Using technology wisely in the classroom

From FOI and TG (tech goddess) Alyson Carrel: Many of you might have seen the articles about the new research showing that taking notes by hand is better than taking notes on a laptop.

I know many of our law schools have been having this discussion – do we or do we not allow students to use laptops in the classroom. But I’d like to encourage us to expand the discussion from whether or not we allow students to use laptops to the discussion of how we better integrate emerging technology in our classrooms. Typing lecture notes on a laptop may be a poor substitute for taking notes by hand, but laptops aren’t just for note taking. They also have the potential to enhance student engagement and comprehension of material if used in a pedagogically sound way. And as the practice of law changes with advances in technology, it makes sense to integrate technology in our classroom when we can.

Although I’ve historically had a laptop ban in my classes, I’ve worked with NU’s Emerging Technologies Librarian, Kara Young, to design projects and teaching methods that require students to open up their laptops and even go online. For instance, I regularly have students use their laptops in class to complete self-reflection questions I posted online using Google Forms. As each student completes their reflection, their individual responses are automatically collated into a single spreadsheet I can access and quickly gauge student understanding of the material. I also regularly have students access Google Sites where I have posted videos, texts, and questions that they must then answer. Working in groups, they upload answers to the Google Site that then other groups of students can access, view and comment on.

I couldn’t agree more that laptops can be distracting in class and a poor method for taking notes. But as the practice of law changes to incorporate more and more technology, it seems odd to tell students technology has no place in our classroom. We have plenty of colleagues who similarly ban laptops in the classroom, and there are other schools that have disabled wireless access in their classrooms to limit the disruptive nature of laptops. But I’d argue we can all do better than that. Even if a poor note taking machine, laptops with access to the internet can enhance student learning in other ways.

How will tomorrow’s lawyer compete with technology?

From FOI Alyson Carrel:

In the article Machines v. Lawyers, Northwestern Law Professor John McGinnis argues that the advancement of technology and ability of machines to complete more complicated tasks is the blame for our recent decline in law school admissions. He says that while many blame the recession, “the plight of legal education and of the attorney workplace is also a harbinger of a looming transformation in the legal profession.” By replicating the work that lawyers do, he says that technology is changing the market not only with more efficient practices, but effectively shrinking the need for new lawyers. His examples include the use of predictive coding in e-discovery, aggregators to do complex case analysis, and the ability to automate will creation and even complex contracts thanks to advances in technology.

So how we do we prepare our students for the changing legal market, to make their skills relevant again and distinguish them from the machines so increasingly used to replicate legal tasks? One idea McGinnis posits is focusing more on problem-solving skills and negotiation. He writes:

To match the wide variety of tasks that lawyers will undertake in a world increasingly defined by machines, law schools will need to differentiate themselves in cost and function. No longer can every school aspire to be a junior varsity Yale. Some schools will ask faculty to teach more, even at the expense of legal scholarship, or use adjuncts who write no scholarship, thereby slashing costs. Many schools will substitute videos for some live instruction. They can then redeploy some professors to focus on improving legal writing and problem-solving skills. Negotiation may get more emphasis, as it contains emotional elements that machines cannot easily replicate.

He’s right and it is encouraging to hear others outside the ADR world say it. We all know technology presents a profound shift in many aspects of society. As legal educators, we discuss how best to teach our students emerging technology –how to teach best practices about could computing and confidentiality, or social networking and professionalism, or how to counsel clients about e-discovery. While a machine can now aggregate great amounts of information in a short period of time to provide better case analyses and more accurate BATNA analysis, we still need great problem-solvers to craft the unique solutions tailored to meet the unique problems of unique individuals.

Tales from middle school

My eighth-grade daughter came home yesterday and told me the following:

Each day in English they have homework, a quiz, or a test in class. After finishing, they put away their pencils, take out red pens, and grade their own work themselves as the teacher calls out the answers.

My daughter sits next to a kid (let’s call him Sam) who, for at least the past week, has been clutching a piece of mechanical pencil lead in his hand during grading, so that he can surreptitiously write in the correct answers when the teacher announces them. My daughter said that she didn’t know how to handle it; she didn’t really want to involve the teacher, and she didn’t know what to say. Yet it was making her angry.

