Dispute Resolution and Arbitration Commons^™

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. …

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 …

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

Faculty Scholarship

No abstract provided.

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 …

Using Dispute Resolution Skills To Heal A Community, Sharon Press

Faculty Scholarship

On July 6, 2016, Philando Castile, an African-American male, wasshot and killed by a police officer during a traffic stop in Falcon Heights, Minnesota. In the aftermath of this shooting, there were several challenging meetings of the City Council where protestors demanded answers. In response,the Mayor of Falcon Heights reached out to dispute resolution professionals to help him design a two-track process which included a Task Force to propose policy changes to the City Council and a Community Conversations series to provide an opportunity for healing.

In this article, I will describe the process design for the community conversations, the …

Digital Accessibility And Disability Accommodations In Online Dispute Resolution: Odr For Everyone, David Larson

Faculty Scholarship

Court systems are exploring and beginning to adopt online dispute resolution (ODR) systems, and it is critical that they make digital accessibility a priority. Even though we need to pay close attention to ODR developments in court systems, we cannot overlook the fact that there are ODR providers in the private sector whose systems also must be accessible for persons with disabilities. Plaintiffs filed more ADA Title III website accessibility lawsuits in federal court for the first six months of 2018 than in all of 2017. There were at least 1053 such lawsuits in the first six months of 2018, …

Evaluating The Singapore Convention Through A U.S.-Centric Litigation Lens: Lessons Learned From Nearly Two Decades Of Mediation Disuputes In American Federal And State Courts, James Coben

Faculty Scholarship

This article compares a recent five-year dataset (2013-2017) on mediation litigation trends with an earlier dataset (1999-2003) to make some general observations about mediation litigation trends over the last nineteen years, with a specific focus on enforcement of mediated settlements, the topic addressed by the Singapore Convention.

Part II of this article provides a general overview of U.S. mediation litigation trends, including a detailed description of how the databases were created and caveats about their use, a summary of raw numbers, and a review of the common mediation issues litigated in U.S. Courts. Principal conclusions include the fact that litigation …

Designing And Implementing A State Court Odr System: From Disappointment To Celebration, David Larson

Faculty Scholarship

For the past two and one-third years I have had the pleasure of working with the New York State Unified Court System to design and implement an online dispute resolution (ODR) platform. It truly has been an interesting, educational, at times character-building, and ultimately tremendously valuable experience. This article will share specific design components from the ODR platforms we proposed as well as some of the critical lessons I learned. The hope is that it will be helpful to those either contemplating, or in the process of implementing, a court integrated ODR system.

Promise And Peril: Doctrinally Permissible Options For Calibrating Procedures Through Contract,, Henry Allen Blair

Faculty Scholarship

For a long time, arbitration was the only game in town for parties who wanted more flexibility in the adjudication of their disputes. They faced a dichotomous choice between accepting the public court system and its attendant procedural rules or opting out entirely and resolving their disputes in arbitration. Private process, however, "has migrated in surprising ways into the public courts: despite public rules of procedure, judicial decisions increasingly are based on rules of procedure drafted by the parties . . . ." This sort of private procedural ordering gives parties the ability to unbundle the off-the-rack procedures applied in …

Texas Advance Directives Act: Nearly A Model Dispute Resolution Mechanism For Intractable Medical Futility Conflicts, Thaddeus Pope

Faculty Scholarship

Increasingly, clinicians and commentators have been calling for the establishment of special adjudicatory dispute resolution mechanisms to resolve intractable medical futility disputes. As a leading model to follow, policymakers both around the United States and around the world have been looking to the conflict resolution provisions in the 1999 Texas Advance Directives Act (‘TADA’). In this article, I provide a complete and thorough review of the purpose, history, and operation of TADA. I conclude that TADA is a commendable attempt to balance the competing goals of efficiency and fairness in the resolution of these time-sensitive life-and-death conflicts. But TADA is …

Variations On A Theme By Sander: Does A Mediator Have A Philosophical Map?, Sharon Press, Joseph B. Stulberg

Faculty Scholarship

Can a mediator play a constructive role in helping citizens confront and resolve the most divisive issues of our times? We believe the answer is affirmative, but we worry that such a view, though richly grounded in our historical tradition, is now neither widely endorsed nor effectively implemented.

