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.”