Law Commons^™

Intimate Partner Violence And Family Dispute Resolution – Coercion, Capacity, And Control, Kelly Browe Olson

Faculty Scholarship

Intimate partner violence (IPV) is one of the most complex issues that family dispute resolution (FDR) professionals encounter. Over one-third of women and one-quarter of men in the United States have experienced physical violence, rape, and/or stalking by an intimate partner in their lifetime (Black et al., 2011), and a majority of separation- and divorce-related cases involve IPV allegations (Ballard et al., 2011; Beck et al., 2010; Belzer, 2003). IPV often escalates, and is most dangerous, during and after separation and creates unique challenges for mediation and other collaborative processes (Beck & Raghaven, 2010; Kelly & Johnson, 2008). Therefore, all …

North American Energy In The Crossfire, Guillermo J. Garcia Sanchez, James W. Coleman

Faculty Scholarship

North America is the beating heart of global energy markets un-dergoing a terrible energy crisis that threatens to upend both the economy and global security. The clearest path out of this global crisis is increasing energy supplies from North America, which can restore energy security and drive a transition to cleaner energy sources. The U.S., Mexico, and Canada have abundant and varied resources to surmount this challenge but are in dire need of stronger cooperation across borders, and between private and public actors to achieve this goal. This Article shows how energy law changes in the U.S. and Mexico present …

Special Challenges In Execution Of Arbitral Awards In Public Private Partnerships, Srividhya Ragavan, Niraj Kumar Seth

Faculty Scholarship

With around 47 million pending cases at various stages of Indian judiciary and one of the lowest levels of judges per million of population in the world, India’s arbitration regime presents a ray of hope for millions of Indians who face the prospect of justice being denied to them due to inordinate delays caused by a clogged judicial pipeline. The enactment of the Arbitration and Conciliation Act, 1996 was presented as a viable alternative to resolve commercial disputes in a timely manner. This paper uses a case study to discuss how arbitration in India has not fulfilled the timeliness promise …

The Unfulfilled Promise Of Self-Determination In Court-Connected Mediation, Peter Reilly

Faculty Scholarship

In the context of mediation, party self-determination refers to the ability of disputants to have power, control, and autonomy in the process. There are numerous process design questions involved in running a mediation, no matter its subject matter. Consider just one example: “Should the mediation be conducted in-person, or virtually?” The answer to this question can have a profound impact on the direction and course of a mediation, including its outcome. Yet, in the context of court-connected mediation, disputing parties are not consistently provided the opportunity to give input on how such process design questions are resolved. In fact, these …

Confidentiality Clauses In Settlement Agreements After The Consumer Review Fairness Act, Wayne Barnes

Faculty Scholarship

Online commerce has skyrocketed in recent years, and shoppers are purchasing goods or services online in greater numbers every year. The COVID-19 pandemic has only hastened the trend. One significant aspect of online shopping is the presence of consumer reviews posted by prior purchasers of goods or services, describing their experience with the products, the services and/or the selling merchant. A vast majority of online shoppers say that they rely on these reviews to help inform their purchasing decisions. Positive reviews can be tremendously beneficial to a business’ profitability, whereas negative reviews can be equally detrimental. Users of the internet …

Negotiation Theories Engage Hybrid Warfare, Nancy Welsh, Sharon Press, Andrea Kupfer Schneider

Faculty Scholarship

The concept of hybrid warfare has arisen recently to describe the efforts, short of outright war, used by nations to disrupt and destabilize each other. This Article reviews available negotiation theories, concepts and skills to determine whether they can help governmental actors and business organizations targeted by hybrid warfare respond effectively. In other words, can negotiation theories, concepts and skills be used to engage effectively in “hybrid conflict management”? The Article urges that international diplomacy and multiparty negotiation theories and skills, as well as the more recent scholarship that has developed regarding hostage negotiation and “wicked problems,” are likely to …

A Theory Of Interests In The Context Of Hybrid Warfare: It's Complex, Cynthia Alkon, Sanda Kaufman

Faculty Scholarship

We will begin with a discussion about how the hybrid warfare context is different from other conflict contexts. We will describe some complexity aspects that make hybrid warfare challenging to negotiators. We will then discuss whether classical negotiation theory prescriptions apply to a hybrid warfare context, especially regarding interests. We will argue that these prescriptions related to classical negotiations are unlikely to work in this context. We will focus our analysis on a subset of hybrid warfare attacks, consisting of short-term, time-sensitive, high-risk crises, where negotiations are possible and necessary, such as ransom demands, rather than on hybrid warfare situations …

