Dispute Resolution and Arbitration Commons^™

How Ai Can Help Mediators Say What They Really Mean, John Lande

Faculty Publications

This article critiques the widespread use of the terms “facilitative” and “evaluative” to describe mediation techniques. Despite their popularity in scholarship and practice, these labels are inconsistently defined, frequently misunderstood, and fundamentally flawed. Drawing on a survey of mediation experts, the article documents significant confusion about how professionals interpret these terms – and how they think that others interpret them. It builds on Leonard Riskin’s critique of the facilitative-evaluative framework, which shows that the language not only oversimplifies complex processes but also risks confusing parties and undermining informed decision-making.

As an alternative, the article proposes a behavioral vocabulary that reflects …

Responsible Realism About Artificial Intelligence: How Ai Is Shaping Legal And Dispute Resolution Practice, Education, And Scholarship, John Lande

Faculty Publications

This article synthesizes the views of legal scholars examining how generative artificial intelligence (AI) is affecting legal and dispute resolution practice, education, and scholarship. They share a perspective of responsible realism – recognizing both the promise and the perils of AI. It is already reshaping how lawyers, neutrals, educators, students, and scholars work – and its influence will only grow.

The scholars identify clear benefits: broader access, greater efficiency, and new support for professional learning. They also warn of serious risks, including bias, deskilling, and erosion of judgment. Avoiding both hype and panic, they analyze developments, offer realistic strategies, and …

Training Humanoids To Use Good Dispute Resolution Language, John Lande

Faculty Publications

This short essay uses satire to spotlight the entrenched, misleading terminology widely used in the dispute resolution field, especially in legal and academic settings. Drawing on metaphors of humanoids, bots, and malware, it critiques outdated jargon like “facilitative” and “evaluative” mediation and proposes clearer alternatives derived from Real Practice Systems theory. It describes efforts to train an AI tool, the RPS Negotiation and Mediation Coach, to model improved language use and nudge human users toward better decision-making. Though light in tone, it reflects a serious commitment to reforming the way we talk about and practice negotiation and mediation.

The Art Of Mediation Representation: Helping Clients Make Good Decisions, John Lande

Faculty Publications

Attorneys regularly represent clients in mediation, yet many do not perform this role effectively. The article is designed to help attorneys better assist clients in making good decisions during mediation. It explores the theory and practice of mediation representation, emphasizing how attorneys can provide excellent client service by counseling clients and communicating effectively with mediators and counterpart attorneys. Ideally, attorneys as act “quasi-mediators,” helping clients make informed, confident decisions while navigating the mediation process. Drawing on the Real Practice Systems checklists and empirical research, the article outlines key tasks before, during, and after mediation sessions. It critiques the inadequate preparation …

When Ai Comes To The Table: How Tech Tools Will Change Adr, John Lande

Faculty Publications

Artificial intelligence (AI) is quickly reshaping the landscape of dispute resolution. This article explores how an expanding range of AI tools will influence negotiation, mediation, arbitration, and related processes. These tools will serve a wide array of users and contexts, reflect differing practice philosophies, and raise important questions about fairness, transparency, and values. Drawing on theory, practice, and real-world examples, the article identifies seven categories of emerging tools – from dispute prevention and practitioner preparation to education and platform integration. It highlights the importance of ethical design, user awareness, and professional responsibility, arguing that AI should support – not replace …

Getting The Most From Ai Tools: A Practical Guide To Writing Effective Prompts, John Lande

Faculty Publications

This article is a companion to How I Learned to Stop Worrying and Love the Bot: What I Learned About AI and What You Can Too. This article helps users, especially those in dispute resolution roles, learn how to write effective prompts and engage productively with artificial intelligence (AI) tools. The goal is to make AI less intimidating and more useful – one good question at a time.

