Lisa Blomgren Amsler (Indiana) and I are quoted in a recent Indiana Lawyer article entitled Dealing with Differing Perceptions of Reality. The piece asks the question of whether mediators should be responsible for the disputing parties’ honesty during the mediation process. You can probably imagine where the two of us stand on the issue. What strikes me as most interesting about the idea is this: the lack of understanding that mediation is simply a facilitated negotiation, not a court proceeding.
John Lande (Missouri) is someone who should need no introduction to readers of this blog as he’s been involved in just about every academic and professional ADR group and initiative over the years. John’s work has touched on so many facets of the field – negotiation, mediation, collaborative law, and Dispute Systems Design – not to mention all of the work he’s done through the ABA Dispute Resolution Section. But I can’t be an uncritical admirer; John does have at least one area where he could improve – photography. If you don’t already know, John always has a camera at the ready. Be careful when he’s around.
More seriously, here’s some advice that John received years ago, which is worthy of sharing:
Be open to the reality and complexity of ADR. Have a balanced perspective. Don’t be an uncritical cheerleader or a relentless critic.
He’s followed this advice in his writings, and I expect that will continue here.
Welcome John, it’s great to have you join the team.
Karen Tokarz (Washington U. – St.Louis) shares information about Wash U’s annual ADR scholarship roundtable, this year entitled Social Entrepreneurship, Community Lawyering & Dispute Resolution. The lineup looks strong and, as a past participant in this event, my biased view is that it is a great event – they do a bang-up job with the event. An edited version of Karen’s message is below.
We invite you to join us for the upcoming scholarship roundtable on “Social Entrepreneurship, Community Lawyering & Dispute Resolution,” Th, Nov. 6, 3-6pm, and Fri, Nov. 7, 8-4. The roundtable will include discussion of nine papers, five selected articles and four works-in-progress:
- Erin Archerd (Ohio State) – “School Resource Officers as Community-Based Mediators; Overlooked Allies for Students and Schools”
- Deborah Burand (Mich) – “Resolving Impact Investment Disputes: When Doing Good Goes Bad”
- Nancy Cook (Mn) – “Building the Corral as We Reinvent the Horse: A Rolling Biography of a University-Community Partnership”
- Amanda Kool & Heather Kulp (Harvard) – “An Uber Conflict: Dispute Resolution in the Sharing Economy”
- Rachel Lopez & Susan Brooks (Drexel) – “Forging a Path Toward a New Community Justice Partnership”
- Alicia Plerhoples (Georgetown) – “Beyond the Entity Debate: Corporate Governance for Social Enterprises”
- Barbara Schatz (Columbia) – “Dispute Resolution in Social Enterprises” – tentative
- Daniel Shaffzin (Memphis) – “You Be the Judge: Exploring Clinical Learning and Social Justice Through the Lens of an Administrative Hearing Officer”
- Paul Tremblay (BC) – “Access to Justice and Transactional Legal Services for Entrepreneurs and Emerging Enterprises”
This roundtable is one of a series of scholarship roundtables in the ADR and clinical areas, hosted here at Washington University over the past decade, in conjunction with the Journal of Law & Policy. This collaboration has produced four groundbreaking volumes of ADR scholarship, including New Directions in ADR & Clinical Legal Education, New Directions in Restorative Justice, New Directions in Negotiation & ADR,and New Directions in Global Dispute Resolution, as well as a series of volumes focused on Clinical Education and Access to Justice, several of which address negotiation and dispute resolution issues. These volumes can be accessed at http://law.wustl.edu/journal/pages.aspx?ID=703.
This summer I was tending to family matters, so I paid no attention to the big news of the passage of the ABA’s Revised Standards for Approval of Law Schools. And once I got back for the beginning of the semester, my focus was strictly on getting my classes ready. Yeah, I responded to Jen’s email on the list serv about simulation classes, but that was about it. So you can imagine my surprise this afternoon when I found out that the Revised Standards say
Standard 304. Simulation Courses and Law Clinics
(b) a law clinic provides substantial lawyering experience that (1) involves one or more actual clients, and (2) includes the following:(i) advising or representing a client; (ii) direct supervision of the student’s performance by a faculty member; (iii) opportunities for performance, feedback from a faculty member, and self-evaluation; and (iv) a classroom instructional component.
