The Case for Using Mandatory Factors in Divorce Negotiation

Danny Dubow

This is a summary.  To Read the Full Text of this Student Note, Click Here.

Half of all marriages end in divorce. Divorces are problematic not only for emotional reasons, but also for their expensive costs. In order to save money and time, many individuals seeking a divorce opt to use negotiation or mediation, rather than using litigation. Negotiation and mediation can be used to provide more creative results than outcomes provided by the court systems. Though negotiation tends to be the preferred route for solving a divorce, power imbalances between the parties result in non-working spouses receiving unreasonably unfavorable outcomes. In order to ensure non-working spouses receive a fair amount of alimony during negotiation or mediation, parties should be forced to use the factors adopted by state legislatures.

Although divorce negotiation provides creative solutions, its historical genesis created means for parties to exploit. This note discusses the evolution of divorce in America, beginning with its original illegality, and ending with the system we have today. Divorce originated with a fault-based system, where a party could seek a divorce due to certain faults by the other party. With the current no-fault system, a party can seek a divorce for no reason at all. However, parties still use the gamesmanship of fault, deceit, and emotions to drag out the process and abuse the opposing party.

No-fault divorce also opened the door to allowing power imbalances to impact the negotiations. Such imbalances include: women earning less money than men, women taking on more responsibilities at home and working less in the workforce, and risk aversion linked to remaining in the workforce longer than the non-working spouse. These imbalances give more bargaining power to the working spouse, and can lead to the non-working spouse undervaluing herself, pushing her to accepting less from the negotiation. Relying on factors created by state legislatures for determining alimony can ensure that fair results come out of negotiations.

Most states in the country use certain factors when determining alimony once a divorce reaches litigation. Courts consider a broad range of factors, ensuring that non-working spouses will receive a fair apportionment of alimony. As parties can receive a fair apportionment of alimony when going to court, measures should be put in place to ensure the same outcome would be received if using negotiation or mediation. Due to social and economic power imbalances, parties should be forced to use the factors chosen by state legislatures to ensure impartiality and neutrality when bargaining over alimony. This will ensure that parties receive an outcome based on need, not based on bargaining strength.

To Read the Full Text of this Student Note, Click Here.

Sexual Assault on College Campuses: The Use of Feminist Arbitration Practice to Protect Survivors and Schools Under Title IX

Kelli Jo Amador

This is a summary.  To Read the Full Text of this Student Note, Click Here.

Sexual assault on college campuses has been in the news because of the sobering statistics surrounding the frequency at which assaults and rapes occur, and the seemingly callous ways in which schools handle cases; leaving survivors of sexual assault feeling that justice is not served by their institutions of higher education.

Colleges and universities have a requirement under Title IX’s gender discrimination protections to adequately address sexual assaults that take place under their purview; and in 2011, these requirements were further clarified in a letter called the “Dear Colleague” letter, written by the Department of Education to inform universities of their obligations in dealing with cases of sexual assault and of protecting students and preventing assaults. But despite these laws and guidelines, universities are still failing to protect students and prevent sexual assault from happening on their grounds; this work argues that colleges and universities should adopt feminist arbitration practices that are survivor-centric in order to combat sexual assault and adequately address the needs of their students; by doing so, institutions of higher education will better protect their students from sexually violent crimes, better prevent sexual assault under their care, and protect themselves from Title IX liability. The responsibility placed on universities to deal with sexual assault on their campuses reveals that there is a greater need for arbitration practices outside of criminal law for dealing with sexual assault; and as such, feminist methods must be greater developed for use in institutions of higher education.

