By Stephen Ware, a law professor at KU, in Lawrence, Kansas.

Principles of Alternative Dispute Resolution

Principles of Alternative Dispute Resolution
Principles of Alternative Dispute Resolution, in its second edition, is a Concise Hornbook, published by Thomson-West. More information is available by clicking on the photo.

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Tuesday, March 3, 2015

Securities Arbitration, Mediation and Negotiation

St. John’s School of Law and the Financial Industry Regulatory Authority (FINRA) host an annual "Securities Dispute Resolution Triathlon," a competition for law students. "The triathlon is the first and only competition to include negotiation, mediation, advocacy, and arbitration in a single event... Experienced neutrals from FINRA's mediator and arbitrator roster will evaluate and critique the student teams’ advocacy skills as they compete against other law school teams to demonstrate their proficiency in negotiation, mediation, and arbitration."

Monday, March 2, 2015

Grading Negotiation Exercises

The Harvard Program on Negotiation publishes thoughts on whether and how teachers should grade students' negotiation exercises and provides links to purchase several negotiation exercises.

Friday, February 27, 2015

A Mediated Resolution Is Like a Sale

Lawyer Douglas Chandler tells a nice story that relearns this lesson:

"Just like any business negotiation, it's best to close the complete deal while still at the table. The parties are still negotiating, so there is a major psychological advantage to maintaining that compromise process until all terms are settled. If you wait, you're potentially opening the door for emotion and memory to alter perception and create doubt on either side of the table, which may end up causing additional delays, negotiation, or court intervention."

Wednesday, February 25, 2015

Videos of Mediation and other Alternative Dispute Resolution

The American Bar Ass'n/Suffolk University Law School Video Center shows how mediation and other ADR techniques can be used to resolve a wide range of disputes. Teachers of ADR may download videos and roleplays at no charge for use in their classes.

Friday, February 20, 2015

Common Misunderstanding About Negotiation

"The current framework" of negotiation, as U. Missouri Law Professor John Lande's post says, "relies primarily on two models – positional and interest-based negotiation. ...People often fall into the trap of "equating positional negotiation as being tough and interest-based negotiation as being nice," according to John Lande's post at Indisputably.

Friday, February 13, 2015

Mediation in Hong Kong

Mediation in Hong Kong SAR by Shahla F. Ali &  A. K. C. Koo, both of the University of Hong Kong

According to this article, the Hong Kong Mediation Ordinance came into force on 1 January 2013. "It aims to provide a regulatory framework for promoting the use of mediation as a dispute resolution process and protecting the confidential nature of mediation communications... it prohibits disclosure or admissibility of mediation communications unless in exceptional circumstances or with leave of the court."

"At present, Hong Kong has not adopted legislation based on the Model Law on International Commercial Conciliation of the United Nations Commission on International Trade Law (the ‘Model Law’). Its adoption seems unlikely"

Tuesday, January 20, 2015

Alternative Dispute Resolution (Negotiation, Mediation, and Arbitration) on Twitter

This very helpful list of Twitter feeds compiled by

J. Haskell Murray, J.D.
Assistant Professor of Management and Business Law
Belmont University
1900 Belmont Boulevard
Jack C. Massey Business Center, Office 438
Nashville, Tennessee 37212
Phone: 615-460-6395

Friday, December 19, 2014

United States Lags in Affordable and Accessible Civil Justice: Opportunity for ADR?

According to Responsive Law, the U.S. spectacularly underperforms in providing affordable and accessible civil justice. In that category, it ranked 65th out of 99 globally in the World Justice Project's annual Rule of Law Index. For reference, that puts us in a four-way tie with Mongolia, Kyrgyzstan, and Uganda.

Monday, October 13, 2014

Wikipedia Alternative Dispute Resolution

Your Day in 'Wiki-Court': ADR, Fairness, and Justice in Wikipedia's Global Community by
York University - Osgoode Hall Law Professor Sara Ross.

The abstract:

Wikipedia has quickly become the largest volume of collected knowledge on the planet, but it is also one of the busiest centers for dispute resolution in the world. From small groups of individuals negotiating article changes on “talk pages”, to the involvement of hundreds of people in the formation of the community consensuses needed to implement new policies, to the use of binding arbitration to create final conflict resolutions, the Wikipedia community has developed a complex network of norms and rules that funnel all disagreements and intractable differences through a series of progressively more involved dispute resolution processes. I provide an overview and analysis of the dispute resolution processes used by the community and will look to the successes and limitation of these processes. A number of flaws will be identified including the ability for vocal minorities to dominate the Wikipedia community consensus. A systemic bias will be identified in the behavioural landscape of the community and, finally, it will become apparent that there is room for growth in the website’s inclusiveness, primarily through addressing the logistical realities of a potential user’s access to the time, materials, and knowledge needed to become a contributing member of the Wikipedia community.