In my mediation clinic, all of our mediations are conducted through court ordered mediation – the litigants are required to go to mediation in order to receive a trial date. More importantly, my students are part of the court’s mediation program – a stable of court mediators who are court volunteers organized by the court itself (applications, background checks, court badges, etc.). In other words, my students are part of the court writ-large; and the court writ-large does not engage in advising or representing clients. So it appears that my mediation clinic is now written out of the definition of a law school clinic as of August 12, 2014, when the Revised Rules became operational.
I am not saying that mediation clinics are joining the dinosaurs. In fact, I can see clinics that (a) have referral sources that are not courts, and (b) advise clients about various issues related to their dispute such as options, procedural issues, and legal information (as opposed to legal advice) maintaining their good graces in the eye of the ABA. But I can also see our field saying “that’s not what we do.”
And for those of us who no longer are officially clinics, I don’t expect that we’re going anywhere. The skills and theory we teach are important for lawyers, our classes are popular with students, and the fieldwork is among the best educational experiences the students will have. That said, we have to come up with new nomenclature. There’s always “Mediation Practicum,” but that’s so last century. What do you think of the likes of “Mediation Lab”? Labs are the rage, are they not? Any suggestions?
Update: Carol Izumi (Hastings) rightly points out that Sandard 302(d) (Learning Outcomes) says that students need to show competency in “other professional skills” necessary to be an ethical and competent lawyer. Interpretation 302-1 says that such skills may include negotiation and conflict resolution among others. This reinforces my belief that although mediation clinics may no longer be considered clinics, they’re not going to be written out of the curriculum.
Update # 2: The ABA Dispute Resolution Section, via Jim Alfini (South Texas), has been in contact with the Barry Currier, the Managing Director of the ABA’s Section of Legal Education. In response to Jim’s email discussing the issue brought up in my post, Currier said “We’ll think this through and I will consult within our process and get back to you.” Also, he pointed out that Revised Standard 304 will be phased in by making it applicable to students who are 1Ls in the fall of 2016. So that give us 2 plus years to either be reinstated as clinics or to come up with other nomenclature.
Update # 3: In my limited investigation into this matter, I’m told that the revised definition of clinics was designed specifically to keep schools from abusing the word “clinic”. Apparently a number of law schools have been labeling their externships (working at Legal Aide, for example) as clinics. According to my sources, these schools have been promoting a ridiculously high “clinical enrollment” when in fact, they have only 1 offering (or none) that most of us would consider a clinic. So it appears that in trying to solve one problem, the revised rules have created another.
Guest blogger Kristen Blankley (Nebraska) provides the following insights from the recent racing incident involving NASCAR legend Tony Stewart who killed a fellow driver Kevin Ward after Ward’s car crashed and Ward got out of his car and walked onto the race track. For some press stories about the incident go here and here.
Many of you may know that I am a huge sports fan. At times it seems contradictory – I am a fan of something that cannot ever be mediated! Sports games and matches have winners and losers, and no one can negotiate (within the bounds of the rules) the final outcome. That said, sports are also full of conflict – both on and off the field – including labor relations, player negotiations, salary disputes, cheating, and so on.
One recent incident has had me thinking about a number of my favorite themes to teach in mediation class. On August 9, 2014, NASCAR driver Tony Stewart fatally hit a fellow racecar driver Kevin Ward Jr. during a Sprint Car race in northern New York. During the race, Stewart drove perhaps too close to Ward, and Ward’s car crashed into the wall. Within a span of less than 20 seconds, Ward got out of his car, walked down the racetrack, and Stewart hit Ward, who died from the impact.
Sports media, racing fans, and even casual YouTube watchers all seem to have developed very strong opinions on what happened. Many state that Stewart intended on scaring (or even hitting) Ward and purposefully drove too close to him. Other claim that Stewart did nothing wrong and, in fact, is the victim. As mediators, we likely all believe that the truth lies somewhere in the middle.
This incident brings to mind two very important lessons. The first lesson is perspective and judgment. Neuroscience teaches us that our brains make judgments in fractions of seconds. Upon learning a body of facts, our brains automatically filter out “useless” information to help us make snap judgments. Hearing the same set of facts and watching the same videos has caused people to come to radically different conclusions regarding Stewart’s intent. The fact remains, however, that none of us were in Stewart’s racecar, saw what he saw, and reacted how he did. We don’t know the visibility on the track, the best way to move around slowing traffic, or how the car was handling. Instead, we are rushing to judgment based on an incomplete set of facts. In mediation and conflict counseling, I try to help clients understand the difference between facts and judgments so that they can move down their ladders of inference and gain valuable perspective.
