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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 15, Issue 2, of the Mayhew-Hite Report on Dispute Resolution and the Courts.

Reflections on Technology & Dispute Resolution: Highlights from Panel at 2016 Ohio State Journal on Dispute Resolution Symposium

Disclaimer: The following article has been reviewed by the Mayhew-Hite Editor. Articles published in the Mayhew-Hite Report do not undergo the same rigorous accuracy check or editing process as articles published in the print edition of the Ohio State Journal on Dispute Resolution. 

Katrina June Lee*

ODR is the future of ADR.[i]

Holograms will be part of dispute resolution.[ii]

There is no A in ODR.[iii]

When you buy a product that was made and shipped from China, any dispute over that product will cross boundaries. How does that work?[iv]

These pronouncements represent the ambitious reach of the Technology & Dispute Resolution panel at the 2016 Ohio State Journal on Dispute Resolution Symposium. This essay will present highlights and ideas from the spirited panel discussion.

Stars in the Online Dispute Resolution (ODR) field, the panelists were Susan Nauss Exon, a professor at The University of La Verne College of Law and an expert on ethics in dispute resolution; Professor Ethan Katsch, professor emeritus at the University of Massachusetts and widely recognized as the founder of the field of online dispute resolution; David Larson, a senior fellow at Mitchell Hamline’s Dispute Resolution Institute and an expert on technology mediated dispute resolution; and Colin Rule, co-founder and COO of ODR provider Modria and formerly Director of ODR for eBay and PayPal. I served as the moderator.

The panel emphasized the growing presence of ODR, its role in increasing access to justice, and the many ethical implications that arise from ODR.

The evolution of ODR.

Katsch and Rule gave a historical overview of ODR. Their 2016 South Carolina Law Review article What We Know and Need to Know About Online Dispute Resolution covers similar ground.[v] As parties began conducting business on the internet, the need for ODR became apparent.[vi] Parties were transacting from different parts of the world and had never met.[vii][viii] Resolving disputes offline was usually not feasible.[ix] In early forms of ODR, a human mediator and disputants interacted via email.[x] Gradually, ODR has shifted considerably to a process that relies heavily on machine intelligence and not on a third-party facilitator.[xi] Machine intelligence has opened the door to increased online dispute prevention.[xii] (This phenomenon gave rise to another acronym in the field of dispute resolution, ODP.) Data analytics allows machines to note patterns in dispute resolution and greatly increase the quality of any ODR.[xiii]

The Fourth Party and the Fifth Party.

The increasingly significant role of technology in ODR gave rise to the concept of technology as the “Fourth Party.” The Fourth Party can replace the human third party by helping disputants discover common interests and arrive at outcomes acceptable to all disputants.[xiv] Or, the Fourth Party can help, enhance or complement the facilitator or decision-maker.[xv] The Fifth Party is used to describe the designers and service providers of the technology.[xvi]

Participation in quick, accessible ODR results in satisfied users who come back to do more business.

In 2010, eBay and PayPal conducted a study that looked at the actions of users after they participated in ODR.[xvii] Rule shared that some users trust a machine more than they trust a human third-party neutral. The most “meaningful lesson” of the study, and perhaps the most counter-intuitive, was that, win or lose, disputants returned to the eBay platform after participating in a quick, accessible ODR process.[xviii] Buyers who decreased their activity after participating in ODR had experienced an ODR process that took more than 6 weeks.[xix]


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ARTICLE SUMMARY

A Review of Where the Rubber Meets the Clouds

Jhannelle Harrison

In Where the Rubber Meets the Clouds: Anticipated Developments in Conflict and Conflict Resolution Theory,[i] Heather Pincock[ii] and Timothy Hedeen[iii] explore areas where conflict resolution practice has outpaced research and theory development. Pincock and Hedeen predict that multiple conflict resolution theories will evolve as mediators and arbitrators adopt new methods to serve their changing clients. They anticipate that these new theories will try to develop frameworks that apply to macro and micro conflicts at the individual, organizational, and international levels. The authors anticipate that the field of alternative dispute resolution field will continue to focus on the positive potential of conflict, and the possibility of peaceful resolution. Finally, Pincock and Hedeen expect conflict resolution theory to experience a greater shift to practical efforts on the part of the conflicted parties and interveners.

