Category Archives: Public Policy

Missouri DR Center Announces Winners of Student Writing Competition Regarding Events in Ferguson, Missouri

The Center for the Study of Dispute Resolution at the University of Missouri School of Law announced the winners of a law student writing competition held in conjunction with the Missouri Law Review symposium entitled “Policing, Protesting, and Perceptions: A Critical Examination of the Events in Ferguson.”

Professor S.I. Strong organized the competition, which asked students to use a conflict resolution perspective in addressing problems related to the events in Ferguson. The following students were honored for their essays.

First place: Laura Thomas Merkey (Maryland) for “Building Trust and Breaking Down the Wall: The Use of Restorative Justice to Repair Police-Community Relationships.” This essay will be published in the Missouri Law Review along with articles arising out of the symposium.

Second place: Arrin Kendall Richards (Vanderbilt) for “Using ARIA-C3 to Improve Police-Community Communications.”

Third place: Nicole Duncan (Loyola-Los Angeles) for “The Crimes of Colorblindness.”

For more information, click here.

Minimizing Unnecessary Violence in Litigation and Other Dispute Resolution Processes

Jen wrote a comment about my post that built on Prof. Vincent Cardi’s new article, “Litigation as Violence,” describing some effects of “violence” even from non-physical acts. She wrote:

We in ADR should not undervalue, when analyzing the dispute resolution landscape, the regulatory function of litigation in the United States. A business executive may feel morally affronted by litigation, but that doesn’t mean that the litigation (and its attendant ADR processes) isn’t warranted or socially beneficial. Our system has externalized many of the responsibilities and costs of regulation/oversight to private litigants. Perhaps the “violence” problem that Cardi notices comes not only from process or personality issues, but also from these larger system attributes exacerbating conflict and disputes.

I absolutely agree with Jen’s statement. I think that in our community we sometimes too-glibly criticize the legal system without acknowledging the benefits it produces, which we often take for granted.

A wonderful article by Robert Kagan, Do Lawyers Cause Adversarial Legalism? A Preliminary Inquiry, 19 Law & Social Inquiry 1 (1994) compares the legal system in the US and European democracies. Kagan argues that because of our political history, structure, and culture in the US, we generally are skeptical of government regulation and thus we rely on the legal system to regulate matters that Europeans typically manage through executive government action.

In my writing, I try to provide a balanced analysis, acknowledging benefits as well as problems. In an article entitled How Much Justice Can We Afford?: Defining the Courts’ Roles and Deciding the Appropriate Number of Trials, Settlement Signals, and Other Elements Needed to Administer Justice, I wrote:

Professor David Luban catalogues a variety of public goods produced through the court system including opportunities for intervention by persons not party to lawsuits, discovery and publication of important facts, facilitation and enforcement of private settlements, development of legal rules and precedents, and structural transformation of large public and private institutions. . . . There should be no doubt that having trials produce considerable social benefit. As a policy matter, however, the question is not whether to have trials. Rather, policy issues focus on such matters as whether to have more or fewer trials, what kinds of cases and litigants should get to trial, who should make those decisions, how to design litigation and trial procedures to maximize the benefits and minimize the problems, etc.

In a recent post, I provided a lengthy discussion describing how courts sometimes function as “tools of cooperation.” In one article, I wrote:

Rather than making procedures the protagonists in these stories [about litigation and ADR], we should celebrate humans and their wise and caring actions when working with conflict. This includes judges and lawyers who choose between the various procedural options (including, but not limited to, trials) to promote appropriate goals for litigants and societies. Judges can make some of their best contributions by helping design and manage disputing systems as well as trying cases. We should celebrate prosecutors and other government officials who investigate and prosecute wrongs including the full range of illegal acts including human rights abuses, corruption, discrimination, and violence. Mediators and arbitrators are often heroes, helping people work through conflicts. So are inside counsel who mediate between business executives and outside counsel to manage conflicts effectively. And so are many unsung heroes who manage conflict every day with little outside recognition. These include military and police officers, legislators, organizational, community, and religious leaders, teachers, parents, and countless others.

