ADR Scholarship Projects – July 2024

From BFOI Peter Reilly (Texas A&M), below is a list of current and exciting scholarship projects either completed or in process as reported by our ADR Prof. colleagues around the country.

Joseph Alfe (Texas A&M University)

This summer, I am completing my current WIP tentatively titled: TITLE IX INFORMAL RESOLUTION: A NEW DISPUTE RESOLUTION PATHWAY IS DESCRIBED – AND WHY INSTITUTIONS OF HIGHER EDUCATION SHOULD CONSIDER IMPLEMENTING A TITLE IX INFORMAL RESOLUTION PRACTICE. This paper details the recent authorization of informal resolution as a tool to resolve allegations of sex-based discrimination under Title IX and explores the use of various ADR pathways to effectively resolve these complaints, as well as implementing this framework to address non-sex based discrimination, offensive speech & conduct, and other organizational conflict in higher education.

I have presented on informal resolution under Title IX at the Society of Corporate Compliance and Ethics Higher Education & Healthcare Research Compliance Conference, held in New Orleans.

Gilat Juli Bachar (Temple Law)

Nondisclosure As Coercion

What is the relationship between a defendant’s demand for nondisclosure as part of a settlement negotiation and a plaintiff’s coercion which might negate their consent? While the defense of duress can be used to invalidate any contract, including a settlement agreement, the role of a demand for silence as contributing to such duress has not been explored to date. It is crucial, too, given the prevalence of nondisclosure clauses in settlement agreements and the fact that they are often used by disproportionately powerful alleged defendants, as the #metoo movement exposed.

The paper traces the philosophical discussion regarding coercion, as well as how coercion has been understood and applied in contract law. In particular, an analogy is drawn between the role of coercion in confidential civil settlements and in criminal plea-bargains. This background is used as analytical leverage to argue that contrary to courts’ reluctance to acknowledge duress in civil settlement, some civil settlement offers—in what I call “High-Risk Settlements”—might in fact be coercive when settlement is conditioned on confidentiality. The paper proposes several factors which can contribute to such coercive situations.

Adding an empirical perspective to the discussion, the paper also presents findings from a recent survey experiment of a representative sample of 500 Americans exploring the relationship between settlement confidentiality and plaintiffs’ experience of being pressured into settling products liability and sexual harassment disputes. Among other findings, the study shows that confidentiality significantly increases plaintiffs’ sense of pressure to settle in sexual harassment—but not products liability—disputes. Regarding sexual harassment, sense of pressure to settle was also positively correlated with a respondent’s assessment of the likelihood of a defendant’s future wrongdoing.

Marrying the legal theory and these empirical findings, the paper examines the ways in which concerns of plaintiff coercion should inform the enforcement of confidential settlements, including the extent to which invalidating such agreements might sometimes harm rather than help plaintiffs. The paper addresses a dimension yet to be considered in the propriety of nondisclosures: a potential coercive effect resulting from silencing those who have been wronged.

Rick Bales (Ohio Northern Law)

Rick reports that Blair Druhan Bullock (Arkansas Law) joined the 5th edition of Stone/Bales/Colvin/Bullock’s casebook Arbitration Law, which will be published by Foundation Press in fall 2024.The book has a new chapter on sports arbitration! Published this fall will be The Federal Arbitration Act: Successes, Failures, and a Roadmap for Reform (Cambridge University Press, co-edited with Jill I. Gross, containing chapters from many of the folks receiving 2024 ADR Scholarship Projects). Rick is currently working with Lt. Taren Wellman and Katherine Simpson on an article tentatively entitled “Novel Ways of Creating Experiential ADR Problems” for the Teaching Issue of St. Louis U. L.J.

Debra Berman (South Texas College of Law Houston)

I am writing an article for the St. Louis University Law Review’s upcoming Teaching Series: Teaching ADR, Mediation, Negotiation, and Client Counseling (forthcoming spring 2025). The article will be based on a presentation at this year’s ABA Section of Dispute Resolution Conference entitled, Pracademically Speaking: Incorporating Real-World Legal Practice into the Dispute Resolution Curriculum.

As always, I continue to encourage the use of real lawsuits for simulations in classes and competitions. To that end, I selected three federal lawsuits for the ABA Representation in Mediation Competition this past spring. Students in each round mediated actual lawsuits involving Twitter, Warner Brothers, and United Airlines, and they received the relevant court documents along with short memoranda detailing confidential notes from their client. For the spring 2024 preliminary round cases, please click here.

