My New Favorite Academic Article

A few years ago a provocative paper looking at the legal implications of the “F” word received lots of attention and notoriety.  Now another paper is making the rounds, “Get Me Off Your F-ing Mailing List,” a paper accepted for publication in The International Journal of Advanced Computer Technology.

In 2005 a couple of computer scientists composed the paper and started sending it in response to unwanted spammy conference solicitations.  The paper simply repeats the phrase “get me off your f-ing mailing list” over and over and has these great charts/graphs:


mailing list 1

mailing list 2

After the pdf made the rounds in the computer science community, an Australian researcher sent it in response to a spam solicitation for papers from the International Journal of Advanced Computer Technology.  Naturally the journal automatically accepted it, indicated that it had received an anonymous review rating of “excellent,” and asked for payment of a $150 fee.  The paper was not published because the fee was never paid.


Hat tip Vox via The Dish



Love: Is Mediation A Sleeping Beauty?

From FOI Lela Love (Cardozo) – dispatches from the Melnick Symposium at Cardozo – Is Mediation a Sleeping Beauty?

On November 2, 2014, at the Cardozo Journal of Conflict Resolution fall symposium, speaker after speaker asked Is Mediation a Sleeping Beauty?It was a taking stock event with luminaries from the field seeing this as a turning point in reviving core elements of mediation or succumbing to the devolution of mediation in the direction of an adversarial litigation-lite process or, at best, a settlement conference. Most thought that mediation was indeed sleeping and not all together beautiful and that action was needed to revive her.

Here are highlights from the speakers:

  • Professor Giuseppe De Palo (ADR Center in Rome, Italy) proposed mandatory mitigated mediation (mandatory mediation with an easy opt-out) as a response to the underuse of mediation throughout the European Union.  Thanks to this process, Italy leads countries in the EU in the use of mediation.
  • Kim Kovach suggested that mediation is in a coma due to its marriage with litigation in court settings, and the resulting mutant child (liti-mediation) is indeed unattractive.
  • Professor Jacqueline Nolan-Haley (Fordham Law School) described these times as a season of light with mediation’s popularity at a high point and also a season of darkness from abuse of process and confusion of the mediator’s role.
  • Professor Robert A. Baruch Bush (Hofstra University School of Law) concluded that mediation had been drawn into an intoxicating problem-solving culture—resulting in many mediators being too focused upon the “drug-like high” of settlement.
  • Professor James Coben didn’t mince words when he said that he believed mediation has turned ugly – another tool for litigators to delay and abuse the judicial system. He also described our current system for selecting mediators as an “aristocracy,” not based on mediator skill but instead on inflated reputations.
  • Professor Josh Stulberg explored whether interest-based bargaining theory, often the mediator’s privileged approach for fostering negotiation, operates to reinforce party inequalities and undermine party self-determination, contrary to the presumptively salient values of the mediation process.
  • Eric Galton blamed commercial mediators for caving in to lawyer demands to eliminate joint sessions, limit party participation, and provide evaluations.
  • Professor Nancy Welsh shifted to the fairy tale of Cinderella, arguing that as courts prioritize case closure and lawyers’ preferences over process quality or the protection of parties’ self-determination, they too often behave like the self-interested and vain stepmother. Maybe the courts can be the Fairy Godmother, though, by granting mediation the markers of legitimacy and thus enabling others to appreciate the process’ inherent beauty.
  • Professor Erez-Navot pointed to “wicked witch” elements in child permanency mediation, including reduced party participation and representatives who are more concerned with their professional relationships with judges and adversaries than the welfare of the parties they represent.
  • Professor Carol Liebman suggested candidates for Prince Charming might be: mandatory mediation (for certain cases), pay for mediators (in situations where other professionals are being paid), and adherence to core mediation values.
  • Tracy Frisch discussed several efforts of the AAA to respond crises, such as Hurricane Sandy and the bankruptcy crisis in Florida.
  • Brad Heckman shared his experience using social media to promote mediation and described the unparalleled access and exposure he found in using outlets such as Twitter and participating in TEDx.
  • Laurel Kaufer struck a positive note, finding beauty in mediation as she described the success of Prison of Peace, a nonprofit organization she co-founded that trains long-term inmates in mediation, life, and peacemaking skills.

The Journal of Conflict Resolution will be publishing a symposium edition in Spring 2015.  Many of the presenters at the symposium will be publishing articles in line with the themes discussed at the symposium.

Cal-State Dominguez Hills is Hiring

California State University – Dominguez Hills is searching for two faculty members in its Negotiation, Conflict Resolution, and Peacebuilding Program.  The first position is for the Director of the Program, which would include being a tenured professor. Two blurbs from the announcement:

The Position – Serve as director of the program; provide course scheduling, curriculum design and revision; teach graduate-level as well as undergraduate-level courses on campus and online (distance learning) in the field of negotiation, conflict resolution & peacebuilding; engage in community service; and maintain a respectable output of peer-reviewed publications and conference presentations.


The Ideal Candidate – Outstanding teacher, scholar, conference presenter, community service participant, veteran of domestic and international peacebuilding activities, conflict resolution practitioner, and service as a department chair, program director, or other academic affairs administrator.

