Reality TV Discovers Mediation

Remember when we used to lament the fact that there were no mediation tv shows?  Well we had Fairly Legal which was farcically formulaic and often a bit silly.  Now we have Untying the Knot, a new reality series on the Bravo network.  The show follows New Jersey divorce attorney-mediator Vikki Ziegler as she “mediates” property division issues for divorcing couples.  The reason for the quotes?  Here’s why – from the show’s website summarizing the series:

When couples go from “I do” to “I don’t,” Vikki Ziegler is who they call to mediate, advise and divide their assets out of court. Each 30-minute episode features a different divorcing couple struggling to divvy up their belongings that range from dazzling diamonds to the family pets. Expert appraisers Michael and Mark Millea evaluate the items in question and help Vikki determine a fair division of assets. Why let a judge decide your fate when this “Divorce Diva” can cut through all the drama to determine who will get what?

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.

I’ve watched all of the episodes that have aired to date (thank you DVR), and the show’s formula is simple – meet the divorcing couple and the property in dispute, the appraisers give their valuations of the items to Ms. Ziegler, and then Ms. Ziegler meets with the disputants and awards (yes, that’s the term she uses) the property and any corresponding financial offsets to the disputants.  I find the show to be interesting mostly because the emotion of divorce is on display – you can really feel for some of the couples.  Other interesting aspects include when Ms. Ziegler pushes a disputant and when disputants negotiate off of her evaluation.  I could do without some of the witty-made-for-tv banter about the parties and/or their possessions from Ms. Ziegler and the appraisers, but I’m sure the producers love that kind of snarkiness.

Enjoy or cringe watching the show, but do use it in class – it’s going to be a great teaching tool.

Fordham hosting the Ninth Annual Fordham Law School Conference on International Arbitration and Mediation

From FOI Jackie Nolan-Haley

The Ninth Annual Fordham Law School Conference on International Arbitration and Mediation will be held in New York City at Fordham Law School on June 12 and 13. The conference will bring together leading arbitrators, mediators, practitioners and scholars to discuss contemporary issues in international arbitration and mediation.  Topics include investor-state arbitration, international ethics, international trade disputes, international tax disputes and international mediation.  Registration and other information is available at law.fordham.edu/arbitrationconference

Wilcox v. Apraio – the 9th Circuit Sidesteps Mediation Confidentiality Questions

On Monday, the 9th Circuit handed down its decision in the Wilcox v. Apraio case, a case arising out of the Maricopa County wars – former County Attorney and now gubernatorial candidate Andrew Thomas, with the help of Sheriff Joe Arpaio, indicted several sitting Superior Court judges and several members of the County’s Board of Supervisors, over funds slated for a new county courthouse .  The political drama here has been titillating, to say the least, and resulted in Thomas’ disbarment (opinion here) for using the prosecutor’s office to punish his political enemies.  For more detailed background about the ugly shenanigans, here are two stories from the ABA journal  (here and here).

Wilcox, a member of the Board of Supervisors, along with virtually everyone who was indicted, sued the County under 42 USC §1983 and several other state claims (malicious prosecution, infliction of emotional distress, etc.).  Recognizing the potential for conflict of interest charges in these cases, the Board of Supervisors adopted a resolution giving the County Manager the authority to “enter into binding arbitration/mediation agreements” and  to “enter into contracts as needed” to settle the various lawsuits.

Like all of the other cases arising out of the courthouse wars, Wilcox’s claim against the County went to mediation.  She alleged that during mediation she reached a settlement agreement with the County through the County Manager for $975,000 only to have the County renounce the agreement two weeks later.  She moved to enforce the agreement in District Court, and after a hearing, the Court granted the motion after a hearing in which the county supervisor testified that he verbally authorized the mediator to make a settlement offer over email.  The Court found that the emails between plaintiffs counsel and the mediator created the settlement agreement because the mediator had the authority to sign the deal for the County.  Furthermore, the Court opined that the outcome would be the same applying either federal or Arizona mediation privilege law.  On appeal, the County argued that the District Court’s decision should have been based on the Arizona mediation privilege statute, ARS §12-2238, and that the District Court misapplied the statute and relied on evidence that should have been privileged.

Although the briefing focused mostly on the Arizona mediation privilege, the Ninth Circuit focused on whether state or federal law governed the admissibility of the evidence supporting the District Court’s ruling.  Noting that Fed. R. Evid. 501 states that “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision,” the Court pointed out that state contract law governed the question of whether there was an enforceable settlement agreement.

However, the Court focused not on the single claim of enforcing the settlement agreement, but instead looked to the claims in Wilcox’s complaint, which contained both federal and state claims.  Since the evidence before the District Court concerned the settlement of all of the federal and state claims and could not be parsed out among the various claims, the Ninth Circuit found that precedent required federal privilege law to govern the question.  Interestingly it did not say what federal privilege, if any, applied (there was no local court rule for mediation confidentiality).  It simply concluded that the County had waived any argument that the contested evidence should be privileged under federal law.  Why?  Because the County assumed Arizona privilege law applied and failed to argue that a federal common law mediation privilege might apply. See Folb v. Motion Picture Indust. Pension and Health Plans, 16 F.Supp.2d 1164 (C.D. Cal. 1998) (concluding that a federal mediation common law privilege exists).  Thus, any argument that the disputed evidence should have been privileged under federal law was waived, and the Ninth Circuit affirmed the District Court’s decision to grant Wilcox’s motion to enforce the settlement agreement.

What bearing does this case have any bearing on the Arizona mediation privilege statute?  The Ninth Circuit addressed the issue in a footnote, and I will answer that question in a follow-up post.

 

Strong on Class, Mass, and Collective Arbitration discussed at ITA-ASIL Conference

Stacie Strong (Missouri) sends this dispatch from the recent Institute of Transnational Arbitration – American Society of International Law (aka ITA-ASIL) conference in Washington D.C.