Saturday, September 27, 2014

Lack of Confidentiality in Settlement Negotiation

The Dirty Little Secret of Legal Negotiation: Confidentiality Under Federal Rule 408 and Related State Laws by Missouri Law Professor Richard C. Reuben.

The abstract:

There is a widely held belief that legal negotiations are confidential in that communications made during those discussions may not be introduced in subsequent legal proceedings. However, this first major analysis of the primary vehicle responsible for providing this protection – Federal Rule 408 and related state laws – demonstrates how this is no longer true. Rather, relatively few legal negotiations today are covered by the rules, and the federal and state courts have carved out significant exceptions that render the rule a virtual nullity. This is especially problematic modern legal negotiation emphasizes significant disclosure of sensitive information. This article explains how we got to this point, and offers a theoretical framework for regulating alternative dispute resolution processes like legal negotiation that ultimately resolves the problem by shifting the Rule 408 categorical analysis to a simple two-part test: whether the settlement discussion evidence is necessary to prevent undue hardship, and whether it is otherwise unavailable. While current Rule 408 analysis generally leads to the admission of legal negotiation evidence, the proposed analysis provides a principled and pragmatic approach for balancing the fundamental tension between the confidentiality needs of legal negotiation the information needs of public adjudication.

Monday, August 25, 2014

Online Dispute Resolution

The Dilemma of Private Justice Systems: Big Data Sources, the Cloud and Predictive Analytics by Indiana University business professor Anjanette Raymond.  The abstract:

In the age of big data, demanding customer expectations, and increasingly limited access to justice for small claims arising from online sales, business organizations are moving to enhanced online customer complaint platforms and insisting upon increased online justice resolution systems. At the same time, online businesses, even websites you fail to think of as a business, are moving from traditional analytics that provide a snapshot of the past, to solutions that provide an accurate picture of the present and a prediction of future trends. For many, predictive analytics is the wave of the future.

In many ways, the use of predictive analytics is a wonderful occurrence, as our packages will arrive in a more timely manner, our advertising will be more personal and our online and physical lives will be tailored, monitored and adjusted to our interests, life styles and immediate needs without so much as a hiccup. However, what will happen when the current push for private online dispute resolution systems meets the current big data gathering of a private market? Will the private online dispute resolution providers use the information gathered for good, or as a means to quickly resolve disputes without notice of the law, personal rights and/or ethical outcomes? Worse yet, what will happen when the private market of online dispute resolution faces the demands of a business environment that would prefer analytic outcomes to be skewed to favor the business? Bear in mind, these issues do not arise in a prediction, these private online dispute resolution mechanisms already exist and are growing in support and use on a daily basis.

This paper will explore the emerging issue that occurs when private online dispute resolution providers are allowed, without transparency, oversight, or regulation, to create a justice system that knows a lot of personal information about you but is required to follow no legal standard or regulation to resolve your dispute with a merchant.

Handshaking Promotes Cooperative Dealmaking

Handshaking Promotes Cooperative Dealmaking, according to a paper, by University of Chicago and Harvard business school professors.  The abstract:

Humans use subtle sources of information — like nonverbal behavior — to determine whether to act cooperatively or antagonistically when they negotiate. Handshakes are particularly consequential nonverbal gestures in negotiations because people feel comfortable initiating negotiations with them and believe they signal cooperation (Study 1). We show that handshakes increase cooperative behaviors, affecting outcomes for integrative and distributive negotiations. In two studies with MBA students, pairs who shook hands before integrative negotiations obtained higher joint outcomes (Studies 2a and 2b). Pairs randomly assigned to shake hands were more likely to openly reveal their preferences on trade-off issues, which improved joint outcomes (Study 3). In a fourth study using a distributive negotiation, pairs of executives assigned to shake hands were less likely to lie about their preferences and crafted agreements that split the bargaining zone more equally. Together, these studies show that handshaking promotes the adoption of cooperative strategies and influences negotiation outcomes.

Thursday, August 21, 2014

Deceptive Negotiation Tactics

From the Harvard Program on Negotiation Blog and Professor G. Richard Shell:

1. Lies about bottom lines and alternatives.

2. “Too good to be true” offers.

3. Escalation of commitment.

4. Lack of reciprocity.

5. Last-minute nibbling.