Please contact me if you would like the confidential settlement memos for these three cases.

An ongoing project I have been working on is a live database of lawsuits (pending, settled, or otherwise) that professors can use to easily identify cases for negotiation/mediation simulations. In this document, I include case names, case type, length of key documents (and a link to those documents where applicable), and the case status. This is an editable list, and I encourage everyone to feel free to add cases they come across that would be appropriate for use in simulation classes. The database can be found by clicking here.

Again, please reach out if you would like any of the confidential settlement memos for these cases.

Dan Berstein (MH Mediate)

Dan has continued his work helping ADR scholars and practitioners [1] appreciate mental illness discrimination, [2] manage distress and reduce avoidance, and [3] vet guidance. He recently co-authored a Journal of Dispute Resolution article, “Ending the Epidemic of Accidental Personality Disorder Discrimination by Well-Meaning Mediators,” available at https://scholarship.law.missouri.edu/jdr/vol2024/iss1/5/ complete with tools to help people solve these problems. He also led Mediate.com’s “Demystifying Distress” event co-sponsored by NAFCM, ACR, APFM, and CPR with a replay and takeaway tools available at https://mediate.com/demystifying-distress/ – and he has been hosting “Stigma Resolver” trainings funded by the NY Office of Mental Health and NYC Department of Health and Mental Hygiene, teaching people with mental health conditions (and others) how to use conflict resolution skills to respond to stigma (replays available at https://www.conflictcompass.com/stigma)

Dan is now working on the third article in a series he has been publishing in Alternatives to the High Cost of Litigation, focused on helping dispute resolvers and others vet guidance and update material that inadvertently recommends discriminatory practices for parties with mental illness. This latest article helps folks navigate the actual conversations with publishers and work with these publishers’ needs collaboratively rather than ‘cancelling’ them. Dan is always looking for collaborators and friends – please write to him at dan@mhmediate.com if you have an interest in working on projects, or if you’d just like to discuss any of these topics.

Lastly, Dan lives with bipolar disorder. Though he has been open with his diagnosis for decades as an awareness speaker, he has only recently begun speaking up about his day-to-day struggles with mental illness symptoms. Dan is now developing tools to help others have an easier time speaking up about their limitations and challenges, and seeking reasonable accommodations. This work includes a mental health empowerment conflict coaching model to help people with mental health problems make decisions about disclosure and seeking support amidst unfortunate societal stigmas. Anyone interested in helping with this work or connecting about their experiences can also contact Dan at dan@mhmediate.com

Kristen Blankley (Nebraska Law)

Kristenis working on the following projects:

An article on stays of litigation during the pendency of an arbitration, in an article tentatively titled “Should I Stay Or Should I Go Now?” Arbitration’s Answer: “Stay With Me.”
An article, co-authored with Dr. Lisa PytlikZillig (Nebraska & Ombuds) on the ethics and practice of “part time” ombuds, or those ombuds who are outsourced and those ombuds with dual roles at their institutions.
Continuing qualitative research on attitudes regarding restorative justice with Drs. Ashley Votruba & Lisa PytlikZillig (Nebraska).

Jessica Bregant (Houston Law), Jennifer K. Robbennolt (Illinois Law), and Verity Winship (Illinois Law)

Settlementality, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4773926

Is settlement of litigation good or bad for the legal system? Should we have more or less of it? Should settlement have a private or public purpose? Legal scholars and lawyers have considered these questions for decades, but very little is known about the views of ordinary people. This Article reports results from a nationally representative survey of over 1,000 U.S. adults about what respondents thought settlement should look like. Respondents indicated, for example, the extent to which they agreed or disagreed with statements like these: “A settlement between two parties is nobody’s business but their own.” “Settling parties are more interested in money than justice.” Our findings convey nuanced lay intuitions about settlement, including mixed views about secrecy and settlements, and a tendency to want settling defendants to admit fault and apologize. We also discover that a striking number of lay observers prefer private resolution through contract to oversight by judges. Indeed, a considerable majority thought that at least 75% of disputes would be resolved by settlement in an ideal world, with 100% being the most common choice. The view that more cases should settle was both striking and complicated, highlighting the tension between private resolution of disputes and the public function of litigation and courts.