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The last few years have seen a significant number of judicial opinions concerning class arbitration in the United States, both from the U.S. Supreme Court (American Express Co. v. Italian Colors Restaurants, Oxford Health Plans LLC v. Sutter, AT&T Mobility LLC v. Concepcion, and Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.) and the lower federal and state courts.  These developments have received a great deal of attention, both in the United States and abroad.  However, much less attention has been paid to other countries’ experience with large-scale arbitration, a situation that was remedied by a recent conference co-sponsored by the Institute of Transnational Arbitration (ITA) and the American Society of International Law (ASIL) and held in Washington, D.C.

The conference focused on class claims in the international and comparative context as well as mass claims in the international investment setting.  Although the discussion addressed the challenges currently facing class claimants in the United States as a result of recent Supreme Court jurisprudence, the presentations went beyond the standard domestic analysis and instead provided a number of new insights into how large-scale claims might be addressed in arbitration.

Many of the proposed solutions come from outside the United States, although a few have also been seen in the U.S., albeit in small numbers.  Thus, for example, it was noted that parties to large-scale disputes could avoid restrictions on class waivers by filing large numbers of individual bilateral arbitration in order to drive respondents to the settlement table.  This approach has been used in the United States on several occasions.  Another alternative that was discussed involved legislation that takes corporate respondents’ concerns about large-scale arbitration into account.  When considering this possibility, speakers noted that Spain has adopted an innovative but extremely promising statutory scheme allowing for collective consumer arbitration.  Finally, panelists indicated that parties could choose to pursue large-scale arbitration on a collective (i.e., non-representative basis), thereby sidestepping certain problematic elements of the recent Supreme Court decisions.

This final type of large-scale proceeding has not only been seen in contract-based forms of arbitration, it has also been seen in the context of treaty-based arbitration, most notably in the ground-breaking case of Abaclat v. Argentine Republic.  In that matter, 60,000 Italian bondholders brought a single investment arbitration to address injuries suffered as a result of Argentina’s 2001 default on its sovereign bonds.  Although the dispute has not yet been decided on the merits, a preliminary award on jurisdiction has confirmed the propriety of what is being called a “mass” procedure, and a second investment tribunal (in Ambiente Ufficio S.p.A. v. Argentine Republic) has also rendered an arbitral award on jurisdiction adopting much of the reasoning found in Abaclat.

Carolyn Lamm, former President of the ABA and lead advocate in Abaclat v. Argentine Republic, acted as keynote speaker at the conference.  The event also featured presenations from Michael Waibel of the University of Cambridge, Samuel Wordsworth of Essex Court Chambers in London, Geneviève Saumier of McGill University in Montreal, and Deepak Gupta, of Gupta Beck PLLC in Washington, D.C.  Chris Drahozal of the University of Kansas and S.I. Strong of the University of Missouri co-chaired and moderated the event.

Papers from the conference will be published in an upcoming issue of World Arbitration and Mediation Review.

Senator Jon Kyl’s 10 Negotiation Lessons

Recently I had the pleasure of having former US Senator Jon Kyl as a guest speaker in my Negotiation course.  Time magazine recognized Kyl as one of the world’s most influential people in 2010 (along with Lady Gaga, as he is quick to point out) and as one of the 10 best senators in 2006.  Naturally the best thing about having guest speakers is their built in credibility, and that credibility is amplified when it’s someone like Kyl who has been in the mix at such a high level.

As I had hoped, he told some great negotiation war stories including some across the aisle with Senators Diane Feinstein and Ted Kennedy and another about how he and Mitch McConnell strategized for a negotiation with President Obama about the end of the Bush tax cuts.  Much more surprising to me was how he reinforced several themes I emphasize in class.  In fact, he did it so well that I had to convince the students that I didn’t ask him to do so.

And, without any further ado, here are his 10 lessons:

  1. Tell the truth, don’t deceive
  2. The best deal is one that works for everyone (Or, remedies associated w/ a bad deal aren’t worth the cost)
  3.  Always allow your counterpart to save face
  4. Never show your hand early and don’t show emotion (Or, only use anger when it’s real and even then rarely)
  5. Know what you need and know when to quit (Or, don’t worry about chasing things that may be “left on the table”)
  6. Know human nature (it’s ok to play to one’s ego)
  7. Know in advance whether you can walk away and set the point at which you will
  8. Beware of the “one more thing” after the deal is closed
  9. Do what works for you – know what your negotiation style is
  10. For lawyers, remember that it’s about your client’s interests, not you and your ego

An Awesome April Fool’s Prank

Have your students ever played an April Fool’s Day prank on you?  I’ve been lucky, but Stephen Barrows at Aquinas College, is not so lucky.  His students pulled one for the ages on him based on his class cell phone policy – if the phone rings you have to answer it on speaker phone.  This is awesome. (here)

Hat tip – TaxProf

 

 

Sternlight – Public Justice on Companies’ Use of ‘Bait and Switch’ in Arbitration

Semi-regular guest blogger Jean Sternlight (UNLV) brings us news from Public Justice’s take on the “bait and switch” going on in consumer arbitration.

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Public Justice, a public interest law firm that has been fighting mandatory consumer and employment arbitration for many years, recently posted a very interesting piece by Senior Attorney Paul Bland (here) regarding companies’ promise to pay arbitration fees. The blog post argues that although many companies promise to pay arbitration fees incurred by their customers and employees, quite a few fail to pay those fees on the rare occasion when someone actually brings a claim against them in arbitration.  The post further discusses how the AAA has begun to send letters to such companies demanding that they stop using the AAA name in company documents. Bland identifies car dealers as a common culprit, linking to several AAA letters, and it identifies one for-profit college, linking to that AAA request as well.  The companies’ refusal to honor their promises casts further doubt on the common claim that mandatory arbitration is quicker, cheaper and better for consumers and employees than litigation.

Nussbaum – Lessons on Language: Ken Cloke’s Dance of Opposites

Lydia Nussbaum (UNLV) sends this report from Ken Cloke’s recent visit to UNLV’s Saltman Center.

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The Saltman Center for Conflict Resolution and the UNLV Boyd School of Law had the pleasure of hosting Ken Cloke on March 3.  He spoke to an audience of more than 80 people that included students, faculty, attorneys, and mediation practitioners.

