Law Commons^™

Introduction To "Dispute Resolution And Political Polarization", Rafael Gely

Faculty Publications

Dispute resolution practitioners and scholars know conflict. In fact, some would say that we love conflict. And yet, despite our affinity with conflict, the polarization that is evident in today's public space has been disconcerting. While we generally operate in a space where we are constantly exploring options, seeking compromise, helping participants explore their interests and finding ways to move towards agreement, what seems like an inability to even engage in any kind of dialogue is troubling. These and other related concerns led the editors of the Journal of Dispute Resolution to solicit contributions from seven well-known conflict resolution scholars …

... Because "Yes" Actually Means "No": A Personalized Prescriptive To Reactualize Informed Consent In Dispute Resolution, Elayne E. Greenberg

Faculty Publications

This paper proposes a radical departure from the status quo approach to securing a client’s informed consent about settlement options and refocuses informed consent practice back to what informed consent is about, the client. As it exists today, the status quo approach to securing a client’s informed consent about whether or not to use an alternative dispute resolution procedure to resolve the client’s case is inadequate. It thwarts a client’s right to exercise party self- determination and stymies a client’s ability to make informed justice choices. Lawyers, courts, ADR providers and neutrals routinely provide litigants with generic information about the …

Acts Like A Lawyer, Talks Like A Lawyer…Non-Lawyer Advocates Representing Parties In Dispute Resolution, Elayne E. Greenberg

Faculty Publications

(Excerpt)

What are the ethical implications for lawyer mediators, arbitrators and dispute resolution providers when the lines between the roles of lawyers and the non-lawyers who are representing clients in dispute resolution become blurry? Traditionally, non-lawyer advocates (hereinafter NARs) have represented clients in the negotiations, mediation and arbitration of legal matters without cause for concern. Yes, labor union representatives, sports agents, and special education advocates are three familiar examples of non-lawyers who represent clients in negotiations, mediations and arbitrations, informing clients of their legal rights. Routinely, the lawyers and neutrals presiding over the dispute resolution procedure have warmly welcomed these …

Ethics Meets The “O” In Dr, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Lawyers, the menu of justice options available to resolve your clients’ legal disputes has now expanded to include online dispute resolution processes. Online dispute resolution (ODR) is an umbrella term that may be used to describe the use of technology to help expedite legal case management, replicate existing dispute resolution processes online, such as by utilizing video conferencing for arbitration and mediation (“replication ODR”); or to help streamline or even resolve legal claims through the use of algorithms (“algorithm ODR” or “algorithm- based ODR”). Even though ODR is fast becoming a regular part of legal practice, generally, and dispute …

Empowering Consumers Through Online Dispute Resolution, Amy J. Schmitz

Faculty Publications

We transact online every day, hoping that no problems will occur. However, our purchases are not always perfect: goods may not arrive; products may be faulty; expectations may go unmet. When this occurs, we are often left frustrated, with no means for seeking redress. Phone calls to customer service are generally unappealing and ineffective, and traditional face-to-face or judicial processes for asserting claims are impractical after weighing costs against likely recovery. This is especially true when seeking redress requires travel, or for crossborder claims involving jurisdictional complexities. This situation has created a need for online dispute resolution (“ODR”), which brings …

Congress And Commercial Trusts: Dealing With Diversity Jurisdiction Post-Americold, S. I. Strong

Faculty Publications

The treatment of commercial trusts reached its nadir in early 2016, when the U.S. Supreme Court held in Americold Realty Trust v. ConAgra Foods, Inc. that the citizenship of a commercial trust should be equated with that of its shareholder-beneficiaries for purposes of diversity jurisdiction. Unfortunately, the sheer number of shareholder-beneficiaries in most commercial trusts (often amounting to hundreds if not thousands of individuals) typically precludes the parties' ability to establish complete diversity and thus eliminates the possibility of federal jurisdiction over most commercial trust disputes. As a result, virtually all commercial trust disputes will now be heard in state …

Collective Bargaining And Dispute System Design, Rafael Gely

Faculty Publications

This article seeks to reestablish the conversation between collective bargaining and dispute system design scholars. Part II provides a brief description of the system of collective bargaining by focusing on the three key steps of union organizing, contract negotiation, and contract administration. Part III does the same for the literature on dispute system design by identifying some of the seminal literature in the field as well as other work particularly relevant to workplace dispute resolution systems. In Part IV, the article seeks to achieve one modest goal and one that is more ambitious. As to the modest goal, this article …

Why And How Businesses Use Planned Early Dispute Resolution, John M. Lande, Peter W. Benner

