Dispute Resolution and Arbitration Commons^™

A Look Inside The Nba’S Game-Changing Technical Foul: The Warner Bros. Discovery And Nba Broadcast Rights Dispute And How It Could Have Been Resolved Through Alternative Dispute Resolution, Nicola Coates

Pepperdine Dispute Resolution Law Journal

Despite being “the greatest studio show in sports TV history” and winning numerous Emmy Awards, the TNT Sports icon Inside the NBA was on the brink of disappearing. In 2024, the National Basketball Association (NBA) opted into a $77 billion contract with NBC, Amazon, and Disney’s ESPN, ending its forty-year relationship with Warner Brothers Discovery (Warner Bros. Discovery), the parent company of TNT Sports. Warner Bros. Discovery filed suit, alleging that, by rejecting its offer in favor of NBC, Amazon, and Disney, the NBA breached the parties’ 2014 media rights agreement, which included a right to match third-party offers. The …

Reimagining The Path Forward: Preparing And Promoting The Next Generation Of Arbitrators Through Innovative Mentorship, Disclosure, And Transparency, Homer C. La Rue

Pepperdine Dispute Resolution Law Journal

The article addresses a pivotal moment for the labor-management arbitration profession. As demographic changes and the growing complexity of labor relations coincide with a decline in the number of qualified arbitration professionals, Professor La Rue emphasizes the critical role senior arbitrators play as mentors and gatekeepers for the next generation. The piece explores mentorship models, including the traditional “Legacy Method” and initiatives designed to expand opportunities for underrepresented groups, such as the Ray Corollary Initiative. The article also offers actionable recommendations to advance disclosure and transparency, including: (1) reducing barriers to entry for new arbitrators; (2) establishing a formal mentorship …

An Open Door Policy: A Contemporary Analysis Of The Continuing Need For Court-Connected Civil Compulsory Arbitration Programs, Joshua D. Rogers

Pepperdine Dispute Resolution Law Journal

Compulsory arbitration could be a crucial instrument in addressing an impending renewed litigation explosion. In the latter half of the twentieth century, numerous courts implemented court-connected civil compulsory arbitration programs to help address the substantial problems created by historic increases in civil litigation. Without much fanfare, these programs have been successfully operating to achieve the goals envisioned at their creation—improving judicial economy and efficiency. Despite the success and longevity in adopting jurisdictions, compulsory arbitration has peaked in its adoption and has seemingly faded into the background of the alternative dispute resolution conversation. Neglecting or dismissing this vital tool in the …

How Law Schools Can Better Cultivate A Culture Of Engagement And Dialogue, Anton Sorkin

Pepperdine Dispute Resolution Law Journal

For the last few years, a competing culture has developed on university campuses based on what the National Jurist called the “protest generation.” These developments have seeped into law schools, creating not only tensions with the administrations, but also tensions between student organizations seeking to participate in accordance with their mission and purpose. Given the importance of legal education and the role of attorneys in society, this article advocates for law schools to cultivate a culture of engagement and dialogue by establishing private forums where student leaders may work out their differences in a civil and constructive manner. Within these …

Stitching Up Industry Issues: Arbitration Can Offer Customized Solutions To Fashion Intellectual Property Disputes, Catherine Meng

Pepperdine Dispute Resolution Law Journal

This comment proposes alternative dispute resolution (ADR), specifically arbitration, as a more effective mechanism for resolving fashion copyright disputes. The fashion industry has historically received limited protection for designs—primarily trademark and patent law—resulting in widespread copying and difficulty enforcing claims. In the 2017 case Star Athletica, L.L.C. v. Varsity Brands, Inc., the Supreme Court added copyright to the patchwork of protections. However, that protection is available only for aesthetic elements, not functional ones. The difficulty in distinguishing these components, along with the challenges of enforcing claims across borders and between parties with unequal bargaining power, as in Hian v. Louis …