We belong to a group of dispute resolution professionals who learned both from mentors and experience that ADR—and mediation, in particular-offers a philosophical map for conducting problem—solving activities among fellow citizens that systematically supports and advances our most noble aspirations for a fair society. Be it the urban riots of the 1960s …

Medical Malpractice Arbitration: Not Business As Usual, David Larson, David Dahl

Faculty Scholarship

There is an interesting exception to businesses’, employers’, and service providers’ seemingly universal embrace of arbitration processes, particularly mandatory pre-dispute arbitration. Although it may be difficult to believe given arbitration’s current popularity, not everyone requires his or her clients to sign mandatory pre-dispute arbitration agreements. In fact, some service providers prefer to avoid arbitration regardless of whether it is arranged pre- or post-dispute. So which merchants or service providers are choosing to forgo arbitration and, more importantly, why do they dislike arbitration? And do politics have anything to with their choices? Physicians are not, shall we say, the world’s greatest …

Client Problem-Solving: Where Adr And Lawyering Skills Meet, Katherine R. Kruse, Bobbi Mcadoo, Sharon Press

Faculty Scholarship

Influenced by critiques of legal education, law schools are scrambling to offer more and better opportunities for experiential education. To fulfill the new demands for experiential education, one obvious place to turn is clinic pedagogy, which has developed methodologies for teaching students in the real-practice settings of in-house clinics and externships. As the interest in experiential education broadens, a wider spectrum of teaching methodologies comes under the experiential tent, creating opportunities to tap new sources of guidance for reshaping legal education.

This article turns the spotlight on one of these other, less obvious resources within legal education: the alternative dispute …

Barnacles, Aristocracy And Truth Denial: Three Not So Beautiful Aspects Of Contemporary Mediation, James Coben

Faculty Scholarship

In this article, I examine the themes of self-determination, mediator neutrality, and party empowerment by exploring three separate topics: barnacles, aristocracy and truth denial.

The first topic, barnacles, refers to the surprising and myriad number of ways that mediation has fully integrated (insinuated) itself into the U.S. litigation system. Institutionalization, some might argue, is "beautiful;" indeed, widespread, systematic use of mediation is often offered evidence of success. But I want to explore a different perspective on the same development-how institutionalization leads to rule exploitation and spawns its own unique litigation ironies. The second topic, aristocracy, refers to the documentation and …

Mediator Ethical Breaches: Implications For Public Policy, Sharon Press

Faculty Scholarship

Court-connected mediation, which includes both court mandated and court encouraged mediation, has become a well-established part of the judicial system in the United States. There are many public policy implications of this phenomenon. These include the underlying goals of the development of court-connection mediation and the responsibility to the public once a court-connected mediation program is established to ensure that the public has access to quality providers of mediation services. Once a court-connected mediation program has established qualifications and ethical standards for mediators, there is a public policy obligation for there also to be a mechanism to educate, reprimand or …

Lawyers And Mediation: Lessons From Mediator Stories, Sharon Press

Faculty Scholarship

In Stories Mediators Tell, Lela Love and Eric Galton have compiled a compelling anthology of stories about mediation. Not surprisingly, most of the stories involve a significant moment when something special happened for the parties. The author was reminded of presentations by Baruch Bush and Joe Folger in the early 1990's (around the time the first edition of The Promise of Mediation was published). They would ask mediators who attended their sessions to recount to a partner one of their memorable mediations. Inevitably, the stories were about transformative moments - of parties obtaining clarity for the first time - of …

