Dispute Resolution and Arbitration Commons^™

The Important Role Of Attorneys In Promoting Parties' Self-Determination In Mediation, John Lande

Faculty Publications

This short article analyzes the meaning of self-determination, and it demonstrates that attorneys generally have much greater ability than mediators to promote parties’ self-determination. I argue that “self-determination” is an admirable but unattainable ideal.

Instead, attorneys and mediators should focus on promoting parties’ best possible decision-making under the circumstances. To optimally promote the quality of parties’ decision-making during mediation sessions, they must be well-prepared before mediation sessions. At that stage, attorneys are in the best position to counsel clients, when they have more time to carefully consider their situation and they are not under pressure to respond to the …

The Case For Mediation Representation Clinics And Externships, John Lande

Faculty Publications

This article recommends that law schools offer mediation representation clinics and externship courses to assist self-represented litigants in cases with legally-represented parties. These courses would prepare law students to practice in the modern world. Students would get experience working with real clients, conduct interviews, help clients assess their goals and interests, analyze claims, perform legal research, prepare documents, coordinate with mediators, and negotiate with counterpart attorneys.

The courses would address the needs of multiple stakeholders including self-represented litigants, law students, law schools, courts, attorneys, mediators, and society in general. Law schools would develop these courses in collaboration with many potential …

The Case For Strategic Case Evaluation And Management Courses, John Lande

Faculty Publications

This short article argues that law schools should substantially increase instruction in pretrial litigation, teaching students how to strategically evaluate and manage cases. Law school graduates generally are unprepared to work with clients, have difficulty communicating with clients, and don’t understand the “big picture” of client matters. They generally aren’t well trained in negotiation, which is essential in modern legal practice. The problem for law students and law schools is exacerbated by the transition to the NextGen bar exam and a movement in various states to use alternative mechanisms for licensing that would require demonstration of practical skills.

To address …

It's Time To Make Important Upgrades To Our Mediation Curriculum, John Lande

Faculty Publications

In the past five decades, mediation practice and teaching have grown in size and sophistication. Inevitably, some ideas that made sense early in this development need revision and updating to reflect evolving realities and improved understandings. This is a moment deserving reflection about what faculty should teach about mediation, especially in light of the NextGen bar exam and changes in various states’ licensing regimes.

This article suggests various upgrades of our mediation instruction. Change is hard but can be worth the effort. The article includes numerous specific suggestions and links to handy resources that faculty can incorporate in their courses …

Oxymorons R Us, John Lande

Faculty Publications

This short article riffs on comments at a program at the ABA Section of Dispute Resolution’s annual conference to illustrate how oxymoronic the terms “facilitative,” “evaluative,” and “empowerment” have become. It suggests ways that dispute resolution academics and practitioners can avoid speaking oxymoron.

Modern Mediation Practice In American Legal Cases, John Lande

Faculty Publications

This article provides excerpts of It's Time to Make Important Upgrades to Our Mediation Curriculum. It notes significant changes in mediation practice in the past five decades and highlights the nature of modern mediation practice in American legal cases. It suggests that law school faculty upgrade of our mediation instruction to reflect the realities of modern practice.

A Snapshot Of How Mediators Use Technology These Days, John Lande

Faculty Publications

All professional mediators inevitably use technology these days. Indeed, they use it more than they realize. And, with the accelerating rate of technological developments, they generally will use it a lot more in the future. But it's not easy to incorporate technological developments into daily practice and keep up with the rapid pace of change. Part of the challenge is that mediators have their own unique complex practice systems that they aren't fully conscious of. And technology is integrated throughout their systems.

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 …

Helping You Do The Best Mediation You Can, John Lande

Faculty Publications

This article is Part 2 of a two-part series presenting action research about factors affecting mediators’ individual practice systems and how they can improve their systems. Mediators’ systems grow out of their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and subjects in their cases. From their mediation experiences, they develop categories of cases, parties, and behavior patterns, and they design routine procedures and strategies for dealing with recurring challenges before, during, and after their mediation sessions.

Part 1 describes a study of mediators at educational programs to help them learn why they developed their …

Incorporating Real-World Legal Practice Into Law School Curricula, John Lande

Faculty Publications

This annotated bibliography was prepared for the program, “Pracademically Speaking: Incorporating Real-World Legal Practice Into the Curriculum,” at the 2024 Annual Conference of the ABA Section of Dispute Resolution. It includes relevant entries from the Real Practice Systems Project Annotated Bibliography.

This includes three sections, identifying: (1) problems with legal education and licensing, (2) resources for law schools and faculty, and (3) resources for law students. It particularly focuses on teaching skills for helping clients, which is critically important because practitioners often fail to recognize and respect clients’ perspectives and interests. Teaching students to work well with clients – and …

Why Do Mediators Mediate The Way They Do?, John Lande

Faculty Publications

This article is Part 1 of a two-part series presenting action research about factors affecting mediators’ individual practice systems and how they can improve their systems. It reports the results of a study of mediators who attended two educational programs.

This study supports the fundamental premises of real practice systems theory. Mediators have unique practice systems based on numerous variables including their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and subjects in their cases. While mediators consciously use some techniques, much of their behavior is based on unconscious routines. Through reflection, individually and in …

Practitioners Tell Why Real Practice System Checklists Are So Useful, John Lande

Faculty Publications

Following the rave reviews for the Real Practice System Menu of Mediation Checklists, I asked practitioners to describe how they might use them. Peter Benner, Graham Boyack, Gary Doernhoefer, Brian Farkas, Clare Fowler, Laura Kaster, Randy Kiser, Jim McGuire, Paul Monicatti, John Sturrock, Jeff Trueman, Tom Valenti, and two court mediators provided extremely thoughtful responses.

