Faculty Scholarship Digest
On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise. (See Archives)
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/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, 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.
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.
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