Dispute Resolution Mechanisms For Intractable Medical Futility Disputes, Thaddeus Mason Pope

Faculty Scholarship

Medical futility disputes occur frequently in healthcare facilities across the United States. In this Article, I provide an overview of dispute resolution mechanisms through which healthcare providers can resolve these disputes. In Section I, identify three distinctive features of medical futility disputes. First, they usually concern life-sustaining medical treatment for patients in a hospital’s intensive care unit. Second, these patients typically lack decision making capacity. So, a surrogate must make treatment decisions on the patient’s behalf. Third, this surrogate and the patient’s physician disagree over the treatment plan. The surrogate wants to continue life-sustaining treatment. But the physician thinks that …

Court-Connected Mediation And Minorities: A Report Card, Sharon Press

Faculty Scholarship

Critical race theorists have raised important concerns about alternative dispute resolution in general and mediation specifically. Many of the critiques were written prior to the ascendency of court-connected mediation. To set the context, Part II of this article begins with a brief history of the court-connected mediation movement in the United States. In Part III, the critiques of mediation, specifically focusing on those related to minorities, are summarized. Part IV identifies some of the flaws in the critiques as related to court-connected mediation. Part V includes actions that court programs can undertake to address the issues raised by the critiques …

Mortgage Foreclosure Mediation In Florida - Implementation Challenges For An Institutionalized Program,, Sharon Press

Faculty Scholarship

This Symposium is filled with examples from around the country of states grappling with how to respond to the economic crisis in general and the overwhelming number of mortgage foreclosure cases in particular. In Part II of this article, the author identifies the key impacts institutionalization had on implementation efforts. Part III describes the various approaches pursued to address the obstacles. In this part, the author examines in detail the development of a rule to define “appearance” at mediation because of its implications for the practice of mediation as a whole beyond merely the foreclosure context. Part IV provides the …

"Brother, Can You Spare A Dime?" Technology Can Reduce Dispute Resolution Costs When Times Are Tough And Improve Outcomes, David Allen Larson

Faculty Scholarship

Cost reduction is one of the desirable results frequently attributed to Alternative Dispute Resolution (ADR) processes. Although it is reasonable to assume that businesses always are interested in saving money, this goal takes on added importance when the economy is struggling. The cost savings inherent in ADR, which already are significant, can be increased substantially through the strategic adoption of technology. Although I generally do not urge caution when it comes to expanding the ways in which we use technology, we nonetheless must recognize not only technology’s potential benefits but also its possible pitfalls. It is relatively easy to identify …

Artificial Intelligence: Robots, Avatars And The Demise Of The Human Mediator, David Allen Larson

Faculty Scholarship

As technology has advanced, many have wondered whether (or simply when) artificial intelligent devices will replace the humans who perform complex, interactive, interpersonal tasks such as dispute resolution. Has science now progressed to the point that artificial intelligence devices can replace human mediators, arbitrators, dispute resolvers and problem solvers? Can humanoid robots, attractive avatars and other relational agents create the requisite level of trust and elicit the truthful, perhaps intimate or painful, disclosures often necessary to resolve a dispute or solve a problem? This article will explore these questions. Regardless of whether the reader is convinced that the demise of …

Technology Mediated Dispute Resolution Can Improve The Registry Of Interpreters For The Deaf Ethical Practices System: The Deaf Community Is Well Prepared And Can Lead By Example, David Allen Larson, Paula Gajewski Mickelson

Faculty Scholarship

The work of American Sign Language (ASL)/English interpreters is filled with complex interpersonal, linguistic and cultural challenges. The decisions and ethical dilemmas interpreters face on a daily basis are countless and the potential for disagreement regarding those decisions is great. Technology Mediated Dispute Resolution (TMDR) processes can be particularly helpful when misunderstandings and conflicts arise. Technology Mediated Dispute Resolution is a more inclusive phrase than Online Dispute Resolution (ODR) and includes cellular telephones, radio frequency devices, and satellite communication systems. The Deaf Community has learned to adapt and rely upon a variety of technologies and, because many Deaf individuals already …