Negotiation Theories Engage Hybrid Warfare, Sharon Press, Nancy A. Welsh, Andrea Kupfer Schneider

Faculty Scholarship

The concept of hybrid warfare has arisen recently to describe the efforts, short of outright war, used by nations to disrupt and destabilize each other. This Article reviews available negotiation theories, concepts and skills to determine whether they can help governmental actors and business organizations targeted by hybrid warfare respond effectively. In other words, can negotiation theories, concepts and skills be used to engage effectively in “hybrid conflict management”? The Article urges that international diplomacy and multiparty negotiation theories and skills, as well as the more recent scholarship that has developed regarding hostage negotiation and “wicked problems,” are likely to …

Crossing The Cultural Chasm And The Power Of Listening: How We Wrote A New Tenure Code, David Larson, Linda Hanson

Faculty Scholarship

Revising the Tenure Code of an institution of higher learning may be among the most challenging of the processes it undertakes, especially when there is a commitment to shared governance by its Board of Trustees and Faculty. At Mitchell Hamline School of Law, we recently experienced this process - both difficult and ultimately satisfying - following the combination of two law schools. In 2016, Mitchell Hamline School of Law became an independent institution formed through the combination of independent William Mitchell College of Law and Hamline School of Law, a school of Hamline University, both based in St. Paul, Minnesota. …

Anticipatory Deference: What Will Courts Decide And Not Decide Before Enforcing An Agreement To Arbitrate?, George A. Bermann

Faculty Scholarship

The question of deference in international arbitration usually arises when the issue before a decision-maker, be it a tribunal or a court, is one that has already been addressed and ruled upon by another decision-maker over an arbitration’s life-cycle. The salience of this question stems from the fact that international arbitration is a highly iterative and staged process over the course of which different actors are successively confronted with the same issue. This is particularly the case in regard to jurisdictional issues because the authority of a tribunal to entertain a dispute is potentially an issue at all stages.

But …

The Uncitral Model Law At The Us State Level, George A. Bermann

Faculty Scholarship

The arbitration law of the United States remains, regrettably, the Federal Arbitration Act (FAA), enacted in 1925 and essentially unchanged. Despite its age, it has been significantly amended only once, in order to transpose into law the New York and Panama Conventions. Otherwise, it reads just as it did when enacted almost a century ago. Given its age and the remarkable developments in the law of arbitration over past decades, the FAA unsurprisingly fails to address a very large number of issues that have arisen in arbitral proceedings and judicial decisions on arbitration in the many intervening years. Even the …

Litigation About Mediation: A Case Study In Institutionalization, James Coben

Faculty Scholarship

No abstract provided.

The Future Of Online Dispute Resolution (Odr): Definitions, Standards, Disability Accessibility, And Legislation, David Allen Larson

Faculty Scholarship

Jurisdictions around the world are increasingly turning to Online Dispute Resolution (‘ODR’) to resolve a variety of disputes. ODR adoption has accelerated primarily because of two reasons. First, the COVID-19 pandemic has forced judicial systems to suspend or severely limit inperson proceedings to control infection rates. Private mediators and arbitrators, likewise, have eliminated or dramatically reduced in-person sessions. Second, judicial systems do not have unlimited !nancial resources. They must always consider ways to provide access to justice as ef!ciently and effectively as possible. ODR may be able to provide signi!cant cost savings. But ODR processes are still new and evolving …

Doctrinal Conflict In Foreign Investment Regulation In India: ​​Ntt Docomo Vs. Tata Sons And The Case For “Downside Protection”, M. P. Ram Mohan, Nobuhisa Ishizuka, Sidharth Sharma

Faculty Scholarship

The strategic importance of India as an investment destination for foreign investors is highlighted by ongoing tensions in the Indo-Pacific region and the recognition that a strong economic relationship with India is in the interests of countries seeking a more stable balance of power in the region. From a policy perspective, India has struggled to balance its own economic interests with the commercial requirements of investors. Rules attempting to strike this balance have created uncertainties that have resulted in investors seeking greater protections for their investments, which in turn have triggered additional regulatory responses that enforce India’s policy preferences. The …

How To Be A Better Plea Bargainer, Cynthia Alkon, Andrea Kupfer Schneider

Faculty Scholarship

Preparation matters in negotiation. While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs. A systemic model can be used to improve plea bargaining skills. This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context. The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own. The sheet highlights important considerations such as understanding the interests and goals of …

