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.

Free Negotiation Reports from Harvard's Program on Negotiation (PON)

Download them from Harvard's Program on Negotiation

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.

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.

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.

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.

Selecting a Mediator and Drafting an Agreement to Mediate

Good advice from the UK law firm Herbert Smith Freehills.

Negotiating With Someone From Another Country or Culture

Good post from Harvard Negotiation Blog summarizing an article in the May issue of the journal Negotiation and Conflict Management Research, “Starting Out on the Right Foot: Negotiation Schemas When Cultures Collide,” by professors Wendi L. Adair of the University of Waterloo, Canada; Masako S. Taylor of Osaka Gakuin University in Japan; and Catherine H. Tinsley of Georgetown University.

The basic lesson: don't overdo trying to negotiate the way you think is customary in your counterpart's culture.

Settlement Negotiation

Settlement and Trial: Selected Analyses of the Bargaining Environment 
by Vanderbilt Professors Andrew F. Daughety & Jennifer F. Reinganum.

The abstract:This Handbook chapter provides a brief review of selected settlement bargaining models in some areas where new work is developing and where additional work is likely to yield yet further important results. This work has focused on what might be thought of as the environment of the settlement negotiation process, where bargaining failure generally results in trial, and our survey will use that perspective to organize the work discussed.

Online Mediation and Online Arbitration

Teaching online dispute resolution through a simulation exercise by Noam Ebner of Creighton University School of Law's Werner Institute for Negotiation and Dispute Resolution. His abstract:

BeatleMania! is a simulation for studying and experiencing online dispute resolution. Two parties to an eBay transaction gone awry, regarding the sale of Beatles memorabilia, set out to resolve their differences with the assistance of a third party mediator.
This simulation is structured to allow communication to be conducted though any online medium selected jointly by the parties and mediators. In other words, the storyline supports this mediation being conducted via email, videoconferencing or other media. teachers can instruct students regarding use of specific media, if they prefer to focus on a particular medium.


Also, I recently learned about equibbly which advertises:

Avoid the Nightmare of Going to Court 

Have a former Court Judge decide your case online in under two weeks 

Save time and money. Using eQuibbly is quicker, cheaper and more convenient than going to small claims court to settle your dispute.

"Mediation" and other ADR on Reality TV

A tv show on Bravo, Untying the Knot,  as reported by Art Hinshaw on ADR Prof Blog:

"Obviously having the mediator “determine a fair division of assets” doesn’t sound like mediation; Ms. Ziegler is engaging in early neutral evaluation (ENE).  But ENE has gone the way of Betamax and is so confused with mediation that it’s not worth the time to fight it.  In fact, I’ve seen and heard of many well respected mediators engage in such behavior.  So, let’s hope that this practice does not become what the public expects from divorce mediation, as this clearly limits the good that mediation can do in divorce.  Nevertheless, clips of the show are going to be great for class this fall when we discuss facilitative and evaluative mediation styles."

Candor in Negotiation, Mediation, and Arbitration

Michael Dallaire's article begins: "Alternative Dispute Resolution (ADR) is here to stay.  The Model Rules of Professional Conduct (Model Rules) must acknowledge that fact.  Several scholars have posited the lofty goal of creating an entirely separate code of ethics for ADR or at least individual processes.  But the process of ADR-specific rules must begin within the framework of the existing Model Rules.  One of the first steps in that direction should be to clearly define the level of candor required of an attorney-advocate in each major ADR forum.  An attorney’s duty to tell the truth, or his ability to deceive, should not be governed by a static standard when operating across a range of informal, nonbinding, participant-controlled settings like unassisted negotiation and mediation.  The Model Rules of Professional Conduct should include separate and distinct duties of candor for each major ADR forum, formulating each based on the unique characteristics of an individual forum.  The reformulated rules should focus on two primary factors in setting the requisite level of candor for a particular forum: (1) the stage in the dispute resolution process in which the particular forum is normally used, and (2) the degree to which a third-party neutral affects settlement."

Negotiation by Consumers: Haggling for a Better Price

Techniques from the Harvard Law School Program on Negotiation

Informed Consent in Mediation

McGeorge Law Professor Michael Colatrella has an interesting article entitled Informed Consent in Mediation: Promoting Pro Se Parties’ Informed Settlement Choice While Honoring the Mediator's Ethical Duties.