Pincock and Hedeen identify seven areas where they expect conflict resolution theories to continue to evolve over the next 30 years. These seven areas are: (1) decision-making through the life sciences such as neuroscience, and behavioral sciences such as psychology, (2) transitional justice concepts, (3) theory development of intractability toward ripeness, (4) gender theory in conflict, (5) theories based on technological innovation, (6) responses to bullying, and (7) theories refining dispute systems.

At the core of conflict resolution is emotional intelligence. Advances in neuroscience have shed light on the triggers, impulses, and responses that shape our attitudes and action in conflict situations. For instance, functional magnetic resonance imaging (fMRI) illustrates that the brain responds to repulsive offers and unfair offers in similar ways. Moreover, various chemicals play a central role in rationalizing offers or how we perceive others during a conflict. For example, high-levels of testosterone leads to self-sacrificing aggressive behavior, which enables individuals to mete out punishment for others’ transgressions, while high levels of oxytocin create a more trusting and generous sentiment towards others, which leads to greater rapport and cooperation. Stressful events lead to a lot of activity in the amygdala, the brain’s core for self-preservation, and temporally inhibit frontal lobe executive thinking. Daniel Kahneman and Amos Tversky, authors of Prospect Theory: An Analysis of Decision Under Risk,[iv] have developed work in “behavioral economics.” Their theory builds on loss aversion, the tendency of individuals to feel losses more deeply than gains, to predict that our motivation increases as we approach a goal and then diminishes as we surpass that goal.  Many facets of the mediation process may be supported or undermined by the implications of brain research. Consequently, there will be greater emphasis on the decision-making process based on neuroscience, psychology, and biology.

The next development that is expected to evolve in conflict resolution is transitional justice. As a recent approach to achieving justice through redress of past injustices, many tactics such as peace tribunals and reparations have been primarily applied to situations where there have been human rights violations. These processes employed may not fulfill the goals or hopes of all involved parties, so each future experience presents an opportunity to refine theories and practices in this area.


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CASE SUMMARY

Fifth Circuit Court of Appeals Case Summary: Al Rushaid v. National Oilwell Varco, Inc.

Ivan Bracho Gonzalez
Al Rushaid v. National Oilwell, Inc.,[i] presents two issues questioning whether and how a federal district court can compel arbitration:
  1. Whether parties can appeal an interlocutory order identifying the venue for arbitration.
  2. Whether a nonsignatory to a contract can compel arbitration under Texas law.

Before discussing the Fifth Circuit’s resolution of the identified issues, procedural history is reviewed.

Procedural History

In 2011, Al Rushaid Parker Drilling, Ltd. (ARPD), Rasheed al Rushaid, and Rushaid Petroleum Investment Corp. (collectively, Plaintiffs) filed suit in Texas state court against National Oilwell Varco, Inc., National Oilwell Varco LP (NOV LP), NOW Oilfield Services LLC, NOV Norway, Grant Prideco, LP, and Grant Prideco Holding, LLC (collectively, Defendants) alleging breach of contract and bribery.[ii]

With the exception of NOV Norway, all Defendants petitioned for removal to federal court based on an arbitration clause contained in a price quotation issued by NOV LP to ARPD.[iii] NOV Norway (whose service was delayed) quickly sought to compel arbitration based on a price quotation issued to ARPD. Upon removal, the District Court denied the motion to compel arbitration.[iv]

In response to NOV Norway’s appeal, the Fifth Circuit vacated and remanded, stating NOV Norway had a contractual right to arbitration before the International Chamber of Commerce (“ICC”).  However, the Fifth Circuit expressly noted that the decision did not require the District Court to compel any of the parties to arbitrate their dispute or to stay proceedings.[v]


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HEADLINE NEWS

  • Moritz Hosts Conversation on “Judicial Conflict Resolution”