Swords Into Plowshares: A Pilgrimage For The Css Alabama, William W. Park

Faculty Scholarship

During the American Civil War, Britain sold ships to the Southern Confederacy in breach of neutrality obligations, triggering a dispute with the United States carrying threats of armed conflict. Some American politicians saw the dispute as an opportunity to annex Canada, then a weak assemblage of British colonies. Ultimately, arbitration in Geneva averted war, opening an era of long Anglo-American cooperation. The historical consequence of this landmark 1872 arbitration remains difficult to overstate. In addition to its diplomatic importance, the case introduced significant procedural precedents for international arbitration, including dissenting options, reasoned awards, party-appointed arbitrators, collegial deliberations, and arbitrators’ declarations …

Switching Hats In Med-Arb: The Ethical Choices Required To Protect Process Integrity, Nancy A. Welsh

Faculty Scholarship

Increasingly, there is interest in the use of mixed-mode dispute resolution, including med-arb. Med-arb provides the opportunity for parties to reach their own agreements, while also guaranteeing a binding decision. However, because med-arb combines mediation and arbitration, it presents a variety of ethical challenges – to party self-determination, impartiality, confidentiality, and even fairness and process integrity. Relying primarily on the Model Standards of Conduct for Mediators and the Code of Ethics for Arbitrators in Commercial Disputes, it becomes clear that some of these ethical challenges can be met through process choices – e.g., the use of two neutrals rather than …

Bargaining Without Bias, Cynthia Alkon

Faculty Scholarship

In this article, to work towards decreasing bias in plea bargaining, I propose a structural fix and an individual fix to these core problems. The structural fix is that prosecutors' offices should adopt policies for blind assessment of cases when the first plea offer is made. All indicia of race or ethnicity (including names and neighborhoods) should be removed when prosecutors review a case and make the initial plea offer. This would help prosecutors focus on the facts and their evidence when making a plea offer and prevent bias in decision making. However, it is not realistic to expect that …

Federal Rules Of Platform Procedure, Rory Van Loo

Faculty Scholarship

Tech platforms serve as private courthouses for disputes about speech, lodging, commerce, elections, and reputation. After receiving allegations of defamatory content in top search results, Google must decide between protecting one person's public image and another's profits or speech. Amazon adjudicates disputes between consumers and third-party merchants about defective or counterfeit items. For many small businesses, layoffs and bankruptcy hang in the balance. This Article begins to uncover the processes that these platforms use to resolve disputes and proposes reforms. Other important businesses that intermediate, such as credit card companies ruling on a disputed charge between a merchant and consumer, …

But Is It Good: The Need To Measure, Assess, And Report On Court-Connected Adr, Nancy A. Welsh

Faculty Scholarship

We know that very few civil matters reach disposition through trial—but what do we really know about how civil cases do reach disposition? What number of civil cases reach disposition through settlement? What number of civil cases reach settlement through court-connected “alternative” dispute resolution (ADR)? Do we know enough about the results of courtconnected ADR to be able to detect potential patterns of systemic discrimination? This Article examines what we know from federal and state court systems’ public reporting and finds: 1) only a minority of federal district courts and state court systems report regarding dispositions through settlement; 2) there …

Bargaining In The Shadow Of Investor-State Mediation: How The Threat Of Mediation Will Improve Parties' Conflict Management, Andrea Kupfer Schneider, Nancy A. Welsh

Faculty Scholarship

Issues of access to justice, threats to national sovereignty, and perceptions of inconsistency and arbitrariness have led to a crisis of confidence in the investor-state arbitration system. In response, there has been a successful push for the inclusion of mediation in treaty provisions and arbitration rules, as well as ratification of the Singapore Convention for the expedited enforcement of mediated agreements. Nonetheless, very little mediation is actually occurring on the ground. Efforts to increase the use of mediation have failed to address concerns such as the political costs of settling cases, the lack of coordination between state agencies with different …

Introduction To Symposium On "Adr's Place In Navigating A Polarized Era", Nancy A. Welsh

Faculty Scholarship

Ours is a nation built for conflict, for friction. Such conflict, while painful, can be good. It can signal newfound agency, and it can be a catalyst for dialogue, customized and creative solutions, and ultimately progress. This is what many dispute resolution academics teach their students. But we are caught in such an extraordinarily polarized time, and many wonder what role ADR can and should play in navigating a polarized era. That was the question addressed by Texas A&M School of Law's March 2020 symposium, with the resulting articles - by Baruch Bush & Peter Miller, Jonathan Cohen, Jill DeTemple, …