The second lesson is one on contribution and blame. The excellent book Difficult Conversations by Douglass Stone, Bruce Patton, and Sheila Heen explains how having the role a person has in a difficult situation (i.e., the “contribution”) is not always blameworthy (i.e., at “fault”). This concept, while basic, is also novel to most lay persons. We commonly equate contribution with blame, and yet often times we contribute to a bad situation, even when we are not blameworthy. For Stewart, he certainly contributed to the accident – he was driving the car that hit Ward. Ward contributed as well – he exited his racecar and walked down the track. But is either man blameworthy? I can’t answer that question, and I do not know if anyone can. I do, however, use this technique with mediation parties (usually in caucus) so that they can assess how the situation has gotten to the present point. Even when a party believes they are not “at fault,” they are often more willing to settle once they see how they have become involved in the situation.
The Dallas Bar Association Collaborative Law Section, the Global Collaborative Law Council, the SMU Dedman School of Law, and the Texas Center for Legal Ethics are co-sponsoring the 10th Annual Collaborative Law Practice Conference on October 8-10 at the Belo Mansion, located at 2101 Ross Avenue, Dallas. This conference is open to all interested in dispute resolution – not just to lawyers! Mediators, Human Resources professionals, Mental Health Professionals, and other ADR professionals are all welcome to attend.
This conference includes two separate seminars: on October 8 we will have a 3-hour program on unbundled legal services presented by Forrest “Woody” Mosten, a nationally recognized authority on the subject, and on October 9-10 a two-day training on civil collaborative law, involving both classroom presentations on the process and extensive interactive role play in a hypothetical dispute (this year, an international employment law dispute). Guest speakers at the training seminar include Marc Sheridan of New York and Florence Gladel of Paris, France. Additionally, in celebration of our 10th anniversary, on Thursday night we plan a special outing to the State Fair of Texas for all interested participants!
A discount is available to participants who sign up for both programs. Further details and registration can be found at: http://www.law.smu.edu/Events/Dean-Suite/10th-Annual-Collaborative-Law-Practice-Conference.aspx?c=hpEvent_10th-Annual-Collaborative-Law-Practice-Conference.
This announcement comes from Alyson Carrel (Northwestern) in the wake of this summer’s discussion about the Next Generation of ADR scholars on the list serv.
There has been a lot of discussion on DR list serves about the next generation of ADR professionals, practitioners and academics. For recent graduates interested in pursuing a career in ADR, the advice they often receive is to first practice law or gain experience in another field before transitioning to ADR as a 2nd (or even 3rd) career. I assume this advice stems from the personal experience of those giving it – as this was the career path of ADR’s founding generation. But is this necessarily the narrative for our next generation? I have a feeling that narrative is changing and decided to explore this idea by creating a new video blog (www.adras1stcareer.blogspot.com).
At the 2013 ABA-DR annual conference, I participated in a panel discussion organized by Donna Erez-Navot from University of Wisconsin, Tracey Frisch from AAA, and Heather Kulp from Harvard Law called “ADR: The Next Generation”. The panel focused on how to successfully start your professional career in the ADR field. The four of us all ignored the advice to pursue a career in something else before transitioning to ADR. Instead, we forged our own career paths, creating a path to ADR as first career where one did not previously exist. We thought by telling our stories, we might illuminate a new path for others similarly interested in starting out their professional careers in the ADR field. As we prepared our talk, we began to realize our stories were somewhat similar and I began to wonder if each of our paths was so unique after all. Then in reflecting on my many colleagues who started their careers in ADR right out of college, graduate school, or law school, I felt certain our paths were no longer as unique as I thought. So why is the narrative still defining ADR as a 2nd (or 3rd) career? I am hoping this video blog will help us shift that narrative and more accurately describe what it means to pursue a career in ADR and what is (and what is not) possible.
The fear in telling students and recent grads to pursue a career in ADR is that those jobs simply don’t exist and as their professors, trainers, and mentors, we are doing them a disservice by setting them up for disappointment. But is that in fact the case? My guess is that this blog will in fact highlight a large number of individuals who successfully pursued ADR as their first career who are happy and lead rich professional lives. I don’t think these individuals are necessarily making a living as full time private mediators, but instead are working as administrators, government or court employees, clinicians, and trainers. Is there anything wrong with that? As we prepared our panel discussion, we received the feedback that we should really focus on tips for becoming full-time private mediators and to stay away from careers in government agencies, clinical teaching positions, or work at non-profit/community mediation centers. Why do we down play administrative positions or government mediation jobs? Is this similar to the distinction made in law school between big law and public interest? And if so, is this the real disservice?