An Alternative Sacrifice: Religious Arbitration Agreements In Ministerial Employment Contracts, Grace E. Brandt

Pepperdine Dispute Resolution Law Journal

After decades of development in lower courts, the Supreme Court unanimously affirmed the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012) and provided additional guidance in Our Lady of Guadalupe School v. Morrissey-Berru (2020). The precise contours of the exception remain uncertain, but the doctrine—grounded in the Free Exercise and Establishment Clauses of the First Amendment—effectively bars civil courts from reviewing claims against religious institutions that implicate ministerial employment decisions. Thus, ministers are unable to pursue redress for legitimate harms that occur within the scope of their religious employment, even if unrelated to religious doctrine. This …

Off The Gridiron Conflict: Why The Nfl Should Use Mediation To Resolve Internal Disputes, Bryan Weitzman

Pepperdine Dispute Resolution Law Journal

The National Football League (NFL) is a multibillion-dollar enterprise built on a sport that fundamentally depends on communication, cooperation, and collaboration. Yet the league resolves nearly all internal disputes through adversarial arbitration mechanisms embedded in the NFL Constitution and the NFL/NFL Players Association Collective Bargaining Agreement. This comment argues that the NFL’s exclusive reliance on arbitration is conceptually inconsistent with the values that the sport instills and structurally prejudicial to players, coaches, and employees—particularly where the Commissioner retains final arbitral authority. An examination of alternative dispute resolution (ADR) principles and case studies demonstrates how the NFL’s current internal dispute resolution …

Hiding Elephants In Mouseholes: Judicial (Mis)Application Of The Federal Arbitration Act To Attorney-Client Arbitration Agreements, Gregory L. Smith

Pepperdine Dispute Resolution Law Journal

This article criticizes cases and commentary that assume, without argument, that the Federal Arbitration Act (FAA) and its decidedly pro-arbitration jurisprudence apply to determine the enforceability of private attorney-client arbitration agreements, thus preempting state bar rules governing disclosures that lawyers must otherwise provide to clients when proposing private, binding arbitration in place of bar-sponsored arbitration regimes. The author argues that applying the FAA and its jurisprudence to attorney-client arbitration agreements raises significant constitutional issues regarding the states’ recognized authority to regulate the legal profession—an issue that courts and commentators have simply ignored.

Dispute Review Boards And The Construction Industry: The Song Remains The Same—Or Does It?, Daniel Mcmillan

Pepperdine Dispute Resolution Law Journal

Dispute Review Boards (DRBs) are a unique form of alternative dispute resolution (ADR) used on large and complex construction projects across the country. Although largely ignored by legal scholars, DRBs have been highly successful in resolving costly, time-consuming disputes involving hundreds of billions of dollars’ worth of projects since their advent in 1975. DRBs are a hybrid form of ADR that combine facilitative and evaluative as well as coercive and non-coercive features of more common forms of ADR. But what actually makes DRBs so effective at dispute avoidance and resolution? This article analyzes: (i) the attributes that make DRBs an …

Why Ai May Be Your Best Negotiation And Mediation Coach, John Lande

Faculty Publications

This article explores the role of artificial intelligence (AI) tools as negotiation and mediation coaches.  Drawing on research from negotiation, mediation, and consumer behavior, the article explains why bots can sometimes coach more effectively than humans.  In this role, they offer on-demand support that can help users prepare strategically and reflect honestly.  This support is especially valuable when seeking help from a human would feel too risky or awkward.