Faculty Publications

This article reports the results of an empirical inquiry analyzing why some businesses do think and act differently by adopting "planned early dispute resolution" (PEDR) systems when most other businesses probably do not do so. PEDR is a general approach designed to enable parties and their lawyers to resolve disputes favorably and with reduced cost as early as reasonably possible. It involves strategic planning for preventing conflict and handling disputes in the early stages of conflict, rather than dealing with disputes ad hoc as they arise. There is no general understanding of what PEDR is since businesses use a variety …

When Worldviews Collide—Strategic Advocacy V. A Mediator’S Ethical Obligations, Elayne E. Greenberg

Faculty Publications

(Excerpt)

The provocative headline “Judge Orders Preservation of Mediation Notes In Gender Bias Suit Against Proskauer” sparks the topic of this Ethical Compass discussion. What should be done when a lawyer’s litigation strategy collides with a mediator’s ethical standards of practice? There is growing concern by dispute professionals, including this author, that this collision is diluting the benefits of mediation and re-shaping mediation into quasi-adjudicative dispute resolution procedure. Others hear this as a clarion call from litigators to the mediation community to realize that mediation ideals are just that, and will not deflate litigation advocacy strategies. These polarized perspectives present …

When The Empty Adr Chair Is Occupied By A Litigation Funder, Elayne E. Greenberg

Faculty Publications

(Excerpt)

The discussion about the $140 million jury verdict against Gawker media for posting a sex video of Terry Bollea, professionally known as Hulk Hogan, having sex with his best friend’s wife, quickly shifted to a conversation about the ethics of litigation funding when it was finally disclosed that Peter Thiel had funded Bollea’s litigation. The backstory reveals that Gawker outed Thiel, revealing his homosexuality ten years earlier in a more conservative time when such a revelation might have impacted Thiel’s earning capacity. Thiel, an icon in Silicone Valley and a co-founder of PayPal, promised revenge. Thiel got his revenge, …

Book Review: Challenges And Recusals Of Judges And Arbitrators In International Courts And Tribunals, S. I. Strong

Faculty Publications

The proliferation of international courts and tribunals over the last few decades has made it increasingly important to ensure that such proceedings are entirely above reproach. In particular, questions have arisen about what should be done in cases where a judge’s or arbitrator’s continued presence threatens the legitimacy of the proceedings. As fundamental as this question is, very little has been written about the standards for challenge and removal of such officials. Fortunately, Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals, a new collection of essays edited by Chiara Giorgetti, Associate Professor of Law at the …

Remedy Realities In Business-To-Consumer Contracting, Amy J. Schmitz

Faculty Publications

Professor Jean Braucher greatly contributed to the exploration of consumer and contract law by questioning how the law operates in the real world and highlighting the importance of “law in action.” In recognition of that contribution, this Article focuses on law in action with respect to consumers’ quest to obtain remedies regarding their business-to-consumers (“B2C”) contracts. Currently, consumers often have no practical recourse with respect to B2C purchase problems due to the complexity, cost, and inconvenience of the processes for obtaining remedies. Accordingly, stated legal rights become meaningless for individuals living in the real world. This Article, therefore, explores access …

Realizing Rationality: An Empirical Assessment Of International Commercial Mediation, S. I. Strong

Faculty Publications

For decades, parties, practitioners and policymakers have believed arbitration to be the best if not only realistic means of resolving cross-border business disputes. However, the hegemony of international commercial and investment arbitration is currently being challenged in light of rising concerns about increasing formalism in arbitration. As a result, the international community has sought to identify other ways of resolving these types of complex commercial matters, with mediation reflecting the most viable option. Numerous public and private entities have launched initiatives to encourage mediation in international commercial and investment disputes, and the United Nations Commission on International Trade Law (UNCITRAL) …

International Implications Of The Will As An Implied Unilateral Arbitration Contract, S. I. Strong

Faculty Publications

In his article, The Will As An Implied Unilateral Arbitration Contract, Professor Gary Spitko offers an intriguing and innovative argument about how arbitration provisions in wills can be enforced even over the objection of a beneficiary and even in cases where the beneficiary seeks to set aside the will in its entirety. While I do not agree with all of the assertions in that Article (for example, the conclusion that "a consensus is developing that a testator may not compel arbitration of contests to her will"' appears somewhat premature, given a number of probate cases not discussed by Professor Spitko …

...Because It’S Not Just About Money, Elayne E. Greenberg

Faculty Publications

(Excerpt)