Kelly Browe Olson (Arkansas Little Rock Law)

Family Dispute Resolution: Process and Practice, a book I co-edited with Peter Salem, was recently published by Oxford University Press. In addition to editing 16 of the 29 chapters, I wrote a chapter on intimate partner violence and dispute resolution processes and co-wrote a chapter on family mediation, a differentiated approach to family justice. From Oxford: “In Family Dispute Resolution: Process and Practice some of the field’s leading practitioners, researchers, teachers and policymakers provide an overview of the modern family dispute resolution processes designed to help separating and divorcing parents make decisions about the future of their families.”

Peter and I, along with Arkansas circuit court judge Amy Dunn Johnson hosted a book launch webinar in May to introduce the FDR book to the family law and dispute resolution communities in Arkansas and beyond.

I am currently working on the teacher’s manual for the FDR book, to make it easier for professors to adopt for family dispute resolution courses. At least one professor has adopted the book for the fall 2024 and I will be teaching from it in the spring 2025 semester.

I have recently finished my essay for the Discussions in Dispute Resolution second book. I am writing about John Lande’s early article on Collaborative Law, and focusing on IPV concerns within collaborative processes.

My other summer project is working on an article describing our statewide Special Education Mediation and Facilitation Project, based on my presentation and feedback at 2024 Texas A&M Dispute Resolution Symposium: Two Faces of Mediation: Reasons for Worry, Reasons for Hope.

Carl J. Circo (Arkansas Law)

Statutory Adjudication: Reflections from a U.S. Academic, 18 J. Am. Coll. Constr. Laws 1 (2024). In a growing number of jurisdictions, especially in common law countries, statutory adjudication is transforming the construction industry. This legislatively imposed process commits construction disputes to an accelerated determination by a nonjudicial decisionmaker, operating in an inquisitorial capacity. While the parties may subsequently submit the matter to litigation or arbitration, in the interim, the adjudicator’s decision is both binding and almost immediately enforceable by summary court proceedings. Many studies demonstrate that the disputing parties routinely accept the adjudicator’s decision as the final resolution. Thus, in comparison to other binding and enforceable dispute resolution processes, adjudication is extraordinarily quick, efficient, and inexpensive. In the United States, however, adjudication remains exotic and foreign.

This article reviews the statutory adjudication experience in the UK and several other countries and explores why no movement to adopt this process has developed within the U.S. construction industry. To the limited extent that statutory adjudication has attracted the attention of U.S. lawyers and legal scholars, the focus has been on the details of the process and its promise of efficiency. This article pursues a more theoretical course, with special attention given to the jurisprudential and policy implications of adjudication from a U.S. perspective.

Part I of the article explains the features that define statutory adjudication. Part II reviews commentary and reports on adjudication in actual practice. That literature overwhelmingly endorses the process, subject to limited criticisms and modest calls for reform. Part III offers assessments and reactions from a U.S. point of view, with attention especially to theoretical considerations. Part IV briefly reviews the advantages and shortcomings of adjudication and concludes that U.S. concepts of freedom of contract and fair process impose formidable barriers to any efforts to enact statutory adjudication here.

Brian Clauss (Neutral Arbitrator, Mediator & Attorney)

The National Academy of Arbitrators began in 1947 and is the leading labor arbitrator professional association in the US and Canada. NAARB | Serving the U.S. and Canada Since 1947 My colleagues and I conducted a 64 question survey of the active members of the NAA in December 2023.

The report: Elevating Your Arbitration Practice: A Report on the 2023 SWR-NAA Best Practices Surveywas prepared by NAA members Danielle Hargrove, Pilar Vaile, and Brian Clauss, and attorney Andrea Stulgies-Clauss. We presented the report and survey results at the Southwest Rockies Regional Meeting in February 2024. The report, survey, and answers are now available on the NAA website at Report on the 2023 SWR-NAA Best Practices Survey | NAARB

Some of the more interesting findings: The top labor arbitrators receive more than 100 annual selections and earn a significant income. On the other end, many arbitrators receive far fewer selections and consider their practice as a retirement or part-time practice. A number of NAA members are adjunct faculty. We will update the survey in 2025.