The article shows how users can choose appropriate tools, formulate effective prompts, and generate useful results. It offers role-specific prompt suggestions for mediators, attorneys, disputants, ADR program managers, law school faculty, …

How I Learned To Stop Worrying And Love The Bot: What I Learned About Ai And What You Can Too, John Lande

Faculty Publications

Artificial intelligence (AI) tools play an increasingly prominent role in legal education, legal practice, and dispute resolution. People’s understanding of how these tools work varies widely. This article outlines a framework to improve AI literacy among dispute resolution practitioners, parties, ADR program managers, faculty, students, and scholars. It highlights emerging trends and offers practical suggestions and resources to support AI literacy and the responsible integration of AI into their work. A companion article, Getting the Most from AI Tools: A Practical Guide to Writing Effective Prompts, helps users, especially those in dispute resolution roles, learn how to write effective …

Rps Coach Project: A Growing Library About A Valuable Ai Tool, John Lande

Faculty Publications

This document collects a growing library of publications, videos, and podcasts about the RPS Negotiation and Mediation Coach (RPS Coach), an AI tool grounded in Real Practice Systems (RPS) Theory. RPS Coach is designed to support mediators, lawyers, parties, educators, students, and scholars by promoting good decision-making and reflective practice in negotiation and mediation. This piece summarizes articles and blog posts that present the theory, knowledge base, and functions of RPS Coach, along with practical guidance for its use in dispute resolution, writing, and legal education. It includes links to each publication and will be updated as new work is …

Rps Coach Is Biased - And Proud Of It, John Lande

Faculty Publications

This short essay explores the concept of bias in artificial intelligence tools used in dispute resolution. Biases are not necessarily flaws to be avoided, but inevitable and potentially constructive features of these tools. They reflect values and design choices that AI developers should disclose.

There are both market and ethical imperatives for AI tools to disclose their features and embedded values. As developers compete for users, people will want to know what they’re getting. Disclosure helps users understand the effects of assumptions, priorities, and frameworks built into a tool’s design, and thus should be treated as a core ethical principle. …

Technology And Me And You: Getting Comfortable With Ai, John Lande

Faculty Publications

This short essay reflects on the author’s surprising dive into artificial intelligence (AI) despite his longstanding caution about adopting new technology. As a self-described tech-wary curmudgeon who avoids unnecessary upgrades and stays off social media, the author explores how AI – specifically, a custom-built RPS (Real Practice Systems) Negotiation and Mediation Coach – nonetheless has proved to be unexpectedly valuable.

Drawing from personal experience, the essay suggests how people can become comfortable using AI, suggesting how they can overcome hesitation and use AI productively. Rather than treating AI as a black box or magic solution, it emphasizes the importance of …

Good Language For Dispute Resolution Bots And Humanoids, John Lande

Faculty Publications

In developing the AI tool, the RPS Negotiation and Mediation Coach, I had to give it strict instructions to use certain terms and avoid others so that it doesn’t use lots of problematic dispute resolution jargon on the internet. This short article lists those terms.

The article points out that, just like bots, humanoids need to be trained. It is especially important to teach good dispute resolution language to law professor, law student, and practitioner units. Many of these humanoids are stuck on defective codings such as “facilitative” and “evaluative” mediation, which are like contagious malware. Humanoids generally can “learn” …

The Artificially Intelligent Rps Negotiation And Mediation Coach, John Lande

Faculty Publications

This document describes the artificially intelligent RPS Negotiation and Mediation Coach (“RPS Coach”) tool, which is an outgrowth of the Real Practice Systems (RPS) Project. It is designed to help many different users perform numerous tasks including (1) attorneys anticipating challenges, strategizing, and representing clients, (2) mediators enhancing preparation, communication, and decision-making, (3) disputing parties making better decisions, (4) ADR program administrators developing clear rules, policies, and materials, (5) educators and trainers teaching practical theory and skills, and (6) students and trainees learning practical theory and skills.

