Dispute Resolution and Arbitration Commons^™

Real Practice Systems Annotated Bibliography, John Lande

Faculty Publications

Real Practice Systems (RPS) theory holds that practitioners’ practice systems are based on their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and the cases in their work. RPS analysis can be used in many dispute resolution roles such as mediator, advocate in mediation, negotiator, and litigator generally. In mediation, practitioners develop categories of cases, parties, and behavior patterns that lead them to design routine procedures and strategies for dealing with recurring challenges before, during, and after mediation sessions.

RPS theory is the culmination of much of the work in my scholarly career. The bibliography …

Real Mediation Systems To Help Parties And Mediators Achieve Their Goals, John M. Lande

Faculty Publications

This article argues that it is time for a paradigm shift in our current general mediation theory because of numerous problems. Our current theory is incomplete at best and seriously misleading at worst. The traditional mediation models are oversimplified, poorly mapping onto the reality of practice. They combine multiple elements that are not necessarily correlated. Many practitioners ignore them because they are confusing or not helpful. People do not understand the theoretical meanings because the terms are not consistent with commonly understood language. Arguments about what is or is not real or good mediation have spawned unhelpful ideological divisions in …

High Anxiety: Racism, The Law, And Legal Education, Elayne E. Greenberg

Faculty Publications

Conspicuously absent from the United States’ ongoing discourse about its racist history is a more honest discussion about the individual and personal stressors that are evoked in people when they talk about racism. What if they got it wrong? The fear of being cancelled - the public shaming for remarks that are deemed racist - has had a chilling effect on having meaningful conversations about racism. What lost opportunities!

This paper moves this discussion into the law school context. How might law schools rethink their law school curricula to more accurately represent the role systemic racism has played in shaping …

Hats For Sale: Efficiency, Economics, And Process Integrity, Elayne E. Greenberg

Faculty Publications

(Excerpt)

What are the ethical considerations for a mediator when a neutral is asked to be both the mediator and arbitrator on the same case? Some parties and their lawyers opt to select one neutral to serve as both the mediator and arbitrator on the same case, believing it will be a more efficient and cost-effective way to resolve their dispute. After all, the mediator already knows the facts of the case. Why waste time and money getting another neutral up to speed? This design choice, however, may collide with the mediator ethical mandates of party self-determination, neutral impartiality, confidentiality, …

Humanizing Virtual Dispute Resolution, Elayne E. Greenberg

Faculty Publications

(Excerpt)

How might neutrals and advocates foster interpersonal dynamics when conducting arbitrations and mediations virtually, consistent with the ethical obligations of each profession and the ethical underpinnings of each process?

Virtual dispute resolution for commercial dispute resolution has become the new normal. Yet, the dispute resolution listserves are still peppered with posts from mediators and arbitrators who, although publicly extolling their own commitments to their impartiality and neutrality, are also simultaneously voicing their strong preferences for conducting their dispute resolution processes in person. According to these neutrals, they are unable to attain the same results when the process is conducted …

Zooming In On Neutrals’ Implicit ‘Isms, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Video conferencing, extolled for its economic and efficiency benefits, has now become an accepted option in the “new normal” of dispute resolution practice. Consequently, our professional discussions about video conferencing have advanced from sharing the mechanics of “how to” conduct an arbitration or mediation on Zoom to more nuanced explorations about the appropriate use of video conferencing. This column contributes to this exploration by questioning how dispute resolution processes conducted via video conferencing might trigger the implicit biases of arbitrators and mediators and compromise a neutral’s ethical obligation to be impartial. When a neutral conducts their dispute resolution processes …

Blinding Justice And Video Conferencing?, Elayne E. Greenberg

Faculty Publications

(Excerpt)

How might dispute resolution processes for civil matters conducted on video conferencing be designed to reduce racial justice inequities and increase Black participants’ sense of procedural justice? In March 2020, responding to Covid-19 pandemic health concerns, all in-person, court-connected, and private dispute resolution processes shifted to video conferencing. Proponents of video conferencing have long touted how video conferencing would increase access to justice by providing an efficient, cost-effective, and time-saving alternative to in-person appearances. An unexplored question in March 2020 was how video conferencing would affect racial justice inequities. Black individuals and other marginalized groups were already disproportionately suffering …

The Unintended Consequence Of Settlement Fever And The Rule Of Law, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Welcome to the final column of a three-part series about how settlement fever has influenced our justice system as it evolves into settlement-centric culture. This column will focus on how the rule of law, once touted as the primary benchmark of justice, has now taken a secondary role to private ordering when shaping some negotiated and mediated settlements.

Settlement Fever: Lawyers, Have You Updated Your Philosophical Map?, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This column is the second in my three-part series about settlement fever. The focus of this column is on how settlement fever is incentivizing you, an ethical lawyer, to expand your legal mindset when you engage with your clients to help resolve their disputes. Have you updated your philosophical map lately?