Amy Cohen (Temple Law)

I have a new piece on RJ with Uma Blanchard forthcoming in the Cardozo Law Review called Radical Restorative Justice: Reflections on Conflict, Trauma, and Hope in Chicagoland Schools. Here is the abstract:

This article tracks how abolitionist and reformist debates are unfolding within urban schools’ attempts to smash the school-to-prison pipeline. We document how Chicago area public school teachers are grappling with new restorative justice programs and their complex and divergent political and institutional meanings. Based on over forty qualitative interviews with teachers, the article illustrates how difficult widespread implementation of a new conflict resolution mechanism is turning out to be. It analyzes how teachers are interpreting restorative justice practices and the challenges they involve—for students, educators, and school administrators, who learn and teach and work in hierarchical and bureaucratic institutions. Through this analysis, we bring readers face-to-face with some of the broader challenges that restorative justice and abolitionism confront as large-scale and world-making projects, digging in to show how teachers are having to transform themselves and the work they do as educators in order to meet the calls of the present day and age.

Sarah Cole (Ohio State Law)

Art Hinshaw, Andrea Schneider and I are hard at work editing comments for our forthcoming second volume in our Discussions in Dispute Resolution series – Discussions in Dispute Resolution (Volume II): The Coming of Age (2000-2009). We will feature 16 articles, each with three comments from dispute resolution scholars and a fourth comment on each article by its original author, if possible. This volume will again be published by Oxford University Press, hopefully in 2025.

I am also working on a law review article focusing on revising the Federal Arbitration Act’s judicial review provision for an upcoming symposium and have completed work for the volume on the FAA’s 100^th anniversary that Rick Bales and Jill Gross are editing, titledThe Federal Arbitration Act: Successes, Failures, and a Roadmap for Reform. It will be published in November 2024 by Cambridge University Press. My two chapters focus on amending FAA Section 10(a) and improving diversity among arbitrators.

Noam Ebner

I’ve written a short chapter for the forthcoming Discussions in Dispute Resolution (vol. II) commenting on Jonathan Cohen’s wonderful 2001 article proponing respect as an ethical stance in negotiation. I’ve also submitted an article to Conflict Resolution Quarterly on the impact of AI on conflict-related human change. And finally, I’ve taught a short intensive course at American University’s School of Public Affairs on Star Wars and Conflict Resolution.

In other news, I’ve left Creighton University and am doing my best to take the summer off, a more challenging task than any of the aforementioned. In the fall, I’ll be back to planning and ideating my next adventures and all are welcome to engage with me on that. Feel free to drop me a line now if you’d like us to put a pin in. Please note my new email noam@noamebner.com

Clark Freshman (UC Law SF)

Clark invites collaborators on the following projects:

Empirical testing of bias by lawyers and law students in representing different kinds of clients in simulated negotiations. This can involve as little commitment as having your students pilot test scenarios to be used with MCLE classes and other groups.
Addressing different types of bias in negotiation for a symposium/panel/book, such as bias involving different types of hearing; LGBTQI+; beauty; anti-Semitism; Islamophobia
Testing how students negotiate virtually and in person with actual businesses, such as restaurants and gyms, to lower their volume to respect the dangers of loud noise and to accommodate those with different hearing, including older persons.
How to re-negotiate LGBTQ equality considering the onslaught of attacks.

Separately, Clark is revising three empirical studies on 1. How emotion affects negotiation (including the absence of positive emotion); 2. How emotional skills predict law school success; 3. How emotional skills predict depression, anxiety, and well-being in law students. If you have written any related articles to cite or if you’d like to look at a draft, please reach out!

Jill I. Gross (Pace Law)

In conjunction with a publication project of the College of Commercial Arbitrators, I am drafting a short article proposing that Congress amend the Federal Arbitration Act to define the process of arbitration to make it clear that the Act covers a process where a neutral, after providing parties with notice and an opportunity to be heard, issues a binding award.

Charlie Irvine (Strathclyde Law)

Charlie is Senior Teaching Fellow at University of Strathclyde Law School, Glasgow, Scotland, and Director of Strathclyde Mediation Clinic. His doctoral thesis is a qualitative study of small claims litigants referred to mediation in Scotland’s two largest courts (published June 2024).

Entitled Does mediation deliver justice? The perspective of unrepresented parties, the thesis expands our understanding of a neglected group: the people who actually use mediation (rather than their lawyers). It takes as its starting point the array of critical scholarship ranged against the process from the 1970s to the present day. Instead of comparing mediation outcomes to what the courts would do (thus equating justice with law) it asks non-lawyers how and why they settled. The findings offer an in-depth glimpse of ordinary people’s reasoning about fairness and justice.

