Faculty Scholarship Digest
Joseph B. Stulberg
Joseph B. Stulberg (w/Bernard Mayer, Lawrence Susskind & John Lande), Panel Discussion – Core Values of Dispute Resolution: Is Neutrality Necessary?, 95 MARQ. L. REV. 805 (2012).
Thirty years ago, the Vermont Law Review published a famous exchange between Professor Stulberg and Professor Lawrence Susskind, a foundational scholar in the mediation field now at MIT. Their exchange focused on mediator “accountability” (in Susskind’s word) or mediator “neutrality” in Stulberg’s. With the argument set in the context of environmental mediation, Susskind contended that in addition to ensuring full participation and a balanced exchange between the parties, a mediator has a responsibility for the fairness of the ultimate agreement including regard to interest of nonparties to the original dispute. Josh rejected this substantive role for the mediator, contending that a stake in the outcome is not only beyond the mediator’s charge but fundamentally undermines the effectiveness of the mediator’s role.
The Susskind-Stulberg exchange has been a celebrated discussion of a foundational issue in the field ever since, and this Panel Discussion was a part of symposium reviewing that debate thirty years later. Professors Stulberg and Susskind continued to see the merits in their own positions; the core of their disagreement remains. Yet, as becomes evident when the panel is thrown open to questions from the sophisticated audience, Stulberg and Susskind also share a vision of mediation as a crucial means of addressing issues that litigation alone cannot capture.
Joseph B. Stulberg, Must a Mediator Be Neutral? You’d Better Believe It!, 95 MARQ. L. REV. 829 (2012).
Thirty years ago, the Vermont Law Review published a famous exchange between Professor Stulberg and Professor Lawrence Susskind, focused on the merits of mediator “accountability” (responsibility for substantive outcomes and interests of absent parties) versus mediator “neutrality,” a stance that goes beyond objectivity and impartiality (which could be met by advocating substantive principles consistently). Josh advocated the neutrality side in that debate, and this article is a part of a symposium reviewing the classic Susskind-Stulberg debate. Josh’s contribution is a detailed and full-throated defense of the neutrality position: “a mediator must be neutral because justice demands it; and empirically a mediator can, in fact, be neutral in the required way. . . . [Otherwise], there is no principled basis for distinguishing the mediator’s participation from that of a bully or a philosopher king.”
The article acknowledges the practitioners and scholars who have disparaged this view and closely argues the points by examination of mediation in many fields, from family law, to employment questions, to routine civil litigation. The article does not hide from the difficult hypotheticals: “the soon-to-be ex-spouse who agrees to financial settlement terms less generous than what the law mandates or the tenant who accepts the landlord’s reimbursement of the contested security deposit ignorant that she was legally entitled to treble damages.” How can we demand and celebrate a neutrality that facilitates these outcomes? Josh sets out detailed arguments that neutrality is a part of treating individuals with dignity and respect and that, on balance, neutrality — as part of a well-designed mediation process — will “generate ‘just’ results more consistently and compellingly” than any other dispute resolution approach.
Joseph B. Stulberg (w/Lela P. Love), Success and Failure in ADR: A Dialogue Between Partners, 2 Int’l J. Conflict Engagement & Resol. 59 (2014).
In this article, Josh and his co-author engage in a dialogue regarding developments in the field of alternative dispute resolution (ADR) over the past forty years with regard to five areas. Concerning the scope of ADR processes, Josh, while a famous proponent of mediation and its virtues, regrets that ADR has often become synonymous with mediation, while adjudicatory ADR processes (including arbitration and others) have been shunted aside in the ADR world, even though sometimes “fair dialogue, advanc[ing] basic respect and pierc[ing] power disparities . . . require . . . an adjudicatory process.” Josh’s co-author largely concedes the dominance of mediation but finds that less lamentable for a variety of reasons. Next, with regard to the growth and pervasiveness of court mandated mediation as a step before adjudication, Josh applauds, noting that it forces the lawyers to talk with one another and avoids the stigma of “weakness” for commencing settlement discussions. Josh’s co-author is less impressed because such mandated mediations are sometimes time-constricted in a way that distorts the true goals of mediation.
With regard to scholarship and teaching of ADR, Josh and his co-author are largely in sync, celebrating the success represented by the expansion of ADR scholarship and teaching across many more disciplines. Josh goes on to describe with pleasure the distinctive and deep connection ADR academics have been able to make between the worlds of theory and practice, both in scholarship and pedagogy. Turning to the public consciousness of ADR, Josh and his co-author agree and lament that little beyond litigation penetrates pop culture and public consciousness. In a final section, the author’s address ADR’s biggest current failure and, in contrast, the greatest inspiration for the future. For Josh, the failure “without doubt is the abysmal record of racial diversity among practitioners and teachers,” and Josh details the tragedy of this failure. As for inspiration, ADR helps people “address and resolve their differences with dignity and respect,” what better task to work on every day?
Joseph B. Stulberg & Lela P. Love, The Middle Voice (2d ed. 2013).