RPS theory and practice is designed to help attorneys and mediators help their …

A Practical Guide For Using The Rps Negotiation And Mediation Coach, John Lande

Faculty Publications

This two-page guide introduces the RPS Negotiation and Mediation Coach, an AI-powered tool grounded in Real Practice Systems (RPS) theory. It explains who can use RPS Coach, how it supports good decision-making, and the range of tasks it can perform. It is designed for attorneys, mediators, parties, ADR program administrators, educators, and students to improve the quality of dispute resolution practice, program design, and legal education. Practitioners and parties can use it to prepare for, participate in, and reflect on negotiation and mediation. Faculty can use it to develop syllabi, assignments, and simulations. Users can explore ideas, generate drafts, and …

What's The Matter With Batna? It's Misleading And Doesn't Help Advance Parties' Important Interests, John Lande

Faculty Publications

Many dispute resolution experts misunderstand the concept of BATNA (the best alternative to a negotiated agreement), believing that it is the most favorable possible outcome if the parties don’t settle. In fact, BATNA isn’t an expected result. It’s a course of action, not the value resulting from the course of action.

Attorneys often make unrealistic predictions of court outcomes because of inherent uncertainty and cognitive biases. Moreover, parties have many intangible interests that aren’t included in estimates of BATNA values.

This article offers suggestions for attorneys and mediators to advance clients’ interests by better understanding and valuing non-settlement outcomes.

Masthead

Journal of Dispute Resolution

No abstract provided.

How Ai Can Help Mediators Say What They Really Mean, John Lande

Journal of Dispute Resolution

This article critiques the widespread use of the terms “facilitative” and “evaluative” to describe mediation techniques. Despite their popularity in scholarship and practice, these labels are inconsistently defined, frequently misunderstood, and fundamentally flawed. Drawing on a survey of mediation experts, the article documents significant confusion about how professionals interpret these terms – and how they think that others interpret them. It builds on Leonard Riskin’s critique of the facilitative-evaluative framework, which shows that the language not only oversimplifies complex processes but also risks confusing parties and undermining informed decision-making.

Faculty List

Journal of Dispute Resolution

No abstract provided.

Description

Journal of Dispute Resolution

No abstract provided.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

The Gender Sidelining Trap In Mediator Selection, Erin E. Gleason Alvarez

Journal of Dispute Resolution

One of the greatest advantages of commercial mediation is the parties’ ability to construct the process to fit their needs. In mediation, parties are free to make decisions about how the conversation will be structured—whether in person or online, joint session or not, whether negotiations will take place over a few hours or days, and so forth. Here, parties are also uniquely empowered to design what their settlement will ultimately look like—or decide if settlement is even appropriate. Perhaps most importantly, parties decide who will serve as the mediator, the person they trust to facilitate their discussions and negotiations, and …

Revolutionizing The System: Designing A Safe Order Of Protection Mediation Program, Sabrina Saint-Marc

Journal of Dispute Resolution

Consider a situation where an African American man, Tony, residing in a rural southern jurisdiction, holds an order of protection against his partner, John, who is also an African American man. Furthermore, the presiding judge, an elderly white man, was known for denying orders of protection even when sought by white women, which creates an atmosphere where seeking court intervention might result in embarrassment and judgment for the client. This embarrassment and judgment stems from the stereotypes that mostly people who have engaged in criminal behavior belong in court; additionally, survivors experience shame about why they are appearing before a …

Participant Actions And Intermediate Outcomes In Initial Joint Sessions And Initial Caucuses, Roselle L. Wissler, Art Hinshaw

Journal of Dispute Resolution

Historically, the initial mediation session usually was a joint session where the mediator and the disputants met together to exchange information and discuss the substance of the dispute. Accordingly, the main components of the initial mediation session and the informational and communication benefits they were thought to provide were discussed in the context of the disputants being together and speaking directly. Today, however, many actions that traditionally took place during the initial joint session, including the discussion of substantive matters and exchanges between the parties, are less likely to occur during initial joint sessions than they did historically and are …

The Eviction Crisis Is Rampaging: Time To Implement Diversion Programs, Rachel Elliott

Journal of Dispute Resolution

More than 7.6 million renters face the threat of eviction annually.1 In early February 2023, Ivy Hany was at risk of being part of this statistic again.2 Years ago, when Ivy was 19, she and her siblings were forced out of their home into a homeless shelter.3 Now, at 53, she was terrified of becoming homeless again.4 Ivy owed her landlord $2,184.75; she would be evicted if she did not pay.5 Fortunately, Ivy had the option of mediation