Yesterday they were grading an in-class test and Sam was writing in answers when the teacher came to a question that, as it turned out, my daughter got wrong. Sam started writing in the correct answer. My daughter said that without thinking, her hand shot out and she grabbed him by the wrist. With her other hand, she wrenched his fingers open and took out the lead. She broke the lead in two and threw the pieces on the floor. Then she said to him: “That is enough.” This was in the middle of class, so it all happened pretty quietly and she said no one seemed to notice. For his part, Sam didn’t say anything, but my daughter said that he went back with his red pen and marked wrong every one of the answers he had penciled in.

I had my daughter recreate the force with which she grabbed his hand, and it was pretty forceful. She seemed at peace with the whole thing, and it sounded like Sam was okay too. As a dispute resolution professor, I wondered what advice I would have given her had she talked to me in advance. I might have told her to tell the teacher or try talking with Sam in a kind and understanding way — but I know I wouldn’t have recommended that she wrest away the lead and break it. Yet I think her response was well tailored to the situation, insofar as it upheld group norms (no cheating) in proximity to the event (as it happened) and without excessive shame (involving authority figures or others). And honestly, I believe that there was something important (humanizing? dignifying?) about the violence/physicality of the action. Could it be that some level of violence, in the sense of physically getting in each other’s space, is essential to community?

Booklist from the ABA DR Annual Meeting

At the recent ABA DR Annual Meeting, we had our second installment of the “What I’m Reading” panel. I promised a reading list from panelists and participants; here it is:

  • Americanah (Chimamanda Ngozi Adichie)
  • Shop Class as Soulcraft: An Inquiry into the Value of Work (Matthew B. Crawford)
  • Nine Lives: In Search of the Sacred in Modern India (William Dalrymple)
  • The Selfish Gene (Richard Dawkins)
  • Mindwise: How We Understand What Others Think, Believe, Feel, and Want (Nicholas Epley)
  • The Improbability Principle: Why Coincidences, Miracles, and Rare Events Happen Every Day (David J. Hand)
  • Thinking Fast and Slow (Dan Kahneman)
  • Dissident Gardens (Jonathan Lethem)
  • Homesick (Eshkol Nevo)
  • Join the Club: How Peer Pressure Can Transform the World (Tina Rosenberg)
  • The Goldfinch (Donna Tartt)

Alkon on the Supreme Court and Plea Bargaining

Cynthia Alkon (Texas A&M) has published “The U.S. Supreme Court’s Failure To Fix Plea Bargaining: The Impact of Lafler and Frye” in the Hastings Constitutional Law Quarterly, available on SSRN here. The abstract:

Virtually every criminal conviction in the United States is the result of a guilty plea, not a jury trial. Yet it was not until 2012, in the companion cases of Lafler v. Cooper and Missouri v. Frye, that the U.S. Supreme Court recognized a defendant’s constitutional right to effective assistance of counsel during plea bargaining. Legal commentators suggested that these cases were “the single greatest revolution in the criminal justice process since Gideon v. Wainwright.” But will things really improve for defendants in the wake of Lafler and Frye? The simple answer is no. Lafler and Frye will not bring fundamental change because these cases fail to address structural problems in plea bargaining and instead focus on single instances of bad lawyering.

In Lafler and Frye, the Court failed to address systemic problems in the appointment of indigent defense counsel and the extraordinary power that prosecutors wield in the plea bargaining process. Both of these structural problems significantly affect whether the plea bargaining process is fundamentally fair for the average defendant. Lafler and Frye may lead to an expansion of some limited rights for defendants in plea bargaining, such as better definition of the obligations of individual defense lawyers in the client-counseling phase of plea bargaining. However, as this Article will explain, addressing individual attorney misconduct will not make plea bargaining substantially different for most defendants. Instead of being revolutionary, Lafler and Frye will more likely simply allow the criminal justice system to continue plea bargaining nearly every case without addressing the larger structural problems. Most defendants in the criminal justice system will continue to feel pressured to enter quick guilty pleas to avoid the serious possible consequences of trial, regardless of whether they are innocent, have a defense, or fully understand the rights they are waiving and the consequences of their guilty plea.