The study finds that those without legal training can nonetheless apply justice principles in resolving their disputes; this can be described as “justice outside the law.” They accounted for their decisions in terms recognisable to those operating the justice system: the encounter (replicating the day in court), telling their story, compensation, punishment of bad behaviour, closure and payment. However, their lack of formal legal knowledge can lead to injustice and the study highlights the key role of activist mediators in providing legal information when required.

Yet, despite having forged the terms of their settlements, most participants were ambivalent when asked “Did you get justice?” The study notes some reasons. First, while scholars have stressed mediation’s distinctive ability to position parties as decision makers, they have overlooked the challenge of being decision recipients; the other party, their legal opponent, also got to shape the outcome. Second, participants wanted to see themselves as fair people, yet often had to compromise and settle for “good enough” outcomes. Finally, they had little interest in applying, still less in creating, legal norms: stress, risk, convenience and pragmatism played an equal part in their thinking.

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

CPR’s Alternatives to the High Cost of Litigation published a four-part series:

The Real Practice Systems Project: A Menu of Mediation Checklists
Practitioners Tell Why Real Practice System Checklists Are So Useful
Why Do Mediators Mediate the Way They Do?
Helping You Do the Best Mediation You Can

I posted the following short articles on SSRN:

I posted numerous pieces on Indisputably including:

Here are collections of materials:

Ariana Levinson (Univ. of Louisville Law)

Research project: This paper explores how union negotiations in worker-owned co-ops compare to more traditional labor negotiations. Are co-op labor negotiations more similar to the interest-based win-win negotiation framework popularized by Getting to Yes than traditional labor negotiations? If they are, what are the potential advantages and disadvantages of this type of negotiations compared to traditional negotiations? Do co-op labor negotiations address some of the grand challenges of this historical time, such as climate change, technological advance like AI, and the rise of patriarchy, racism, and fascism, in similar or different ways than traditional negotiations?

Andrew Mamo (Cincinnati Law)

Dispute System Counter-Design (forthcoming, FIU L. Rev.) examines how parties who bring their disputes to dispute resolution systems can actively shape the development of those systems. The article explains why even the most inclusive and thoughtful Dispute System Design practices cannot eliminate the desire for parties to influence the design of dispute resolution systems, given that such systems are designed for specific purposes, and that those purposes may not be shared by the people who experience conflict. The article outlines three basic ways in which parties to disputes can exercise power over design, which I identify as “unveiling,” “tagging,” and “assembling,” and which collectively constitute a set of “counter-design” practices. This work of counter-design complements (and challenges) the work of Dispute System Design.

A Tale of Two Civilities (in progress) examines the role of civility in legal practice in terms of two distinct perceived crises of incivility in litigation in the 1970s. One perceived crisis of incivility involved litigation practice becoming increasingly adversarial, even aggressive—“Rambo litigation,” as it would be known. This incivility was attributed variously to changes in the market for legal services, to changes in the demographics of the legal profession, and to changing gender norms (among others). It spawned efforts to tame litigation through reform of professional ethics rules and the creation of more “civil” alternatives—one of the motivations for the dramatic growth of ADR in subsequent years. But the crisis of incivility also arose in a distinctly different way, with a specific political valence: that incivility was being driven by impact litigation, and that restoring “civility” to legal practice meant reducing the stakes of litigation. The admirable quest for “civil” alternatives to litigation—dispute resolution built upon a search for mutual understanding, shared commitments to foundational norms, joint problem-solving, etc.—dovetailed with a conservative vision of “civil” dispute resolution as necessarily interpersonal, stripped of explicitly political stakes or claims of group rights.

Carrie Menkel-Meadow (UC Irvine Law)

Completing book and Teacher’s Manual—International Conflict Resolution Processes (with Andrea Kupfer Schneider) due out Fall 2024 Carolina Press.
Completing 4ed of Dispute Resolution: Beyond the Adversarial Model (Aspen) with Lela Love, Andrea Kupfer Schneider, Michael Moffitt and Kristen Blankley
Completing book—Advanced Introduction to Alternative Dispute Resolution (Elgar publishing, due Dec. 2024).
Chapter on Mediation and Negotiation for Encyclopedia of Sociology of Law (Elgar)
Chapter on Women’s Ways of Lawyering for Research Handbook on Gender and the Legal Profession (Elgar)
Entry Conflict Resolution for Encyclopedia of Law and Peace (Elgar)
Commentary for Discussions on Dispute Resolution—short essay on Dispute System Design -Jan Martinez and Stephanie Smith
Chapter ADR as Civil Justice Reform in Research Handbook on Civil Justice (2024-25 publication
Chapter on Mediation as Multi-party stakeholder dispute resolution in environmental disputes in book: Competence and Fairness in Citizen Participation: Evaluating Models for Environmental Discourse (2025 publication)
Chapter on Henry Kissinger for volume on Great Negotiators
Based on presentation while resident at Centre for Socio-legal Studies, Oxford University—completing paper on “Is Socio-legal Studies a Science?” (with Naomi Creutzfeldt)