His abstract:

This article explores the question of how mediators can promote informed settlement choices by pro se litigants while still abiding by a mediator’s ethical duties of impartiality and party self-determination. “Informed consent” is the legal term that describes the circumstances under which a person knowingly and voluntarily agrees to a course of action recommended by a professional, like a physician or lawyer. The mediation scholarship distinguishes between two kinds of informed consent: “participation” consent and “outcome” consent. A party’s decision to take part in mediation is participation consent. “Outcome consent” addresses the degree to which a party understands the consequences of the settlement agreement reached during the mediation process. Mediator ethical codes provide minimal guidance on the issue, leaving unacceptable ambiguity as to the role the mediator plays in a participant’s informed participation and outcome consent. Moreover, some mediation scholars imprudently argue that when a pro se participant is ordered by the court to attend mediation, the mediator must obtain informed outcome consent — even if this means acting impartiality, as that duty is presently defined. This article concludes that the law should impose a duty on mediators of informed participation consent, but not informed outcome consent. Requiring informed participation consent is consistent with the mediator’s established role of educating parties about the mediation process and empowering them to fully and knowingly engage in that process. Imposing the duty of informed outcome consent on the mediator, however, would create a significant conflict with the mediator’s ethical obligation of impartiality and undermine the efficacy of mediation.

Zero-sum Negotiation vs. "Value Can be Created"

Victorian Pynchon well states fundamental points when she writes "The key is not technique but general negotiation principles (such as, ‘value can be created,’ or ‘it is important to understand how parties’ interests interrelate’)....The first step to a successful mutual-benefit negotiation style is to stop thinking about give and take as a zero-sum game. "

Private Information in Settlement Bargaining Models

Revelation and Suppression of Private Information in Settlement Bargaining Models, by Vanderbilt Professors Andrew F. Daughety & Jennifer F. Reinganum.

The abstract:
"We discuss the implications of various models of settlement negotiations for the revelation or suppression of private information held by the parties. This information may be relevant to multiple audiences, including those involved in the instant lawsuit; other potential litigants that may subsequently make use of the information in their own suits against one of the parties; and more distant observers and users of the legal process. We also examine how rules of evidence and rules of civil procedure can sometimes result in different degrees of purposeful or (arguably) unintended information suppression."

"Scandalous" Class Action Settlement

According to Judge Richard Posner.

Formation of Settlement Agreement

The Texas Supreme Court decided an interesting case about a settlement agreement being formed even though the offeror may not have wanted that.  As Jeremy Telman explains:

Amedisys threatened that it would not settle below six figures.  Kingwood responded with a settlement offer of $90,000, expecting that Amedisys would reject the offer and trigger Rule 167 of the Texas Civil Practice and Remedies Code, which would allow Kingwood to recover litigation costs if the case went to trial and resulted in a judgment considerably less favorable to Amedisys than the settlement offer.

Amedisys accepted the settlement offer.  This apparently was not what Kingwood wanted or expected, and Kingwood refused to treat Amedisys's response as an acceptance.  

Contempt Sanctions due to Settlement Conference

"Settlement conference" means different things in different places but the usual meaning is something like mediation conducted by the judge presiding over the case.  Following judges' orders related to settlement conferences, like following other court orders, is obviously important.  Here is an example of contempt sanctions imposed on a party that failed to comply.

As Mary Novak at Just Court ADR explains: Judge Janet Berry did not believe the insurers had complied in good faith with her rules on authority to settle, she found the company in contempt and sanctioned them $50,000.

Lawyers as (Good and Bad) Deal Killers

Karrass at Negotiation Space writes:

Lawyers are great deal killers. If you tried to bargain away every danger the lawyers foresaw, the negotiation would never end. ...

Lawyers, nevertheless, had an important function in reviewing the final contract.  They found areas in which our company vulnerability was too high for comfort. They left us to decide whether we could live with the potential danger or if we needed greater protection. Our decision was made on the basis of the other side’s track record as a reliable seller and their willingness to relieve our vulnerability by granting necessary warranties.