Followup from ABA Conference: Critical patience and pedagogy

Last week was the whirlwind ABA Section on Dispute Resolution annual conference in Miami. At the conference, I presented an exercise in “critical patience” designed to promote the kind of deep attention and focus that law school and dispute resolution practice require–and that, so often, excessive technology use (skimming, surfing) can degrade.

Here was my inspiration: Jennifer Roberts, art history professor at Harvard, speaking on cultivating “deep attention” in students through intentional “deceleration” in teaching and assignments. Roberts observes that her students expect that learning (especially visual learning) should be immediate and so do not know how to take time with the material. She argues, therefore, that professors must teach students how to take that time, to learn “strategic patience” as a critical skill in mastering their field of study.

Roberts’s comments resonated for me because my students expect to understand cases immediately and seem frustrated by what they perceive as needless complexities, archaic language, convoluted argumentation, etc. I worry that my students believe that superficial responses are good enough and that this belief is bolstered by the rapid-fire pundit-driven political scene that they think constitutes policy debate. This made me wonder whether there are ways–similar to Roberts’s pedagogical strategy of instructing her students to sit for three full hours looking at a particular painting before writing about it–to teach our law students how to be more patient, observant, thoughtful, attentive, and curious about what we read.

So last semester I experimented with deceleration in civil procedure. One day in class I asked my students to put all their materials under their desks except a pen. I then handed out an excerpt from Federal Rule 12 and told them that we were going to look at the rule in silence for 20 minutes. They looked aghast. I told them they could make little notes on the margin if they wanted.

As we started on this exercise, I felt a wave of anxiety but decided to power through. For the first five minutes, I fidgeted and fretted and wondered if I should just cut them off at ten minutes. Then I thought, hey, I should probably read the Rule too, even though I’ve read it a million times. So I started looking at it and noticed some interesting things: one sentence starts with “But” — that’s kind of strange. Why would the drafters structure it that way? What is the rhetorical impact of starting with that instead of appending it to the sentence before? Would the meaning change if it were structured differently? Then I noticed that a phrase is repeated in two places with one tiny change in language, which made me wonder: is there a difference between these two sections and if so, what? Before I knew it, 20 minutes had passed and I told the students that time was up.

The interesting thing: we then discussed what we noticed about the Rule, following up with a worksheet with short hypos designed to test the various provisions of the Rule. They completed the worksheet without difficulty, in stark contrast to previous classes in which I had given the worksheet after they (supposedly) read the Rule before class. Afterward (and on my evaluations) they told me what a valuable exercise it had been.

I think I will try something similar in my next Negotiation class, but instead of a statute I will choose some visual art and assign them to look at it for a longer time, like Roberts does. Afterward, we can talk about the importance of patience and observation in dispute resolution and dealmaking.

Lande on Advancing Negotiation Theory

John Lande (Missouri) has posted “A Framework for Advancing Negotiation Theory: Implications from a Study of How Lawyers Reach Agreement in Pretrial Litigation” on SSRN. The abstract:

The prevailing negotiation theory tries to fit lots of square pegs into just two round holes – adversarial or cooperative bargaining. In the real world, negotiation comes in many different shapes, not just circles and squares. Analyzing law school textbook definitions of the traditional models, this article demonstrates that the two “round holes” in current negotiation theory are poorly defined. It also presents empirical accounts of actual pretrial negotiations to demonstrate that the theoretical models do not fit some real-life negotiations. It argues that it is time to replace the traditional models with a flexible framework that can accommodate virtually all legal negotiations and it uses cases from this study to illustrate the proposed framework. Instead of focusing only on bundles of characteristics for each theoretical model that are assumed to be highly correlated with each other, the framework unbundles the variables, which permits more accurate description of negotiations. The variables in the framework are: (1) the degree of concern, if any, negotiators have for the other side, (2) the communication process used in trying to reach agreement, (3) the extent that negotiators create value in the negotiation, (4) the negotiators’ tone and tactics, and (5) the source of norms that negotiators use. These variables are likely to be causal factors affecting particular negotiation goals such as efficiency and satisfaction of parties’ interests. The conclusion discusses implications and recommendations for academics, practitioners, and instructors.