Ken is the Director of the Center for Dispute Resolution and one of the founders of Mediators Beyond Borders.  Ken discussed some of the concepts explored in his latest book, The Dance of Opposites: Explorations in Mediation, Dialogue and Conflict Resolution Systems Design.  With this text, Ken moves beyond the basic precepts of mediation practice, drawing on research from the fields of linguistics, psychology, neuro-physiology, and religion, to name a few, to re-examine the nature of conflict and the work mediators do to manage it.  He explores what mediation can do to address contemporary challenges, such as global warming and politics, and ultimately considers how mediation’s strengths and weaknesses can address unsolved problems and conflicts of the future.

Ken’s talk at UNLV focused primarily on the language of conflict.  Agreeing with Mark Twain’s observation that “kindness is a language which the deaf can hear and the blind can see,” Ken used examples to illustrate how deconstructing the language of conflict by its grammar, syntax, myth, archetype, and metaphor exposes the deeper meaning of the parties’ conflict.

Take grammar for example.  A characteristic structure for conflict sentence is:  PRONOUN + VERB + ACCUSATION (JUDGMENT).  By paying attention to the form of PRONOUN used, one can elicit different forms of response.  Consider a workplace conflict where one individual feels like she is taking on a greater burden of work responsibilities.  Using different pronouns, such as they, you, s/he, it, I, and we, causes the characterization of the conflict to shift and thus leads to a different outcome.

Pronouns that are less accusatory and more objective, such as we, send a message of collaboration to the listener.  The pronouns we use can influence how others react to us and, if used constructively, have the potential to transform a conflict.  Ken conducts a similar analysis for other grammatical elements, such as verbs and objects, and comes away with the same conclusion: from the pronouns we use to the metaphors we reference, language is charged with emotional content.  By examining the language of conflict communications, mediators and dialogue facilitators gain insight into what the conflict means to each individual and what interventions are likely to be effective.

“Suck it” for $80,000 Alex

News reports from Florida tell us that confidentiality clauses in settlement agreements are enforceable.  From the opinion in Gulliver Schools, Inc. v. Snay, which can be found here.  And, a tip of the cap to Lowering the Bar

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On November 3, 2011, the parties executed a general release and a settlement agreement for full and final settlement of Snay’s claims, with the school to pay $10,000 in back pay to Snay with “Check # 1”; $80,000 to Snay as a “1099” with “Check #2; and $60,000 to Snay’s attorneys with “Check # 3.”

Central to this agreement was a detailed confidentiality provision, which provided that the existence and terms of the agreement between Snay and the school were to be kept strictly confidential and that should Snay or his wife breach portion of the settlement proceeds (the $80,000) would be disgorged:

13. Confidentiality. . . [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement. . . A breach . . .will result in disgorgement of the Plaintiffs portion of the settlement Payments.

Only four days after the agreement was signed, on November 7, 2011, Gulliver notified Snay that he had breached the agreement based on the Facebook posting of Snay’s college-age daughter, wherein she stated:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

This Facebook comment went out to approximately 1200 of the daughter’s Facebook friends, many of whom were either current or past Gulliver students.

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Based on the clear and unambiguous language of the parties’ agreement and Snay’s testimony confirming his breach of its terms, we reverse the order entered below granting the Snays’ motion to enforce the agreement.

Reversed.

Hat Tip – Lowering the Bar

USNews Dispute Resolution Rankings

Every year the USNews rankings come out and we love them or hate them depending on whether they favor us or not.  And at least with the USNews specialty rankings, we know they are peer reviewed, so they are more telling than the overall law school rankings. So – without any further ado, here are the Dispute Resolution rankings for 2014:

1. Pepperdine

2. Ohio State

3. Hamline and Harvard (tie)

5. Missouri

6. Oregon

7. Marquette and Yeshiva (Cardozo) (tie)

9. UNLV

10. Arizona State and Northwestern (tie)

12. Hastings

13. Fordham, Penn State, and Suffolk (tie)

For a link to the rankings, which have more details about each school, go here.  Congrats to all.

Carrel: Reflections on Restorative Justice in the Gutierrez case

FOI Alyson Carrel (Northwestern) sends this reflection on the recent events in the case of Jewlyes Gutierrez.

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This past week, Jewlyes Gutierrez, a transgender teen who was charged with misdemeanor battery after getting into a fight with three other girls who had allegedly been bullying her for weeks, was offered the chance to use restorative justice instead of being charged through the criminal court system.  The media is reporting this as a victory and from a number of different perspectives it is. From a youth advocacy point of view, this is a victory because it keeps a youth out of the system.  From the transgender activist point of view, it’s a victory because it shifts the blame from the victim and gives the teen an opportunity to educate her bullies about what it is like growing up transgender and maybe help them see that she is just a teen struggling to make it through high school like them. It is also a victory from an ADR advocates point of view it is a victory because the system is actively using an alternative means of resolving the dispute that gives the parties voice and control over the outcome.

While this can be seen as a victory in so many ways, I think it should also provide us a word of caution or at the very least an opportunity to reflect  on how ADR is used and its impact on developing areas of law. I know many of us are using the term “Appropriate” instead of “Alternative” to define the “A” in ADR (or dropping the “A” altogether).  And this situation uniquely brings up why.  For years, we have advocated for the use of ADR processes, to ensure there is access to justice, participation in their own resolution, and more.  For Jewlyes, restorative justice may be the right answer. But as issues in the LGBT community finally come to the forefront, my fear is that any desire to keep issues private, or resolve things calmly and collaboratively, will in fact lead to exactly the situation Owen Fiss and Laura Nader (and others) describe when they caution against the use of ADR.  The transgender community is only recently seeing some attention in mainstream media and identifying the need for law reform.  In the last two years we have seen transgender characters more accurately portrayed in popular TV shows like Glee and Orange is the New Black.  Outside of the fictional world, we have seen more attention given to transgender issues thanks to trans advocates like Janet Mock, author of Redefining Realness, who is actively discussing the transgender experience and struggles on shows like Piers Morgan and Colbert Report.  As transgender issues finally gain more media attention, we need to make sure we understand the impact using ADR can have on a developing area of law.