The trouble with these deal-killers is that they are far removed from the real marketplace, while the salesperson is on the front line with buyers every day.

Mediation in New Zealand

 
Victoria University Law Professor Grant Hamilton Morris
writes that "the modern mediation movement is primarily a result of state-led reform in a variety of legal areas. Much of this reform has been influenced by overseas models emphasising New Zealand’s role as a 'fast-follower' of alternative dispute resolution trends rather than an initiator. The rise of mediation in New Zealand has been ad hoc and pragmatic with a distinct lack of systematic development. This pragmatic change was a response to pressures such as the cost and delay involved in litigation, and major social trends challenging traditional ways, including traditional approaches to resolving disputes. Mediation continues to play a vital role in the New Zealand legal system but the exponential growth of the 1980s and 1990s has slowed as mediation begins to clearly locate and confirm its 'territory' in the New Zealand legal system."

Court Connected ADR in Illinois and Maryland

Summarized and linked by Jennifer Shack

Great Resource for ADR Teachers

Syllabi of dispute resolution courses, maintained by Missouri Law Professor John Lande.

Good Tips for Negotiators, Especially Lawyers

When leading negotiation scholars are concise, they come up with nuggets of wisdom.  These are in the form of recipes for cooking up a deal and I particularly like:

“Having those who matter present”. Sanda Kaufman

 

“Knowledge of your counterpart, available remedies, relevant law and facts”. Nancy Welsh

“the heat is ultimately helpful, and you’re not the only one feeling it.” Noam Ebner 

“Add knowledge in increments (from listening to your counterparty and also doing

your own background research) till the remaining ignorance tastes acceptable.
Add in a small amount of doubt with each new proposal by the other party;
balance it with 1 part research and 1 part creative counter-offer.” Chris Honeyman

and Roy Lewicki’s entire entry:

· Figure out what you want
· Understand what would and could not be a mutually acceptable agreement
· Get to know and understand the other party
· Frame an opening statement
· Ask the other to reciprocate and listen to them carefully
· Ask each other lots of questions to assure understanding
· Work toward a common understanding
· Treat the other with respect and dignity

 

 

 

Getting to Yes Sooner, Cheaper, and Better

is the title of an article by Missouri Law Professor John Lande, who interviewed well respected litigators about how they prepare for trial and for negotiation.  

"They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases, making strategic decisions about timing, and enlisting mediators and courts when needed. The lawyers overwhelmingly suggested starting negotiation at the earliest appropriate time. Reaching agreement sooner generally produces the benefit of reduced litigation costs as well as reduced time that parties invest in litigation. Lawyers produce better agreements when they focus on both sides’ interests because this enables them to create value, even in supposedly zero-sum negotiations." 

I like the vocabulary Professor John Lande uses: focus on both sides' interests, create value, zero-sum. It really captures well what matters in negotiation.  

BATNA Difference?: Negotiating in Good Faith in Civil Law Countries

Negotiating in Good Faith: Walking Away to BATNA Under the Civil Law,

by Professor Gregory Marsden:

This paper examines the concept of BATNA and whether we may validly advise negotiators outside the common law world to cease negotiating if the expected outcome does not exceed their previously-determined BATNA. Such advice is commonplace in negotiation methods informed by the common law tradition. However, we submit that the same advice may lead negotiators astray under the civil law, which provides that a party may be held liable for breaking off a negotiation without just cause.

To resolve this issue, we propose that international negotiators focus on BATNA as just one component of the broader concept of Reserve Value, which must also take into account potential pre-contractual liability.

Negotiating with Difficult People

Negotiating with Difficult People, 

a new article by John Harington Wade, Law Professor Emeritus, Bond University.

He defines difficult people as behaving in ways detrimental to his/her own best interests and to the interests of his/her community, for example:

- sends long insulting emails

- uses unnecessarily inflammatory language 

- arrives at meetings unprepared

- tries to ambush people with new information

- is totally focused on self-interest (“I need…..”), and is apparently

unaware of needs or goals of others

- lies and exaggerates

- cannot identify what is important or a priority in their lives

- spends more time and money on the dispute than it is apparently worth

:

1 

Confidentiality in Mediation

"Protecting Confidential Information in Commercial Mediations" 

is a new article by Paul Lurie and Sharon Press.