Non-binding Christian mediation

The NYT reports today on “the Matthew process,” a form of Biblical dispute resolution based on a passage from the Gospel of Matthew in which Jesus says that disputants should attempt to resolve their dispute privately, and if that doesn’t work to bring “one or two others” into the process. The particular dispute covered in the story is the $2.2M lawsuit of Edward O. Blews Jr., the recently removed president of the Council for Christian Colleges and Universities. Blews’s contract states that he must first try to resolve the dispute using the Matthew process and, if that doesn’t work, to then try non-binding Christian mediation. According to the Times, organizations such as “Peacemaker Ministries” have emerged to support this trend:

Peacemaker Ministries offers templates of legally binding language that Christians can put in contracts, requiring employees and managers to use a “biblical process” before going to civil court. The group coaches employers in resolving disputes, and should a conflict persist, Mr. Sande said, a Peacemaker Ministries representative could serve as one of the “one or two others” Jesus suggests you take to a mediation.

I would be interested to know more about how closely these processes hew to more conventional/secular mediation processes. Anyone have any experience here?

Check out the Transnational Dispute Management Journal

The Transnational Dispute Management (TDM) Journal announces its new volume, Reform of Investor-State Dispute Settlement: In Search of a Roadmap. From the TDM publisher:

TDM focuses on the forms, methods, strategies and implications of transnational dispute management: commercial and investment arbitration, mediation, negotiation, including the culture of arbitration, economic analysis and organisational and managerial techniques. We are always interested in receiving articles, papers, speeches and presentations for (re)publication in our TDM Journal. Feel free to contact us for more information and guidelines on how to submit material.

Details on submission to the TDM Journal may be found here.

Sheila Heen providing expert advice in the NYT

Sheila Heen, co-author of Difficult Conversations: How To Discuss What Matters Most, is providing expert advice in a series of columns on family and other kinds of conflicts. Here’s one of my favorite passages from this week’s column — she’s explaining some of the reasons people experience conflict so differently:

Emotional math. Everyone gets frustrated, resentful, disappointed, or even enraged with others on occasion. It may come out as shouting, sarcasm, snippiness, or simply a put-upon silence. In those moments, we don’t see our emotional behavior as a big deal. They’re the ones who were being unusually annoying, it was a tense situation, you were tired. You know that your anger in that moment is not who you “really are.”

But to the other person, your anger is exactly who you are. Your emotional display is not incidental – it’s at the heart of the story they tell of what happened between you. From their point of view, your anger is the threat – the very thing they were coping with in that moment.

So you will tend to subtract your own emotions from the story, while the other person counts your emotions, say, double. And the same is true in reverse: You count their emotional reactions double, while they subtract them.

Hat tip to Liz Tippett.

Call for papers: Indian Journal of Arbitration Law

From Mohit Maheshwari, senior editor of the Indian Journal of Arbitration Law:

The Indian Journal of Arbitration Law is a biannual, student-reviewed Journal by the Centre for Advanced Research and Training in Arbitration Law (CARTAL) of National Law University, Jodhpur.

The Journal strives to inculcate the prevalent theories in the field of arbitration with their practical relevance. The editorial board seeks to achieve this feat by including contributions from individuals with varied expertise of practicing arbitration and by focusing on developing trends. In this regard, the board would give due emphasis to the rich thought processes of students of law, who bring to the forefront the innovative academic research currently underway in most law schools all over the world. Inclusion of changing regional trends will play a vital part in understanding the scope and extant of this discipline and would therefore find due importance in the Journal.

The Indian Journal of Arbitration Law is pleased to announce its upcoming issue (Volume 3: Issue 1), which is to be published in March next year on the following theme: “The Rise of Asian Arbitral Institutions and its Impact on International Arbitration.”

We would be happy to review papers on contemporary international arbitration law in the Asia-pacific region, even those that are not specifically related to the above mentioned theme.

The Board of Editors cordially invites original, unpublished submissions for publication in the following categories:
- Articles
- Notes/Comments
- Book Reviews

Manuscripts may be submitted via email to latest by 31st January 2014.

For further details regarding Editorial policy and submission guidelines please visit this site.