Extended Reality For Alternative Dispute Resolution, Ryan Gallagher

Journal of Dispute Resolution

“What is real? How do you define ‘real’? If you’re talking about what you can feel, what you can smell, what you can taste and see, then ‘real’ is simply electrical signals interpreted by your brain.” As technology continues to advance, its effects will be felt in all aspects of our lives, and the world of Alternative Dispute Resolution (“ADR”) will be no different. Dispute resolution processes must adapt to the needs of their users. These users are increasingly in different parts of the world as the global economy expands. Inevitably, globalization leads to more conflicts that require resolution. Technology …

Time To Redress® Hazing: Changing The Way Universities Deal With Hazing Claims And Allegations, Katie Miles

Journal of Dispute Resolution

Every year, excited eighteen-year-olds step foot on a college campus ready to start a new chapter. Ready to try new things, these students join various organizations eager to make new friends and connections. Daniel Santulli was no different. He was an excited nineteen-year-old freshman at the University of Missouri in the fall of 2021. Santulli decided to join the Phi Gamma Delta fraternity and was ready to make lifelong friendships. However, on October 20, 2021, Santulli suffered a life-altering injury due to an alcohol-related hazing incident. Santulli was “marched, shirtless and blindfolded, into the basement of the Phi Gamma Delta …

Competition Is For The Ring, Not The Court, Cameron Shields

Journal of Dispute Resolution

Dolph Ziggler and JD McDonagh performed in a ring in front of a crowd of 20,000 people. Their match was broadcast worldwide. Ziggler placed everything on the line in a match where he wagered his entire career with World Wrestling Entertainment (WWE) for the Intercontinental Championship. Back and forth the two fought. Ziggler brought an early onslaught against McDonagh. Punches and kicks rained down. McDonagh, in a turn of luck, slipped through the ropes and reversed the onslaught onto Ziggler. After the pummeling, McDonagh threw Ziggler over the ropes onto the cement floor. The referee started counting down . . …

I Like My Litigation How I Like My Pie: Whole, Alexandra (Allie) Widick

Journal of Dispute Resolution

There is a huge problem with the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”): it contains major ambiguities. The Act was signed into law by President Biden in 2022, and it has the potential to affect many Americans. It has been estimated that about 60 million workers—over half of the non-unionized private workforce—are subject to mandatory arbitration agreements as part of their employment. The Act states in relevant part that no arbitration agreement “shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the …

Bargaining In The Shadow Of The Efaa, Samuel R. Cole

Journal of Dispute Resolution

Labor unions are having something of a moment. In the past few years, high profile unionization efforts like those at Starbucks and successful strikes like SAGAFTRA have generated headlines. Even as labor activists celebrate these wins, American unions face ongoing obstacles. Union membership continues to decrease, and union participation remains at an all-time low. And now courts, perhaps unwittingly, are adding to their woes. In one example, particularly relevant here, courts have overlooked the distinction between arbitration agreements contained in collective bargaining agreements and arbitration agreements contained in contracts between employers and at-will employees. The result has been to entwine …

Legislative Update, Mckayla Bogda, Karen Crouch, Matthew Hellmann, Brett Newberry, William Rodman

Journal of Dispute Resolution

The Legislative Update tracks legislation related to alternate dispute resolution that has been proposed and passed in state legislatures nationwide. With guidance from the Associate Editor-in-Chief, Associate Members of the Journal of Dispute Resolution wrote this update. This update includes articles focusing on specific bills and trends across legislation from various states that the authors found most interesting and impactful.

How Can You Turn Adversarial Attorneys Into Quasi-Mediators?, John Lande

Faculty Publications

This article grows out of an educational program sponsored by the St. Louis chapter of the Association of Attorney-Mediators, which functioned as a focus group. It describes mediators’ experiences with attorneys in mediation who were cooperative and adversarial.

It describes things that mediators can do to make adversarial attorneys behave as “quasi-mediators.” Attorneys acting as quasi-mediators help their clients realistically understand the other side’s perspectives. The attorneys also promote their clients’ interests by enlisting the mediators’ help and encouraging the other side to adjust their positions. Attorneys who sometimes act as quasi-mediators tailor their techniques to their clients’ preferences and …