I don’t pretend to know the answer to this question, but I hope the video blog will help shed light on this issue and I am hopeful that the career paths they describe, while unique to our mentors and the first generation of ADR practitioners and academics, is not so unique in and of itself. Their stories will show that there are others who have successfully forged a career path in ADR as their first career. In fact, it may be a path more clearly marked and defined than we originally thought.
I’d love to hear your thoughts on this blog and want to encourage individuals to share their story. Please visit www.adras1stcareer.blogspot.com and share your story and encourage others to share theirs.
Below is the hiring announcement from the University of Missouri. I would be remiss if I didn’t mention what a great opportunity this is. The folks at Mizzou (both present and past) are great.
The University of Missouri School of Law invites applications from entry-level candidates as well as experienced faculty for a full-time tenured or tenure-track position in the area of Dispute Resolution. While candidates with additional substantive areas of expertise are welcome, the ideal candidate will have a primary focus on teaching and scholarship in Dispute Resolution. Candidates for this position must have an excellent academic record and either (1) substantial legal practice or judicial experience, (2) substantial experience in academia, or (3) advanced academic training. MU Law School’s nationally-ranked Center for the Study of Dispute Resolution was the first of its kind. It includes a large and diverse group of faculty who are on the cutting edge of research, curricular initiatives, practical training, and law reform in the area of Dispute Resolution.
Application Procedure: Review of applications will begin immediately and will continue until all available positions are filled. The School of Law will review the Faculty Appointments Registration applications as they are distributed by the AALS. (If you are participating in the FAR you do not need to send your materials separately.) Applicants who are not participating in the Faculty Appointments Register must apply by submitting a cover letter and resume at http://hrs.missouri.edu/find-a-job/academic/.
Hat tip John Lande (via the list serv)
In the Detroit bankruptcy case, one of the creditors claimed that the mediators – one of whom is the Chief US District Judge for the Eastern District of Michigan – were biased in favor of some philanthropic creditors. According to this article the creditors claimed:
The plain truth is that the mediators in this case acted improperly by orchestrating a settlement that alienates the city’s most valuable assets for the sole benefit of one creditor group.
Yowza !! Now that’s a charge. According to the article, here’s what Judge Steven Rhodes’ order says in response.
[Judge Rosen's ruling] added that the bond insurance company’s “highly personal attack” on Rosen was legally and factually unwarranted, unprofessional and unjust….. The court finds that the allegations concerning the mediators … are scandalous and defamatory.
Now that’s a slap from the bench. Can’t wait to see the order itself and if there any issues from the mediation go up on appeal.
Hat tip – Stacie Strong via the list serv
On Saturday Sept. 27th the Sandra Day O’Connor College of Law at Arizona State University will be hosting the 6th Annual Aspiring Law Professors Conference. The conference is valuable for anyone considering a career as a law professor, but it is specifically designed for those who plan to go on the academic teaching market. Attendees get the opportunity to receive feedback on both a mock job-talk and a mock interview. With both Arkansas and Missouri* looking to hire in ADR this year, I hope those of you hoping to join the ADR professoriate make it out.
For more information, the conference web site is here. And, good luck !
* There may be others looking, these are the only two schools I know of.
Consider this a friendly reminder that the deadline for proposals for the ABA DR Section Spring Conference is September 5th. The conference itself will take place on April 15-18, 2015 at the Westin hotel in Seattle, Washington. According to a recent ABA DR Section email:
The Section of Dispute Resolution seeks proposals for cutting-edge, timely programs with excellent speakers and presentation materials, on issues that will enhance attendees’ professional skills and knowledge.
For Spring Conference Proposal Instructions, visit the Section’s home page at www.americanbar.org/dispute.
Best of luck with your proposals.
FOI Jean Sternlight (UNLV) provides us with this guest post on the President’s recent actions on employment arbitration.
President Obama today signed a new Fair Pay and Safe Workplaces Executive Order refusing to grant government contracts of over a million dollars to companies who mandate their employees arbitrate disputes involving discrimination, accusations of sexual assault, or harassment. This new order mirrors protections Congress already provided to employees of Defense Department contractors in 2011 in the so-called “Franken amendment.” The order also requires prospective federal contractors to disclose prior labor law violations and will instruct agencies not to do business with egregious violators.