Ebner on Negotiation via (the New) Email

Noam Ebner (Creighton) has posted his new article, Negotiation via (the New) Email, to SSRN. The abstract:

While certainly one of the most familiar modes for online communication, email is a constantly shifting entity. This chapter explores common pitfalls encountered in negotiating via email as well as advantages the medium offers, and offers best practices for negotiating through this communication channel. In a significant update to the existing literature, this chapter describes the changes that the email medium itself, as well as its users, have undergone in recent years, with the proliferation of smartphones and other platforms for mobile communications. These changes have redesigned the map of challenges and advantages posed to us as we negotiate via email.

Tippett on Mediation a la Carte

Liz Tippett (Oregon) has posted a short abstract outlining her new project, Mediation a la Carte: Improving the Transparency and Diversity of Mediator Styles. It is a must-read for those of us interested in the implications of the various approaches available to mediators and disputants. You can review her abstract here.

Press on Court-Connected Mediation and Minorities

Sharon Press (Hamline) has published Court-Connected Mediation and Minorities: Has Any Progress Been Made? in the Summer 2013 issue of the Dispute Resolution Magazine, available here.

Press’s article provides a wonderful summary of concerns in mediation related to minority mediators and to minorities as parties in mediation. Regarding minority mediators, Press observes:

[C]ommunity mediation began with a strong commitment to employing racially diverse personnel and volunteer mediators. The model of recruiting and training people from the community, people who looked like their neighbors and could understand local conflicts, led to a system in which program administrators and mediators often reflected the racial and ethic diversity of the people they served.

Press notes that the rise of court-connected mediation led both to an increasing professionalization of the field (“wiping out much of the mediator diversity”) and to greater involvement on the part of lawyers (not parties) in selecting mediators. Community connections and local decision-making became, accordingly, less relevant to resolving disputes. Meanwhile, critics have raised concerns around the qualitative results that minorities receive in mediation; the intrusiveness of a state-connected process into private lives; the danger that mediator neutrality turns a blind eye to disenfranchising disparities in power; and the possibility that confidential processes like mediation may inhibit social change.

Press recommends that we improve our data collection, research, and evaluation; increase mediator diversity; and improve mediator training and continuing education, with special focus on culture. She also mentions the importance of “access to information” for participants, reminding program administrators and mediators to pay attention to how we share information about mediation.

This last point — access to information — seems to me to offer some of the greatest possibilities for innovation and improvement. I have spent the summer thinking and writing about this issue, and so I was happy to see Sharon’s discussion of it in her piece. My view is that we often focus on the gatekeepers and the process in mediation, thinking that a well-designed and well-staffed system generally should be able to handle whatever kinds of disputes and disputants come along. But if the ultimate goal is self-determination and meaningful participation, then shouldn’t we think about raising the process literacy (ADR consciousness?) of non-lawyer disputants, especially for those who already are marginalized or disempowered? Such an approach would require more than just better consent forms and clearer mediation preambles — such an approach may, for example, require new commitments on the part of courts and/or law schools to providing skills-based training and process-based information to community members, disputing or otherwise.

Update on amicus brief (and a special announcement)

Just to close the loop on an earlier post re: the ADR amicus brief: it has been filed, and you can check out the final copy here. Many people helped with this brief, but I want to make special mention of Liz Tippett, our wonderful new ADR professor at Oregon — on top of her other work responsibilities, Liz spearheaded the effort, wrote most of the text, organized the student researchers and faculty reviewers, and coordinated with outside counsel, all while in the third trimester of her pregnancy. Baby George was born ten days ago and is adorable. Talk about productive.

Here is George with new big sister Holly:

From the Spring 2013 DR Magazine: Welsh and Lipsky

This Spring’s Dispute Resolution Magazine is filled with great articles exploring whether and how we should regulate ADR. Among these articles is a piece by Nancy Welsh (Penn St.) and David Lipsky (Cornell) called, “‘Moving the Ball Forward’ in Consumer and Employment Dispute Resolution: What Can Planning, Talking, Listening and Breaking Bread Together Accomplish?” I found this piece particularly striking as an example of the value of learning conversations.