Because of the inadequacy of the criminal justice system, universities should know that they are the ones with the true power to change the face of college sexual assault. While the law requires a highly regulated structure to function, universities have the capability of building flexibility into their structures to better suit the needs of survivors; through this flexibility, schools should implement arbitration practices that are survivor centric and feminist in nature in order to change the face of campus sexual assault grievances. Universities are required to take the “position of a reasonable victim” when evaluating grievances for sexual assault, and this itself lends the power to implement a feminist arbitration practice to institutions of higher education. The adjudication process requires that schools take the position of the reasonable victim, and so requiring an arbitration process the focuses on survivors is not a drastic or unattainable measure. By doing this, schools validate a survivor’s experience and protect the complainant by giving them the support and agency they need through the support of an informed decision maker. Arbitration utilizes such decision makers in such key roles, and such a role could benefit the process of sexual assault grievances. This improved process could maintain the privacy of the survivor, aid in the promotion of their agency, and help the decision maker adjudicate a proceeding that is fair to all parties. In such a process, universities are risking little but have much to gain. By focusing the narrative around the survivor, feminist arbitration practices in college sexual assault cases could lessen the frequency of survivors feeling re-victimized through the reporting process and create a system of support that survivors want and deserve.

The current system of dealing with sexual assault on college campuses is failing survivors and leaving schools open to liability under Title IX. If universities wish to protect their students and insulate themselves from suits surrounding gender discrimination, they must consider revising their systems to focus on the survivor’s perspective and provide a feminist lens to a patriarchal problem. This pressure on schools also places pressure on arbitration processes to grow and adapt to the needs of the recipient to accommodate the issues with a sense of justice and fairness. Institutions of higher education ought to adopt feminist arbitration practices that are survivor-centric in nature to combat rape and other forms of sexual and gendered violence in their midst.

To Read the Full Text of this Student Note, Click Here.

ARTICLE SUMMARY

JDR Student Note Discusses Mandatory Arbitration Prohibition in Executive Order

Devin Spencer

Ashley Winters' note, Regardless of Potential Scrutiny, the Arbitration Clause of the Fair Pay and Safe Workplaces Executive Order (2014) Should Not Have a Resounding Impact, 31 Oh. St. J. on Disp. Resol. (forthcoming 2016), analyzes the effect of the pre-dispute arbitration preclusion in Executive Order 13673, The Fair Pay and Safe Workplaces Order (“Order”).  The Order requires government contractors “agree that the decision to arbitrate claims arising under title VIII of the Civil Rights Act of 1964” or any related tort “may only be made with the voluntary consent of employees or independent contractors after such dispute arise.”  As described in Ms. Winters' note, the Order applies to all federal contractors with contracts valued over $1 million dollars.  Read more

CASE SUMMARY

The Arbitration And Case of Tom Brady

Jedidiah Bressman

This article was completed prior to the Second District's decision in National Football League Management Council v. National Football League Players Association reversing and remanding the Southern District of New York.  

Commissioner of the National Football League (“NFL”), Roger Goodell, suspended quarterback Tom Brady for his role in the “Deflategate” scandal. Tom Brady is an NFL quarterback who plays for the New England Patriots.[1] During the 2015 AFC championship game, pitting the Indianapolis Colts against the New England Patriots, some of the Indianapolis Colts players noticed the footballs used by the Patriots had less air in them than usual.[2] An investigation, led by investigators who were hired by Commissioner Goodell was completed to determine whether the footballs were actually deflated.[3] The report found eleven of the twelve footballs were underinflated by two pounds per square inch.[4] Tom Brady and some of the locker room attendants were subsequently charged with either actually deflating the balls or, in Tom Brady’s case, being “at least generally aware” the footballs were deflated.[5]

After the report was released, the NFL suspended Tom Brady for four games without pay.[6] Three days later, an appeal was filed by the National Football League Players Association (“NFLPA”) on behalf of Tom Brady.[7] The appeal was set to be heard by Commissioner Goodell and the NFLPA asked the Commissioner to recuse himself.[8] However, Commissioner Goodell felt he was a neutral arbitrator and his “mind was open.”[9] Commissioner Goodell confirmed Brady’s four game suspension.[10] In confirming Brady’s suspension Commissioner Goodell stated, “Mr Brady engaged in conduct detrimental to the integrity of, and public confidence in, the game of professional football.”[11]

Read more

HEADLINE NEWS

  • Program on Dispute Resolution earns #1 US News Ranking!