Josh Stulberg and coauthor Lela Love (Cardozo) have accomplished the nearly impossible task of writing a book on mediation which is accessible and valuable to everyone from the most experienced mediator and trainer to the unwitting person who finds themselves thrust into the position of mediator. In this concise guide to mediation success, Stulberg and Love share their secrets and practical wisdom gleaned from two decades of mediating and mediation training. Reading it is like taking the world’s best mediation training course with the luxury of being able to repeat it whenever you need to. As one reviewer put it: “There is simply no one in the conflict resolution field who knows more about the theory and practice of facilitative mediation than the authors of this book. Both are master practitioners, teachers and trainers, whose former students are leaders in the field today.” Stulberg and Love start with the very basic axiom: “The question is not whether we will mediate. The question is: How well will we do it?” The core of the book is an explanation of BADGER—a mnemonic acronym for the components of the mediator’s role. (Begin discussions. Accumulate information. Develop discussion strategy. Generate movement. Elect separate sessions. Reach closure.) While recognizing the complexity of the mediation process, Stulberg and Love reject the notion that it is “an art form in which anything one does is acceptable or for which one must have an inborn talent.” Instead, the authors plainly make their case that there are ways to prepare, options on how to persuade, and procedures for closure. When done successfully, “the joy of mediating is immense.”
James J. Alfini, Sharon B. Press & Joseph B. Stulberg, Mediation Theory and Practice (3d ed. 2013).
Josh Stulberg and his coauthors have produced the third edition of their textbook, Mediation Theory and Practice. Much has happened in the mediation field in the seven years since they published the second edition. The authors, in turn, have made significant changes to their text. The first chapter on the historical context of mediation is rewritten. They include a new final chapter (Chapter 11) exploring the many contexts in which mediation is used and career opportunities in the field. Chapter 8, on ethical issues for mediators, is also substantially expanded reflecting the increasing attention to ethical concerns. It is also enriched with actual examples of mediator grievances and advisory ethics opinions. The increasing importance of court-connected mediation is reflected in a reworked chapter on the institutionalization of mediation in the courts (Chapter 9). Also included in this new edition is a state-of-the-art analysis of the advocate’s role in mediation, in recognition of the increasing role of lawyers participating in mediation sessions on behalf of clients. Of course, throughout the textbook the authors add reference to new authorities, both ethics opinions and case law. The result is a timely, current publication that reflects the changes in the field of mediation without any sacrifice of substance from the earlier edition.
Joseph B. Stulberg (w/Maria Pilar Canedo Arrillaga & Dana Potockova), Minimizing Communication Barriers, in Christopher Honeyman et. al. eds., RETHUNKING NEGOTIATION TEACHING, INNOVATIONS FOR CONTEXT AND CULTURE (DRI Press 2009).
Stulberg and his co-authors (a Vice-Dean on a law faculty in Spain and a Managing Director of a conflict resolution group in the Czech Republic) share extensive experience in teaching international negotiations to audiences whose native language is not the same as the instructor’s. In this chapter of a book on negotiation instruction, they present a detailed series of best practices for conducting negotiation workshops for global professionals across different native languages.
The chapter is divided into two sections, one for presenters whose native language is not English presenting materials in English, and one for native English speakers presenting to an audience for whom English is a second language (the latter circumstance, of course, being the one Stulberg frequently experiences). The chapter details many steps and principles to follow for success in each situation. For the native English speaker leading a negotiation workshop, Stulberg and his coauthors recommend a carefully prepared, targeted lecture as the major component of the instruction and provide guidance for success on this dimension as well as suggestions for effective interactive exercises in this special context.
Joseph B. Stulberg, Janice Kwon & Khory McCormick, How Different Is Different?: Teaching Persons to Negotiate Cross-Culturally, in Educating Negotiators for a Connected World 125-144 (Christopher Honeyman et al. eds., 2013).
Josh Stulberg and his coauthors contribute this chapter on cross-cultural negotiations to this new edited volume, Educating Negotiators for a Connected World. The authors appreciate the first wave of research on cross-cultural negotiations; however, they find its application to teaching and training as arid, simplistic, and unpersuasive. Instead, they argue for a richer and more complex treatment of culture in negotiations. There are two main concerns. First, current research ignores that differences that are identified as significant to cross-cultural negotiations are also significant for “intra-culture” negotiations. Second, research also ignores the degree to which negotiating dimensions and tactics may be similar across cultures. Consequently, the authors contend that the belief that a wholly different approach is required when negotiating with someone from another culture is just as likely to produce error as the belief that you can simply ignore cultural differences altogether. The authors make their point by examining three hypothetical case studies: an international lawyer confronted with civil and common law differences, a CEO negotiating with China, and a college administrator in charge of foreign study programs. The authors conclude with lessons learned and their implication for teaching negotiation.
Joseph B. Stulberg, Tony, in Eric M. Galton and Lela P. Love eds, STORIES MEDIATORS TELL (American Bar Association 2012).
As the editors of this volume explain, while every litigator has a supply of “war stories,” tales from mediators are much less common because of the confidentiality requirements that underlie mediation. By collecting stories from mediators (some of them partly fictionalized to preserve confidentiality), the editors hope to advance understanding about the nature and successes of mediation. The book is divided into sections such as “The Principle of Unknowability,” “Staying in the Middle Without Judgment or Favoritism,” and “Listening for the Undercurrents.”