The article starts off with a provocative story. Faced with the Supreme Court’s endorsement of mandatory pre-dispute arbitration in contracts of adhesion, the Dispute Resolution Section’s Council puts forth a compromise in 2009: mandatory pre-dispute arbitration clauses are acceptable so long as they have meaningful opt-out provisions. Apparently this compromise was, to put it mildly, not popular. The authors describe the reaction afterward as “a firestorm of opposition” from pro- and anti-arbitration proponents so intense that the Council was forced to “abstain from expressing any position at all.”

I recently have been thinking and writing about compromise, and here we see an excellent example of our modern antipathy toward what Gutmann and Thompson call “classic compromises.” In a classic compromise, each side must sacrifice something, and moreover the resultant agreement (the compromise) is often internally inconsistent because it is an amalgam of disparate positions. Because they involve sacrifices and inconsistency, compromises generally do not sit well with us, and perhaps especially with those of us who are integrative bargainers and ADR types seeking to avoid positional struggles. The Council’s proffered compromise — mandatory with opt-out — is an example of a classic compromise, because it requires both sides to sacrifice something of value and leads to an apparently inconsistent result. How can participation be mandatory and voluntary at the same time?

In this case, as Welsh and Lipsky recount, the rejected compromise was not the end of the story. Instead, over the next three years several rich learning conversations followed. These conversations (styled as “study groups” and “roundtables”) sought to promote greater understanding of the issues, not continued partisan advocacy for one approach or another. To do so, the organizers used modified Chatham House Rules (individuals not attached to particular comments or views) and invited scholars, advocates, and dispute resolution providers.

From the standpoint of sharing information, these meetings were quite successful. The article details a number of helpful clarifications around the terms “consumer arbitration” and “employment dispute resolution” that create more play in the joints when talking about what kinds of forward-looking policy measures we might take around arbitration. For example, the prospect of converting “difficult” consumer-initiated claims into “easy” consumer-initiated claims (as with automated credit card chargeback systems and ODR) is an insight into better system design that may take some of the pressure off the policy debate. The article refers to a piece by Vikki Rogers, also in this same issue of the DR Magazine, that explores these system improvements.

More broadly speaking, such intensive learning conversations represent the kind of service that law schools should be doing for local and national communities. Not only is modeling effective process a good way to educate policymakers, but the chance to share information addresses actual information gaps that, once filled, make it easier to find agreement.

But what of the compromise? Can we avoid sacrifice and inconsistency? Indeed, the article ends where it began: with the ABA Dispute Resolution Section. Ultimately, the authors conclude, the next steps (research, best practices) must be undertaken by major dispute resolution organizations. And here I will make my last comment, which is to say that the transition from the learning conversation to commitment/resolution/next steps likely will involve compromise. What the authors suggest, however, is that such a compromise is much more likely to be acceptable now that such deep conversation — conversation in which reasonable minds have disagreed and had a chance to talk about those disagreements — has taken place.

Consider signing an ADR amicus brief!

From FOI Kristen Blankley: I would like to invite all ADR scholars to review and sign an amicus curiae brief in the important arbitration case of Bakoss v. Lloyd’s of London. This case is currently before the Supreme Court on a petition for certiorari. The case deals with the definition of “arbitration” under the Federal Arbitration Act. Specifically, the case involves whether certain third party valuations constitute “arbitration” under the FAA.

The Dispute Resolution Scholars amicus brief, primarily drafted by Liz Tippett of Oregon, considers the circuit split on the test for what constitutes arbitration, comparing the “classic arbitration” definition test and the “settlement” definition test. Essentially, this brief argues that arbitration must have certain characteristics of classic arbitration to constitute “arbitration” under the FAA. The broader definition, adopted in the 2nd and other Circuits, would have a devastating effect on dispute resolution as a whole, sweeping into the purview of the FAA other dispute resolution procedures aimed at “settlement.” The “classic arbitration” definition is also closer to the drafter’s intent of what constitutes arbitration, as well as comports with due process.

Signatories to the brief will include Michael Moffitt, Jen Reynolds, and Liz Tippett of Oregon, Kristen Blankley of Nebraska, and Imri Szalai of Loyola of New Orleans.

If you would like to review a copy of the brief, please contact Liz Tippett (, Kristen Blankley (, or counsel of record Scott Seidman (

The virtue of proximity?