I think that Cardi’s article provides a balanced analysis of harm caused by litigation. He writes:

Dr. Gutheil states, “[C]ritogenesis [“litigation-caused emotional injury”] relates to the intrinsic and often inescapable harms caused by the litigation process itself, even when the process is working exactly as it should.” After all, each party is asking the court to order the other to do something the other does not want to do.
A serious approach to lessening the critogenic / LRS [“litigation response syndrome”] harms would likely examine each step and practice in the litigation process, attempt to gauge the serious psychological injuries caused by each step and practice, and then think of ways to reform them to lessen the harm while still meeting the needs of the step and practice. (Footnote omitted.)

So I agree with Jen that litigation often is necessary and beneficial and the fact that a litigant feels aggrieved by the litigation process does not necessarily mean that the process is inappropriate.

I think that it is also indisputable that the litigation process sometimes does produce unnecessary harm.

How often does this happen and how much harm is unnecessary? I don’t know. It is probably impossible to know because of the subjective definitions of “unnecessary” and “harm,” great variations in practice, and difficulties in empirical measurement.

But, as I wrote in my original post, my sense is that too often, unnecessary injury is a by-product of litigation (including negotiation and mediation conducted in the litigation process).

In another post, I mused inconclusively about what (A)DR is about. This discussion about unnecessary harm helps me consider that question.

I think that members of our community generally empathize with disputants’ pain and want to minimize unnecessary harm in all DR processes. Thus we not only criticize and recommend improvements in adversarial litigation but also in ADR processes. This is reflected in powerful critiques of hardball negotiation, coercive mediation, and adhesion contract arbitration, among many other DR processes.

Of course, this is probably not true of everyone in our community and some of our ideas and prescriptions are problematic, impractical, and/or ineffective. And certainly some people who are not considered as part of our community share our concerns, including many lawyers, judges, and other court officials.

But let me suggest a working hypothesis that a very common (and perhaps defining, though not necessarily universal) feature of our community is a strong impulse to minimize unnecessary violence in all dispute resolution processes.

What do you think? Email me. You never write. You never call.

Lawyer Mediator Drafting of Agreements

As I just sent to our listserve as well, I am advising a committee for our state bar about the role of lawyer-mediators in drafting marital settlement agreements.  The committee has already reached a consensus that it would like to permit mediators to draft mediation settlement agreements in family law cases.  The key question for the committee is whether to permit this under a joint representation model (in which the lawyer is representing both parties under Rule 2.4 and other rules after the clients waive conflicts) or under a neutral representation model in which the mediator is not representing either party and parties are informed about that “limited” representation which would permit the mediator to draft.

We (read my RA’s) have already done a 50 state survey as to what is going on and there are examples of each in action (i.e. New York is a joint model and Maine is a neutral model and Connecticut seems to permit drafting without picking one of these).  What I am looking for is any practice experience or opinions about those models in action.  The committee would prefer to go with a neutral model and they want to make sure there are no hidden problems or concerns with that.

Any help, examples, thoughts or opinions are appreciated!

 

ABA Section of Dispute Resolution Seeking Law School Intern

The ABA Section of Dispute Resolution is seeking a law student intern for the Summer 2015.  Section interns focus on alternative dispute resolution (ADR) research under supervision of an attorney.  Duties may include:

  • Researching emerging critical issues
  • Conducting needs assessment and systems design for dispute resolution processes
  • Research the use of ADR in institutions such as corporations, government agencies and associations
  • Editing, proof reading, and blue booking of magazine and newsletter articles
  • Researching state and federal legislation as well as analyzing ADR policy, ethical issues and the provision of services by practitioners to the public

This internship is unpaid and located in Washington, DC. Applicants must submit a resume and cover letter indicating their interest in the field of dispute resolution to Section Staff Attorney Matthew Conger at matthew.conger@americanbar.org.

Student Writing Competition About Ferguson and Related Events

My colleague, S.I. Strong, is coordinating a student writing competition about the events in Ferguson as follows:

The University of Missouri is sponsoring a student writing competition analyzing the events in Ferguson (and elsewhere) from a dispute resolution / conflicts resolution perspective, as described on the competition website.  The deadline is relatively soon — February 13,  2015 — but the submissions can be quite short.  The prize money is also substantial, which the students may appreciate!  We would appreciate your circulating this information to your students and colleagues in both dispute resolution and criminal law.  For more information, please email her.

