Welcome

The Ohio State Journal on Dispute Resolution, in collaboration with the Moritz College of Law's Program on Dispute Resolution, is pleased to bring you Volume 16, Issue 3, of the Mayhew-Hite Report on Dispute Resolution and the Courts.

Perspectives from Ohio’s DR Conference: Implicit Stereotypes and Implicit Attitudes: Strategies to Prevent Unconscious Threats to Neutrality and Equitable Outcomes

Mary Bockstahler*

This session identified implicit bias as a critical subject for mediators and other court employees, and challenged mediators and court employees to consider how implicit bias impact their daily work. The session was facilitated by Kelly Capatosto, Kyle Strickland, and Lena Tenney of the Kirwan Institute for the Study of Race & Ethnicity, and William Froehlich, the current Langdon Fellow in Dispute Resolution at the Ohio State University Moritz College of Law.

Kyle Strickland, Kelly Capatosto, and Lena Tenney, courtesy of the Kirwan Institute.

This session highlighted two core values of mediation: neutrality and impartiality, both of which are prescribed by the Uniform Mediation Act and the Model Standards of Conduct. The speakers differentiated between implicit bias, which stems from human cognition and how we unconsciously process race; and structural racism, which is the more overt form of racism and includes actions such as redlining. Mediators should strive to be conscious of their implicit biases, and should shift their focus from intentions to outcomes. Mediators often focus only on their intent to appear unbiased, and should rather shift their focus to how their actions translate in real life. Even the best-intended mediators can come off as biased.

The speakers stressed that implicit bias is ok – it is how we have been able to survive as humans. Biases are formed by the cumulative effect of experiences. The challenge for mediators, though, is to notice biased dynamics and interrupt that cycle of bias. The speakers discussed the study where partners at a law firm were given two identical memos from associates, both named Thomas Meyer, who had the exact same credentials. The only difference was that one of the memos came from Thomas Meyer, a white associate; and the other came from Thomas Meyer, an African-American associate. The study’s goal was to look at the partners’ perception of confidence in each of the “associates.” Ultimately, the study found that the partners had greater confidence in the white associate, even though all other factors were exactly the same, including the content of the memo. The partners gave more positive feedback to the white “Thomas,” and were more likely to find errors in the black “Thomas’s” memo. The speakers in this session noted this study showed that people tend to give someone the benefit of the doubt, based on race, even when they do not deserve it.Read more

Perspectives from Ohio’s DR Conference: Enhancing Mediation Services through Court-Community Mediation Center Collaborations

Ayesha Cotton*

Facilitated by  Magistrate Brandon McClain of the Dayton Municipal Court and Ms. Cherise Hairston, a Conflict Intervention Specialist with the Dayton Mediation Center, this session focused on opportunities for collaboration between court systems seeking mediation services and community mediation centers.  Magistrate McClain and Ms. Hairston began the presentation highlighting the supportive relationship between the the Dayton Municipal Court and the Dayton Mediation Center.

To illustrate the difference between traditional court processes and mediation, the presenters provided an example of a tenant who got behind in her rent and was eventually evicted. After the tenant had left the premises of the property it was discovered that she left behind her mother’s ashes. Under the law the landlord had possession and ownership of the ashes because they were left in his property. Through mediation, it was discovered that the tenant had fallen behind in her rent because she was taking care of her ill mother who then passed away. The mediation created a space where the parties could talk with each other openly about their dispute, and were therefore able to come to a resolution where the tenant was able to get her mother’s ashes.Read more

Perspectives from Ohio’s DR Conference: Court-Connected Online Dispute Resolution: Enhancing Access to Civil Justice

Miki Someya*

ODR supplements traditional dispute resolution systems, bringing together dispute resolution principles with modern information and communication technology.  The e--commerce industry is the first industry which invested to ODR. Mr. Rule is the former director of online dispute resolution for eBay. At eBay, out of 6 million disputes, 90% of dispute were resolved in software, without any human intervention.  When compared to court processes, Mr. Rule states that ODR saves parties 50% of their time.

Colin Rule at the Supreme Court Conference. Credit, Katie Monahan, Supreme Court of Ohio.

ODR is typically involves a three-step process. First, automated resolution software diagnoses disputes and sets expectations around timing and process.  Even at this first steps, software can sometimes prevent dispute at that point. Second, software facilitates negotiation between parties, promoting constructive negotiations.  By way of example, the software suggest an initial message format which will help parties to provide sufficient information without too much negative emotion. When the software cannot solve issues, then the system helps mediation. At this third step, a human party serves as the mediator—but all mediations are still conducted online.