Michael Moffitt (Oregon Law)

Recently published: Truth. Regardless of Reconciliation? 24 Nev. L. J. 1071 (2024). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4851430.

Detailing the ongoing search for the remains of Cayuse Indians who were wrongfully executed in 1850, and arguing that the tribe’s ongoing search is best understood through the lenses of ethics and practice within dispute resolution—even though the search does not share the familiar trappings of classic reconciliation or restorative processes.

Forthcoming: No News (read: successful lawsuits against mediators) is Good News?, Texas A&M L. Rev. (forthcoming in 2025).

Providing updated data about the (in)frequency of successful malpractice actions against mediators. Includes a six-part taxonomy of claims that have been filed against mediators, and a legal analysis explaining the fates of those and similar claims.

Still entirely in my head: Bespoke ADR Ethics.

Process pluralism is now the norm within ADR. Have dispute resolution ethics kept up with the rapid development of process variations? Most articulations of ethics for ADR processes derive fundamentally from the established norms of either mediation or arbitration. Are ADR processes really just variations on these two themes? Or is there a foundational conception of dispute resolution ethics from which one could derive appropriate ethical directives for processes beyond mediation and arbitration? My instinct is that one can find such directive through the lens of party consent. And I hope to use the case of Neutral Allocators in CERCLA superfund cases as a springboard for imagining the need for (and boundaries of) this exploration. I may also look at other ADResque roles, such as embedded neutrals) to examine the ways in which ADR ethics have (or have not) kept pace with the evolutions of process pluralism.

Jennifer Reynolds (Oregon Law)

This summer, I am finishing up my comment for the upcoming Discussions in Dispute Resolution 2, the marvelous project of Andrea Kupfer Schneider, Art Hinshaw, and Sarah Cole. I was lucky to be assigned to one of my favorite articles: “When People Are the Means: Negotiating with Respect,” by Jonathan Cohen. I have also joined a civil procedure casebook (Glannon, Perlman & Raven-Hansen) and part of my work this summer will be adding more ADR-focused material to the upcoming 5^th edition.

Amy J. Schmitz (Ohio State Law)

Amy recently published The Arbitration Conversation: Insights and Wisdom from Experts in the Field (ABA Section on Dispute Resolution 2024), and is under contract for 2 new books: Digital Dispute System Design with Janet Martinez (Aspen 2025 or 2026) and The Cambridge Handbook on AI and Civil Dispute Resolution with co-editors Ortolani and Giacalone (Cambridge University Press 2025). Hot off the presses is her article with Cynthia Alkon, Opening a Virtual Window to Expand Access to Justice in Criminal Cases, 25 Cardozo Journal of Conflict Resolution 177-228 (2024). She also is working on invited book chapters: AI and Alternative Dispute Resolution, Edward Elgar Encyclopedia of AI and the Law (EE Press forthcoming 2025), Designing to Expand Access to Justice in United States Court Online Dispute Resolution (ODR), Digital Courts: Integrating Human and Artificial Intelligence (Oxford University Press 2024 or 2025); Picking the Proper Problem-Solving Tool in Arbitration, title tba, (Piers & McCarthy editors, forthcoming 2024); HACIA UN FUTURO DE LA JUSTICIA CENTRADO EN LAS HUMANIDADES: INTEGRANDO ODR, IA E INDUSTRIA 5.0 EN LOS SISTEMAS JURÍDICOS, with Rule and Alfonso in Tendencias de la Innovación Legal, (forthcoming 2024 Universidad Externado de Colombia); Updating FAA Section 7 for the Digital Age, THE FEDERAL ARBITRATION ACT: SUCCESSES, FAILURES, AND A ROADMAP FOR REFORM (edited by Bales & Gross, Cambridge University Press forthcoming 2024); Evolution and Emerging Issues in Consumer ODR, THE CAMBRIDGE handbook on Emerging Issues at the Intersection of Commercial Law and Technology (Cambridge forthcoming 2024, edited by Nancy Kim); and Resolving NFT Disputes, The Cambridge handbook on the law and policy of NFTs (Cambridge forthcoming 2024). Meanwhile, she is working hard on JusticeTech (a AAA-ICDR and OSU grant-funded program in which students from law and computer sciences will collaborate to design and create technologies aimed to expand access to voice, remedies and hopefully justice). Relatedly, she will present on Creating and Teaching LegalTech Practicums at SubTech Innovation Conference at Northwestern Law School, Chicago, IL, and AI and Dispute Resolution at Universidad Externado de Colombia in Bogota in July.