At the Law&Society annual conference this past weekend, I had the pleasure of sitting on a panel with Nancy Welsh (Penn State), Cynthia Alkon (Texas Wesleyan), Danya Reda (NYU), Amy Cohen (Ohio State), and Hiro Aragaki (Loyola LA) — along with honorary panelists and commenters extraordinaire Art Hinshaw (ASU) and Kelly Browe Olson (Arkansas).

The topic was “ADR and Compromise,” the inspiration was Gutmann and Thompson’s new book The Spirit of Compromise, and the context was the modern-day U.S. Congress with special focus on the divisive political rhetoric that appears to make legislative progress impossible.

The book argues that mutual respect is necessary for principled compromises, and that such mutual respect is more difficult to come by when the members of Congress live (and work, really) so separately from one another. To address this, the authors present “veteran Congressional observer” Norm Ornstein’s suggestion that the members of Congress be compelled to live three weeks of every month in what sound like dorms, or perhaps Melrose Place:

During the three-week period, Congress would be in session from nine-to five, Monday through Friday. Ornstein would have the government provide….at-cost rental apartments in two newly constructed buildings near the Capitol…Members living closer together might not find common legislative ground, but they would be more likely to better understand their disagreements and moderate the mistrust that blocks consideration of compromise. (169-170)

Cynthia brought up this quote in her remarks and noted that proximity alone is unlikely to foster the kind of attitudinal shift required for building productive working relationships. She mentioned the movie No Man’s Land, a film about two soldiers who find themselves trapped together in a foxhole. One soldier is a Bosniak and the other is a Bosnian Serb. As Cynthia pointed out, these two did not learn to appreciate the other’s humanity while living in such close quarters; instead, they steadily hate each other throughout the entire experience.

I thought this was one of the most interesting observations of our panel. There is potential value, of course, in being close by, encountering one another, and so on. (Certainly there are problems in not having contact with those who are different.) However, Cynthia’s comments made me reconsider the blithe application of this principle. Proximity alone is not enough, especially when relationships are not good. As Cynthia put it, the Congressional dorm is likely to devolve into high school at its worst.

And here’s another movie to consider: Devil, a 2010 thriller about people stuck in an elevator. As it turns out, one of the people in the elevator is actually the devil. Every now and then the elevator lights flicker out and after they flicker back on someone has been horribly murdered. The survivors are desperately trying to figure out which of them is the devil, and as such are unable to create any relationships of the sort you would imagine in your typical stuck-in-an-elevator movie. There turns out to be a method to the madness and a sort of morality in the end but the basic premise — that maybe there are some people and some situations that close proximity will not help — is the same as No Man’s Land.

Which one’s the devil?

Not that it’s all grim news. Obviously the presence of a facilitator or mediator or other structure/activity may help improve the relationship, and proximity may be a necessary condition for that improvement to take place. It’s just not, as Cynthia pointed out, sufficient.

Stark and Frankel on Using Fear and Guilt to Persuade

James Stark and Douglas Frenkel have published Using Fear and Guilt to Persuade: What Might Empirical Research Tell Mediators? in the Winter 2013 Dispute Resolution Magazine, pages 26-29. The article’s opening scenario describes the predicament of a mediator who is working with a plaintiff who is getting “less reasonable as the mediation progresses” and appears not to understand the risks and opportunities of her situation. The mediator considers what to do next:

One option is to try to evoke fear, saying, for example: “I think you have a substantial chance of losing at trial. Win or lose, the incident in which you ‘dissed’ your employers in front of your co-workers will almost certainly be rehashed in detail. … With so many people looking for work in this economy, your conduct — even if it was justified — may look bad to a jury…”

Another approach is trying to tap into her possible guilt, for example: “I know you’re a single mom who has been struggling lately to raise your teenage son, first on your unemployment benefits and now with part-time work. How will you feel about how you fulfilled your obligations to him if — after a long wait for the trial — you lose your case, knowing that you had the chance to receive some decent money in mediation but turned it down?”

This opening is designed to make even the most evaluative mediator uncomfortable. Fear and guilt as mediator tools? The authors readily admit that their investigation presents normative concerns. They devote themselves first to a descriptive/empirical analysis of fear and guilt appeals and then consider the normative implications.