Despite the Uniform Mediation Act, "there is no uniformity in the United States as to how or when information disclosed in mediation may be used or protected from use in subsequent legal proceedings. This confusion about the protection of information may discourage parties in commercial disputes from using mediation. For those parties who decide to enter mediation, the Model Standards of Conduct for Mediators make the mediator responsible for promoting understanding “of the extent to which the parties will maintain confidentiality of information they obtain in a mediation.”"

This article includes a suggested mediation confidentiality clause that can be used in agreements to mediate commercial disputes.

Advice for Women Negotiating for Higher Pay

Today's New York Times has an article entitled, "Moving Past Gender Barriers to Negotiate a Raise".   

A few nuggets of interest to negotiators:

"Women tend to negotiate less for themselves than men, when there aren’t clear standards on what they should be asking for, studies found. In fact, women worked longer and made fewer errors but paid themselves less than men did for similar tasks, according to another study. But that effect went away when women were given data on what others paid themselves."

"When negotiating for higher pay, research has found that it is not enough for women to act in a way that conforms to stereotypes. Acting feminine enough — that is, showing they care about maintaining good relationships as well as the communal good over themselves, for instance — helps women in the likability department. And that’s important.  But that doesn’t necessarily make the person in the position of power any more likely to grant a woman’s request. Women also need to legitimize their requests, or find ways to make them seem more appropriate"

Grow the Pie by Timing Payments

Good negotiators find ways to increase value by making deals that give each side its high priorities while making concessions on that party's low priorities. 

I like to call this "positive-sum" negotiating, while some others like to call it "integrative bargaining" or "problem-solving negotiation." 

Whatever one calls it, a common way to do it is by considering different ways to time payments of money.   Karass gives short examples.

Negotiation Theory and Empirical Data

New article by Missouri Law Professor John Lande on Negotiation Theory, with empirical data

A Framework for Advancing Negotiation Theory: Implications from a Study of How Lawyers Reach Agreement in Pretrial Litigation

Lande argues that "The prevailing negotiation theory tries to fit lots of square pegs into just two round holes - adversarial or cooperative bargaining."

Caution on Regulation of Mediation

Where Mediation is Concerned, Sometimes 'There Ought Not to Be a Law'! is the title of a short and wise caution by several leading mediation scholars: Sarah Rudolph Cole, Craig McEwen, Nancy Rogers, James Coben, and Peter Thompson.

ADR in Britain

Courts in the UK seem to be facing most of the same ADR issues as courts here in the US.  As Jan O'Neill of Herbert Smith Freehills describes, there are studies and observations and recommendation and maybe some incremental reforms encouraging parties and judges to consider ADR

Settling Litigation

While one often hears lawyers and others say "90% of cases settle," this is not consistent with empirical data by University of Hawaii Law Professor John Barkai and Elizabeth Kent of the Hawaii State Judiciary Center for Alternative Dispute Resolution. Their article says "the commonly reported 90 percent settlement rate for all cases is a myth. The settlement rate for 'all' civil cases is about 50 percent (although almost 90 percent of tort cases settle). Trials are rare; jury trials are very rare." 

How does settlement negotiation happen in practice? "The most common type of negotiations is telephone negotiations, not face-to-face negotiation, which is the primary method of teaching negotiation in law schools. Telephone negotiations were the event with the greatest impact on settlement. Over 40 percent of cases used some form of ADR process."

Writing a Mediation Brief or Position Statement

At mediate.com Dave Ezra provides good advice on writing to persuade mediators and other participants in mediation.  He starts: "In many cases it is the mediation briefs -- the overlooked briefs that are often hastily prepared at the last minute -- that are the most important briefs."

"Remember one thing -- mediators read the concluding sections of mediation briefs.  Some might even read them first, before they look at any other part of the brief."

More on Written Position Statements in Mediation here

ADR Professor Jennifer Gerarda Brown Named Dean of Quinnipiac Law

I recently expressed my hunch that "ADR teachers tend more than most law professors to have the skills and temperaments suited to deaning."  Another example of this is Jennifer Gerarda Brown who is in her first year as dean of the Quinnipiac University School of Law.