Mr. Rule, founder of ODR platform Modria, one of the first ODR providers, believes that ODR is the future of civil justice.  Citizens are now living with technology, and they expect court systems to develop online resources that can be utilized during the civil justice process. The use of technology in dispute resolution can make dispute resolution fairer and faster. ODR also may enhance access to courts. Coordinating everyone’s schedule is a challenge in traditional dispute resolution systems, and people could be barred from justice if they could not physically come to court during limited court hours.Read more

Perspectives from Ohio’s DR Conference: Creativity in Mediation

Juan Camilo Osma Potes*

In this session,  Professor Jan Marie Fritz pushed participants to think about creativity in mediation. She defines creativity as a process in which individuals accept contradictions in a brainstorming session, which leads to the development and sharing of diverse ideas and perspectives, and may ultimately trigger the articulation of ideas which might resolve a problem. In mediation, this definition translates into an opportunity for the mediator to invite the parties to be creative in the resolution of their dispute.

Fostering creativity is one of the mediator’s tools in resolving disputes. One way a mediator can use creativity in mediation is to talk to the parties individually before commencing the mediation session. When a mediator is prepared for the mediation, it makes it easier for the mediator to think creatively.

The speakers discussed a mediation between father and son. The father divorced the son’s mother and married another woman. The father owned a company, and, before he got divorced, he transferred 55% of the company to his son. When the son learned his father was getting married, he decided to sell the company and break relations with his father. After the parties reached an impasse that appeared to be final, the mediator thought of an idea that eventually helped the parties to reach an agreement. The mediator, in this case, acted creatively and decided to focus on the social interest of the parties rather than the company.  Supporting this relational approach the mediator used PowerPoint slides and music to put the parties at ease. The PowerPoint slides had quotes such as “Son, I thought I would die at the age of 45, but after I got you I prayed every day to die at the age of 100,” or “Do you remember the first time we got an ice cream together and I offered you my ice cream when you wanted more? I would give everything for you son.” The music was specifically selected to put the parties at ease and made them realize their relationship was more important than any fight—including this transactional dispute. Examples like this illustrate how creativity can be an essential tool for mediators, particularly when engaged in disputes that require social acuity in addition to legal acumen.Read more

ARTICLE SUMMARY

Because of the MHR's focus on The Supreme Court of Ohio's Dispute Resolution Conference, this edition does not include an article summary.

CASE SUMMARY

Because of the MHR's focus on The Supreme Court of Ohio's Dispute Resolution Conference, this edition does not include a case summary.

HEADLINE NEWS

  • Deason wins AALS DR Award for “Beyond Managerial Judges” Article

    The AALS Section on Alternative Dispute Resolution recently announced Ellen Deason as the winner of its inaugural award for "best scholarly article published in print or online" in the field of Alternative Dispute Resolution.  Nancy Rogers nominated Prof. Deason's article for the award, noting the following in a nomination letter:

    First . . . the article is so sound and well done that it will persuade decision-makers to change the rules regarding judicial participation in settlement discussions.  Second, the article will help clarify thinking about the distinctions between judges sending cases to mediation and mediating themselves.  Third, it brings together for the first time research and commentary drawn from history, civil procedure, mediation regulation, judicial ethics, cognitive science, social science studies, comparable approaches in law, and pragmatic concerns  -- all brought to bear with unwavering clarity on the issue of judicial roles in settlement discussions.

    Prof. Deason's article, Beyond “Managerial Judges”: Appropriate Roles in Settlement, is published in the Ohio State Law Journal.  Congratulations to Professor Deason, of The Ohio State University Moritz College of Law! The AALS ADR Section will present Prof. Deason with a certificate acknowledging her well-deserved award at the Fall 2018 AALS Works-in-Progress Conference.

    Moritz faculty and students pictured here attended the ABA Dispute Resolution Section's Spring 2018 Conference. In the back row: Prof. Ellen Deason, Prof. Grande Lum, Prof. Nancy Rogers, JDR member Andrea Witte, JDR member Kishala Srivastava, JDD member Averie Bornhorst, Prof. Josh Stulberg, Prof. William Froehlich. In the front row: JDR members Abby Chin, Christian George and Eva Cuollo.

  • Moritz Students Reach Final Four in Mediation Comptition

    Lex Ehrenschwender and Greg Dick began their journey to become one of the top-four representation in mediation competition teams in the country in February after winning Moritz's internal competition.  In early March, Lex and Greg traveled to the Regional representation in mediation competition at Liberty University with fellow Moritz students Kassie Stewart and Abby Riffee.  As winners of the regional competition, Lex and Greg were invited to the national competition finals in Washington, D.C. taking place on April 4-5, 2018.  Lex and Greg successfully navigated well-prepared competitors in the preliminary rounds, ultimately finishing as one of the country's top four teams!

    Congratulations to everyone who participated in the competition and helped Moor Court organize Moritz's internal competition.  Of course, longtime representation in mediation competition coaches Marya Kolman and Dottie Painter should be commended for their tireless support of Lex, Greg, Kassie and Abby.