On “Forced” Arbitration

Over the past year or so, critics of consumer and employment arbitration have coined a new term for what ADR scholars have historically called mandatory pre-dispute arbitration: “forced arbitration.” The most prominent example appears in the recent film produced by the Alliance for Justice titled Lost in the Fine Print. Narrated by Robert Reich, the movie draws on three cases to make the argument that “forced arbitration is taking away your most basic rights.” As readers of this blog know, I’ve been a critic of consumer and employment arbitration, and I’m glad that AFJ is publicizing the issue. But I have concerns about the use of the term “forced arbitration,” both because it may confuse the public and because it suggests that the only problem with arbitration is a lack of consent.

The movie opens with person-on-the-street interviews in which subjects are asked whether they have heard of “forced arbitration.” One interviewee responds that he has heard of arbitration, but not forced arbitration. That’s a reasonable response. Indeed, I might have answered the same way. Contracts do not use the term “forced arbitration”–they simply refer to arbitration. There is no distinct species of arbitration called forced arbitration. Individuals concerned about forfeiting their rights to judicial process might come away from the movie thinking, “I’ve got to be careful not to agree to a contract that says anything about ‘forced arbitration’,” not realizing that plain old arbitration is the real problem.

More problematic is the focus on consent that the term “forced” arbitration connotes. If our only concern is that people are being compelled to arbitrate, then the easy fix is to make arbitration optional, by either including an opt-out or offering financial or other incentives to agree to arbitration. But a lack of meaningful consent is only a part of the problem. As extensive research by scholars like Imre Szalai and Hiro Aragaki has shown, the FAA was intended to apply only to the arbitration of routine contract terms that would otherwise be subject to default rules of the common law. It was never intended to enforce arbitration agreements where claims arose under mandatory rules of law. And for good reason. The rule of law presupposes citizen access to public adjudicative process for the resolution of disputes covered by mandatory legal rules. Arbitration of those disputes raises concerns about the rule of law regardless of consent.

To be sure, the question of whether claims arising under mandatory legal rules should be arbitrable is a difficult one. After all, citizens can choose not to enforce their legal rights, and litigants routinely settle viable claims outside of trial. Moreover, the global economy depends on a robust system of private dispute resolution, with international commercial arbitration at its core. A blanket refusal to enforce arbitration of claims arising under mandatory legal rules could compromise that system.

Still, we should not lose sight of the procedural guarantees that undergird the rule of law, and we should be careful about using terms, such as “forced arbitration,” that obscure the issues at stake.

AFJ/SALT Reception at AALS to Screen “Lost in the Fine Print”

The Alliance for Justice and SALT will host a reception at 8:30 p.m. on Saturday, January 3 in conjunction with the AALS Annual Meeting in Washington, DC. The reception will feature a screening of the short film Lost in the Fine Print: Examining the Impact of Forced Arbitration. The film will be followed by brief comments from Judith Resnik, Nancy Kim, and myself.

If you are interested in attending, just RSVP electronically here. I look forward to seeing colleagues at the reception and at the Dispute Resolution Section program at 4:00 on Sunday afternoon.

Cuba Diaries

I went to Cuba in mid-November 2014 as part of a delegation of the ABA Section of Dispute Resolution to learn about the legal system and dispute resolution there. I am grateful to Bruce Meyerson for organizing and leading this trip. I stayed a few extra days as part of a cultural extension of this trip.

 

I’m not saying that our delegation’s visit was completely responsible for the December 17, 2014 announcements of the plans for the US and Cuba government to normalize relationships. But you can connect the dots.

 

One of the members of our delegation is named Alan Gross, apparently no relation to the prisoner just released, but he got numerous messages assuming that they were the same person. In any case, our delegation can truthfully claim that we brought Alan Gross home safely.

 

When I travel, I often make photographic records and write accounts to preserve my memories, which fade so quickly. I also like to share them with friends to give them some sense of coming along for the ride.

 

I especially wanted to do this on this trip because Cuba seemed so exotic for me as an American. Unlike citizens of virtually every other country, it is not easy or cheap for Americans to go to Cuba. One needs special licenses for things like professional or cultural trips and I was told that the license for our trip cost $500 per person.

 

As the news reports keep repeating, our governments – and some members of our populations – have been in serious conflict for more than five decades.

 

For some people, Cuba is a story of heroic resistance to American imperial domination, featuring charismatic leaders like Fidel and Che who are universally recognized with a single name. In this telling, a small country has persevered despite countless subversion, assassination, and coup attempts by the mighty colossus to the north. This small country created systems of free public education, health care, and economic security that surpass those in many wealthier countries. The government established policies to combat rampant discrimination and inequality that were the legacies of the US-backed dictatorship that ruled Cuba before “the Revolution.”

