Faculty Scholarship Digest
Ellen E. Deason
Ellen E. Deason, Combinations of Mediation and Arbitration with the Same Neutral: A Framework for Judicial Review, 5 Y.B. on Arb. & Mediation 219 (2013).
This article grew out of Ellen Deason’s contribution to the symposium, The Role of the Courts: Judicial Review of Arbitral Awards and Mediated Settlement Agreements, held at Penn State University School of Law in February 2013. In this piece, Deason provides the first comprehensive look at judicial review of agreements that stem from the various hybrid forms of dispute resolution processes, such as med-arb, arb-med, arb-med-arb, and the like. These hybrids all combine in some fashion the use of mediation and arbitration. They have the advantage that parties can control the structure of their dispute resolution process and be certain that the ultimate result will be a binding agreement. The problem is that structure matters in a number of significant ways. Deason first describes all the possible combinations and identifies the issues presented, such as confidentiality and information flows, candor concerns, and impediments from court rules and statutes. Deason then turns to the question overlooked by others: What is a judge to do when called upon to review the fruits of these hybrids? Are they to be treated like a mediated settlement agreement subject to contract principles, or as an arbitral award subject to much more limited review under the Federal Arbitration Act, or as something altogether different? Deason not only provides valuable guidance to courts that will increasingly be faced with these situations, but also incorporates international arbitration principles to inform her analysis.
Ellen E. Deason, Civil Procedure, cases, problems and exercises (West 3rd Ed. 2011).
This latest edition of Ellen’s civil procedure casebook brings the book up-to-date in this always changing field. The book is distinctive among its peers in a number of ways, many of which put a greater burden on the preparation of new editions. The book makes extensive use of problems and exercises throughout, keeping up with developments in legal pedagogy. Ellen and her co-authors also place a heavy emphasis in case selection on using cases from the past decade, which keeps the cutting edge issues at the forefront, with the cases sometimes summarizing the traditional chestnuts of procedure books that may frame critical issues but did not resolve for all time the underlying policy issues. The book presents alternative dispute resolution methods and materials in integrated fashion throughout, rather than simply including an add on chapter at the end (how appropriate for a Moritz-authored book). It also includes very extensive notes that allow the book to serve as a useful secondary source in addition to its classroom function.
Nuno Delicado, Horacio Falcao, Ellen E. Deason, Sharon Press, Shahla Ali, Eric Blanchot & Habib Chamoun-Nicolas, Assessing Negotiation Competitions, in Assessing Our Students, Assessing Ourselves 213-245 (Noam Ebner et. al. eds., 2012).
Ellen Deason is a contributor to this chapter on negotiation competitions that draws on the experiences from competitions around the world. While negotiation competitions are an excellent way to both engage students and assess mastery of skills, there is little consensus on how best to organize them. The seven authors who collaborated on this chapter represent negotiation competitions in different fields (law, international relations, business) and on different continents (Africa, Asia, Europe, North America). The collective experience of the authors is broad and deep. This chapter is a “how-to” on negotiation competitions from assumptions at the start to assessments at the end. Deason provides the U.S. law school perspective with her analysis of the ABA’s Negotiation Competition. It is easy to see her contribution. The chapter identifies “ethical standards” as a vital category of assessment, yet only one of the competitions, the ABA Negotiation Competition, included ethics as an evaluation criterion. If you are planning a negotiation competition and need the full range of details to ponder, this chapter spells them out.
Ellen E. Deason, Yael Efron, Ranse Howell, Sandra Kaufman, Joel Lee & Sharon Press, Debriefing the Debrief, in Educating Negotiators for a Connected World 301-332 (Christopher Honeyman et al. eds., 2013).Ellen Deason leads an international cohort of ADR scholars in this discussion of the importance of debriefing negotiation simulations. The authors argue that all too often the good intentions of thorough debriefing degenerates into something disappointing or pointless. Just as this critical portion of negotiation training is so often ignored in practice, negotiation teaching literature similarly ignores the topic. This chapter seeks to fill that void. Deason and her co-authors bring perspectives from Singapore, Israel, London, public policy, and executive training, as well as U.S. law school negotiation classes. The authors take an interdisciplinary approach that incorporates principles from education literature and studies from the nursing field to supplement their own experiences. They first outline a choice of goals; then analyze the characteristics of good debriefing; and then turn to predictable challenges and tactics for handling them. The authors conclude that, given the importance of debriefing to experiential learning, the negotiation field needs more research on what makes the process effective.
Ellen E. Deason, Yael Efron, Ranse Howell, Sandra Kaufman, Joel Lee & Sharon Press, Debriefing Negotiation Adventure Learning, in Educating Negotiators for a Connected World 333-342 (Christopher Honeyman et al. eds., 2013).
In this second chapter on debriefing, Ellen Deason and her coauthors apply their analysis of debriefing to a negotiation technique known as adventure learning. Negotiation adventure learning involves a learning opportunity outside of class that is experiential, authentic, and real. It typically involves sending teams into the community with missions that will stimulate negotiation. For example, Deason describes an adventure learning experience from Istanbul where groups were to go to the Grand Bazaar and negotiate for food for all the conference participants. The authors apply the general debriefing principles developed in the previous chapter. They also point out the special challenges and importance of debriefing in the context of adventure learning.