  • Dwight Golann Delivers Engaging Schwartz Lecture

    On February 22, 2018 Suffolk Law Professor Dwight Golann presented the 2018 Schwartz Lecture on Dispute Resolution titled "Grieving Over Settlement: The Impact of Loss in Legal Negotiation" to a packed house in Moritz's Saxbe Auditorium.  Prof. Golann discuss how modern teaching about negotiation emphasizes opportunities for achieving joint gain and the need to measure a settlement proposal against one’s alternatives. Using a combination of video clips and an interactive exercise, the Prof. Golann illustrated why many disputants experience settlement as a loss.  He explored why disputants often react to settlement decisions as a loss, and how attorneys and neutrals can respond to this phenomenon.

    The Schwartz Lecture on Dispute Resolution was established in 1992 as a result of the generosity of the late Stanley Schwartz Jr. (a 1947 Moritz College of Law graduate) and the Schwartz family. Each lecture is published in the interdisciplinary Ohio State Journal on Dispute Resolution, in keeping with Mr. Schwartz’s interest in the promotion of scholarly publication in the area of dispute resolution.  Look for Prof Golann's forthcoming article sometime next year!

  • ABA Selects Divided Community Project for “Lawyer as Problem Solver” Award

    On Thursday April 5, 2018, the American Bar Association Section of Dispute Resolution awarded the Divided Community Project – housed at The Ohio State University Moritz College of Law – the 2018 John W. Cooley Institutional Lawyer as Problem Solver Award.   The ABA’s press release is available.  Ohio State University reported on the award.  The Moritz College of Law reported on the award.

    DCP convener and executive committee member, Joseph B. (Josh) Stulberg, the Michael E. Moritz Chair in Alternative Dispute Resolution at The Ohio State University Moritz College of Law, delivered the following remarks to members of the Dispute Resolution Section:

    On behalf of the leadership group of the Divided Community Project and our multiple program pilot project partners, we want to express our deep gratitude and appreciation to the ABA’s Section of Dispute Resolution for honoring us as the recipient of the 2018 John W. Cooley institutional Lawyer as Problem-Solver Award.

    What shapes the Divided Community Project?

    It is apparent to each of us living in the United States that multiple members of our respective communities are bringing their concerns to the fore.  Their advocacy has produced some change; some has triggered backlash.  Discomfort with division has driven some into their own echo chambers regarding news and politics.

    Read more

EDITOR'S CORNER

Welcome to Volume 16, Issue 3

Welcome to the Spring 2018 edition of the Mayhew-Hite Report! We’re your editors, Brooke Mangiarelli and Mary Bockstahler. On March 13, 2018, The Supreme Court of Ohio hosted its 2018 Dispute Resolution Conference at The Ohio State University. The conference focused on integrating contemporary dispute resolution processes into today’s courts and featured speakers and experts in dispute resolution from across the country. The conference offered numerous breakout sessions on a wide range of topics that showcased innovative dispute resolution techniques and focused on developing exceptional dispute resolution skills.  The Ohio State Journal on Dispute Resolution was pleased to attend the conference and many of our members attended various breakout sessions. As a result, this edition of the Mayhew-Hite Report showcases a variety of groundbreaking topics exhibited at the Supreme Court of Ohio’s 2018 Dispute Resolution Conference.

This issue features a number of articles written by members of The Ohio State Journal on Dispute Resolution, which summarize various breakout sessions featured during the 2018 Dispute Resolution Conference. These sessions focused on innovative topics, including how mediators can address their own implicit bias, creativity in mediation, and enhancing access to civil justice through court-connected online dispute resolution.  Take a look at the Supreme Court of Ohio's website for more information about the 2018 dispute resolution conference!

This issue’s student spotlight features a note written by 3L Matthew Weigel titled Policing the Wild West: Providing Predictability for Addressing Third Party Funding in International Arbitration. Matthew’s note examines the role of third-party funding in the international arbitration context. Specifically, the note focuses on the work of the Subcommittee on Security for Costs and Costs (“Subcommittee”), which is part of a task force convened by the International Council for Commercial Arbitration and Queen Mary University of London. In an area lacking any uniform regulation, the Subcommittee issued a draft report analyzing how tribunals have dealt with issues surrounding costs of third-party-funded actions and also proposing a set of guidelines for tribunals to reaffirm the certainty corporations seek when agreeing to arbitration. Policing the Wild West examines the rules and decisions of other tribunals and compares those decisions with the Subcommittee’s recommendations. Policing the Wild West argues that widespread adoption of the Subcommittee’s guidelines would safeguard arbitrating parties’ presumptions of receiving equal treatment before a tribunal, regardless of whether they have secured outside funding to finance the arbitration. This equal treatment, the note argues, is crucial to preserving the control and predictability that parties to international arbitration seek and also restores a measure of certainty for corporations engaged in cross-border commerce.  Thus, to enhance the efficiency and fairness of international commercial arbitration, Matthew’s note advocates for adoption of the Subcommittee’s guidelines to bring rule of law values into the otherwise lawless frontier of third-party funding.