Over the past year, we have seen cases across the nation regarding the right of transgender students to use the bathroom assigned to their gender identity.  In each of these cases, a student is told they may not use the bathroom of their choice, but must use the bathroom of the gender they were assigned at birth, a faculty bathroom, or worse, as was experienced by a Florida nursing student, a storage closet that does not even lock from the inside.  While restorative justice and other ADR processes might change the ability of one student to use their preferred bathroom at one school, it is only through legislative action and precedent setting court decisions that we can see that right afforded to all transgender students across the board.  That is exactly what happened in Maine earlier this year.  In Doe v. Regional School Unit 26, the Maine Supreme Court ruled that barring a transgender student from using the bathroom of her choice was against the law.  They write, “Where, as here, it has been clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity, denying access to the appropriate bathroom constitutes sexual orientation discrimination in violation of the [public accommodations law].”  And in California, a law went into effect January 1, 2014 that allows transgender students to use facilities and participate in programs that match their gender identities.

In talking with colleagues in Northwestern’s Children and Family Justice Center, they were clear that any action that keeps Jewlyes out of the criminal system is a victory.  I certainly can’t argue with that.  My concern, however, is that without further protection, will the bullying ever stop?  And what about other transgender teens that are facing the same situation?  According to the Transgender Law Center, “89% of transgender youth reported having been harassed at school within the previous year. Another comprehensive study found that, of transgender people who reported being harassed at school, a staggering 51% had attempted suicide.”  These statistics demonstrate the unique hardships facing transgender teens and the need for more systematic reform and protection.

It isn’t that the use of restorative justice or other ADR type of processes is wrong here, it’s just that we need to make sure the right process is being used to meet the interests of the parties.  It is the balance of the private vs. public.  What the private individual wants vs. the public need for systematic and wide spread change and protection.   And the need to use multiple approaches to address this situation.  This area is important to me as an individual who supports transgender rights, but also as a teacher who is trying to impart on law students the ability to counsel clients on the different ADR processes available and strategically choosing the most effective process to meet the client’s interests.

To hear Jewlyes story, see this Posted in General, Public Policy | 2 Replies

ADR Prof Mount Rushmore

There’s recently been a lot of discussion of who should be on the “Mount Rushmore” of sports which has resulted in lots of interesting discussion.  And recently Paul Caron did something similar for tax professors over on the TaxProf blog.  In that vein, I thought it would be fun to come up with a Mount Rushmore of ADR Profs.  A week and a half ago I sent out an email on the ADR listserv asking for 4 nominations, and I got lots of great responses.  And just to be clear, I will never release the votes outside of this announcement.  So here we go.

The members of the ADR Prof Mount Rushmore (in alphabetical order) are:

Carrie Menkel-Meadow's imagePhoto by Kristen Hines/Levin College of Law 2007

Roger Fisher, Carrie Menkel Meadow, Len Riskin, and Frank Sander.

Fourteen other well deserving people received votes, with recent CPR award winner Nancy Rogers leading the way as the next top vote recipient.  Thanks to all who participated in the voting.

ASU Legal Scholars Conference – March 14 and 15, 2014

Have you been a law prof for less than 10 years?  Got a paper you’d like to have workshopped?  Want to enjoy some great Phoenix weather and catch a spring training ball game?  If you can answer three of those four questions in the affirmative, join in the fun at the 5th annual ASU Legal Scholars Conference.  The announcement in full is below.

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On March 14-15, 2014, the Sandra Day O’Connor College of Law will host the fifth annual ASU Legal Scholars Conference. The purpose of the conference is to gather together “juniorish” academics (generally, those who have been in the academy for fewer than 10 years) to receive constructive feedback on their scholarship, to network, and to enjoy Arizona’s March weather!

We charge no registration fees and provide for free: (1) dinner and drinks the night before (Friday March 14th); (2) a spring training game or outing to the PHX Zoo for interested attendees; and (3) breakfast and lunch the day of the conference (Saturday March 15th). Attendees, however, must cover all travel and hotel costs (There is a link to hotel information at the top of this page). Rates are subject to change so book as soon as possible.

To register for the conference, click on the registration link at the top of the page. As noted, each registrant will be asked to submit something for comment and feedback. The paper can be a draft of a work in progress, a recently accepted piece, or even just a half-baked idea; the only limitation is that it should not be a piece that is already published (because the whole point of the conference is to get feedback to improve the piece). Based on the subject of the paper, each conference attendee will be assigned to a group of other attendees with similar scholarly interests. The members of each group will read the papers of the other members of the group, and then provide feedback on those papers. In the past five years, we have had more than 200 law professors from around the country attend and exchange ideas—join this ever-growing group and come to the conference on March 14 & 15th!

If you have any other questions, feel free to email Dean Doug Sylvester at douglas.sylvester@asu.edu.

Highlights of the Northern California ADR Faculty Conference

Sheila Purcell (Hastings) provides this synopsis of the Northern California ADR Faculty Conference which Hastings hosted on February 1st.  Sounds like it was a fantastic event.

On February 1, 2014  the UC Hastings Center for Negotiation and Dispute Resolution and the Gould Center at Stanford Law School co-hosted the Northern California ADR Conference.  Faculty and adjuncts from law schools such as Berkeley, Stanford, UC Hastings, Santa Clara and USF joined undergrad and Business School faculty from San Jose State, San Francisco State and Berkeley’s Haas Business School. Scholars and practitioners included Melissa Nelken, Santa Clara Dean Lisa Kloppenberg, Carol Izumi, Jay Folberg, Jan Martinez and many others.

 

We kicked off with Keynote speaker Prof. Michael Wheeler from the Harvard Business School whose new book, “The Art of Negotiation: How to Improvise Agreement in a Chaotic World,” was just published by Simon & Schuster. Discussion centered on what we as students and practitioners of negotiation arts have to learn from the world of jazz, improve comedy, psychotherapy and military strategy about staying nimble and strategically agile in the often unpredictable negotiation process.