She is responsible for some very good ADR scholarship and has terrific people skills.  As the school's announcement says, "For nearly 15 years, Brown has served as the director of the School of Law's Center on Dispute Resolution. U.S. News & World Report repeatedly ranks Quinnipiac in the top 20 law school programs in dispute resolution."

Assessing Students' Performance in Negotiation, Mediation, ADR

"Assessing Our Students, Assessing Ourselves" is a great resource for ADR teachers and also has insights for other teachers and those who train negotiators and mediators.  It is available here chapter by chapter in pdf form.

It's published by the Hamline School of Law Dispute Resolution Institute and contains the following chapters. 

1.  Introduction: Assessment as Mirror, Noam Ebner, James Coben & Christopher Honeyman 

2.  Evaluating Our Evaluation: Rethinking Student Assessment in Negotiation Courses, Noam Ebner, Yael Efron & Kimberlee K. Kovach 
3.  Pop Quiz: Do You Use This Evaluation Method?, Noam Ebner & Yael Efron 
4.  Reflective Journal Assignments in Teaching Negotiation, Bobbi McAdoo  
5  The Black Box of Student Evaluation: Course Participation, Noam Ebner & Yael Efron 
6. Using Recordings, Melissa Manwaring & Kimberlee Kovach
7.  Negotiating the Assessment Criteria, Joel Lee
8.  Interviews as an Assessment Tool, Boyd Fuller
9.  Simulation Design for Learning and Assessment, Noam Ebner & Daniel Druckman
10.  Empowerment and Recognition: Students Grade Each Other's Negotiation Outcomes, James Coben
11.  Making Reputation Salient: Using the Reputation Index with Law Students, Nancy A. Welsh
12.  Assessing the Adventure, Sharon Press, Noam Ebner & Lynn P. Cohen

13.  Evaluating Email Negotiations, Melissa Nelken

14.  Assessing Negotiation Competitions, Nuno Delicado, Horacio Falcão, Ellen Deason, Sharon Press, Shahla Ali, Eric Blanchot & Habib Chamoun-Nicolas

15.  A Competition Without Winners or Losers? The Ontogeny of a New Negotiation Event Format, Horacio Falcão

16.  A Benchmarking System for Assessment: An Experiment Creating More Transparency in Grading, Boyd Fuller & Sohni Kaur

17.  Portfolio Evaluation: Kaleidoscopic Insights Into Learning, Michelle LeBaron

Assessing Ourselves, Noam Ebner, James Coben & Christopher Honeyman

Gender Differences in Dispute Resolution Practice

Gina Brown and Marquette Law Professor Andrea Schneider report survey results: "certain practice areas are far more male and certain others are quite female. Second, it appears to matter how the neutral is selected in mediation. Networking resulted in only 29% women while provider lists resulted in an increased percentage of 47%. Finally, arbitration and mediation are not the same for gender integration. Arbitration seems to hold steady at 20% regardless of selection process and even decreases further in panel arbitrations."

Among their recommendations: "in three arbitrator panels, when considering equally qualified candidates, there should be a presumption that a woman be selected as part of a panel. Furthermore, neutrals need to be aware that personal networks still appear to be the primary source of referrals and that these networks need to be strengthened and broadened to include women.... Courts, provider organizations, agencies, and other organizations that administer and oversee ADR programs should be encouraged to use lists and the lists themselves should be broadened to include more women. ... Additional efforts in certain practice areas (commercial, construction, etc.) are likely warranted with a targeted program to identify and encourage women and minorities to serve as neutrals."

Oregon Law ADR Position

The University of Oregon School of Law seeks a Program Director for its ADR Center.  Position description here.