The article cautions against use of AI for roles requiring emotional intelligence, discretion, or legitimacy, such as negotiators, mediators, or arbitrators.  It distinguishes between AI as a thinking partner and AI …

Lawyers' Client-Inclusive Negotiations: The "New Mediation"?, Nancy A. Welsh, Donna Shestowsky

Faculty Scholarship

When proponents initially urged the courts to institutionalize mediation for the resolution of general civil cases, they argued that the procedure would be superior to trial—and also to lawyers’ settlement negotiations—in terms of parties’ exercise of self-determination, satisfaction with outcomes, and opportunity for voice. These claims, however, rested on certain assumptions, particularly regarding the implementation of mediation and lawyers’ settlement negotiations. In mediation, the parties were to take center stage, with the mediator assisting them by facilitating their communication and negotiation so that they could reach a customized resolution. Lawyers’ settlement negotiations in general civil litigation, meanwhile, were assumed to …

Promoting Better Dispute Decision-Making With An Ai Tool Built On Rps Theory, John Lande

Faculty Publications

Traditional theories of negotiation and mediation rely on rigid models, false dichotomies, and confusing terminology that fails to reflect the complexity of real practice. This article critiques those theories and introduces Real Practice Systems (RPS) theory as a more accurate and practical alternative.

RPS theory conceptualizes negotiation and mediation as sequences of professional judgment shaped by context, experience, and goals, rather than as idealized or linear processes. It promotes a realistic and ethically responsible practice by encouraging reflection, intentional process design, and adaptability.

The article introduces “RPS Coach,” a free artificial intelligence tool built on the ChatGPT platform. It is …

Collective Judo: Ethics And Access To Justice In Mass Arbitration Companies, Michael Doman

Pepperdine Dispute Resolution Law Journal

Over the past five years, several law firms have engaged in “mass arbitration.” This strategy involves aggregating hundreds or thousands of arbitrations and filing them all at once against a company, sometimes forcing the company to either pay huge sums to defend all the claims or settle with all the claimants. This Article discusses how mass arbitration coordinated by nonlawyers and companies should be legally protected by courts and regulators, provided that companies in this space erect specific ethical safeguards. Most notably, mass arbitration companies should implement better procedures to obtain informed consent from their customers, using technology to lower …

Struggling Access To Justice Through Mediation In Bangladesh: Headway Lessons From Australia, Jamila A. Chowdhury, Mehnaz Siddiqui

The Indonesian Journal of Socio-Legal Studies

Enormous case backlog and protracted delays in courts are hindering access to justice in Bangladesh. Consequently, an initiative to provide quick and low-cost consensual justice through mediation was first initiated in the family courts of Bangladesh in the year 2000. However, although after an initial success, the system has been struggling over the decades. While contemporary research has identified various constraints causing such meager disposal of cases in family courts, using expert interviews of family court judges and relevant literature review on Australian family courts, this Chapter reiterates such constraints to generate relevant headway lessons from Australia that has excelled …

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 …

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 …

Heirs' Property Disputes: Evaluating Adr Forums To Change The Status Quo, Karina Grobman

Pepperdine Dispute Resolution Law Journal

Heirs’ property—a form of communal ownership passed down through generations—is a symbol of family legacy in the South. Disputes between families and developers create a disparate loss of land among Black families in the South, often through court-ordered partition actions. Although some states adopted the Uniform Partition of Heirs Property Act (UPHPA) to reform partition sales, most courts still force sales of the entire property rather than more equitable divisions. This Comment explores various alternative dispute resolution (ADR) forums as a more just and efficient path to resolve heirs’ property disputes. Although the multi-party nature of heirs’ property disputes makes …

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. …

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 …

A Uniform, National Body Of Law To Govern The Enforcement Of Arbitration Agreements, Imre S. Szalai

American University Business Law Review

The heart of the Federal Arbitration Act (FAA) is section 2, which contains a federal mandate that arbitration agreements are valid, irrevocable, and enforceable; the FAA's remaining provisions help carry out this mandate.

Bringing Section 7 Into The Next Century, Amy J. Schmitz, David M. Brodsky

American University Business Law Review

In 1925, Congress passed a historic piece of legislation, the Federal Arbitration Act (FAA), that attempted to change the American judiciary's hostility towards enforcing arbitration agreements and awards. This hostility was rooted in English common law and migrated to the American civil justice system. But in 1925, Congress gave life to the broad use of executory agreements to enforce compliance with contracts through arbitration.