 

Michael’s conceptual framework was followed up on by presenter Mark Perlmutter, (University of Texas School of Law and now an adjunct at UC Hastings) who demonstrated a role play that drew out issues involved in trying to maintain emotional intelligence in the midst of a hard ball negotiation.

 

Our final afternoon session led by Deb Gerardi, a healthcare conflict engagement specialist, picked up on Michael’s themes with two provocative hours of experiential activities drawn from her decades of work in the field of improvisational comedy and applied improvisation. This helped us all consider how to best activate and use student’s capacity to sense and respond in negotiation and ADR situations that require presence, focus, deep listening and recognition of offers. The days evaluations indicated that our session leaders were very well received for the mix of theory, practice, fun and collegiality that they each engendered.

 

My co-host, Jan Martinez, Director, Stanford Gould Negotiation and Mediation Program, and I were happy to work with our colleagues from throughout the region and hope others from around the country can join us next year for a great chance to learn from each other about our best teaching efforts and ideas.

 

Sheila Purcell

 

Nappert Prize in International Arbitration

From Stacie Strong via the list serv.

McGill University is pleased to host the Nappert Prize in International Arbitration, which is open to all students, junior scholars and junior practitioners from around the world.

To be eligible for the prize, authors must be either currently enrolled in a B.C.L, LL.B., J.D., LL.M., D.C.L., or Ph.D. program (or their local equivalents). Those who are no longer in school must have taken their most recent degree within the last three years, or have been admitted to the bar (or the local equivalent) for no more than three years (whichever is later).

Prizes: (in Canadian dollars) First place: $4,000; Second place: $2,000; Third place: $1,000.  Winning one of the awards will also carry with it the presentation of the paper at a symposium to be held at McGill in autumn 2014 (the expenses of the winners for attending the symposium will be covered).  Further symposium details will come within the next few months.

Deadline: May 15, 2014.

The essay -

  • must relate to commercial or investment arbitration;
  • must be unpublished (not yet submitted for publication) as of May 15;
  • be a maximum of 15,000 words (including footnotes);
  • can be written in English or in French;
  • must be in MS Word format.

Submissions are to be emailed to andrea.bjorklund@mcgill.ca as an attached file before May 15, 2014. Submissions should be accompanied by a statement affirming the author’s eligibility for the competition and the unpublished status of the paper. Review of the papers will start after May 15.

For more information, kindly email Professor andrea.bjorklund@mcgill.ca, Faculty of Law, McGill University.

Georgia State is hiring…..

…. an Academic Professional position in the Consortium on Negotiation and Conflict Resolution.  Highlights from the posting are below, and if you have any questions send them to Doug Yarn at dyarn@gsu.edu.

The Consortium on Negotiation and Conflict Resolution at Georgia State University College of Law currently seeks qualified applicants for the position of Academic Professional to serve as Director of the Georgia Global Chambers. The Georgia Global Chambers (GGC) is a new initiative of the College of Law and the Consortium on Negotiation and Conflict Resolution (CNCR). It will be an international dispute resolution resource housed in the College of Law’s new facility.

The Director will be responsible for planning, establishing, and developing the GGC. The Director will be responsible for initiating research, seeking grants, forming and managing research teams, and overseeing the final products. The Director will be responsible for initiating research, seeking grants, forming and managing research teams, and overseeing the final products. The Director will initiate legislative reforms based on research, work with legislators to enact reforms, and testify before legislative bodies. Once the GGC is operational, the Director will oversee the daily operations and on-going development of programs associated with the Chambers as outlined above. The ideal candidate should be experienced in strategic planning and operations and program management. Fundraising experience would be helpful.

Candidates must have a J.D. from an ABA-approved law school and have at least 20 years’ legal practice experience mainly in dispute resolution both as an advocate and a neutral in complex domestic and international commercial disputes.  The ideal candidate would be an existing or former senior partner in a large law firm or general counsel for an international corporation. Candidate experience in or with institutions of higher education, particularly professional graduate schools, would be advantageous, as would be a record of community and public service. Foreign language proficiency would be a plus but is not required.

ABA DR Section Award for Outstanding Scholarly Work goes to ……

Lisa Blomgren Amsler (formerly Bingham) at Indiana.  Big congratulations for an award well deserved.  The award will be presented during the Legal Educators’ Luncheon at the ABA DR Section meetings in Miami in April.  The announcement in its entirety is below.

Award for Outstanding Scholarly Work to Lisa Blomgren Amsler

Professor Lisa Blomgren Amsler (formerly Bingham) has been selected as the recipient of the ABA Section of Dispute Resolution’s Award for Outstanding Scholarly Work. This award honors individuals whose scholarship has significantly contributed to the dispute resolution field.

Lisa Blomgren Amsler is the Keller-Runden Professor of Public Service at Indiana University’s School of Public and Environmental Affairs, Bloomington, Indiana. She has co-edited three books and authored over 88 articles and book chapters on dispute resolution, dispute system design and collaborative governance. Before entering academia, Amsler practiced law for ten years and was a partner at Shipman and Goodwin in Hartford, Connecticut.

Professor Amsler’s scholarship has played a foundational role in the field of dispute resolution. Her scholarship has been prolific, broad, and influential. Her work has covered a range of processes (including arbitration, mediation, ombuds, deliberative democracy, dispute system design, and collaborative governance), and practice areas (including government, employment and labor, community, commercial, and environmental). Her scholarship has been interdisciplinary, reaching into other fields beyond law such as public policy and social science.

Her scholarship has been highly relevant in both the US and abroad. In the US, her work on public engagement has helped local, state and federal agencies develop processes for citizen involvement. Abroad, her work has helped developing nations deal with the challenges of social and political inclusion.

One of Lisa Blomgren Amsler’s earlier studies, an empirical study of arbitration first revealed the differential results for repeat players — and the positive effects of enforcing protocols. Similarly, her empirical work on institutionalized mediation first revealed the important procedural justice-related role played by the other party, the potential effects on managers, who learned the importance of listening, and institutions’ ability to design dispute systems to enhance less powerful parties’ ability to exercise self-determination in determining whether to use mediation or another process.