This article summarizes their ideas using excerpts from their responses. It illustrates how the checklists can help mediators carefully design their unique practice systems, starting from providing general information about their practices to engaging in self-assessments after cases – and everything in between. The checklists …

Top Ten Ways To Improve Your Mediation Skills, John Lande

Faculty Publications

This article uses Real Practice Systems (RPS) theory to identify things that mediators can do to improve their mediation skills. This begins by mediators recognizing that they have a complex mediation practice system if they mediate regularly. The article includes links to a short video and articles to help mediators understand their unique systems. Using these insights, mediators can complete a self-assessment questionnaire and take advantage of the RPS Menu of Mediation Checklists to tailor their own checklists to fit their practices. Mediators can continuously improve by participating in ongoing educational practice groups.

Ready, Set, Mediate!, John Lande

Faculty Publications

This article summarizes the discussion in a program at the ABA Section of Dispute Resolution’s annual conference about helping parties prepare for mediation sessions. The article describes benefits and goals of preparation, studies finding failures to prepare before mediation sessions, consequences of failing to prepare, and how courts can promote preparation. It lists the audience’s experiences of problems due to inadequate preparation and materials they use or would like to use.

The last part of the article provides resources to help everyone be as ready as possible when their mediation sessions begin. These resources are useful for private mediations as …

The Seven Elements Of Dispute Systems Design, Lisa K. Dicker, Neil Mcgaraghan

Faculty Publications

In this article, clinical instructors at the Harvard Law School Dispute Systems Design (“DSD”) Clinic propose adapting an old analytical framework — The Seven Elements of Interest-Based Negotiation — for a new context, dispute systems design (“DSD”). A relatively young field, DSD is the “applied art and science of designing the means to prevent, manage, and resolve streams of disputes or conflict.” DSD can feel broad and opaque to newcomers and thus is in need of a foundational framework, especially for beginners. The Seven Elements of DSD — alternatives, interests, options, criteria, communication, relationship, and commitment — can serve a …

Securities Arbitration Case Law Updates 2023-2024 (June 2024), Elissa Germaine, Nikki Junda

Faculty Publications

(Excerpt)

This article summarizes leading arbitration cases and related issues that are of particular relevance to the securities arbitration practitioner.

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 …

Escaping Arbitration And Class Action Waivers For Harassment Because Of Pregnancy, Sexual Orientation Or Gender Identity, Sandra F. Sperino

Faculty Publications

In 2022, Congress amended the Federal Arbitration Act (FAA) through the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. This amendment is being abbreviated to a rather clumsy acronym: EFASASHA. EFASASHA allows a person alleging sexual harassment or sexual assault to invalidate certain arbitration agreements and joint-action waivers. Congress passed the Act in response to testimony in which workers alleged that serial sexual harassment and assault continued because workers' claims were forced into private arbitration and could not be publicly adjudicated.

This Essay argues that the language that Congress used in EFASASHA is much broader than its title …

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, …

Ethical Considerations For Advocates And Neutrals Regarding The Use Of Al In The Finra Arbitration Forum (July 2023), Brent A. Burns, Elissa Germaine, Lisa Roth, Peter J. Tepley

Faculty Publications

(Excerpt)

News abounds about the impacts of AI on our personal lives and work-places. The legal profession and the securities industry are no exception. This article begins to explore the use of open source generative AI in legal advocacy and the securities industry, and the related ethical implications for advocates and neutrals in the FINRA Dispute Resolution Services forum.

The Ethics Of Artificial Intelligence In Legal Advocacy, Elissa Germaine

Faculty Publications

(Excerpt)

The use of AI in our personal and professional lives has entered the public consciousness over the past several months. The legal profession and the securities industry are no exception. This article begins to explore the use of open source generative AI in legal advocacy, and the related ethical implications for securities arbitration practitioners.

Studies have corroborated the impact of AI on the legal profession that many of us have been seeing in practice or hearing and reading about. A Goldman Sachs study predicted that the legal profession will be one of the most likely areas to be impacted …

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 …

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 …

The Relevance Of The Cisg In Settling International Arbitration Claims Arising Due To Covid-19 In Absence Of Force Majeure And Hardship Clauses, Gilberto Guerrero-Rocca

Faculty Publications

No abstract provided.

“Are We Just Going To Sit Back And Wait For ‘Regulatory Roller Coasters’ To Derail? Balancing Public Policy Vs. Fet Violations In Investment-Arbitration”, Gilberto Guerrero-Rocca

Faculty Publications

No abstract provided.

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 …

Arbitration Case Law Updates 2021–2022 (June 2022), Sandra D. Grannum, Elissa Germaine

Faculty Publications

(Excerpt)

This article summarizes leading arbitration cases and related issues that are of particular relevance to the securities arbitration practitioner. There appears to be a move away from compelling arbitration and federal jurisdiction of motions to confirm or vacate. The courts have decided several cases specifically involving FINRA arbitrations, discussing who can bring them and what courts have jurisdiction over them.

In addition, the Federal Arbitration Act was amended by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, the title of which speaks for itself.

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.

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 …