STUDENT SPOTLIGHT

Policing the Wild West: Providing Predictability for Addressing Third Party Funding in International Arbitration

William Matthew Weigel*

I. Introduction: The Dynamic Landscape of International Dispute Resolution

Globalization has become the ubiquitous term for describing the state of social and economic affairs characterizing the first two decades of the 21st century. Defined as “the development of an increasingly integrated global economy marked especially by free trade, free flow of capital, and the tapping of cheaper foreign labor markets,”[i] this trend has been hailed as raising all boats in rich as well as poor countries.[ii] The increasing interconnectivity of the international economy has had significant effects on commercial institutions and processes, changing and challenging the way companies compete and interact in an increasingly complex business environment.[iii] The difficulty of resolving complex international disputes under domestic legal frameworks has led companies to pursue pragmatic and efficient alternative approaches.[iv]

Globalization has not only led to an increase in international trade but also has created an international commercial community “that is more sizeable in terms of numbers and more significant in terms of its transactional capacity.”[v] The swift growth in cross-border commercial dealings has created a similarly swift increase in cross-border disputes.[vi] Recognizing the paradigm shift in their business models, multinational corporations have sought a parallel change in how disputes stemming from those commercial dealings are resolved.[vii]

Traditional litigation in national courts often provides significant benefits for a forum’s corporate citizens, including: familiarity, recognizable legal customs and rules, and a common language.[viii] However, these benefits may be considered detrimental by a party that does not call that nation home.[ix] In an effort to exert a greater degree of control and choice over how and where disputes will be resolved, corporations entering into contractual commercial relationships have increasingly agreed to resolve disagreements consensually, through arbitration.[x] Corporations’ unwillingness to submit to the whims of a court through traditional litigation is attributed with “the exponential expansion of the scope and frequency of arbitration proceedings in commercial dealings throughout the world.”[xi]

The shift to arbitration has provided a wide-range of benefits to corporations who find themselves pursuing or defending international claims, including: confidentiality, flexibility, neutrality, and choice of law.[xii] Each of these benefits offers claimants and respondents increased control over a given proceeding, as parties often negotiate choice of arbitrators, tribunal, applicable rules and law,[xiii] and other terms at the outset of the commercial relationship. The control and certainty provided by consensual arbitration has made it an essential tool in resolving complex cross-border disputes.[xiv] There is however, a threat to the predictability arbitration provides: the increased prevalence of third party funding.[xv]

Third party funding is present where an outside party financially stakes an arbitration action in pursuit of a return, in the event a claim or defense succeeds.[xvi] The absence of professional regulations around third party funding[xvii] has raised significant concerns about its presence and effect on the arbitral process.[xviii] In response, calls for increased regulation of third-party-funded claims are gaining momentum.[xix] Specifically, proposals compelling the disclosure of third party agreements have garnered wide-spread appeal,[xx] though other subject areas remain open to debate.[xxi] One of those debated areas encompasses the relationship between third party funding and costs in arbitration: specifically, how the presence of such funding effects allocation of costs and security for costs.[xxii]Read more

MORITZ ADR LINKS

Moritz Program on Dispute Resolution

Widely regarded as one of the nation's finest programs in the area of Alternative Dispute Resolution, the Moritz ADR program was established in recognition of the need for future lawyers to be trained in an array of dispute resolution methods beyond litigation, including negotiation, mediation, and arbitration. [Program Home]

Ohio State Journal on Dispute Resolution

The Ohio State Journal on Dispute Resolution ("JDR") is a student-initiated, student-run publication and is the official law journal of the American Bar Association's Section on Dispute Resolution. [JDR Home]

The Caucus

The Caucus is a monthly e-newsletter that highlights the scholarship and accomplishments of the Moritz Program on Dispute Resolution faculty and students. [The Caucus Home]

Indisputably

Indisputably is a blog operated by law professors from around the United States concentrating on issues involving dispute resolution. [Indisputably Home]

Bridge Initiative @ Mershon and Moritz

The Bridge Initiative, which combines resources from Moritz College of Law and the Mershon Center for International Securities Studies, is an indispensable resource for those doing research in issues involving dispute resolution. [Bridge Initiative Home]

Contact US

Ohio State Journal on Dispute Resolution
The Ohio State University
Moritz College of Law
55 West 12th Avenue
Columbus, Ohio 43210-1391
(614) 292-7170
osu-jdr@osu.edu

The Ohio State University | Michael E. Moritz College of Law | 55 West 12th Avenue | Columbus, OH 43210-1391