    On October 14, Amy Cohen welcomed Bar Ilan University  Professor Miki Alberstein to discuss Prof. Alberstein's recent empirical work on "judicial conflict resolution" (JCR) activities.  Prof. Alberstein's project is part of a 1.3 million euro grant from the European Union that examining JCR across several countries.  The grant objective describes the hypothesis of Prof. Alberstein's research "various Conflict Resolution methods which are used outside the courtroom, as alternatives to adjudication, could have a strong and positive influence, both theoretical and practical, on judicial activities inside the courts. . . . Judicial conflict resolution activity is performed in the shadow of authority and in tension with it, and crosses the boundaries between criminal and civil conflicts. It can be evaluated, studied and improved through criteria which go beyond the prevalent search for efficiency in court administration."

  • Moritz Faculty Travel Coast-to-Coast

    In a matter of months Moritz faculty delivered presentations and participated on panels from coast-to-coast.  Here is a sample of the recent events which Moritz dispute resolution faculty participated.

    • On November 14, Amy Cohen, presented her forthcoming Florida Law Review Article "Trauma and the Welfare State: A Genealogy of Prostitution Courts in New York City” at the Center for the Study of Law and Society at Berkeley Law in Berkeley, California.  She delivered a similar presentation on October 20 at the Indiana University Maurer School of Law in Bloomington, Indiana.
    • On November 5, Josh Stulberg, spent the day in Cambridge, Massachusetts participating on a panel titled "Dispute Systems Design: Expanding Horizons" at the Harvard Negotiation and Mediation Clinical Program's 10th anniversary celebration.
    • On November 4, Grande Lum, traveled to San Diego, California to speak on behalf of the Divided Community Project as part of a panel titled "When Civil Unrest Ignites: Resolving Racial Tensions through ADR" at the National Asian Pacific American Bar Association's annual conference.
    • On September 29, Nancy Rogers and William Froehlich joined the Divided Community Project's newest steering committee member Michael Lewis in Baltimore, Maryland on a panel titled "Bridging Divided Communities: implementation of distilled lessons designed to tackle community division."  On October 1, Froehlich participated in a town hall forum discussing alternative dispute resolution practitioner responses to civil unrest.  Both presentations were part of the Association for Conflict Resolution's Annual Conference.
    • On September 28, 2016, Grande Lum participated on a panel titled “Race and Policing” at the University of California Hastings College of Law in San Francisco, California.
    • On September 22, Grande Lum and William Froehlich headed to Milwaukee, Wisconsin to present at the 10th Annual Alternative Dispute Resolution Works in Progress Conference hosted by Marquette University.
    • On September 12, Josh Stulberg was in New York moderating a panel titled "How can Dispute Resolution be Improved? (Overcoming Obstacles and Challenges)" as part of the Global Pound Conference.
  • Moritz Hosts Regional ABA Negotiation Competition

    On November 11 and 12 the Moritz College of Law hosted the American Bar Association's regional student negotiation competition.  Twenty-four teams from Ohio, Michigan, Wisconsin, Illinois and Alabama traveled to Columbus for this two-day long competition.  Students from Samford University's Cumberland School of Law took home the trophy.

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    Moritz sent two teams to this year's competition.  Holly Cline and Tessa Kelbley were well-prepared and performed admirably.   Lauren Davis and Madison Berry were an effective negotiating team and scored high marks.  Both teams represented Moritz admirably.

EDITOR'S CORNER

As my fellow students and I begin the spring semester I wanted to take a moment to highlight some of the great alternative dispute resolution events which took place at Moritz last semester.  In September the Program on Dispute Resolution hosted esteemed mediator and former Association of Conflict Resolution President Marya Kolman for Moritz's annual Lawrence Lecture while Moritz's Program on Law and Leadership presented an event titled "Community Unrest and Community Leadership" with Divided Community Project Director Grande Lum, former Ohio Attorney General and Professor Nancy Rogers, Columbus attorney Carl Smallwood and Cleveland Law Department Director Barbara Langhenry.  In October Professor Rogers' career in alternative dispute resolution was featured in the ABA's Dispute Resolution Magazine.  In November, The Ohio State Journal on Dispute Resolution hosted Philosophy, Technology, and ADR: Examining Development in Dispute Resolution Systems, a symposium in honor of Moritz's Chris Fairman.

