Dispute Resolution and Arbitration Commons^™

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 Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Securities Regulation And Administrative Deference In The Roberts Court, Eric C. Chaffee

Seattle University Law Review

In A History of Securities Law in the Supreme Court, A.C. Pritchard and Robert B. Thompson write, “Securities law offers an illuminating window into the Supreme Court’s administrative law jurisprudence over the last century. The securities cases provide one of the most accessible illustrations of key transitions of American law.” A main reason for this is that the U.S. Securities and Exchange Commission (SEC) is a bellwether among administrative agencies, and as a result, A History of Securities Law in the Supreme Court is a history of administrative law in the Supreme Court of the United States as well.

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Capitalism Stakeholderism, Christina Parajon Skinner

Seattle University Law Review

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the …

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

What Is In Your Tampon? Increasing Transparency In Menstrual Products, Elianna Spitzer

Seattle University Law Review

The average person who menstruates will bleed for an average of five days, every twenty-four to thirty-eight days, over several decades and could use thousands of disposable menstrual products in their lifetime. Menstrual products line retail shelves. They can be found in homes, bags, and bodies—but until 2021, manufacturers were not required to disclose the ingredients used to make these products to consumers at all. In fact, they still are not federally required to disclose menstrual product ingredients on product packaging. Instead, in recent years, changes to menstrual product labels have largely been the result of state legislation. In 2019, …

Too Much Domestic Law In International Arbitration: The Case Of Arbitral Res Judicata, Luca G. Radicati Di Brozolo

American University Business Law Review

This paper is the text of the 19th Annual Lecture on International Arbitration given by the author at the Center on International Commercial Arbitration of the American University Washington College of Law in Washington, D.C. on October 19, 2023.

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

International Arbitration Of Sep Frand Royalties, Steven Pepe, Samuel Brenner, Michael Morales

Touro Law Review

Standard-essential patent royalty disputes have typically been litigated in U.S. federal district courts, but patent owners have recently started to file suit in courts across the globe, leading to issues of comity, anti-suit injunctions, and increased litigation costs. International arbitration provides a unique forum for parties to litigate these royalty disputes and avoid, or at least lessen the burden, of these issues. This Article explores the advantages and disadvantages of using international arbitration to resolve standard-essential patent royalty disputes.

Don't Kill The Baby! The Case For Ai In Arbitration, Michael J. Broyde, Yiyang Mei

Faculty Articles

Since the introduction of Generative AI (GenAI) in 2022, its ability to simulate human intelligence and generate content has sparked both enthusiasm and concern. While much of the criticism focuses on AI’s potential to perpetuate bias, create emotional dissonance, displace jobs, and raise ethical questions, these concerns often overlook the practical benefits of AI, particularly in legal contexts. This article examines the integration of AI into arbitration, arguing that the Federal Arbitration Act (FAA) allows parties to contractually choose AI-driven arbitration, despite traditional reservations.

This article makes three key contributions: (1) It shifts the focus from debates over AI’s personhood …

The Efficacy Of Mandatory Mediation In Courts Of Limited Jurisdiction: A Case Study From The Missoula Justice Court, Paul F. Kirgis, Brock Flynn

Faculty Law Review Articles

Alternative Dispute Resolution (ADR), particularly mediation, has become an integral component of the judicial system, promising efficiency, cost savings, and enhanced litigant satisfaction. Courts of limited jurisdiction, which handle high volumes of landlord-tenant disputes, debt collection cases, and small claims, have increasingly adopted mandatory mediation programs to alleviate docket congestion and promote settlement. This article contributes to the growing body of research on mediation in courts of limited jurisdiction by analyzing case outcomes in the Justice Court for Missoula County, Montana. Through a review of public court records from 2019-2023, we examine settlement rates, compliance with mediated agreements, and the …

An Exacerbated Power Imbalance: The Danger In Allowing Ai To Render Arbitral Awards In Employment Arbitration, Elizabeth G. Stein

Mitchell Hamline Law Review

No abstract provided.

Comment: Court Adr Analytics, Benjamin G. Davis

Washington and Lee Law Review

For the reasons in my comments below, Jordan Hicks’s note entitled Judicial-ish Efficiency: An Analysis of Alternative Dispute Resolution Programs in Delaware Superior Court is a tour de force. Its content and methodology suggest a fresh approach to thinking about court-annexed Alternative Dispute Resolution (“ADR”) in general and court-annexed mandatory nonbinding arbitration programs in particular. The meticulous analysis of three different eras (1978–2008, 2008–2018, and 2018–present) of the program, with a focus on judicial efficiency (speed, failure rate, and prejudicial concerns), provides an important template for how this work might be expanded to look at programs in other courts …