Although the details are worth reading, the empirical upshot is that strong fear appeals are quite persuasive so long as they also recommend feasible, effective courses of action. Conversely, strong guilt appeals are not as persuasive, in part because they cause “psychological reactance” such as resentment or anger that counteract the intended effect of the guilt messages. Yet strongly worded anticipated guilt appeals (“think about how bad you’d feel if …”) do not appear to cause this same psychological reactance, and so may be useful persuasive tools.

There’s so much more, and I encourage you to read the article. I especially enjoyed the brief normative discussion at the end. Whether non-exaggerated fear/guilt appeals actually enhance self-determination and objectivity (by curbing overconfidence, for example) is the fascinating proposition the authors leave us with. I would love to continue that conversation.

Blankley on Arbitration Ethics

FOI Kristen Blankley (Nebraska) has posted “Advancements in Arbitral Immunity and Judicial Review of Arbitral Awards Create Ethical Loopholes in Arbitration” on SSRN. The paper was presented at a University of Nebraska Law and Psychology Symposium entitled: “Justice, Conflict, and Well-Being” and will appear later this year in a book of articles from the symposium. The abstract:

Arbitration’s interesting status as quasi-independent of the court system has created perplexing ethical dilemmas. On the one hand, arbitration has been considered separate from the legal system in many important regards, allowing parties the opportunity to receive adjudication in a confidential forum by an expert decision-maker. On the other hand, the rules and expectations of litigation are slowly creeping into arbitration, including discovery and motion practice. Recently, courts have (rightly) begun to apply the rules of judicial immunity to arbitration participants, shielding them from satellite lawsuits for defamation based on things said in the arbitral forum. In so doing, however, the courts have not considered that the criminal laws for perjury, document destruction, and the like do not apply to arbitration, thus creating an ethical “loophole” in the arbitral forum. Compounding this loophole is the fact that the judicial review for arbitral awards on the basis of participant “fraud” (9 U.S.C. 10(a)(1)) is subject to a higher burden of proof than any other basis of review under the statute or common law. This Article suggests two reforms to close the ethical “loophole.” The first is to extend the criminal laws dealing with perjury, document destruction, and the like, to arbitration. The second is to remove the heightened burden of proof from the test for judicial review under Section 10(a)(1). Both of these actions would make arbitration a fairer forum.

Batra on Providing DR Expertise to the Community

Rishi Batra (Whittier) has just published Providing Dispute Resolution Expertise to the Community in the Winter 2013 issue of Dispute Resolution Magazine. From the introduction:

As schools and other public institutions struggle for funding, law schools and their students have new opportunities to fill unmet needs by providing consulting expertise in facilitation and dispute resolution. Such partnerships can provide valuable service for the institutions while giving students a chance to apply their skills to issues in nearby communities.

Alkon on the Flawed U.S. Approach to Rule of Law Development

Speaking of the WIP, Cynthia Alkon (Texas Wesleyan) has published a paper she presented at the Oregon WIP in 2013, The Flawed U.S. Approach to Rule of Law Development in the Penn State Law Review. The abstract:

The key flaw to the United States’ approach to rule of law development is routinely including the “standard menu” of rule of law development assistance as a part of the overall development effort without regard to whether the recipient country is at a developmental stage where it is able to absorb some or all of this type of aid. This article uses Afghanistan as a case study. Despite a decade of assistance, Afghanistan remains a fragile and conflict-affected country, thus raising concerns about the value of the aid given and whether rule of law development aid should continue to be a part of the standard aid package in similarly situated countries. This article also reports the results of a small-scale survey of rule of law development workers in Afghanistan who were universally critical of rule of law development efforts in Afghanistan.

This article concludes that the experience in Afghanistan demonstrates the need to change how the United States approaches rule of law development assistance. The United States should no longer routinely include rule of law development assistance in developmental aid packages. Instead, the United States should analyze the current conditions in a particular country and determine whether that country is ready for rule of law development assistance. This analysis should consider economic, political, and social development, and whether the country is currently in armed conflict. Depending on the level of development, it might make better sense for limited rule of law assistance. In some countries, it might be better to provide no rule of law assistance and instead to focus on other development goals and advocate for rule of law development at a political level.