Online Alternative Dispute Resolution

Negotiation, mediation and even adjudication can occur online.  This Online Dispute Resolution (ODR) is the subject of an article by Indiana University business law professors

Scott Shackelford and Anjanette Raymond: "Building the Virtual Courthouse: Ethical Considerations for Design, Implementation, and Regulation in the World of ODR"

Wisconsin Law Review, 2014

Abstract:     

For some time now, there has been a well-documented movement toward alternative dispute resolution (ADR) and away from traditional litigation through courts in the United States and around the world. The benefits of the ADR movement are manifold, ranging from greater control over the process of dispute resolution to alleviating overburdened courts. But the costs of ADR are also becoming increasingly apparent, including a relative lack of due process protections. A more recent phenomenon is the marriage of technology to ADR, creating the field of online dispute resolution (ODR). Increasingly, both public- and private-sector actors are moving towards ODR to resolve low-value disputes. Some companies, such as Modria, are seeking to increase efficiency still further through automating the dispute resolution process through the use of algorithms, effectively removing humans from the justice delivery system. The limited literature analyzing the ODR movement has so far neglected the ethics of these emerging systems. Where should policymakers, business leaders, and societies draw the line between disputes that may be resolved online, potentially using an automated system, and those requiring in-person hearings? This Article seeks to begin the conversation about these questions by reviewing the current technological state of ODR and its use by companies including eBay, Modria, and Cybersettle, among others, before moving on to consider ethical ODR issues including balancing such values as transparency, efficiency, and conflict dynamics. Finally, suggestions for regulating this burgeoning industry are made drawing from the interdisciplinary literature on polycentric governance.

Ohio State Law Professor Sarah Rudolph Cole and I wrote about ODR here

Mediation Privilege

The mediation privilege is strong in California. In Kim v. Lim, Ruger & Kim, No. B240378 (2nd Dist. Div. 4 Feb. 6, 2014)  "Plaintiffs were unable to effectively challenge the terms of the release, because the mediation privilege prevented them from introducing parol evidence of mediation discussions." California Mediation and Arbitration

ADR Professor Becomes Law School Dean

Although many of us Alternative Dispute Resolution teachers would not be good law school deans, I suspect ADR teachers tend more than most law professors to have the skills and temperaments suited to deaning.  One ADR prof I know has those skills is my old friend, Henry (Corky) Strickland who was recently named Samford University's Cumberland School of Law's next dean.  Cumberland was my home for 10 years and it's a great school with many wonderful, good people on the faculty and among its alumni.  I wish Cumberland and Corky the best! 

Integrative Negotiation

Stephen Futeral's nice summary of a core concept of negotiation theory: integrative negotiation: " In integrative negotiation, the parties: (1) move away from their positions (“I win! You lose!”) by considering the needs and concerns of the other side; (2) consider the alternatives to NOT reaching a negotiated settlement agreement; (3) use objective criteria; (4) focus on the problems and NOT the persons involved; and (5) think creatively."

Futeral's statement "in law school, lawyers are taught many things, but the art of negotiation isn’t one of them" is unfortunately, still too true.  Many of us law professors teach negotiation as a standalone course or as part of an ADR course but there's still a big gap between the importance of negotiation in law practice and the extent to which it's taught and practiced in legal education.

Intermediaries in Negotiation Can Be a Negative

Intermediaries, such as real estate brokers, can have benefits but they can also make things harder.  Karass gives the example of the bad faith negotiating tactic, the false acceptance.  His advice is talk directly to the other side's principal by cutting out the intermediaries:  "take things into your own hands as much as possible.  Don’t let third party intermediaries like brokers or middlemen handle the action.  Insist on having your position heard by the principals involved." "do the administrative and running around work yourself."

Emotions as a negotiating tool

Harvard Business School Professor Michael Wheeler's book, The Art of Negotiation: How to Improvise Agreement in a Chaotic World, gets a nice review in my favorite newspaper, the Financial Times.  As the reviewer, Alicia Clegg, says "Empathy and emotions – both one’s own and those of the other side – play a crucial role in negotiating and dealmaking..... Emotional awareness can help you navigate blind spots and prejudices and arm you with self-control."

Good negotiating tips include "paying close attention to what others express through body language, words and tone of voice," and if your counterpart "is unreasonable you may need to bang the table, say 'no' loudly or walk away – but it should be you, not your emotions that make the choice."

ADR and Class Actions

Although (or perhaps because) this article fits in the Journal of Tort Law it offers a useful perspective on the similarities between ADR and class actions and what may be the hottest issue in arbitration law--whether to enforce arbitration clauses that relinquish the right to proceed on a class, rather than individual, basis.