Professor Amsler has mentored dispute resolution scholars and practitioners, published widely, organized special journal issues on dispute resolution topics, and participated in the often-thankless job of organizing national gatherings. These efforts have contributed greatly to the discourse between scholars in the field.

Professor Amsler’s scholarship has helped us expand our horizons in private and public dispute resolution and more broadly in dispute systems design and collaborative governance.

The award will be presented to Lisa Blomgren Amsler during the Legal Educator’s Colloquium Luncheon at the ABA Section of Dispute Resolution Spring Conference in Miami, FL on Saturday, April 5, 2014. Tickets for the Colloquium Luncheon can be purchased on the Spring Conference web site.

Sternlight: Tide Turning a Bit on Mandatory Arbitration Through Recognition that Process Suppresses Claims?

FOI and semi-regular guest blogger Jean Sternlight (UNLV) shares with us her latest thoughts about mandatory arbitration.

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These have been very bleak times for those, like me, who abhor mandatory arbitration because they think it disserves consumers, employees, and others.  In case after case such as AT&T Mobility v. Concepcion (2011) and American Express v. Italian Colors Restaurant (2013) the Supreme Court has given companies free rein to use arbitration to eviscerate class actions and to protect these clauses from challenge. Meanwhile, the efforts of some to convince Congress to stop the horror by passing the Arbitration Fairness Act (S. 878) have not yet succeeded.

However, the new year may bring some new cause for optimism.  As Paul Kirgis noted in his recent post the Consumer Financial Protection Board has just issued a preliminary report  providing lots of new empirical information regarding aspects of consumer arbitration.

The CFPB report shows, as some of us have suspected for years, that while millions and millions of consumers are forced to arbitrate rather than litigate claims they may have against companies, only a miniscule number of consumers actually bring arbitration claims.  While litigation is admittedly no nirvana it offers far more justice to consumers, especially through class actions and group claims, than does arbitration.  The CFPB has not yet taken any regulatory steps and will issue more findings before it does, but the new preliminary report shows that CFPB “gets” that mandatory arbitration is about claim suppression.

Second, the Senate Judiciary Committee will hold a hearing on Tuesday December 17 entitled “The Federal Arbitration Act and Access to Justice: Will Recent Supreme Court Decisions Undermine the Rights of Consumers, Workers, and Small Businesses?” Those testifying include Professors Myriam Gilles (Cardozo) and Peter (Bo) Rutledge (Georgia).  Others of us are submitting written testimony. My own written testimony emphasizes that in both the consumer and employment setting the imposition of mandatory arbitration suppresses claims and effectively “disarms” claimants by making it more difficult to obtain legal representation.

Third, an upcoming symposium to be held at U.C. Berkeley’s Boalt School of Law on February 27, 2014 will include a number of papers by folks like David Lipsky and Alex Colvin presenting new empirical information on the realities of employment arbitration.

Fourth, an organization called Take Justice Back is mounting a petition effort to convince the CFPB to bar mandatory arbitration in the consumer financial settings.

Perhaps, together, all these actions will begin to recharge efforts to rein in companies’ use of mandatory arbitration to deprive consumers and employees of access to justice?

Mandela – A Titan Remembered

With the death of Nelson Mandela, without doubt the most significant political leader in my lifetime, lots has been written about his impact not only on South Africa but also on the world.  And plenty is still to be written.  Mandela’s impact comes in many ways large and small, but more importantly it still resonates today.  One of the most rewarding experiences in my life has been meeting members of the Truth and Reconciliation Commission.  And of course, without Mandela the TRC would not have existed.  Mandela is/was a true titan.

Earlier today FOI Charlie Craver (George Washington) sent out an email on the ADR listserv describing his work as a mediator in South Africa while the terms of both the Interim Constitution and the fall 1994 elections were being negotiated.  I asked him if he would take the time to discuss his experience further and here’s what he’s sent along.

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South Africa was a most unusual country. A small group of wealthy white persons completely dehumanized millions of individuals solely because of their race. When I met with white leaders, it was as if they had no idea how blacks were living. I had a discussion with two Conservative Members of Parliament who emphasized the fact their families had gone back 350 years in South Africa. When I politely suggested that black South Africans had gone back somewhat further, I could tell from the looks on their faces that they had never even considered this fact. Our subsequent discussions became much more productive after this exchange.

The worst day of my professional life was when I spent a day in Soweto. The conditions in many areas of that Township were unconscionable. Many homes had no sewage, no electricity, and minimal water. A huge percentage of residents were unemployed and without monetary support. When I had lunch, I could hardly eat. Although the food was lovely, I could not eat in an area surrounded by so many persons who were treated in such a subhuman manner.

South Africa was able to finally achieve true democracy because of an extraordinary man named Mandela. He spent twenty-seven years of his life in cruel prison cells fighting for the freedom of all South Africans. Although the government tried on several occasions to talk him into accepting something less than true democracy in exchange for his freedom, he made it clear that he would never accept such terms. He and Gandhi were two of the most exceptional leaders of the past century. I only wish that they could have lived on forever to the benefit of all citizens of the entire world.

Director – US Institute for Environmental Conflict Resolution, a programmatic arm of the Udall Foundation

The Morris and Stewart Udall Foundation, a federally funded foundation located in Tucson, Az., has an opening for the Director of the US Institute for Environmental Conflict Resolution.  You can see the full ad here, and learn more about the foundation here.  This is a great gig – federal benefits and good pay.  A blurb about the position follows.

The Director provides leadership, vision and strategic direction for the U.S. Institute’s programs and activities. The Director participates as a member of the Udall Foundation’s leadership team, which includes the Executive Director, Director for Finance and Operations, General Counsel, Director DC Office of the Udall Foundation and Director, Education Programs. The leadership team works cooperatively on Foundation-wide management issues. A significant amount of travel will be required. The incumbent will work in the Foundation’s Tucson office.