Mediation: Embedded Assumptions Of Whiteness?, Sharon Press, Ellen E. Deason

Faculty Scholarship

This article attempts to uncover some of the systemic ways in which white supremacy is expressed in the practice of mediation in the United States with the goal of inspiring additional conversations and deeper attention to these issues by scholars and practitioners in the field of dispute resolution. Our methodology is to apply the themes in Layla F. Saad’s book, Me and White Supremacy: Combat Racism, Change the World, and Become a Good Ancestor (2020). We use the lenses of tone policing, color-blindness, racial stereotyping, anti-blackness, white silence, and white supremacy to reflect on the following aspects of mediation: communication …

Designing A State Court Small Claims Odr System: Hitting A Moving Target In New York During A Pandemic, David Allen Larson

Faculty Scholarship

When I began helping the New York State Unified Court System design a pilot online dispute resolution (“ODR”) system back in October 2016, I never imagined more than four years would pass before a system was implemented. One reason our journey was so long is because our target kept moving. After completing a detailed credit card debt collection ODR platform, we had to change direction before implementation and focus instead on small claims cases. Then like the rest of the world, we suddenly had to deal with the COVID-19 pandemic. Although it took longer than anticipated, we achieved our goal …

After First Options: Delegation Run Amok, George A. Bermann

Faculty Scholarship

The proper allocation of authority between courts and arbitral tribunals over the enforceability of agreements to arbitrate has long occupied a central place in U.S. arbitration law, domestic and international alike. From U.S. Supreme Court case law over the years, there has emerged a reasonably well-understood distinction between those issues of enforceability that a court will address if asked by a party to do so and those that it will not. Fundamental to the Court’s jurisprudence is a recognition that some enforceability issues – “gateway issues” – so seriously implicate the consent of parties to arbitrate their disputes that a …

Time To Panic! The Need For State Laws Mandating Panic Buttons And Anti-Sexual Harassment Policies To Protect Vulnerable Employees In The Hotel Industry, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

Insights Into Due Process Reform: A Nationwide Survey Of Special Education Attorneys, Jane R. Wettach, Bailey K. Sanders

Faculty Scholarship

The federal law that guarantees an appropriate and inclusive education for children with disabilities relies on private enforcement; parents concerned about the inadequacy of their children’s education can take advantage of an administrative hearing to seek resolution of disputes with the child’s school district. While conceived in the Individuals with Disabilities Education Act (IDEA) as a prompt and informal tool, evidence suggests that special education due process hearings have become overly complex, prohibitively expensive, and excessively lengthy, thus limiting their accessibility and usefulness as an enforcement mechanism.

Despite numerous studies highlighting the flaws of special education due process, few have …

Don’T Bring An Army To An Arbitration (England, 1411), David J. Seipp

Faculty Scholarship

The name of our friend Derek Roebuck will always be linked to the long history of arbitration and mediation which he has chronicled so thoroughly in a dozen volumes by my count and many articles and chapters. On a spectrum of dispute resolution methods from formal courtroom litigation to savage brute force, arbitration stands at an interesting intermediate point. In tribute to Derek’s memory, I offer this glimpse of a curious episode at the intersection of due process of law, armed violence and principled arbitration. It reminds us that these three alternatives were not always as widely differentiated as we …

The Transient And The Permanent In Arbitration, William W. Park

Faculty Scholarship

Several years ago, Jan Paulsson observed that Derek Roebuck might substitute for a time machine, providing a way for us to voyage backward with a guide to put everything in context. Indeed, the great Derek Roebuck, to whom we dedicate this set of essays, gave much of his professional life to making sure that by receiving a glimpse of dispute resolution in earlier times, we might have an opportunity better to understand the reality of present-day arbitration.

Automating Fairness? Artificial Intelligence In The Chinese Court, Rachel E. Stern, Benjamin L. Liebman, Margaret Roberts, Alice Z. Wang

Faculty Scholarship

How will surging global interest in data analytics and artificial intelligence transform the day-to-day operations of courts, and what are the implications for judicial power? In the last five years, Chinese courts have come to lead the world in their efforts to deploy automated pattern analysis to monitor judges, standardize decision-making, and observe trends in society. This Article chronicles how and why Chinese courts came to embrace artificial intelligence, making public tens of millions of court judgments in the process. Although technology is certainly being used to strengthen social control and boost the legitimacy of the Chinese Communist Party, examining …