Thomas J. Stipanowich (Pepperdine Caruso Law)

My time and attention are increasingly focused on The Lincoln Way, a book project exploring the lessons lawyers, leaders, and all of us can learn from the life and career of Abraham Lincoln. During the 2024 spring semester I taught a new course at Pepperdine School of Law entitled “Lincoln, Law, and Leadership.” The inaugural version of the course was co-taught by my colleague Prof. Edward Larson, a Pulitzer Prize-winning historian. I’ll be teaching the course again next year.

I’m contributing an article entitled “Malice Toward None, Charity for All: Lincoln’s Vision of Reconciliation for All Americans” to a forthcoming issue of Dispute Resolution Magazine devoted to historical subjects.

I was invited, along with other law professors who have been named as Fellows of the Hagler Institute for Advanced Studies at Texas A&M (including Professors Tom Ginsburg, Richard Epstein, Richard Delgado, and others), to have a retrospective on my body of scholarly work in the tenth anniversary issue of the Texas A&M Law Review. I was deeply honored to have my scholarly contributions discussed by our friend and colleague Fordham Law School professor Jacqueline Nolan-Haley in a piece entitled “Reflection, Deliberation and Dialogue: Stipanowich’s Contribution to Dispute Resolution,” 10 Texas A&M L. Rev. 673 (2023), available here.

My own personal retrospective is Thomas J. Stipanowich, Of Time and Tide, 10 Tex. A&M L. Rev. 685 (Summer 2023), available here.

On May 23, 2024, I delivered a presentation for the Croatian Mediation Association in Zagreb, and while in the country visited villages associated with my Stipanovic ancestors and sailed on our friends’ catamaran through the islands from Dubrovnic to Split.

On June 20, 2024, I co-chaired Workshop of the Institute for Transnational Arbitration in Austin, Texas entitled “Global Perspectives on Due Process in International Arbitration.”

This past year I was honored by Pepperdine University as a recipient of the Howard A. White Award for Teaching Excellence.

Stephen Ware (Kansas Law)

I’m doing the 2024 update to Arbitration (Foundation Press University Casebook Series, 4^th ed. 2020) (with Alan Scott Rau). And I’m thrilled to announce that the 5^th edition will add new co-authors David Horton and Tamar Meshel.

I’m writing a new Concise Hornbook for West: Principles of Negotiation, Mediation, and Other Processes of Dispute Resolution. For that project, I especially welcome suggestions on cross-border and cross-cultural negotiation and mediation—topics of heightened interest to me as I have been giving ADR presentations to law schools in Turkey, Uzbekistan, and Germany.

In addition, I’m writing three articles:

Reconciling Bankruptcy Law with the Federal Arbitration Act

Contracting Away Constitutional Rights in the United States: Uninformed Consent to Arbitration and other Agreements, 26 German Law Journal (forthcoming 2025).

Arbitrating Bankruptcies, (unpublished draft, comments welcome)

Robyn Weinstein (Cardozo Law) and Toby Guerin (Maryland Law)

Inspired by James Stark’s 1996 article Preliminary Reflections on the Establishment of a Mediation Clinic, this project explores the current state of mediation clinical education throughout the U.S. and contemplates the role of mediation clinics within legal education more broadly. Part I of this article details the current structure of mediation clinics through information gathered from a 2023-2024 survey of U.S. based law school mediation clinics. The survey both mirrors and expands upon Professor Stark’s original survey, collecting data on mediation clinic case types, clinical supervision and training, and court and community partnerships. Survey respondents also provided information about student enrollment, number of credits awarded, and the duration of the clinic as well as curriculum and assessment methods. Part II of the article identifies several “decision points” mediation clinicians face when balancing clinical pedagogy, institutional objectives, and professional practice. The article concludes with Part III, exploring the current challenges and value of teaching mediation in a law school clinical setting, and its actual and potential impact on the legal profession and society.