    The Moritz College of Law is now home of the U.S. News and World Report’s Number One Ranked Dispute Resolution Program! Perennially a top-five program, this is the Program’s first #1 ranking in more than a decade! The Program is lucky to have so many dedicated active and emeritus dispute resolution faculty!

  • Five Earn Moritz’s Certificate in Dispute Resolution; Four LLMs finish ADR Concentration

    LLM ADR Concentration Students

    The Moritz Master of Laws (LL.M.) Program is designed for foreign lawyers who wish to advance their legal education in a stimulating academic environment. Four LLM students have honed their alternative dispute resolution skills while earning Moritz's LLM degree:

      • Dong Yinzi earned her Bachelor of Laws degree from Fudan University in Shanghai, China.
      • Sahra Yusuf earned her Bachelor of Laws degree from the University of Groningen, in Groningen, Netherlands.
      • Osnat Menache earned her Bachelor of Laws degree from the College of Management Academic Studies in Rishon LeTsiyon, Israel.
      • Olga Putushkina earned her Bachelor of Laws degree from the Russian Academy of Justice in Moscow, Russia.

    Certificate in Dispute Resolution Students

    Five graduating law students will be awarded the Program on Dispute Resolution's Certificate in Dispute Resolution.  In order to earn this prestigious certificate students must complete at least fifteen credit hours in dispute resolution and complete more than one-hundred hours of work in an alternative dispute resolution setting.  Congratulations to students earning the Certificate in Dispute Resolution:

    Chelsea Glassman participated in several regional negotiation and mediation competitions, worked on dispute resolution projects in the Honorable Judge Timothy Black's chambers and worked as a research assistant for the Divided Community Project.

    Cyara Hotopp excelled in Moritz's Alternative Dispute Resolution courses.  To develop her mediation skills she served as a mediator for the Automotive Consumer Action Program (AUTOCAP) sponsored by the Ohio Automotive Dealers Association and the Ohio Attorney General.

    Cory Martinson is a member of the Ohio State Journal on Dispute Resolution and will graduate with nineteen dispute resolution credit hours.  Cory was active in Dispute Resolution and Youth, participated in several local and regional mediation and negotiation competitions and worked with a local non-profit to redesign a mediation system.

    Elisabeth McClear completed more than twenty alternative dispute resolution course credits, including one credit for representing Moritz at a regional negotiation competition.  During her time at Moritz Elisabeth spent hundreds of hours in the Franklin County Court system working with dispute resolution staff and observing and mediating cases.

    Sara Scheinbach served as a volunteer mediator, participated in dispute resolution competitions, and actively participated in the re-energized Truancy Mediation Project.  Sara played a vital role in initiating the Divided Community Project as a research assistant for Professor Nancy Rogers.

    Congratulations to this year's LLM concentration and Dispute Resolution Certificate Students!

  • Rogers Prize Winners Announced

    On April 21, 2016, Dean Alan Michaels and Program Director Sarah Cole presented the Program on Dispute Resolution's Rogers Prize awarded to student research papers on a dispute resolution topic that "reflect the analytical rigor and intellectual breadth associated with highly-regarded scholarly contributions."

    Rogers Prize

    Second year student Robby Southers won first prize for his seminar paper “European Union Involvement in the Middle East Conflict”.  Second year Giuseppe Pappalardo won second prize for his research titled “Courts as the Mediator’s Temptress: A call for change in approval procedure of mediated class action settlements”.  Kate Selander, third-year and outgoing editor of the Ohio State Journal on Dispute Resolution, took home Honorable Mention for her seminar paper “Museum Restitution Ethics Regarding Holocaust-Era Art and Cultural Property: A Proposal for Mediation as a Mandatory Medium”.

    A complete list of prior Rogers Prize winners is available online.

