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."