When lawyers represent their clients in party-decided dispute resolution processes such as negotiation or mediation, lawyers have a unique opportunity to work with their clients to help shape a comprehensive settlement beyond just a monetary settlement. This is an opportunity to address the client’s human and core concerns and to help their client secure their personalized sense of justice. However, lawyers and mediators who myopically seek to resolve every legal conflict by just monetary resolution are akin to the carpenter who sees everything as a nail because the only tool available is a hammer. This column invites you to …

The Power Of Empathy, Elayne E. Greenberg

Faculty Publications

(Excerpt)

As colleagues in the dispute resolution field, we have likely participated in the ongoing, often heated debate about the role, if any, of empathy in dispute resolution. There are those colleagues who believe that empathy will only muck up what is really important, the bottom-line number and your evaluation about how to get there. On the other side of this controversy, there are seasoned colleagues who regularly use empathy as dispute resolution currency, often at the risk of being marginalized as “touchy feely” by those who don’t understand its value. To help us get past each other’s anecdotal justifications …

Introducing The 'New Handshake' To Expand Remedies And Revive Responsibility In Ecommerce, Amy J. Schmitz

Faculty Publications

There was a time when individuals would meet in person to make purchases and do deals. They would discuss the terms, assess the trustworthiness and character of their contracting partners, and conclude the deal with a handshake. The handshake helped ensure the enforcement of the deal without need for the rule of law or legal power. That handshake was one’s bond — it was a personal trust mark. With the emergence of eCommerce, however, that handshake has nearly disappeared along with the sense of responsibility it inspired. Accordingly, this article discusses how this has impacted consumers’ access to remedies regarding …

Taking Advantage Of Opportunities In Litigotiation, John M. Lande

Faculty Publications

This article is partially based on a study in which I interviewed respected lawyers about their negotiation processes in pretrial litigation. I asked these lawyers about their negotiation procedures generally, and I asked them to describe the last case they settled, starting with the first interaction with their clients in the matter. Although this article focuses on negotiation in the litigation context, some lawyers presumably use analogous procedures in transactional matters.

Family Lawyering With Planned Early Negotiation, John M. Lande

Faculty Publications

Whether you know it or not, you may already be using planned early negotiation (PEN). As the term suggests, this process involves planning to negotiate your cases at the earliest appropriate time. Normally you can be ready to negotiate long before you are ready for trial.

This article summarizes PEN procedures based on interviews with excellent lawyers about how they handle their cases. For example, one lawyer said that he “prepares for settlement from day one of the lawsuit” and that he engages in a “constant process of evaluating the claim” throughout the litigation. Planning to negotiate from the outset …

Federal Civil Litigation At The Crossroads: Reshaping The Role Of The Federal Courts In Twenty-First Century Dispute Resolution, Edward D. Cavanagh

Faculty Publications

The Federal Rules of Civil Procedure were promulgated in 1938 to provide the “just, speedy, and inexpensive determination” of all civil actions. The underlying theme of the Federal Rules is that meritorious litigants should have their day in court. To that end, the Federal Rules eliminated procedural pitfalls, including highly technical forms of action inherited from common law, that rewarded mastery of pleading techniques over the substantive merits of claims. The Federal Rules also introduced a simplified pleading system, commonly denominated as “notice pleading,” thereby easing the heavy burden imposed on the parties. The factual details of the case could …

When “Yes” May Actually Mean “No”: Rethinking Informed Consent To Adr Processes, Elayne E. Greenberg

Faculty Publications

(Excerpt)

It is time for us to rethink how to achieve meaningful party consent to ADR processes such as mediation and arbitration. I, along with my colleagues Professors Jeff Sovern, Paul F. Kirgis and Yuxiang Liu, recently contributed to the growing body of research finding that a party’s consent to use an ADR process rather than utilizing a court to resolve the dispute is too often neither informed nor consensual. In our empirical study “’Whimsy Little Contracts’ With Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements,” we found a paucity of consumer awareness and understanding of arbitration …

The Smith Case: Is The Glass Half Full?, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Many in our ADR community have already chosen to side with one of the choruses of polarized voices that are either supportive of or critical of the recent judicial decision In re Cody W. Smith. In that decision, Chief United States Bankruptcy Judge Jeff Bohm disallowed the trustee’s appointment of a mediator, because, inter alia, the trustee didn’t first secure the approval of the presiding bankruptcy judge. A cursory read of Judge Bohm’s decision mistakenly leads us to believe that the case is just about a bankruptcy trustee’s obligation to follow section 327(a) of the Bankruptcy Code, …

Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande

Faculty Publications

Although the ostensible purpose for pretrial litigation is to prepare for trial, such preparation is inextricably intertwined with negotiation because the expected trial outcome is a major factor affecting negotiation. Indeed, since most litigated cases are settled, good litigators prepare for negotiation at least as much as trial. The lawyers interviewed for this article, who were selected because of their good reputations, described how they prepare for both possibilities. They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases, …

A Framework For Advancing Negotiation Theory: Implications From A Study Of How Lawyers Reach Agreement In Pretrial Litigation, John M. Lande

Faculty Publications

The prevailing negotiation theory tries to fit lots of square pegs into just two round holes–adversarial or cooperative bargaining. In the real world, negotiation comes in many different shapes, not just circles and squares. Analyzing law school textbook definitions of the traditional models, this article demonstrates that the two “round holes” in current negotiation theory are poorly defined. It also presents empirical accounts of actual pretrial negotiations to demonstrate that the theoretical models do not fit some real-life negotiations. It argues that it is time to replace the traditional models with a flexible framework that can accommodate virtually all legal …

International Commercial Arbitration Coming To A Courthouse Near You, S. I. Strong, Judith Kaye

Faculty Publications

Some people view international commercial arbitration as an exotic, private dispute resolution mechanism that is entirely separate from U.S. state and federal courts. However, the truth of the matter is that judges from around the country increasingly are being asked to handle disputes that are somehow related to international commercial arbitration.

Rogue Debtors And Unanticipated Risk, S. I. Strong

Faculty Publications

Commercial actors are becoming increasingly concerned about the effect that various types of political risk, including the risk of sovereign default, has on their investments. This Essay considers the problem of rogue debtors (i.e., states that intentionally ignore their legal and financial obligations) as a type of unanticipated risk and analyzes how well various responses, including domestic litigation, interstate negotiation and investment arbitration, address investors’ needs. In particular, the discussion focuses on how effective investment arbitration is in overcoming a number of difficulties traditionally associated with rogue debtors and the various means by which states are attempting to bypass the …

Escaping From Lawyers' Prison Of Fear, John Lande

Faculty Publications

Lawyers regularly experience numerous fears endemic to their work. This is not surprising considering that lawyers generally operate in environments that frequently stimulate many fears. Lawyers’ fears can lead them to enhance their performance due to increased preparation and effective “thinking on their feet.” Fear is problematic when it is out of proportion to actual threats, is expressed inappropriately, or is chronically unaddressed effectively. It can lead to sub-optimal and counterproductive performance through paralysis, ritualized behavior, or inappropriate aggression. Some lawyers’ fears unnecessarily prevent them from performing well, producing good results for clients, earning more income, and experiencing greater satisfaction …

Anti-Arbitration Injunctions In Cases Involving Investor-State Arbitration: British Caribbean Bank Ltd. V. The Government Of Belize, S. I. Strong

Faculty Publications

Over the last few years, the international legal community has become increasingly interested in anti-arbitration injunctions, which are analogous to antisuit injunctions except that the former prohibits the initiation or continuation of an arbitration while the latter focuses on judicial actions. At this point, very few courts have actually issued an injunction of this type. Nevertheless, a number of commentators have expressed concern about these mechanisms, since they can wreak havoc with contractual or treaty-based expectations about how a particular dispute is to be resolved. Indeed, some scholars and practitioners would prefer that these sorts of injunctions be made universally …

Has Expungement Broken Brokercheck?, Christine Lazaro

Faculty Publications

Stockbrokers are subject to one of the most comprehensive public disclosure regimes. They must disclose substantial information about their backgrounds, their employment history, and their disciplinary history. FINRA, the self-regulatory organization that regulates the brokerage industry, also requires that brokers disclose customer complaints and makes much of this information available to the public through an online database called BrokerCheck. The allegations of wrongdoing remain on the broker’s record permanently, unless the broker succeeds at having customer dispute information expunged. The broker is able to accomplish this by requesting that the arbitration panel that hears the customer dispute grant expungement, and …

The Cheater’S “High”— Harmonize Ethics, Research And Negation Behavior, Elayne E. Greenberg

Faculty Publications

(Excerpt)

In the context of negotiations, how does “cheater’s high” influence our ethical behavior, decision-making and negotiation strategy? “Cheater’s high” is the term coined by behavioral ethics researchers to describe the positive feeling we experience when we cheat. Rather than feel guilty for these ethical transgressions as was previously believed, those who cheat actually experience a positive effect that further incentivizes the unethical behavior to continue. Even though some who are perched on their ivory tower may feel immune from “cheater’s high,” social scientists remind us that at times we all cheat to varying degrees. This cheating reality is problematic …