Because scholars have academic freedom, we can write about anything we want, without direction by deans or clients.  So our choice of topics and perspectives is a good indicator of what we really care about.

Over the years, I was struck by the eclectic mix of subjects that Elayne Greenberg wrote about.   A common thread in many of her writings was a pragmatic concern for righting injustices and improving processes in dispute resolution.

I copied her webpage to preserve it, assuming that her school will take it down eventually.  It describes her research as follows:

Professor Greenberg’s scholarship focuses on dispute resolution and its broad applicability in multiple contexts.  Her scholarship is distinguished by her interdisciplinary approach to deepening our understanding of conflict etiology to help design more pragmatic interventions.  Professor Greenberg incorporates this interdisciplinary approach in her recent works on the intersection of implicit bias and dispute resolution and her current work on informed consent.  Professor Greenberg’s emphasis on interdisciplinary understanding grows out of her deep involvement with the innovative interdisciplinary dispute resolution programs that she has helped develop and implement.

Her website also includes a history of her very valuable service to our field.

After learning of her death, I reviewed her SSRN page to better understand her contributions to our field.  This post provides a brief overview of her scholarship, which hopefully will inspire people – maybe you – to build on her work.

Overview

Elayne’s SSRN page includes 54 papers, posted from 2011 to 2023, which have been downloaded more than 5300 times.  She wrote a regular “Ethical Compass” column for the New York State Bar Association’s New York Dispute Resolution Lawyer Magazine.  She co-authored six articles with Noam Ebner, one with Cheryl Lyn Wade, and one with Jeff Sovern, Paul F. Kirgis, and Yuxiang Liu.

The largest set of her articles dealt with a wide variety of practical and ethical issues involving mediation and legal representation.  She wrote about choosing dispute resolution processes, informed consent, med-arbitration, plea bargaining, third-party funding of mediation, use of non-lawyer advocates, and dispute system design, among other issues.

She was very concerned about racial and other biases, which she referred to as the “isms” – “racism, sexism, ageism, ableism” – as well as the need for cultural competency.

She wrote about the use of video and online dispute resolution generally, even before the pandemic.

Helping Parties Make Decisions

I was particularly interested in her work that overlaps with my interests.  So, as examples of her work, the following articles highlight how practitioners can help parties make good litigation decisions.

Settlement Fever:  Lawyers, Have You Updated Your Philosophical Map?  Noting New York State’s statute creating a presumption of using ADR early in cases, Elayne argued that it was time for lawyers to discard the lawyers’ standard philosophical map that Len Riskin described.  That map assumes that disputes necessarily are zero-sum and should be resolved by courts applying the law.  She urges lawyers to update their maps with 21 specific suggestions involving engagement of clients, advocacy in different dispute resolution processes, and rethinking of clients’ conceptions of justice.

What Sally Soprano Teaches Lawyers About Hitting the Right Ethical Note in ADR Advocacy.  “Paradoxically, when lawyers opt to mediate or arbitrate, lawyers may still wind up selecting, shaping and advocating in these dispute resolution processes to resemble the very litigation processes they have sought to avoid. … Even though the Model Rules of Professional Conduct confirm that a lawyer’s litigation preference may be within ethical parameters, this practice may, at times, directly contravene his client’s interests. … Part One will explain the correlation between a lawyer’s philosophical map and the litigation-bent decisions that shape his or her arbitration and mediation use.  In Part Two, I will explore the ethical parameters that guide this discussion.  In Part Three, I will suggest strategies for lawyers to better honor their client’s wishes and deal with this ethical tension.”

. . . Because It’s Not Just About Money.  Elayne noted that “astute attorneys and mediators appreciate that all people, including sophisticated business people and seemingly detached insurance representatives, are also human beings.  Attorneys and mediators who understand that their clients are also human beings also appreciate that from their clients’ perspectives, justice may take many forms based on each client’s personal values and individual sense of fairness.  Clients measure justice, not by money alone, but by the quality of the settlement that they hope to achieve.  Moreover, for some defendants and plaintiffs, money might not be a responsive remedy for the wrong that they seek to be righted.”

The Changed BATNA.  Elayne said that it doesn’t make sense to focus on potential adjudicated outcomes as a benchmark for settlement considering that only a tiny percentage of cases are adjudicated.  “Part One explains why using an adjudicated decision as a BATNA may not be as helpful as we think.  Part Two explains how ethical mandates may require adding other factors to the assessment of alternatives.  Part Three suggests alternative BATNAs.”

Show Me the Money:  Part One.  “Especially during these constricted economic times, when consumers of legal services are scrutinizing more than ever the value of legal services, this column invites a timely re-consideration of different, more creative billing paradigms beyond the ‘hourly billing.’”

Starting Here, Starting Now:  Using the Lawyer as Impasse-Breaker During the Pre-Mediation Phase.  “From the first phone call, pre-mediation opportunities abound for astute mediators to support savvy attorneys to overcome negotiation impasses. …  This chapter will highlight the pre-mediation opportunities for mediators to help attorneys and their clients develop collaborative, coordinated and effective advocacy approaches during three critical events in the pre-mediation phase:  the first phone call, the client preparation and the briefing paper.”

Honoring Elayne and Her Scholarship

When academics write for publication, we hope that others will encounter our writings, choose to read them, accurately understand our ideas, and adjust their thoughts and actions in response.  This is a tall order considering the never-ending flood of new scholarship – and the fact that most of us just don’t have a lot of extra time to read things that aren’t absolutely necessary for our work.  Scholars must operate on faith that our work may someday find its way in front of others’ eyes, perhaps long after our passing.

The outpouring of emotions in response to news of Elayne’s death reflects our community’s great appreciation of her and her work.  Clearly, her work was a major part of who she was.  She cared deeply about our world and her (well-reasoned) passion jumped out of the pages of her articles.

We can honor her by reading her writing and incorporating it in our own writing, teaching, and other work.  Many of her articles are short – a virtue considering many people’s declining willingness to read much these days.  She was a dedicated teacher and would love to know that her ideas influence future generations of lawyers and other dispute resolution professionals.

So take a look at her publications, appreciate her contributions to our field, and use them whenever you think it would be appropriate.  As a reminder of Elayne, look at this post with photos and videos of her.