Ethical Compass: Three Different Judicial Treatments For Settlement Fever, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This is the first of a three-part series that examines different aspects of the settlement fever that has stricken our justice system. What can we learn from judicial decisions about how individual judges assess the settlement means that lawyers, in consultation with their clients, have chosen to resolve their case?

Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz

Faculty Publications

Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution (“ODR”), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof. Online Arbitration (“OArb”) is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act (“FAA”). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the COVID-19 pandemic sparked the acceleration of …

Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz

Faculty Publications

Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution ("ODR"), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof Online Arbitration ("OArb ") is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act ("FAA"). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the COVID-19 pandemic sparked the acceleration …

Measuring "Access To Justice" In The Rush To Digitize, Amy J. Schmitz

Faculty Publications

Access to Justice (A2J) is the hot topic of the day, energizing Twitter and judges alike. Meanwhile, professors and policymakers join in song, singing the praises of online dispute resolution (ODR) as means for expanding A21. This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and …

Addressing The Class Claim Conundrum With Online Dispute Resolution, Amy J. Schmitz

Faculty Publications

Consumers with similar claims in the United States (U.S.) often join forces to launch representative, or "class", actions. This allows them to obtain remedies with little cost and effort and serves a "private attorney general" function by bringing light to purchase problems that public enforcement offices may not have the resources to address. This is especially important for lower dollar claims that are too costly for each consumer to pursue individually.

Nonetheless, some have criticized class actions in the U.S. for forcing settlements and padding the pockets of lawyers, while leaving consumers with minimal pay outs. At the same time, …

Glencore I: Adopting Stabilization Clauses In Investment Contracts And Seeking Non-Pecuniary Remedies In Investment Arbitration Still Makes Sense Glencore International A.G. And C.I. Prodeco S.A. V. Republic Of Colombia (Icsid, Case No. Arb/16/6), Gilberto A. Guerrero-Rocca

Faculty Publications

No abstract provided.

Ethical Compass: Celebration, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Let’s raise our glasses to toast our esteemed Chief Judge, the Honorable Janet DiFiore, for making Presumptive ADR a central part of the New York Office of Court Administration’s civil case management. In her February 26, 2019 State of the Judiciary Address, Chief Judge Janet DiFiore announced that the New York Office of Court Administration is formally adopting Presumptive ADR. Although all ADR processes such as settlement conferences, negotiations, arbitration and early neutral evaluation may be used to help settle cases, a focus will be on mediation. Presumptive ADR will apply to almost all civil cases filed in New …

What Dinosaurs Can Teach Lawyers About How To Avoid Extinction In The Odr Evolution, Elayne E. Greenberg, Noam Ebner

Faculty Publications

This paper is a wake-up call for the legal profession: Heed the justice changes that are upon us or risk extinction. Online dispute resolution (hereinafter ODR) is currently being incorporated into U.S and international court systems, re-shaping and re-defining justice as we know it today. Courts and clients, two stakeholders in our justice system, are increasingly receptive to ODR as a viable option to help provide and access justice efficiently and affordably. The legal profession, the third stakeholder in our justice system, however, has been slower to react. As ODR plays an increasingly prominent role in the court system, it …

Hey, Big Spender: Ethical Guidelines For Dispute Resolution Professionals When Parties Are Backed By Third-Party Funders, Elayne E. Greenberg

Faculty Publications

This first-of-its-kind paper introduces ethical guidelines and suggested practices for dispute resolution providers and neutrals when third-party funders provide financial backing for parties in U.S. domestic arbitrations and mediations. Sophisticated third-party funders have realized that litigation and dispute resolution are fast-growing, unregulated investment opportunities. Seizing these opportunities, third-party funders are now making billions of dollars in profits through their strategic investments in domestic and global litigation and dispute resolution with few ethical rules or regulations to curtail their investment behavior.3 Preferring to be secretive about the terms of their funding contracts and invisible in their work, third- party funders are …

Up Close And Personal: Whether Or Not You Decide To Report A Confidentiality Exception, Elayne E. Greenberg

Faculty Publications

(Excerpt)

In your role as lawyer or neutral, have you ever reported an otherwise confidential communication because it was one of these permissible confidentiality exceptions? Why? This column will discuss how our ethical and personal considerations shape our decisions as advocates and dispute resolution professionals about whether to report ethically permissible exceptions to confidentiality. Readers, you are invited to rethink your ethical reporting obligations and develop more self-awareness about your personal rationales for your reporting choices.