Bioethics, Healthcare Policy, & Alternative Dispute Resolution in the Age of Obamacare

On November 18, 2013, the Cardozo Journal of Conflict Resolution hosted its fall 2013 symposium, entitled “Bioethics, Healthcare Policy, & Alternative Dispute Resolution in the Age of Obamacare.”  Friend of Indisputably Lela Love was kind enough to send along this synopsis of the event.

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Tell us please, what treatment in an emergency is administered by ear?”….  I met his gaze and I did not blink. “Words of comfort,” I said to my father.”  (from Cutting for Stone by Abraham Verghese)

This idea of “words of comfort” was echoed throughout the day at Cardozo’s conference–the need for a kinder and more relational world, particularly as healthcare intervenes in death, dying, and other traumatic life crises.

Scholars and practitioners in attendance included:  Edward Bergman, Nancy Berlinger, Arthur Caplan, Geoff Drucker, Nancy Dubler, Autumn Fiester, Debra Gerardi, Mindy Hatton, Michael Kosnitzky, Carol Liebman, Joe Miller, Thaddeus Pope, Charity Scott, Michelle Skipper, and Ellen Waldman.  Speakers enjoyed a full house in Cardozo’s Moot Court for the panels and keynotes and a lively exchange at lunch time.  Shawna Benston, the Editor-in-Chief of the Journal of Conflict Resolution, was the mastermind
of the event and kept the program moving along at a brisk pace.

What were my personal take-aways from the conference?

* That medical technology and health care, so advanced in many ways, must better learn to serve patient self-determination and autonomy.

* That dispute system design and imparting communication and interpersonal skills to care-providers is high on the agenda in terms of building a system with shared decision-making and collaborative care that truly serves patients and families as they confront
personal health care crises.

* That better communication between patients and physicians, as well as others in the health care system (nurses, technicians and hospital personnel), is a cornerstone of good care.

Many doctors and nurses (picture here the famous Doctor House) are good technicians but not skilled in communication or expressing empathy or relation.  Medical personnel need to be capable of leading conversations about imminent death, for example, and they currently are not.  The next era of education and dispute system design must address that deficit.

Work in Progress – Processes for Advancing Scholarly Writing

Jill gave a report from the WIP Conference at Cardozo over the weekend, and Cardozo’s Lela Love – who is as gracious a host as you can find – was kind enough to send along her thoughts about the conference as well.  Here’s hoping that next year’s conference is as successful as this year’s was.

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A group of thirty scholars convened at Cardozo from November 7-9 to discuss ADR “works in progress”.  We enjoyed a delightful time together discussing twenty very different projects of:  Hiro Aragaki, Michael Colatrella, Deborah Eisenberg, Jackie Font-Guzman, Douglas Frenkel and Jim Stark, Jonathan Hyman, Ethan Katsh and Orna Rabinovitch-Einy , Maureen Laflin, John Lande, Jeremy McClane, Lauren Newell, Sean Nolon, Lydia Nussbaum, Glen Parker, Carol Pauli, Richard Reuben, Andrea Schneider and Nancy Welsh, Jennifer Schulz, Jean Sternlight, and Elizabeth Tippett.  While many of the ideas presented by these scholars were riveting, the take-away from the conference had more to do with process than substance.

The conference was marked by experimentation in terms of using a variety of ways to give feedback to scholars.  Every presenter in the conference was given 10 minutes to make a standard (often power point) presentation to supplement abstracts that were distributed to attendees, but each presentation was followed by different procedures to structure responses.

Different methods included:

  1.  Presentations each of which were immediately followed by 5 minute (silent) writing on note cards to give feedback, notes and recommendations.  The note cards were given to each speaker at the conclusion of the panel.
  2. Presentations each of which were immediately followed by a commentator making comments and leading a large group discussion in response to each speaker.
  3. Three presentations in a row followed by circulating large sheets of newsprint among three tables which asked a table group of participants at each table to write comments in response to the scholars (who prepared questions in advance) either directly on the newsprint or on post-its that were put on the newsprint.  The feedback was given to each speaker at the close of the exercise.
  4. Presentations followed by a moderator leading a large group discussion on the ideas presented.
  5. Presentations followed by the presenters themselves asking the audience questions about their topic.
  6. Presentations followed by the large group splitting up to give intimate round table feedback to individual scholars.

Praise and critique for the formats included the points that:

  • Variety keeps everyone’s attention!  It may be too much to listen to two days of presentations in identical formats.   The variety of procedures is a plus.
  • We should have had yet another process option:  the chance to read full drafts, followed by more detailed feedback and critique.

Lesson:  process is important—not a surprising lesson to emerge from an ADR conference!  In this case, good process may help produce better writing.

The conference opened with Auden’s tribute to Yeats which pays homage to the power and immortality of good writing.  Let’s hope our ADR scholarship can be written in such a way to (like Yeats) have a large and lasting impact.

Time that is intolerant

Of the brave and the innocent,

And indifferent in a week

To a beautiful physique,

 

Worships language and forgives

Everyone by whom it lives;

Pardons cowardice, conceit,

Lays its honours at their feet.

 

Time that with this strange excuse

Pardoned Kipling and his views,

And will pardon Paul Claudel,

Pardons him for writing well.

 

from WH Auden on the death in memory of WB Yeats

Lela P. Love

Lou Reed – Thank You and RIP

I’d be remiss if I didn’t pay my respects today to Lou Reed, he of the Velvet Underground and Walk on the Wild Side fame.  If you’re not quite sure why there’s so much press about his passing yesterday, check out this from Allmusic about Reed, and about the Velvet Underground, and give their ground breaking first album, the Velvet Underground and Nico, a listen.  It was “produced” by Andy Warhol who also designed the cover art and make sure compare it to anything else you’ve heard from 1967.  Their 1969 self titled record is also worthy of a listen and more accessible.

Before and after most every final exam I took in law school I listed to the Velvets on my Walkman (remember those?) just to drown out the pre-exam stress and post-exam chatter of those around me.  More importantly, thank you for all those you’ve inspired (David Bowie, Brian Eno, Patti Smith, REM, Nirvana, and countless others) and for all the enjoyment you’ve provided the world.

follow-up:  Here’s NPR’s piece on Morning Edition reviewing Reed’s career.