The second position is for a tenure-track assistant professor in the Program.  Two blurbs from this announcement:

The Position – Teach graduate-level as well as undergraduate-level courses on campus and online (distance learning) in the field of negotiation, conflict resolution & peacebuilding, and maintain a respectable output of peer-reviewed publications.


The IdealCandidate - The successful candidate will possess the teaching, scholarship and professional experience needed to teach courses in domestic and international peacebuilding and conflict resolution.

Applications for both positions should be submitted online at the following link:

And, applicants should request references to submit reference letters directly to the following address:

A. Marco Turk, J.D.

Emeritus Professor and Program Director

Negotiation, Conflict Resolution and Peacebuilding

California State University, Dominguez Hills

1000 East Victoria Street (LIB-5334)

Carson, California 90747


Email copies:




Navot on Tools for the Clinical Professor

Donna Erez Navot (Wisconsin) recently published an article entitled Tools for the Clinical Professor: Applying Group Development Theory to Collaborative Learning in Law School Mediation Clinics. An abstract is below and the article can be downloaded here.


This article examines the theory of group development and collaborative learning as applied to the small group law school mediation clinic. In contrast to the large group traditional law school experience, a clinical legal education, composed of smaller groups, embraces collaborative learning that fosters professional and emotional growth among students. Group development often involves four stages: inclusion, control, affection, and termination. By drawing on the author’s pedagogical experiences as a clinical law professor at the University of Wisconsin Law School Mediation Clinic, the author applies the four stages of group development to clinical legal education. The article finds that through an understanding and application of group development theory, clinical law school professors, especially ones who teach in small groups, can better support their students’ legal and emotional learning. “The concept of group development is quite compelling. The idea that a group is more than the sum of its human parts and that group’s move through predictable phases or stages is at once fascinating and a bit threatening.”


What is puffing?

John’s interesting post below leads me to ask a definitional question, what is puffing?  Some people believe it to be a broad term describing all dissembling in negotiation and other see it more narrowly, simply as exaggerating the positive qualities of an item.  It sounds like John’s definition is the former, while David Hoffman, author of the article The Best Puffery Article Ever, is more along the lines of the latter.  My old Blacks Law Dictionary from law school  goes with Hoffman, which is how I discuss the topic, but this may be a case where popular use is the trump card.  Years ago when discussing the definition of mediation Len Riskin said that how a term is used determines its meaning.  Maybe the horse is out of the barn with regard to puffing.  What’s your take?

Interestingly, the online version of Blacks does not include puffing in the words it defines.





Negotiation Ethics and Improvisation

On Friday Michael Wheeler (Harvard Business School) and I will headlining a program at Northwestern University School of Law entitled Negotiation Ethics and Improvisation (program and registration info here).  For those who don’t already know, Michael’s book The Art of Negotiation: How to Improvise Agreement in a Chaotic World, is a great addition to the field. I am very much looking forward to his thoughts on my favorite topic, negotiation ethics.

For those of you in Chicagoland, hope to see you there !!

ASU Aspiring Law Professors Conference – Reviewed

About a month ago I posted information about ASU’s Aspiring Law Professors Conference, a conference for those who are preparing to go onto the law professor job market and those who are thinking about becoming a law professor.  I’ve always thought it was a good conference to attend, but naturally I am biased.  So I was please to see Richard Chen’s (Pepperdine VAP) positive review of the conference.  This paragraph below sums up his thinking.

All in all, I found the conference to be very worthwhile.  For those who are considering whether to attend in the future, I think the conference would be essential for anyone going on the market straight from practice or perhaps a Ph.D. program.  I also think the conference would be useful for people, like me, in a smaller or relatively new VAP program.  I have been very fortunate to get lots of advice and tremendous support from my colleagues at Pepperdine, but it was still helpful to have a chance to practice my job talk in front of an additional audience and to get advice from people at a few different law schools.  Not surprisingly, there were fewer attendees from some of the larger fellowship programs, and I imagine people at such programs have multiple opportunities to do practice job talks and watch their colleagues do the same.  But even for them I think the conference could be useful in giving opportunities to practice with strangers….

This is an annual conference, so if you know anyone going on the market next year, please let them know of this opportunity.


Dealing with Different Perceptions of Reality

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.

Introducing a New Contributor – John Lande

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.

Social Entrepreneurship, Community Lawyering & Dispute Resolution

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

The End of Mediation Clinics?

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.

Blankley: Lessons from Auto Racing

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.

Kristen Blankley

10th Annual Collaborative Law Practice Conference

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:

ADR as a First Career – New Video Blog

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 (

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 and share your story and encourage others to share theirs.

Alyson Carrel

Missouri’s Job Announcement

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

Hat tip John Lande (via the list serv)

Detroit Bankruptcy Case – Judge Chastises Attorneys for Claiming Mediator Bias

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

Aspiring Law Professors Conference – Sept. 27th

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.


Reminder – ABA DR Section Annual Conference Proposals

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

Best of luck with your proposals.


Sternlight – New Executive Order Blocks Mandatory Employment Arbitration

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!

Call for Papers – Elder Dispute Resolution

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,


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

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.