 

The counter-narrative is a story of a Communist dictatorship that stamped out political and economic freedom. Cuba is a one-party state ruled by a ruthless dictator for decades, followed in office by his brother. The government incited revolution around the world and associated with bad actors like the Soviets and Venezuela’s strongman, Hugo Chavez. The Cuban government controls the entire economy and has prohibited any private enterprise. Opposition to the government is a crime and political opponents have been jailed for decades, often subject to torture. Recent reforms are token “window dressing” that don’t change the fundamental nature of the regime.

 

As a dispute resolution professional, I usually start with a presumption that there are some elements of truth in different accounts in most conflicts. Although I would like to believe my government, it has not always been honest about foreign affairs, especially when it has a political interest in promoting a particular version of events. So I don’t presume that its story was necessarily accurate. (Indeed, some of the “facts” stated by our news media since the big announcements are at odds with some plausible accounts I have heard and read.)

 

I didn’t have clear ideas of what to expect in Cuba. I wondered how much of the anti-Castro story of an alien society was true. Would I find a country, like I imagine North Korea, where the large majority of the population apparently live in crushing poverty, constantly terrified of expressing even the slightest criticism of the government?

 

I was in Cuba for only eight days, visited only two places, and had limited interactions with the local population. So, even though I did some independent reading and our guides seemed remarkably candid, my conclusions are necessarily tentative.

 

What I found, unlike my image of North Korea, was a place that seemed remarkably familiar. I lived in South Florida for about three years and, except for a few things, I might have thought I had been taken there. The climate, flora, architecture, frequent use of Spanish, and racial and ethnic diversity were remarkably similar. Of course, there were some differences. For example, in Florida, I didn’t see constant images of Che, the remarkable fleet of 1950s-era US cars, and a much more limited consumer market than in the US.

 

Some people in our delegation were struck by what seemed like great poverty to them. I have seen poverty in many parts of the US that seemed as bad or even much worse than what I saw in Cuba. I understand that many Cubans struggle to make ends meet. So do many Americans. Given the widely different distributions of income and wealth in the two countries, it is hard to make simple comparisons.

 

Unlike the political zombies I imagined, Cubans seemed remarkably “normal” (i.e., in my naive mind, like Americans). I made a point of venturing away from tourist areas to get some sense of this. If you look at my photos, I suspect that you will get a similar feeling of Cubans as “normal” people, i.e., like you and me and people we see in our society.

 

Here’s a link to a slideshow of the photos. The slideshow includes some shots by Jeff Krivis and Brian Breiter from the ABA delegation as well as James Campbell from a Kansas Bar Association delegation, who was part of the cultural excursion at the end of the trip. I have noted which shots they took, though I edited and captioned all the shots, so don’t blame them. We took more than 4700 photos between the four of us and I selected about 300 of the best shots providing a range of images of what we saw. Some of the captions may not be quite accurate.

 

Here’s a link to my travelogue. I finished writing it last month, before I had any idea that the recent political changes were in the works. I haven’t updated the travelogue and you will see that I despaired that the international situation would change any time soon because of the political dynamics in the US. I’m glad that both governments have decided to try to improve their relationships and resolve their differences.

 

I gather that Cuba has been in the process of major economic and political changes for 5 or 10 years or more. The collapse of the Soviet Union in 1991 caused a major crisis in Cuba, from which the government and population are still recovering. Apparently, they have initiated reforms as a matter of survival. Hopefully, improved relations between the US and Cuba will benefit both societies.

 

Befitting a law professor, my travelogue goes on for some length – 28 pages – and includes links for readers to get more information. The first 10 pages provide my general impressions and rest covers particular topics. The travelogue includes sections on legal education, labor issues, constitutional law, family law, court procedures, the Cuban Five, cultural center, legal practice with the legal collectives, and the excursion to Matanzas Province. I created links within the travelogue so that you can jump around between topics you are interested in.

 

Obviously, it would take some time to absorb the photos and travelogue. Many of these photos are worth 1000 words and you might want to take the time to look at them closely.

 

If you are interested and have some time during the holiday season, I hope you will enjoy these written and photographic diaries of my trip to Cuba.