 

Attorneys and Negotiation Ethics: A Material Misunderstanding?

Attorney negotiation ethics is a timeless topic as evidenced in a recent contribution from Peter Reilly (Texas A&M), Andrea, and me entitled, Attorneys and Negotiation Ethics: A Material Misunderstanding? 29 Negotiation J. 265 (2013), (on SSRN and available for download here).  The paper discusses the common themes across our various empirical work on the subject, and is the result of a presentation we made at the ABA DR Section Conference a couple of years ago.  Thanks to my coauthors for an enjoyable writing process, and I love your respective work with the Lempert survey instrument from the late 1980s.  If you’re interested in attorney negotiation ethics and don’t know about the Lempert survey, you’ll want to read the paper.  Here’s the paper’s abstract.

Our research suggests that a true norm of ethical negotiation behavior exists within the legal profession. This conclusion is tempered, however, with the knowledge that a large minority of our research respondents — at times approaching one-third of them — engaged in unethical and even fraudulent behavior. Additionally, the survey respondents were not saddled with the pressures that practicing attorneys typically confront (pressures likely to make people behave less, rather than more, ethically). In an attempt to understand the reasons for such a high frequency of unethical negotiation, we have identified three major contributing factors: too many lawyers have only a superficial understanding of rules that are more complicated than they appear; lawyers frequently take their “zealous advocate” role too far, thereby placing client loyalty above other important values such as respect for truth and justice; and the practice of law and the people who are drawn to it are highly competitive. To address these factors, we suggest approaching the problem from several different angles. In the classroom, we suggest a focus on the relevant legal standards, including a focus on the often misunderstood law of fraudulent misrepresentations. Because many students fail to appreciate the differences between “ethical” behavior, the floor of socially acceptable conduct, and the expectations that others have for how they will be treated, we also suggest that lawyer training programs focus on the important role that personal relationships and one’s reputation play in the legal profession, and how falling short in these areas can decrease one’s negotiation effectiveness. For the profession itself, we also suggest clarifying the attorney rules of conduct and provide a number of tactics and strategies to defend against lying and deception during negotiation. Finally, we recognize there are certain psychological factors at play that can cause people to engage in behavior inconsistent with their personal sense of ethics. We believe the only way to avoid these lapses is to integrate conscious and reflective practices that can bring ethical concerns to the forefront of lawyers’ decision-making and thought processes.

How I Spent My Summer “Vacation”

Now that October is upon us it’s time for me (aka Mr. Timely) to follow Andrea’s footsteps with a post about how I spent my summer “vacation.” (Here’s Andrea’s original post and Cynthia’s follow-up).  Of course, anytime I hear someone discuss “how I spent my summer vacation” I can’t help but think of this Cheech & Chong skit from the 70s.  Rather than spending my days hanging out at the drugstore like Tommy Chong, I spent my “vacation” doing a number of things – rescuing a kitten that had climbed into the engine mount of my car, moving to a great new house near downtown Phoenix (note to self – never ever move during the summer in Phoenix), teaching a summer session Mediation class at Hamline, and purchasing two new cars.  Besides stimulating the local economy, I managed to fit some other things into the mix.

What I read:  Now that I’m a father, I read books about parenting.  The most interesting was How Children Succeed by Paul Tough, a book I can’t recommend enough.  The theme of the book is that sheer intelligence, while important, isn’t what children need to succeed.  It’s character skills – resolve, self-confidence, self-control, persistence, coping with adversity, and the like – that determine success and failure.  How are those skills built?  By encountering and overcoming failure.  So the bigger problems are: (a) parents protecting their kids from failure and (b) parents being too caught up in their own problems to assist their children with theirs.  If you want a preview of the book, here’s a link to a This American Life episode it inspired.  On the more academic side of things my favorite read was Dan Ariely’s The (Honest) Truth About Dishonesty: How We Lie to Everyone – Especially Ourselves.  The book details numerous studies that Ariely and his colleagues performed about deceit.  As someone who writes about the topic I found the book fascinating, and was pleased to be introduced to the work of Harvard Business Professor Francesca Gino.  I found that almost every time I thought “now that’s interesting” it was something that Gino had worked on.

What I (wish I) wrote:  This is where Gino and Ariely could do a great study – academics discussing the progress on their summer research projects.  So I best be careful with what I say. The first project that occupied my time is an analysis of law student data (1Ls w/in the first month of law school and 3Ls within a month of graduation) in response to the DONS problem Jess Alberts and I used to study lawyers (the lawyer study is here). We were pretty surprised that freshly minted 1Ls outperformed the graduating 3Ls on our survey instrument, and that most of that difference was due to one school.  While there were a couple of schools from which we gathered data where there was no statistically significant differences between the graduating 3Ls and the freshly minted 1Ls, that means there was no improvement either.  We’re in the process of digesting what this means, but for now suffice it for me to be Captain Obvious – as a profession we need to work on turning this around.   The other project that occupied my time involves a con-man who used mediation as cover to fleece numerous divorcing women out of thousands of dollars.  He’s now in prison, and as I read the trial transcript I was disgusted with what this guy was able to get away with for nearly 9 years.  I’m using his story to argue that some form of occupational regulation for mediators is a must for the profession’s integrity.

What I am teaching: I’m teaching in the Lodestar Mediation Clinic as I do every semester.  What makes it more interesting than usual is that I’m using the Frenkel and Stark book for the first time.  It’s in its 2nd edition and many have recommended it.  What can I say, I’m just a late adapter.  Nevertheless, I really like it as it’s geared to the nuts-and-bolts of “how to” mediate, so it’s not a surprise that clinicians like it.

Anything else? Here’s a shout out to my college buddy Dennis Northcott who worked with Chris O’Donnell at the Missouri Historical Society during an episode of TLC’s Who Do You Think You Are?…… Daft Punk’s homage to disco (Get Lucky) over Robin Thicke’s wish to be Marvin Gaye (Blurred Lines) any day of the week.  And, serious kudos to Pharell for being a part of both songs…. If this post were an indication, I’ve fallen seriously behind in  posting on the blog.