The spring semester is chock full of ADR events.  To stay up to date, follow our programs on twitter: Moritz's Program on Dispute Resolution @Moritz_ADR, The Ohio State Journal on Dispute Resolution @OhioStateJDR, and The Divided Community Project @TrustDCP.

Here's a quick look at this issue.
  • Moritz Professor Katrina Lee’s article Reflections on Technology & Dispute Resolution: Highlights from Panel at 2016 Ohio State Journal on Dispute Resolution Symposium, kicks off the issue summarizing Prof. Lee's conversation with Colin Rule, Ethan Katsch and Susan Nauss Exon about Online Dispute Resolution.
  • Jhannelle T. Harrison summarizes Heather Pincock and Timothy Heeden's Ohio State Journal on Dispute Resolution article Where the Rubber Meets the Clouds: Anticipated Developments in Conflict and Conflict Resolution Theory.  Harrison previews the authors’ discussion of areas in which they anticipate conflict resolution to evolve over the next 30 years.
  • The case summary, by Ivan Bracho Gonzalez (a Moritz LLM candidate) focuses on a series of cases involving petroleum production companies and manufacturers of oil and gas drilling equipment. The primary case discussed is Al Rushaid v. National Oilwell Varco, Inc., 814 F.3d 300 (5th Cir. 2016). Ivan’s case summary delves into whether, under Texas law, an arbitration clause may be enforced against a party that has not signed the arbitration clause in the contract at issue.
  • The student spotlight presents Valerie Jama’s student note, Proposal for Negotiated Rulemaking in the FDA.  Valarie discusses genetically-modified organisms (GMOs), and whether the FDA should or should not label foods that contain, or are free of, GMOs. Valerie argues that the FDA should promulgate a rule regulating the specific labeling requirements for GMOs, and advocates for the usage of a process of negotiated rulemaking, commonly referred to as “reg-neg."

Don't forget to take a look at the Headline News from Moritz's Program on Dispute Resolution, and feel free to email me with any comments or suggestions at cahn.7@osu.edu.

STUDENT SPOTLIGHT

Proposal for Negotiated Rulemaking in the FDA

Disclaimer: The following article has been reviewed by the Mayhew-Hite Editor. Articles published in the Mayhew-Hite Report do not undergo the same rigorous accuracy check or editing process as articles published in the print edition of the Ohio State Journal on Dispute Resolution. 

Valerie Jama

I. Introduction

Genetically-modified organisms, commonly known as GMOs, have become a composite of both confusion and contention for many Americans. The question of whether the Food and Drug Administration (FDA) should label foods that contain, or that are free-of, GMOs still looms. Much of the public is concerned with these products’ risks to human health and the environment, with around only twenty-seven percent of the population trusting food label claims from 2001-2006.[i] Part of the concern is the unnatural process of producing GMOs, which involves breaching the species barrier by changing genes of plants and other organisms from one to another through mutation, cross-pollination, or chromosome doubling.[ii] In addition, the administrative agencies that regulate GMOs follow federal guidelines that were drafted before biotechnology-produced food became common, and these regulations focus chiefly on the final product.[iii] Many states have proposed labeling laws, but most failed at the ballot or are contingent on other states’ participation.[iv] As a result, consumers have begun to demand natural foods from food producers by boycotting or severely questioning the presence of GMOs in products. And yet, the FDA has refused to define natural, which has led to the “perfect storm” among all interested parties.[v] To subside the storm, the FDA should act. Class-action litigation for food labeling disputes has continued for over six years, with most occurring in the now-proclaimed “food court,” in the United States District Court for the Northern District of California. For one company, it cost up to two million dollars just in pre-trial negotiations.[vi] With more than ninety percent of corn and soy genetically produced in the U.S. today, litigation is unlikely to slow down anytime soon unless a proper statute is introduced.[vii]


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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