Maureen Weston (Pepperdine Caruso Law)

Authored Papers at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=94954

Casebooks:

Sports Law: Cases & Materials & Instructor’s Manual (Carolina Academic Press 10^th ed. 2024) (co-authors Raymond Yasser, James McCurdy, Peter Goplerud).

Arbitration Law, Policy & Practice, co-authors Kristen Blankley & Jill Gross (2^nd ed. 2024) (Carolina Academic Press).

Understanding Alternative Dispute Resolution, co-author Kristen Blankley, (2^nd ed. 2024)(Carolina Academic Press).

Articles:

Strategic Shifts: The Corporate Playbook on Arbitration, Class Actions, Mass Arbitration, and Privatized Justice (Denied), Discussions in Dispute Resolution (Volume II): The Coming of Age (2000-2009) (A. Hinshaw, A. Schneider, and S. Cole eds.) (forthcoming Oxford University Press, 2025)

Off the Guardrails: Name Image Likeness and the College Athlete Influencer, 11 Texas A&M L. Rev. 911 (2024)

State Arbitration Law in a FAA Preemption World: The Interaction Between Federal and State Arbitration Law, in The Federal Arbitration Act: Successes, Failures, and a Roadmap for Reform, Richard A. Bales & Jill I. Gross, Cambridge University Press (2024).

Breaking Cultural and Financial Barriers in Olympic Sports, 26 Vanderbilt J. Ent. & Tech. Law 347 (2024).

The Anxious Athlete: Mental Health and Sports Duty and Advantage to Address, 13 Harvard Sports Law Journal 1 (2022)

Helen Winter (Pepperdine Caruso Law)

Helen recently submitted a commentary to Conflict Resolution Quarterly for their edition on artificial intelligence. Co-authors are Marco Turk and Sebastian F. Winter. The article is currently under peer review: ”Meaningful work in peril? Preserving self-efficacy in the age of artificial intelligence” In our manuscript, we argue that the experience of meaningful work is intricately linked to self-efficacy – an individual’s belief in their capability to execute behaviors necessary to achieve specific goals. We further posit that self-efficacy – and its cultivation through the pursuit of meaningful work – is essential to individual health and wellbeing and, indeed, societal cohesion. We believe that ADR professionals must assume an active role in navigating AI related challenges, which includes identifying and promoting new strategies to cultivate meaning, self-efficacy, and societal cohesion.

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

Roselle and Art are co-authors of two separate projects:

Comparing Joint Session and Caucus Outcomes: Factoring in Substantive Discussion and Case Characteristics, Cardozo Journal of Conflict Resolution (forthcoming). The present study, based on the survey responses of over 1,000 civil and family mediators across eight states, found differences between cases that began mediation in joint session versus in caucus in several intermediate outcomes associated with the initial session, especially in civil cases. There were few differences in final outcomes between cases where the disputants spent some versus no time together during the entire mediation. However, for the most part the differences disappeared or were reduced after statistically adjusting for the extent of substantive discussions among the mediator, the disputants, and the lawyers as well as several case and mediator characteristics. Thus, the outcome differences largely appear to be explained by differences in the extent of discussions that occur during the initial mediation session as well as differences in case characteristics rather than simply by whether the disputants are together or apart during the mediation.

Participant Actions and Intermediate Outcomes in Initial Joint Sessions and Initial Caucuses, Journal of Dispute Resolution (forthcoming). The present study, based on the survey responses of more than 1,000 civil and family mediators across eight states, found that substantive discussions and participant interactions during initial joint sessions are associated with parties providing new information and decreased disputant anger, especially in civil cases. When these actions take place instead during initial caucuses, they are related to fewer informational and relational benefits. Substantive discussions, participant interactions, and the provision of new information also are associated with inflammatory remarks and grandstanding during initial joint sessions, but not during initial caucuses. However, during initial joint sessions, disputants’ inflammatory remarks are related to decreased disputant anger and to relationship repair, especially in civil cases; lawyers’ inflammatory remarks and grandstanding are not related to either outcome. Thus, the risk of negative consequences from inflammatory remarks needs to be balanced against the informational, anger-reduction, and relationship benefits that can be accomplished by having substantive discussions and interactions take place during initial joint sessions.

Leave a Reply Cancel reply