While some will no doubt clamor that the President is overstepping his executive powers, this measure and more are well supported by the evidence of how mandatory arbitration impacts employees. Rather than providing greater access to justice for employees, as some have claimed, empirical studies show the following: (1) fewer than two thousand employees file arbitration claims each year, though millions are covered by mandatory arbitration clauses; (2) had these employees not been covered by mandatory arbitration thousands more could have filed individual suits or class actions in court (3) the imposition of mandatory arbitration makes it harder for employees to obtain legal representation; (4) companies are increasingly using mandatory arbitration to prevent employees from joining together in class actions, though class actions are essential to protect employees who fear retaliation, cannot feasibly file individual claims, or may not even be aware their rights have been violated (5) when employees do file claims in arbitration they do far worse than they would have done in court, whether one measures win rates or amounts of money won; (6) pro se employees do not flock to arbitration, and when they do file they don’t do well in arbitration.
In sum, the new executive order is at least a good start towards providing employees protection from mandatory arbitration. This order far from solves the problem of mandatory employment arbitration. It only covers employees of companies with large government contracts, and it only proscribes mandatory arbitration as to certain kinds of claims. The order will not for example protect employees who might seek to litigate Fair Labor Standards Act overtime claims in a class action in court. Nonetheless, in recognizing the significant problem posed by mandatory employment arbitration the new order may lead the way towards passage of the badly needed Arbitration Fairness Act. Fingers crossed!
Lisa Blomgren Amsler (Indiana) sends alog this call for papers from Conflict Resolution Quarterly.
Conflict Resolution Quarterly publishes scholarship on relationships between theory, research, and practice in the conflict management and dispute resolution fields to promote more effective professional applications. Conflict Resolution Quarterly is sponsored by the Association for Conflict Resolution.
This call for papers is designed to elicit a thoughtful examination of trends, opportunities, challenges and case studies of dispute resolution and conflict management principles applied to the prevention or resolution of disputes involving elders. These could include:
- An analysis of trends in the use of elder mediation inside or outside of the court system. This includes disputes over guardianship and care planning, but is meant to also be broader in scope.
- Proposed qualifications, experiences, skills, characteristics or abilities of mediators or conflict management specialists who work with elders.
- Analyses of disputant and third party behavior, preference, and reaction to conflict situations and conflict management processes in elder cases as opposed to other types of cases.
- Evaluation of the success of elder dispute resolution programs or processes.
- Discussion of key components in the training of elder dispute resolution specialists.
- Suggested methods to expand the use and quality of elder mediation and related services.
- Innovative process or programmatic elements in elder conflict prevention or management systems.
- A comparative analysis of elder mediation/ADR outside the US context or across states.
All articles should reflect an understanding of previous discussions in the literature on the chosen question (a literature review), include a 100 word abstract, and be approximately range from 2500 to 7500 words in length. CRQ uses a double-blind peer review process to assure fair and equal access to all authors.
Submissions received on or before August 1, 2014 will be considered for a colloquy edition on elder issues, but submissions are accepted year round.
For information on manuscript preparation, go to:
All submissions are to be made electronically via this website:
Susan S. Raines, Ph.D., Editor-in-Chief, CRQ, Professor of Conflict Management, Kennesaw State University, firstname.lastname@example.org
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.
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
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.
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.
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.
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:
- Tell the truth, don’t deceive
- The best deal is one that works for everyone (Or, remedies associated w/ a bad deal aren’t worth the cost)
- Always allow your counterpart to save face
- Never show your hand early and don’t show emotion (Or, only use anger when it’s real and even then rarely)
- Know what you need and know when to quit (Or, don’t worry about chasing things that may be “left on the table”)
- Know human nature (it’s ok to play to one’s ego)
- Know in advance whether you can walk away and set the point at which you will
- Beware of the “one more thing” after the deal is closed
- Do what works for you – know what your negotiation style is
- For lawyers, remember that it’s about your client’s interests, not you and your ego
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
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.
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.
Lydia Nussbaum (UNLV) sends this report from Ken Cloke’s recent visit to UNLV’s Saltman Center.
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.
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
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.
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.
Hat Tip – Lowering the Bar
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:
2. Ohio State
3. Hamline and Harvard (tie)
7. Marquette and Yeshiva (Cardozo) (tie)
10. Arizona State and Northwestern (tie)
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.
FOI Alyson Carrel (Northwestern) sends this reflection on the recent events in the case of Jewlyes Gutierrez.
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
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: 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.
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:
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.