Josh’s chapter, Tony, comes in a section titled “Addressing Issues That Litigation Cannot.” It is a riveting story. Tony was an African-American student at a Catholic parochial school at the end of his senior year. The school, located in a largely segregated suburb, offered four full-tuition scholarships to promote economic and racial diversity, and one of these scholarships had allowed Tony to attend. Tony was also an outstanding athlete and headed to a Big Ten college on a football scholarship. Only final exams of senior year remained. A school tradition at the end of each academic year was an “open mic” assembly, at which students could express their feelings about the school. Josh writes that Tony was first to the mic and said “Father O’Brien. Teachers. Classmates. I just want to say this: After four years at this place, I think that all of you are still a bunch of motherf****** racists.” Father O’Brien (the head of school) immediately ended the assembly and told Tony, “You are dismissed from this school. Immediately. . . . Get out. . . . If you want to finish high school, you will get a GED.” Josh tells the story of the escalating tensions and events that followed, and the mediation and resolution it produced. The story concludes with Josh’s reflections on several issues prominent in the story, including the role of the mediator and the importance of confidentiality, adding additional insight to a very powerful story.
James Coben & Josh Stulberg, Book Reviews in Brief, Disp. Resol. Mag., Summer 2013, at 33.
In his capacity as Co-Chair of the Editorial Board for Dispute Resolution Magazine, Josh Stulberg reviewed two new books for the Summer 2013 issue (which had a theme of reading about dispute resolution). Contemporary Issues in International Arbitration and Mediation, edited by Arthur Rovine, is a collection of essays that Stulberg finds inspiring. He especially valued the contributions on international commercial arbitration, but thought all of the topics were engaging and merit attention. For Stulberg, it is the authors—problem solving lawyers and scholars analyzing concrete challenges—that make the volume worthwhile. Stulberg also reviewed Civic Fusion: Mediating Polarized Public Disputes by Susan Podziba. In this work, Podziba uses examples from her own mediating experience to illustrate how an intervenor can effectively mediate polarizing public disputes. Stulberg concludes that with this book, “intervenors have effective materials to guide their conduct” when called upon to bring diverse, politically active people close enough together to help them bond.
Joseph B. Stulberg, Keeping Commercial Arbitration True to its Core Values, Disp. Resol. Mag., Summer 2014, at 18.
In this review Josh discusses the latest edition of a “treasured resource” for all stakeholders in the commercial arbitration process. The review highlights a few particular issues: (i) the important intrusion of e-discovery issues into arbitration and the necessity of establishing reasonable ground rules to keep arbitrations from “spinning out of control;” (ii) the difference in rules and approaches amongst the three primary ADR provider organizations; and (iii) the emergence of new hybrid dispute system models, as dispute system design remains a vibrant reality. The “elephant in the room,” however, remains the threat, perhaps even trend, “of transforming the arbitration process into a litigation process” that undermines the very values that brought commercial arbitration forward.
Joseph B. Stulberg (Chair, with Sharon Press, Vice Chair and Richard Fincher et al., Task Force Members), The Association of Conflict Resolution, An Examination of the Arbitration Fairness Act of 2009 (October 2009).
This one-hundred page report of a task force created and chaired by Josh Stulberg at the request of the Association of Conflict Resolution (“ACR”) — an international association of mediators, arbitrators, facilitators and educators in the field — addresses proposed versions of the Arbitration Fairness Act (“AFA”) (now before Congress with a seemingly better chance than ever of passing) which would amend the Federal Arbitration Act. In November the task force’s report was adopted by the ACR.
The AFA proposes changing federal law so that any pre-dispute agreement to arbitrate a dispute involving a “consumer,” “employment,” “franchise,” or “civil rights” as defined by the legislation would be void and unenforceable. Moreover, courts would be the exclusive adjudicators of any dispute challenging an arbitrator’s jurisdiction. Needless to say this would work a major change in current law, under which such pre-dispute agreements “are routinely required or imposed ... as a condition of providing a service or extending an employment opportunity.”
The report of Josh’s task force recognizes significant problems “that require immediate attention” in the design and implementation of some such arbitration agreements but concludes that the ban is a cure much worse than the disease. The task force sees pre-dispute mandatory arbitration as the most promising means “for developing a fast, efficient, fair, low-cost dispute resolution process” that is both accessible to all and transparent in its practices. Elimination of mandatory arbitration would leave courts as the alternative, and the report finds “no reasonable evidence” that courts can meet many (if any) of these goals in the arenas in which these agreements are used. Moreover, the task force notes the AFA “could create uncertainty” in international business transactions and employment contracts and, more generally, retard the progress of alternative dispute resolution processes, which have had broad support for three decades.
The Report supports these conclusions with a detailed analysis (examining cases, scholarship, and data) of the problems identified by the AFA and the likely impacts of its proposed solutions. While rejecting the proposed legislation for the reasons described above, the task force supports amending the Federal Arbitration Act and it provides detailed and specific proposals about how to improve it.