsimranjit Singh (Pepperdine Caruso Law)

• Cross-Border Conflicts: Mediating Across Cultures (forthcoming) Daily Journal, addressing the ways in which culture differences can stand as a barrier in disputes and how dispute resolvers may instead harness these differences as a tool to assist in the dispute resolution process.
• In progress: “Resolving Disputes and Creating Understanding with Policing in the U.S.” Drawing from the lessons learned from working with thousands of law enforcement personnel across the country, Sukhsimranjit is working on a publication that will share his learnings regarding the state of dispute resolution within the nation’s police forces.

Sandra Sperino (Missouri Law)

Published Escaping Arbitration and Class-Action Waivers for Harassment Because of Pregnancy, Sexual Orientation and Gender Identity, in the Ohio State Law Journal Online. This Essay argues that the language that Congress used in the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA) is much broader than its title and underlying rationale suggest. EFASASHA not only applies to harassment that is sexual in nature, it also applies to sex-based harassment, as well as harassment because of pregnancy, sexual orientation, and gender identity. The Essay is available here: https://moritzlaw.osu.edu/sites/default/files/2023-05/Sperino_0.pdf

James Stark (Connecticut Law) and Doug Frenkel (Penn Carey Law)

Jim and Doug are working on the fourth edition of their widely-adopted mediation textbook, The Practice of Mediation: A Video-Integrated Text. It’s fair to say that the rise of remote mediation has revolutionized the field, and our new edition will endeavor to reflect those changes. Among other revisions, we have filmed and will be incorporating new video demonstrating how different neutrals use pre-session Zoom conferences to prepare themselves and the participants for a productive process. The new video case study is based on an employment discrimination/sexual harassment case, complementing our existing video case studies depicting a small claims consumer case, a child custody dispute, and a complex negligence case. The new edition will also canvas the latest social science studies on the ways in which videoconferencing affects human communication. As for when the new edition will be available for classroom adoption, please stay tuned.

Thomas J. Stipanowich (Pepperdine Caruso Law)

PUBLICATIONS  

Worthy of Their Esteem: Abraham Lincoln’s Affairs of Honor (article in progress)

Thomas J. Stipanowich, Of Time and Tide, 10 Tex. A&M L. Rev. _____ (forthcoming autobiographical article)  [In 2022 I was honored to be invited, along with other law professors who have been named as Fellows of the Hagler Institute for Advanced Studies (including Professors Tom Ginsburg, Richard Epstein, Richard Delgado, and others), to have our body of work discussed by other scholars and to provide a response. My retrospective article “Of Time and Tide” was prepared as a response to an article reflecting on my own scholarly contributions by Fordham law professor Jacqueline Nolan-Haley. The issue will be published as part of volume ten of the Texas A&M Law Review.]

Thomas J. Stipanowich & Amy Schmitz, Arbitration Practice, Policy, and Law (Aspen Publishing 1^st ed. 2023)

–Named Outstanding Professional Book by CPR, March, 2023

Foreword for John Burritt McArthur, The Reasoned Arbitration Award in the United States: Its Promise, and Preservation (Juris Publishing, 2023)

PRESENTATIONS

Speaker, “What Would Lincoln Do?: Lincoln’s Lessons for Lawyers”, Workshop with Stephanie Blondell, Arizona Bar Annual Convention, La Paloma Resort, Tucson, AZ, June 15, 2023

Speaker, “Considering the Use of Published Arbitration Texts / Materials,” College of Commercial Arbitrators Professoriate Program, February 28, 2022

Speaker, “From Dispute Resolution to Holistic Dispute Management,” Singapore International Commercial Court Conference 2023 Hosted by the Chief Justice of Singapore and including the Judges and International Judges of the Singapore International Commercial Court,  January 10-11, 2023

Lunch Speaker, “Diplomacy the Lincoln Way,” Conference on International Diplomacy and Dispute Resolution, Pepperdine / Caruso School of Law, November 11, 2022