Conflicts Of Interest And Disclosures: Are We Making A Mountain Out Of A Molehill, David Allen Larson

Faculty Scholarship

The ethical standards governing conflicts of interest disclosure requirements for arbitrators and mediators are numerous and varied. In spite of the considerable attention that conflict of interest questions attract, both the extent to which an arbitrator must disclose past, present, and potential conflicts of interest and the consequences of a failure to make an appropriate disclosure remain unclear. This article examines disclosure requirements themselves, as well as the sanctions and penalties that may result from a failure to disclose information concerning a neutral's impartiality. Particular attention is paid to what generally is regarded as the most extreme consequence of failure; …

Mediation At The End Of Life: Getting Beyond The Limits Of The Talking Cure, Thaddeus Mason Pope, Ellen A. Waldman

Faculty Scholarship

Mediation has been touted as the magic band-aid to solve end-of-life conflicts. When families and health care providers clash at the end of life, bioethicists and conflict theorists alike have seized upon mediation as the perfect procedural balm. Dissonant values, tragic choices, and roiling grief and loss would be confronted, managed, and soothed during the emotional alchemy of the mediation process. But what is happening in a significant subset of end-of-life disputes is not mediation as we traditionally understand it. Mediation's allure stems from its promise to excavate underlying needs and interests, identify common ground, and push disputants toward more …

Technology Mediated Dispute Resolution (Tmdr): Opportunities And Dangers, David Allen Larson

Faculty Scholarship

Technology Mediated Dispute Resolution (TMDR) presents opportunities and dangers that we cannot yet fully envision. Technologies are available or imminent, such as tele-immersion, that will dramatically change the ways we think about dispute resolution in a virtual environment. Whether or not one finds the idea of TMDR appealing, a generation of teens and preteens is integrating technology so deeply into their daily lives that they not only will expect, but will demand, that those technologies be used in a dispute resolution proceeding. Because girls communicate differently than boys when using technology, it will be interesting to learn if women prove …

Technology Mediated Dispute Resolution (Tmdr): A New Paradigm For Adr, David Allen Larson

Faculty Scholarship

Technology is changing the way that children are communicating (particularly elementary and pre-school aged children), and these changes have significant implications for alternative dispute resolution processes and practices. Although ADR practitioners and theorists are not ignoring technology, we have focused almost exclusively on the question of how we can use technology to enhance our existing practices. We are not paying sufficient attention to the fact that young children are communicating differently than we communicate. Insufficient energy is being dedicated to the question of how those differences in communication inevitably influence the way that those children resolve disputes.

The article analyzes …

Learning From Practice: What Adr Needs From A Theory Of Justice, Kate Kruse

Faculty Scholarship

Adding to the impressive body of work that has made her a leading voice in the fields of both alternative dispute resolution and professional responsibility, Carrie Menkel-Meadow's Saltman Lecture connects the theoretical exploration currently occurring on two parallel tracks: (1) theories of justice that investigate the ideal of a deliberative democracy; and (2) theories of alternative dispute resolution arising from its reflective practice. As she notes, theorists on both tracks are grappling with similar questions about the processes or conditions that will best bring together parties with widely divergent viewpoints to consensus-building dialogue around contested issues.

While Menkel-Meadow focuses on …

The Legal Foundation–Defining The Legislative Format, William W. Huss, Sharon Press, J. Michael Mcwilliams

Faculty Scholarship

Current and pending mediation legislative programs in the United States, Canada, and other countries were examined by speakers and panelists who are living under these new systems or were authors of their design. Topics included court annexed programs, mandatory programs, voluntary programs, private institutional programs, the Uniform Mediation Act, state and federal initiatives, and the impact each has, or will have, on the mediation practice.