Online Dispute Resolution For Smart Contracts, Amy J. Schmitz, Colin Rule

Faculty Publications

Smart contracts built in the blockchain are quietly revolutionizing traditional transactions despite their questionable status under current law. At the same time, disputes regarding smart contracts are inevitable, and par-ties will need means for dealing with smart contract issues. This Article tackles this challenge, and proposes that parties turn to online dispute resolution (“ODR”) to efficiently and fairly resolve smart contract disputes. Furthermore, the Article acknowledges the benefits and challenges of current blockchain ODR start-ups, and proposes specific ideas for how designers could address those challenges and incorporate ODR to provide just resolutions that will not stymie efficiencies of smart …

The Changed Batna, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This column invites readers to consider whether the adjudicated outcome should be relied on as a realistic benchmark for advocates and mediators. In everyday dispute resolution practice, advocates and mediators regularly consider an adjudicated decision to be a realistic point of comparison to a negotiated or mediated outcome. For example, when assessing the merits of settlement, lawyers preparing for a legal negotiation and mediation frequently consider the likely adjudicated outcome as their best alternative to a negotiated agreement (hereinafter BATNA). In mediation, mediators often focus parties and their lawyers on the cost, time and likelihood of a favorable adjudicated …

Expanding Access To Remedies Through E-Court Initiatives, Amy J. Schmitz

Faculty Publications

Virtual courthouses, artificial intelligence (AI) for determining cases, and algorithmic analysis for all types of legal issues have captured the interest of judges, lawyers, educators, commentators, business leaders, and policymakers. Technology has become the “fourth party” in dispute resolution through the growing field of online dispute resolution (ODR), which includes the use of a broad spectrum of technologies in negotiation, mediation, arbitration, and other dispute resolution processes. Indeed, ODR shows great promise for expanding access to remedies, or justice. In the United States and abroad, however, ODR has mainly thrived within e-commerce companies like eBay and Alibaba, while most public …

The European Succession Regulation And The Arbitration Of Trust Disputes, S. I. Strong

Faculty Publications

Over the last few decades, U.S. citizens have become increasingly mobile, with significant numbers of individuals living, working, and investing abroad. Estate planning has become equally international, generating ever-larger numbers of cross-border succession cases. While these sorts of developments are welcome, they require lawyers to appreciate and anticipate the various ways that the laws of different jurisdictions can interact. One of the most important recent developments in international succession law comes out of the European Union. While the European Succession Regulation may initially appear applicable only to nationals of E. U. Member States, U.S. citizens can also be affected by …

Anti-Suit Injunctions In Judicial And Arbitral Procedures In The United States, S. I. Strong

Faculty Publications

One of the prevailing myths of transnational litigation is that U.S. courts are not only ready but extremely willing to use anti­suit injunctions to preclude parties from filing or pursuing pro­ceedings elsewhere in the world. In fact, anti-suit injunctions (sometimes referred to as "stays" of litigation) are considered an extraordinary remedy in the United States, and the general rule is that "parallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until judgment is reached in one which can be pled as res judicata in the other." While this approach, often referred to …

The First Amendment, The University And Conflict: An Introduction To The Symposium, Christina E. Wells

Faculty Publications

Universities across the country have experienced a dramatic increase in free speech conflicts - i.e., an experience of discord between individuals or groups of speakers. These conflicts occur in various forms. For example, members of university communities (e.g., students, staff, or faculty) have protested controversial speakers. Some have called for universities to disinvite controversial speakers. Others have heckled or shouted down speakers. Finally, some members of university communities - usually students - have protested university officials' or other students' expression by occupying buildings, camping or interrupting meetings in order to disseminate their message. It is common to view resolution of …

Overcoming Roadblocks To Reaching Settlement In Family Law Cases, John M. Lande

Faculty Publications

In “litigation as usual,” settlement often comes only after adversarial posturing, the original conflict escalates, the relationships deteriorate, the process takes too long and costs too much, and nobody is really happy with the resolution. This article describes roadblocks to negotiation and ways to overcome them to reach good settlements in family law cases.

There's An "App" For That: Developing Online Dispute Resolution To Empower Economic Development, Amy J. Schmitz

Faculty Publications

Traditionally, litigation has been the norm for resolving disputes. It takes place in a public forum and face-to-face. In a global economy, however, such public and face-to-face dispute resolution is not feasible. This is especially true with cross-border purchases through e-commerce. E-commerce requires more efficient and less litigious remedy systems that allow consumers to obtain remedies on their purchases without the cost and travel associated with traditional face-to-face procedures. This has led to development of online dispute resolution (“ODR”) processes, especially with respect to business-to-consumer contracts. Accordingly, scholarship and policy papers have advanced ODR for the benefit of consumers. What …

Truth In A Post-Truth Society: How Sticky Defaults, Status Quo Bias, And The Sovereign Prerogative Influence The Perceived Legitimacy Of International Arbitration, S. I. Strong

Faculty Publications

Through empirical and theoretical studies conducted by political scientists, philosophers, psychologists, and economists, this Article demonstrates how three phenomena - sticky defaults, status quo bias, and the sovereign prerogative-work in parallel to create enduring, but demonstrably incorrect, perceptions about the legitimacy of international arbitration. Interdisciplinary research also provides a potential solution in the form of a heuristic known as the Reversal Test, which acts as an objective diagnostic tool to identify the influence of unconscious cognitive distortions such as the status quo bias. Through this analysis, this Article not only addresses one of the core paradoxes in international dispute resolution, …

... 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 …