  • Divided Community Project Tackles Community Division and Civil Unrest

    This winter the Ohio State University Moritz College of Law’s Program on Dispute Resolution launched the Divided Community Project, a dispute resolution practitioner’s response to recent explosive social conflicts in Ferguson, Baltimore, Sanford and other cities around the country.  Under the quiet leadership of Professors Nancy Rogers, Josh Stulberg, and a number of practitioners and leaders in dispute resolution, the Divided Community Project developed two documents for leaders thinking about civil unrest.  The first document Key Considerations for Community Leaders Facing Civil Unrest suggests process steps community leaders should consider during and in the immediate aftermath of a divisive community incident.  The second document Planning in Advance of Civil Unrest, advises community leaders to prepare for civil unrest to better understand the sources of community division, tension and resilience.

    The Divided Community Project aims to strengthen community efforts to transform division into action.  Current initiatives include establishing pilot programs which plan in advance of civil unrest, offering suggestions for improving practice, developing conflict assessment tools, and advocating for the use of collaborative methods for turning community division into positive action.

    Divided Community Project Director Grande Lum (former director of the Department of Justice's Community Relations Service and Moritz's 2014 Lawrence Lecturer) leads the project as it works to help communities grapple with community division.

  • Deason Wins University-Wide Teaching Award!

    On February 24, 2016, Professor Ellen Deason received the university’s Alumni Award for Distinguished Teaching in a surprise ceremony during her International Business Arbitration class.  The award recognizes teaching excellence, and faculty are nominated by students, other faculty, and alumni--only 10 of Ohio State’s more than 5,000 faculty receive the award annually. Bruce McPheron, Ohio State's interim executive vice president and provost, presented Professor Deason with her award.

    Professor Deason is often praised by students for her innovative classroom exercises, willingness to help and meet with students one-on-one, and compassionate and engaging style. She was also awarded the College of Law’s Morgan E. Shipman Outstanding Professor of the Year award in 2015.

    Click here to read more about this prestigious honor.

  • St. Antoine Focuses on Arbitration at Schwartz Lecture

    On April 5, 2016, Theodore J. St. Antoine--the James E. & Sarah A. Degan Professor of Law Emeritus at the University of Michigan--delivered the Program on Dispute Resolution's annual Schwartz Lecture on Dispute Resolution. Professor St. Antoine discussed the current state of labor and employment arbitration.  In recent years, there has been greater focus on employment arbitration rather than traditional labor arbitration because of the sharp decline in union membership and the increased use of so-called mandatory arbitration by nonunion employers.  To get or keep a job, employees must adhere to mandatory arbitration agreements, waiving access to the courts—even for statutory claims.  Professor St. Antoine’s presentation addressed the pros and cons of these arrangements and their evolving legal regulation, and suggested best practices to maintain the substantive claims of employees and the due process rights of all parties.

  • Rogers Wins CPR International Writing Award!

    The International Institute for Conflict Prevention and Resolution (CPR) recognized Professor Nancy H. Rogers with the Outstanding Professional Article award for her article When Conflicts Polarize Communities: Designing Localized Offices that Intervene Collaboratively, 30 Ohio St. J. on Disp. Res. 173 (2015). In this timely piece, Rogers looks at communities in crisis, often started by a shocking and tragic incident that leads to demonstrations and unrest, and proposes the use of local intervenors to prevent escalation and to help communities deliberate about ways to solve, or at least ameliorate, the problems underlying their differences.

EDITOR'S CORNER

Welcome to the Spring Mayhew-Hite Report

Kelli Amador

The 2015-2016 academic year has been fruitful for the Program on Dispute Resolution and the Mayhew-Hite Report.  As you will read in the headline news, Moritz's Program on Dispute Resolution was recently ranked as the nation's Number 1 ADR program according to U.S. News and World Report, Professors Rogers and Deason recently won prestigious awards, and the program just launched the forward-thinking Divided Community Project.

Thank you for staying engaged with Moritz through the Mayhew-Hite Report.  This year's first issue was dedicated to the late Dean Christopher Fairman--several ADR colleagues reflected on Dean Fairman's impact at Moritz and in the ADR community.  Our second issue included Gonzaga Dean Stephen Sepinuck's discussion of the risk of legal error in arbitration and highlighted Brian Kelso's prize-winning student article highlighting due process concerns in med-arb.