Keynote Speaker and Panelist, “Arbitration, Mediation and Mixed Modes: Seeking Workable Solutions,” New York State Bar Association Dispute Resolution Section, Fall Program, October 20, 2022

Panelist, Plenary Program “A Glimpse into the Future: Full Service Arbitrators? Mixed Mode Arbitration Fact and Fiction,” College of Commercial Arbitrators 22^nd Annual Meeting, Scottsdale, Arizona, October 15, 2022

Presenter, “The Lincoln Way: Abraham Lincoln as Negotiator, Problem-Solver and Manager of Conflict,” 15th Annual AALS ADR Section Works-in-Progress Conference, October 8, 2022

Speaker, Dean’s Speaker Series, “The Prayers of Both Could Not Be Answered: Lincoln’s Second Inaugural,” Pepperdine Caruso School of Law, September 28, 2022

Keynote Speaker, “Living the Mediation Dream,” Second Norwegian Mediation Conference, Norwegian Mediation Association, University of Oslo Faculty of Law, Oslo, Norway, August 24, 2022

Speaker, “The Lincoln Way,” Presentation to the Executive Council of the International Institute for Conflict Prevention and Resolution, New York NY, June 22, 2022

Rachel Wechsler (Missouri Law)

I am currently working on two projects related to gender-based violence survivors’ interactions with the legal system. The first project, entitled Intimate Partner Violence: Access to Protection Beyond the Pandemic, draws on empirical survey research with intimate partner violence survivors and procedural data from a sampling of jurisdictions across the country to analyze hearing procedures for civil orders of protection. In light of the diversity of survivors’ circumstances and the lack of retention of pandemic participation options in many jurisdictions, I recommend a pluralistic approach to facilitate improved access for a greater number of survivors going forward.

I am in the early stages of the second project, entitled Beyond the Binary: Restorative Justice for Human Trafficking Victim-Defendants, which challenges the existing binary of ‘trafficking victim deserving of protection’ vs. ‘trafficking offender deserving of prosecution and punishment’ on the basis of the non-punishment principle within domestic and international law on human trafficking.  This binary fails to reflect the realities of the complex spectrum of coercion and exploitation often existing within human trafficking situations. I propose implementing restorative justice as a non-punitive option to address harm caused by trafficking victim-defendants while respecting the non-punishment principle, diminished level of culpability, and nuanced power dynamics at play.

Maureen Weston (Pepperdine Caruso Law)

• In April, Maureen presented her scholarship on Athlete Mental Health: Increasing Anxiety in College Sports, and Dispute System Design for Athlete Safeguarding, to the Ohio State University Moritz College of Law Mediation Clinic.
• She also presented a webinar, Sports Arbitration: A Comparative Analysis, for the Arbitration Channel & Brazilian Center for Mediation Association.
• In May, Maureen partnered with London-based sports arbitrator Jeff Benz (CAS/JAMS), to take a group of students to study International Sports Law & Dispute Resolution in London, England. The students engaged in sport arbitration simulations and met with legal experts for various sport teams, organizations, and dispute resolution providers.
• Forthcoming, Maureen will be publishing State Arbitration Law in a FAA Preemption World: The Interaction Between Federal and State Arbitration Law, Chapter, The Federal Arbitration Act: Successes, Failures, and a Roadmap for Reform, Cambridge University Press. (for Richard A. Bales & Jill I. Gross, eds)
• And currently in progress is: How Sports Arbitration Works: Pro Leagues, Olympic, SafeSport, and Individual Sport.

Roselle Wissler (Arizona State Law) and Art Hinshaw (Arizona State Law)

Roselle and Art are working on an article this summer, based on the survey responses of more than 1,000 mediators, that will examine the following questions. Are there differences in whether the parties provide new information, make inflammatory statements, or become less angry between mediations with initial joint sessions and those with initial caucuses? Is settlement and relationship repair more or less likely when the disputants are together for some versus none of the mediation? When certain things occur during mediation, such as when certain matters are discussed or when the disputants speak, do they have the same or different effects in joint sessions and in caucuses?