The article is "Settlement, ADR, and Class Action Superiority" by Houston Law Prof D Theodore  Rave

Making Negotiation Theory Implemented, Interdisciplinary, and International

Andrea Schneider, Marquette University Law Professor, grapples with some heavy theory: "Negotiation can be thought of as the tool that facilitates conflict engagement and resolution. As part of, and yet different from, conflict theory, negotiation theory has had a separate parallel development in the last 30 years. The challenges for negotiation theory in the future are similar to those found in the broader conflict theory – ensuring that negotiation theory can be implemented by practitioners; making sure that negotiation theory draws upon a multitude of disciplines; and includes theories, experiences and culture from around the world. The development of negotiation theories in law schools – where communication to resolve disputes is part of the job description – highlights the importance of pracademics and demonstrates how we need effective theories to engage in conflict."

International Journal of Conflict Engagement and Resolution, Vol. 1, No. 2, 2013;

Litigators Can Make Mediation Work by Thinking Like Transactional Lawyers

Good advice here by Mark Fingerman via Alex Craigie  “Litigators can increase the likelihood of success at mediation,” he said, “by acting more like transactional lawyers.”  And:

“This involves, among other things: preparing for the mediation as a negotiation, including identifying the interests of the parties, settlement ballpark and necessary deal points; focusing at the mediation on reality and problem solving instead of advocacy and pressure; using the mediator to gain and communicate information useful to making a deal rather than trying to turn the mediator into a super advocate.” 

The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante

UC Davis Law Professor Donna Shestowsky's PhD in psychology along with her law degree enable her to do a lot of interesting research on ADR.  She surveys civil litigants at the start of their cases and finds that litigants like mediation, bench trial, and negotiations with both lawyers and clients present.  She also finds, as Andrea Schneider puts it,  that "Repeat players – those who had been either a defendant or plaintiff in a prior case – liked the idea of using binding arbitration for their case more than first-time litigants. 'This finding resonates with the idea that repeat litigants are more likely than first-time litigants to appreciate the fact that trials are often associated with painful, protracted discovery and the threat of an appeal.'”

Mediator Certification

Hamline Law Professor Sharon Press has done a lot of good writing on mediation and here addresses mediator certification.  She sensibly argues "that a certification process is incomplete unless accompanied by an adopted standard of conduct, a process for handling complaints, and the authority to remove certification from an individual if warranted." 

I am particularly interested in the government/private questions regarding mediator certification.  Should government (including courts) ever require parties to use a mediator who has been certified, as opposed to just requiring them to mediate?  Should government subsidies for mediation be directed only to mediation conducted by certified mediators?  If these sorts of questions are answered "yes", then determining who gets to the do the certifying becomes an important legal and even political question.   

Structured Settlements

Settlement agreement is the goal of much ADR and structured settlements are a particular interesting type.  Structured settlements are discussed in this paper by Jeffrey Stradling, who receives a hat tip  "for writing a detailed analysis about the secondary market and practices of factoring companies in the structured settlement industry. Perhaps he is the watchdog that the industry has been waiting for."

International Commercial Mediation

University of Missouri Law Professor Stacy Strong does a lot of good writing on international arbitration and here addresses international commercial mediation. 

Written Position Statements in Mediation

Parties and counsel can write position statements before mediation.  These can be given confidentially to the mediator only, or can be shared with the other side of the dispute.  Tips and pros and cons of various approaches to position statements in mediation are provided here by Cullen and Dykman.

Mediation Progress in the Hallway

A mediation's progress toward settlement can occur not only in joint caucus of all participants (parties and lawyers) or by the mediator shuttling between separate rooms, but also in the hallway between rooms.  As Geoff Sharp aptly writes, such "corridor encounters often appear to be accidental", "typically occur en route to the loo/kitchen/for a smoke/to make a phone call", and "have a hushed ‘in passing’ tone about them."

Geoff Sharp insightfully adds "Cut through/bottom line mediation language is expected and such encounters often determine what happens next in the process and, to that extent, have a coaching element to them aimed at choreographing a forthcoming exchange."