This third edition of the Mayhew-Hite Report showcases three student notes written by graduating members of the Ohio State Journal on Dispute Resolution.  Danny Dubow's note discusses the of mandatory factors in divorce mediation.  My note analyzes the use of feminist arbitration practice to respond to sexual assault on college campuses.  Alex Benson's note applies the transactions cost theory of the firm to the emergence of ADR.  Often in journals, student contributions and their importance gets forgotten, but without student work and submissions journals like ours would cease to function. I hope you appreciate these student contributions and enjoy the breadth of student work that comes from diverse programs such as ours. And congrats to our graduating 3Ls!

STUDENT SPOTLIGHT

A Transactions Cost Theory of the Emergence of Alternative Dispute Resolution Regimes

Alex Benson

This is a summary.  To Read the Full Text of this Student Note, Click Here.

This note borrows heavily from the transactions cost theory of the firm, first developed by economist Ronald Coase, and applies it to the emergence and efficacy of alternative dispute resolution (ADR) regimes.  I begin by briefly explaining Coase’s theory, and then continue by examining the historical record of the American “Old West.” I find ubiquitous evidence that ADR regimes served not only as a stop-gap of last resort, but as a cost-effective and extremely successful means of providing law and order and securing private property rights in an otherwise anarchic situation.  Next, I provide some helpful definitions of economic terms of art; the “free-market,” market failures, and critiques of the contemporary economic analysis I employ are all examined in detail.  Finally, I develop a cost-internalization theory of ADR regime emergence, and explore some of the policy implications of my hypotheses.  Generally, as stated in the body of this work: “[t]he argument presented herein therefore is twofold: alternative dispute resolution regimes can exist without the sanction of the state, and these regimes emerge organically out of a free market as a means of reducing transactions costs of private resolution.”

First, the note lays out the basic tenets of Coase’s theory.  Coase argued that there are pervasive costs to using the price mechanism and to contracting within the legal framework of a modern exchange economy.  He posited that the modern organization of business into distinct firms was a means of reducing and internalizing these costs.  Firms will grow larger until costs associated with internalization make further expansion unprofitable.  Once internalization becomes unprofitable, individuals will utilize the price system and individually contract on the free market to achieve whatever ends are sought.  In the case of alternative dispute resolution regimes, these “firms” internalize the arbitration, mediation, and negotiation of disputes that, absent the state, individuals necessarily must negotiate with one another individually to resolve.

Next, this note examines the history of ADR regimes in the American “Old West.”  I defend the thesis the “Wild West” really was not all that wild, and that a de-facto law and order was enforced by private dispute resolution regimes.  This law and order was not of the “shoot first, ask questions later” variety caricatured in classical westerns.  While these imaginings make for good storytelling, the real story of the Old West is more complicated and idiosyncratic, and is far better characterized as a lesson in governance and the spontaneous emergence of dispute resolution regimes than it resembles the “order” in a John Wayne movie.

Next, I move to developing a theoretical explanation for the empirical reality of law and order in the Old West. The theory I herein develop is nearly a direct application of Coase’s fundamental ideas to the emergence of ADR regimes.  I propose that, in the absence of a state or other body of like kind holding a monopoly on the use of force, individuals as entrepreneurial agents will cooperate to form systems of law production, adjudication, and enforcement as a means of reducing transactions costs.  I further posit that individuals will develop alternative dispute resolution systems up to the point at which it is most efficient to integrate into a firm-like organization to accomplish this feat.  Efficiency, in this context, is reached when the marginal cost of organizing and availing oneself of alternative dispute resolution systems is equal to the marginal benefit received of utilizing the same.

Finally, as I allude to in the note, while the body of the note is weighted heavily toward economic analysis, the questions it attempts to answer and the arguments it proposes are necessarily related to many of the central questions in the field of alternative dispute resolution. My goal is to serve the interest of furthering research into alternative dispute resolution systems and to propose a theory of the incentives behind the emergence of ADR regimes that makes positive claims concerning the efficacy (both in terms of depth and breadth) of utilizing ADR regimes in contemporary law.

To Read the Full Text of this Student Note, Click Here.

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