ADR

I spoke with a reporter from Bloomberg BNA yesterday about Jackson v. Amazon.com, Inc. (oral argument 11/17/22). The case raises a number of interesting arbitration issues: whether Amazon’s broad arbitration clause includes a worker’s privacy claim (Amazon was monitoring employee’s discussions on social media), whether a federal court’s decision that an Amazon last-mile driver is a transportation worker within the meaning of the FAA is appealable (where, as here, the parties’ agreement requires that the FAA and federal law should be used to interpret the arbitration clause), and how, if at all, Southwest Airlines v. Saxon, should apply. Lots of
Continue Reading Amazon Tries to Avoid Class Action in California

It’s hard to believe that more than a month has passed since we welcomed people in person and virtually to the 15th Annual AALS DR Section Works-in-Progress Conference here at the University of Oregon.  We had almost sixty registrants, in Eugene and over Zoom, and we saw thirty-six presentations over 1.5 days. It was such a pleasure to hear about the exciting work that everyone is doing, and it was absolutely fantastic to reconnect with our wonderful community!
Some pictures from the event (I’m not as good as John at taking pictures, so please forgive the clumsy framing etc.):

Our
Continue Reading The WIP in Pictures

For those among us who teach Professional Responsibility / Ethics courses as well as ADR, just a quick nod (or reminder nod) to the Dolan & Kennedy DC Bar Discipline case available here. The facts are not terribly complicated, although they are pretty horrifying. And the report and recommendation of the Board on Professional Responsibility is quite thorough in its treatment of the facts, the relevant Rules, and the standards one uses in assessing alleged violations of those rules. Honestly, it’s probably a week or two worth of material, all wrapped up in one case.

Even if you’re “only”
Continue Reading An Ethics Case with Something for Almost Everyone (who teaches in this field)

This short article presents accounts of ten mediators about the factors affecting how we handle continuing streams of mediations – our mediation systems.  We describe  our personal histories, values, goals, motivations, knowledge, and skills as well as the parties and the cases we handle.  We develop categories of cases, parties, and behavior patterns that lead us to develop routine procedures before and during mediation sessions and strategies for dealing with recurring challenges.  Thus our accounts describe our mediation systems, which differ for different types of cases.  Traditional mediation theories influence mediators’ thoughts and actions to some extent – along with
Continue Reading Ten Real Mediation Systems

Yesterday I announced my new business, which better reflects my evolving practice balance between mediation and arbitration matters. I am now practicing as an independent ADR neutral on ad hoc mediation and arbitration matters in addition to my work with the American Arbitration Association mediation and arbitration panels, where I serve on its’ National Rosters of Arbitrators and Mediators for Commercial, Large Complex Case and Energy Disputes. I actively handle mediation and arbitration matters in person in San Francisco, San Jose, Oakland and Sacramento and on Zoom throughout California and internationally.
There are aspects of this new business that I
Continue Reading Introducing Frank Burke Mediation and Arbitration PC

There is no good definition of ADR, as described in a recent post.
This post suggests that it’s time for a paradigm shift in our field.  Instead of identifying our field as ADR, we should use dispute system design (DSD) as our central theoretical framework.
Time for a Paradigm Shift
Thomas S. Kuhn’s classic book, The Structure of Scientific Revolutions, describes the process of the famous “paradigm shift.”  Scientists develop theoretical paradigms that are generally accepted in their scientific community.  Over time, some scientists find “anomalies” that cannot be solved within the existing paradigms.  Eventually, anomalies accumulate, and innovative
Continue Reading Shifting the Central Paradigm to Dispute System Design

Carrie Menkel-Meadow (UC-Irvine) has a new book on the market titled Negotiation: A Very Short Introduction (Oxford 2022).
Here’s the Amazon blurb for the book:
This Very Short Introduction provides a comprehensive and accessible review of both conceptual and behavioural approaches to the human process of negotiation. Carrie Menkel-Meadow draws on research in constituent fields of human psychology, diplomacy, law, business, anthropology, game theory, decision making, international relations, sociology, public policy, and economics, suggesting models for creative problem solving to often intractable problems. Considering that most people are tense and frightened of what they perceive to be scarce resource confrontations with opponents
Continue Reading Menkel-Meadow – Negotiation: A Very Short Introduction

If two rocket scientists don’t correctly understand each other’s jargon, things could blow up real fast.  If laypeople don’t understand the scientists, however, no problem.
It’s quite different in the dispute resolution field.  Parties are supposed to actively participate in mediation (and other dispute resolution processes to some extent), and thus they need to understand what experts are saying.  Lawyers representing clients in mediation especially need to understand the process to fulfill their ethical responsibility of competence.  And certainly mediators should understand basic concepts of mediation.
Houston, we have a problem in the dispute resolution field.  We use basic
Continue Reading Houston, We Have a Problem in the Dispute Resolution Field

