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Session Summary – Discussions in Dispute Resolution: The Next Generation

Submitted by Rishi Batra

On Sunday, July 23, editors Art Hinshaw (ASU) and Andrea Schneider (Cardozo) and authors of “Discussions in Dispute Resolution: The Next Generation” met in the Royal X room at the 2023 SEALS Conference to discuss the follow up to the wildly successful Discussions in Dispute Resolution: The Foundational Articles Hinshaw, Schneider, & Cole, eds. (Oxford University Press, 2021). While the first book in the series provided commentary and reflections on the impact of the founding articles in the dispute resolution field, this new book focuses on the articles during the growth of the field from 2000 to 2010. Choosing the most impactful articles from this time was not an easy task for the editors, and while they considered citation counts, they also had to pick using suggestions from members of the field as well as their own judgement.

The format of the upcoming book, much like the last one, prints a small excerpt of the articles but then includes several short commentaries on the articles from other authors, focusing not merely on the content of the articles but also the impact that they have had on the field and also what the continued importance of these articles says about the field. A nice aspect of the book is that the original author of the article commented also writes a response with the commentary. During the session, several commentators gave a short summary of their chosen article and gave some thoughts on the themes and comments from their upcoming book chapters and there was a very thoughtful discussion of each.

Lauren Newell from Campbell Law School discussed “Why Lawyers Should be Good Psychologists” by Jean R. Sternlight & Jennifer Robbennolt. She emphasized that law is a people industry where we are dealing with people at the worst moments in their lives. Insights from psychology can help lawyers get clients to share personal details, and develop people skills. This helps us fulfill not just the advocacy role, but the role of counselors at law, which is often underemphasized. On the flip side, Newell also mentioned that using psychology can make us more persuasive on the advocacy side. Empathy allows us to” get in the other person’s head” and make us more persuasive in front of judges or other lawyers. She encouraged us to also think about what we are teaching out students and how an article like this can  give them insight and tools as dealing with people will be important. Several schools, such as Missouri, have this professional piece as a part of their first year courses, which is a nice contrast to the traditional 1L year that tended to “beat out” the people skills from students and then try to build it back later. Discussion from the audience suggested we can use an article like this to change what it means to think like a lawyer, and that this generation of law students may be well poised to do so as they are more comfortable discussing and recognizing mental health issues as well.

Jennifer Brown, Dean of Quinnipiac Law discussed  “When People are the Means: Negotiating with Respect” by Jonathan R. Cohen. This article is a discussion of negotiation ethics and warns that because negotiation, unlike many other human interactions, involves trying to get someone else to do something for you, it risks instrumentalism of our negotiation counterparts and not seeing them as fully worthy of respect. The article goes through four excuses for why negotiators may not take a stance or orientation of respect in the negotiation context, such tit for tat, prior past harm, custom, or self protection, along with a free market argument. But this is a radical article, argued Brown, because it is article based on ontological theories, arguing for a stance of respect in negotiation. Given her detailed reading of the article, she had a few questions and critiques that she will further explore in her commentary. One is the nature of respect that Cohen argues for seems slippery, sometimes meaning intention, and sometimes meaning actions, but since Cohen acknowledges there can be subconscious motivations or mixed motives this seems to cloud the issue. In addition, the question of what makes negotiation different than other types of interaction, and is negotiation really a different interaction than that between a teacher and student, parent and child, etc. where there are often interests in getting the other person to do something or other. Finally, after the passage of time, do we look at the idea of past harm the same way as Choen does, as no excuse for a  lack of respect. Given a history of racism, sexism, etc. in other actors, can this change the way we look at lack of respect in a different context, and does this have relevance today on the idea of cancel culture or deplatforming? Finally, Brown notes that the article has even more relevance today in legal education with the new focus on Professional Identity Formation, and Cohen had anticipated these same questions 20 years ago.

Noam Ebner from Creighton University also gave his thoughts on Cohen’s article which was foundational to his thinking in negotiation, and highlighted the important relational aspects of the piece. He mentions that negotiation theory sometimes tries to get around the tension of instrumentalism by emphasizing the mutual gains aspect of problem solving negotiation. His comment will focus on how this is an “upper case Ethics” piece, as opposed to legal ethics focused on reputation or rules, and much more on how we treat each other as people. Ebner also points out the risk of seeing respect as instrument, since Cohen is often arguing so much that this approach will not hurt that he almost advocates for it as a negotiation strategy that will help for a better outcome rather than an end in and of itself.  Questions from the audience discussed the nature of respect, and the etymology of the word being “looking again” and seeing something in someone that you hadn’t before.