Bee Chen Goh, Habib Chamoun-Nicolas, Ellen E. Deason, Jay Folberg & Sukhsimranjit Singh, As We See It, in Educating Negotiators for a Connected World 103-124 (Christopher Honeyman et al. eds., 2013).This chapter is another collaborative effort by Ellen Deason and others that explores cross-cultural differences in adventure learning. The authors tried negotiation exercises in the markets of Beijing. Each individually explains their experience as viewed through their own cultural background and perspective (Chinese, Mexican, North American, and Indian). The authors conclude that self-awareness—often taken for granted—must be a central requirement in cross-cultural negotiation training.
Andrea Kupfer Schneider, Ellen E. Deason, Dawn Chen & Zhouxh Xiahong, Ethics in Legal Negotiation: A Cross Cultural Perspective, in Educating Negotiators for a Connected World 247-266 (Christopher Honeyman et al. eds., 2013).
Ellen Deason is part of this collaborative effort by U.S. law professors and their Chinese counterparts exploring negotiation ethics from a cross-cultural perspective. The authors observed a Chinese negotiation class presented with a legal ethical question. The class negotiated a version of the DONS simulation created by Harvard’s Program on Negotiation. It involves negotiating a settlement between a woman and the man she has infected with a deadly disease. The catch is that the man has re-tested and does not have the disease after all. He tells his lawyer not to disclose the information. Similarly, the woman has just inherited a large sum of money and she instructs her lawyer not to disclose this information. The results of the negotiations were universal—no one disclosed this information. These results led the authors to draft this chapter. Following description of the Chinese negotiation exercise, the authors explain the landscape of lawyer ethics in China and legal education. They continue their comparative approach by exploring the challenges of teaching ethics in both Chinese and U.S. law schools.
Ellen E. Deason, Alternative Dispute Resolution in the United States, in Bin Liang & Hong Lu eds., JURISPRUDENCE, translated into Chinese by Xiaoyi “Amy” Sun (Renmin Univ. of China Press 2011).
This chapter is part of a book intended for advanced social science students in China seeking an introduction to jurisprudence, with chapters by leading scholars in a variety of fields. Ellen’s chapter covers alternative dispute resolution. In addition to explaining the basics of negotiation, mediation, arbitration and court-sponsored settlement procedures, Ellen describes both the intellectual and historical development of alternative dispute resolution and its deep impact on the practice of law. She also covers current issues in ADR, such as quality control in mediation and the expansion of arbitration into statutory employment law claims.
Ellen Deason (w/Nuno Delicado et al.), Assessing Negotiation Competitions, in (N. Ebner et al. eds) ASSESSING OUR STUDENTS, ASSESSING OURSELVES: VOLUME 3 IN THE RETHINKING NEGOTIATION SERIES (2012).
This series arose from a 2011 Conference in Beijing on rethinking negotiation teaching. Ellen was an invited participant at the conference that led to international collaboration in considering the subject. This chapter draws on experiences with negotiation competitions in many fields, including law, international relations and business, and on many continents, including Africa, Asia, Europe and North America. Recognizing that negotiation competitions have proven “an excellent tool to engage and motivate students about negotiation,” the chapter suggests standards for evaluating competitions, both to facilitate future competitions and to “contribute to negotiation evaluation in other settings.” Most of the chapter is devoted to “judge assessment” scoring based on a set of criteria, as opposed to “negotiation outcome” scoring. The chapter covers suggested criteria (good outcome, skills demonstrated, ethical standards) in detail, including, of course how to assess them, as well as much of the nitty-gritty of competitions, such as formats, weighting and, from a pedagogic perspective, the crucial debriefing.
Ellen E. Deason (w/John T. Cross and Leslie W. Abramson), 2010 SUPPLEMENT TO CIVIL PROCEDURE, CASES, PROBLEMS AND EXERCISES (2d ed. West).
This casebook supplement now runs nearly 400 pages and keeps the casebook current with regard to cases, rules and commentaries, including the Supreme Court’s 2010 decision in Hertz v. Friend in which the Court attempted to resolve confusion among the lower courts regarding the test for determining the state of a corporation’s citizenship for diversity jurisdiction purposes, and Shady Grove Orthopedic Associates v. Allstate Insurance, in which the Court addressed the applicability of Federal Rule 23 (regarding class actions) in a diversity jurisdiction action in federal court, as well as the standard for determining whether a federal rule is procedural for Erie purposes.
Ellen E. Deason (w/Edward Brunet & Charles B. Craver), ALTERNATIVE DISPUTE RESOLUTION: THE ADVOCATE’S PERSPECTIVE CASES AND MATERIALS (4th ed.) (Lexis/Nexis 2011).
This leading text on Alternative Dispute Resolution (“ADR”) is divided into four sections—Negotiation, Mediation, Arbitration and Government Sponsored ADR—and Ellen has primary responsibility for the Mediation section and the topic of Court Annexed ADR processes (e.g., early neutral assessment, mandatory mediation, summary trial . . .), which is the bulk of Government sponsored ADR. This five-year revision incorporates substantial changes to these sections, including new problem sets and, in the divorce mediation sections, new material on domestic violence and collaborative law.