I’m happy to announce that the Center for Negotiation & Dispute Resolution at UC Hastings will be hosting a lunchtime ADR workshop on Gary Spitko’s (Santa Clara) new work in progress, entitled Arbitration Secrecy. Professor Spitko is a Visiting Professor of Law at UC Hastings this semester. The workshop will hold on November 17, 2022, from 12:30 – 1:30 p.m. PT, and is open to the public. More information and registration details can be found here. The intent is for participants to have read the paper in advance so we can do a deep dive into the doctrinal, theoretical,
Continue Reading UC Hastings Lunchtime ADR Workshop on Arbitration Secrecy

Andrea has kindly asked me to post this announcement for CJCR’s Melnick Symposium on Nov. 18th (live and on Zoom!) while her access to the blog is getting straightened out since she moved to Cardozo.  Go here to register and the details are below.
Join the Cardozo Journal of Conflict Resolution on November 18, 2022 from 9:00 am – 4:00 pm EST for the annual Melnick Symposium. The theme of this year’s Symposium is “Negotiation Strategies for War by Other Means”, where we will explore the changing landscape of international conflicts and the role that dispute resolution can play in
Continue Reading Negotiation Strategies for War by Other Means — Cardozo Journal of Conflict Resolution’s Melnick Symposium

Readers of Indisputably may be interested in this job opportunity that was recently brought to my attention: Search for the Director, William D. Ruckelshaus Center Washington State University & University of Washington Seattle, WAThe William D. Ruckelshaus Center seeks an experienced and visionary leader to serve as the next Director. Inspired by the life and legacy of William D. “Bill” Ruckelshaus, the Center envisions a future in which government leaders, policy makers, and community members routinely employ tools of collaborative decision making to design, conduct, and implement successful public policy processes. Representing a committed partnership between Washington State University and
Continue Reading Job Posting in Conflict Resolution

From Stanford Professor Jane Schacter:
I am chairing the search committee to replace the retiring Jan Martinez as Director of Stanford’s Gould Center Program on Negotiation and Mediation.  Applicants are strongly encouraged to submit their applications by December 1, 2022, but applications will be considered on a rolling basis until the position is filled.
Click here for information about the position.
Continue Reading Searching for Director of Stanford’s Gould Center Program on Negotiation and Mediation

The 12th Speziale ADR Symposium, Is Virtual Justice Just?, will be held at Quinnipiac University School of Law on Friday, November 4, 2022, from 8:30 a.m. to 5:00 p.m.
This symposium is divided into two sessions, each with its own focus. The morning session, Virtual Trials: What’s the Verdict?, will examine how virtual trials, including virtual juries, have been utilized in various jurisdictions.
The afternoon session, Is ODR the Future of ADR?, will consider how artificial intelligence is being used in the legal system and will discuss the growing use of online dispute resolution (ODR) in Connecticut and across the country.
Click here for
Continue Reading Quinnipiac Symposium on November 4:  Is Virtual Justice Just?

Question:  Where does conflict come from?
Answer: Normal, unconflicted life.
Building on Felstiner, Abel, and Sarat’s classic article describing the genesis of disputes, Naming, Blaming, Claiming, this overgrown blog post uses memoirs to analyze how people develop “perceived injurious experiences” (PIEs), some of which become grievances (when they blame others), and some of which become disputes (when they make demands that aren’t fully satisfied).  Only a tiny percentage of disputes involve lawyers or become lawsuits.  Most of the time, people experience life as normal – not perceiving that they have injurious experiences, which Felstiner, Abel, and Sarat call “unPIEs,”
Continue Reading Slices of Conflict in Life

Posted on behalf of Jill Engle, Academic Dean at Penn State Law (University Park):
Penn State Law is seeking adjunct faculty for two arbitration courses. One is in our US Arbitration course. The other is in our International Litigation and Arbitration course.  Both courses will be offered in the spring 2023 semester (January-May).  We can potentially compress each course to one day per week. We can also allow the professor to teach via Zoom roughly 25% of the time during the semester, but the majority of the course must be taught live at Penn State Law in University Park,
Continue Reading Penn State Law seeking arbitration adjuncts

President Biden caused a little brouhaha when he said that the pandemic is over.
I think that he was trying to convey that what I called the “crisis new normal” had given way to a “normal new normal.”
Indeed, life is very different than March 2020, when we didn’t know much about the virus.  Remember how we wiped down groceries when we didn’t know how the virus spread?  Now, we have scientifically tested vaccines, tests, masks, treatments, and medical routines.
When the pandemic started, we were mostly in lockdown.  Work and school were all online.  Teachers were getting crash courses
Continue Reading The Normal New Normal in the US, Circa September 2022