Cynthia Alkon (Texas A&M) discussed “Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style” by Andrea Kupfer Schneider who was also in the room and one of the editors of the volume. This article surveyed lawyers on their negotiation counterparts’ perceived negotiation styles, with the bottom line being true problem solving negotiation, as opposed to adversarial or other styles, were perceived to be more effective than others. Alkon and the audience discussed how they used this article in their negotiation classes as it gives students ways to think about the different styles – problem solving vs cautious problem solving, ethical vs. unethical, etc. and how they are developing their own negotiation style. It also grounds the teaching in real world data, and shows how lawyers will actually do better if we don’t follow our baser instincts and so gives practical reasons to behave in a different way. Not just because it is a nice idea, but because it is more effective. Questions arose on if we did this study now would we see the same results, especially in an online modality which is becoming more common and may change the way people relate. Other questions regarding classification of styles and how we might classify the “nice” negotiator who just doesn’t budge prompted further discussion. A good exercise that was suggested by the audience was to have students think of another student in the class that they would want to have represent them and create a word cloud of the qualities that person has, with the idea that these same cooperative problem solving characteristics would rise to the top.

Michael Moffitt’s piece, “Suing Mediators” was discussed by Rishi Batra from St. Mary’s Law. This piece was a response to a growing concern in the early 2000’s that there was going to be an increasing number of suits against mediators. The article points out that successful suits against mediators are and will be rare for the reasons that both causation of damages will be hard to prove and the amount of liability will be low. Moffitt then says that this fact is harmful to both the parties harmed by mediation as well as the practice of mediation, and proposes a liability scheme for mediators that balances these concerns. Batra noted that Moffitt was right to push back on the idea of increasing mediator liability, since as history has shown successful suits against mediators are non-existent for the reasons that the article points out. But he did question some of the articles assumptions about parties’ ability to protect themselves because of their knowledge of the mediators impacts or their ability to walk away from the mediation, since it is not clear that parties know enough about mediation to make these judgements correctly or to evaluate mediation overall. This leaves open the question that in the absence of mediator liability are there other forms of protection, such as reputational harm to bad mediators, that can and should be applied to protect parties.

Kelly Browne Olsen (UALR) and Debra Berman (South Texas) reviewed “Collaborative Law: Achieving Effective Dispute Resolution” by John Lande. This piece is one of the first to describe the then new process of collaborative law as it existed at the time. As collaborative law was just taking shape when the article was written, the article raises a number of questions about the practice, including ethical questions around limited scope of practice and the ability of attorneys to withdraw, as well as the expansion beyond its origins in family law. Many of these questions have now been answered over the last 20 years or so, and discussion in the room centered around the vast variation in collaborative law practice around the country , and how it may not have lived up to the high hopes of practitioners at the beginning.

Finally, Yael Efron (Zefat Academic College) commented on “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts” by Marc Galanter. This article had a huge impact on legal practice, policy, and education. Efron noted that this was published in an empirical law journal, which is more rare in the field but can contribute to greater impact. The study showed that there were clear declines in evidentiary trials that went to judgement at both the state and federal level. Those that did go to evidentiary trial took longer and were more complex with more judicial involvement. This is in line with an increase in legal practice and the shrinking trial. Some explanations that are offered for the phenomena are more departure and diversion of cases to ADR, or more parties deciding not to pursue claims; because cases are more costly, you see parties settling or disposing of cases in other ways. Consequences include less trial experience for judges and lawyers, and more “bargaining in the shadow of the law.” Legal argument becomes more about the doctrine and less about proving up the facts at trial, which is a move to a more civil law like system rather than common law. This can also mean a higher legitimacy for scholarship in argumentation, as well as doctrine. There are also implications for civil procedure reform, where the pre-trial phases are emphasized in federal civil procedure and family law, as lawyers are encouraged to do as much as they can before they see a judge. However, trials are not an endangered species yet.

At the end, the editors of the volume gave a short update as to the state of publication, and revealed that they were hopeful a contract with the publisher will be signed soon. They are still considering how to organize the chapters in this volume and are open to suggestions. In all, the group had a very successful discussion on the contents and relationship between several important articles written during the development of the ADR field, and are looking forward to the third volume of the book series which will focus on diversity in the field.