The Right To Arbitrate(?): Integrating Consumer Protection Into Judicial Review Of The Mccarran-Ferguson Act And The New York Convention, Rachel Bamberger

American University Business Law Review

International commercial arbitration has grown increasingly popular as an alternative method of dispute resolution. This Comment explores the struggle courts face when they must determine whether to apply the New York Convention, an international treaty that recognizes and compels arbitration agreements, or a federal statute known as the McCarran-Ferguson Act, which delegates authority to the states to regulate insurance. Conflict arises when foreign insurers seek to compel arbitration under the New York Convention in states with antiarbitration insurance laws, and courts must choose between upholding domestic state laws or honoring the Treaty.

This Comment examines the method of analysis used …

Time-Pressured Negotiations, Hal Abramson

Scholarly Works

This Article considers how to negotiate when you do not have the time to use your best negotiation practices. No other article has considered what to do when in a time-pressured negotiation other than to advise you not to be trapped by a deadline. When you have no choice but to rush, this Article examines the choices that will reduce the risks posed by skipping any best practices.

This Article first considers the inherent risks of taking shortcuts and then describes a negotiation map suitable when not rushed as a guide for selecting shortcuts when rushed. After this introduction, the …

Choosing To Use Good Language In The "Adr" Field, John Lande

Faculty Publications

On October 30, 2024, Debra Berman posted a message on a listserv encouraging colleagues to drop the word “alternative” from “ADR.” Her post quickly prompted 24 responses. This article summarizes the listserv discussion about the term “ADR,” and demonstrates serious misconceptions embodied in popular concepts of “BATNA” and “facilitative” and “evaluative” mediation as well as other problematic language that we frequently use.

Language is a shared resource that can enable people to understand each other accurately and to improve our ideas and techniques. This article describes the many ways that language has huge effects on people’s thoughts and actions, and …

Repeal The Federal Arbitration Act's "Arising Out Of" Requirement, Stephen J. Ware

American University Business Law Review

Suppose Pfizer and CVS agree to arbitrate not only any disputes that might arise out of their contract containing an arbitration agreement but also any disputes that might arise out of any of the many earlier contracts between these two large corporations. Or Apple and Samsung agree to arbitrate any patent infringement claims either has against the other for the next five years. Or FedEx and UPS agree to arbitrate any tort claims either has against the other due to any collision of their vehicles in the next ten years. Or members of the Walton (Walmart) family agree to arbitrate …

Section 4 -- Jury, Trial: A Misnomer In The Faa, Tracey B. Frisch

American University Business Law Review

The purpose of the Federal Arbitration Act (FAA), according to the Supreme Court, was not merely to reverse judicial hostility towards arbitration by placing agreements to arbitrate on the same footing as other contracts but to actively promote the use of arbitration on a national scale. It is not surprising then that most provisions of the FAA envision limited court intervention into the arbitration process.

The Problem Of Unreasoned Reasoned Awards And The Judicial Failure To Remedy It: Statutory And Rule Solutions, John B. Mcarthur, Mark Travis

American University Business Law Review

American arbitrators have long been choosing between two common forms of awards: "reasoned awards" and "standard awards" with no reasons enumerated. Yet neither arbitration rules nor statutes define "reasoned award." This lack of guidance has gotten arbitration in trouble and threatens its ability to satisfy users' needs.

Towards The Faa's Next Century: Clarifying Disclosure Requirements In Arbitration, Andrea K. Schneider, Brian Farkas

American University Business Law Review

In the summer of 2024, all eyes were on Paris. Thousands of athletes from over 200 countries competed in over 300 sports. The Olympics is nationalism at its healthiest: cheering for one's own nation, while recognizing the fundamentally transnational human values of pluralism, diversity, and aspiration.