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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 4, of the Mayhew-Hite Report on Dispute Resolution and the Courts.

Divided Communities and Social Media: Strategies for Community Leaders

The Divided Community Project

Phenomenal growth in the use of social media is altering the ways that community members perceive and interact with each other.  “Your community is online,” social media expert Colin Rule says to community leaders.  “You need to be online too.”  This report focuses on how community leaders seize the opportunities and confront the ever-changing obstacles created by the increasingly pervasive use of social media and proliferation of social media platforms as these leaders address community division and civil unrest.

In terms of new opportunities in the context of community division, community leaders can now use social media and apps to provide a reliable source of information for residents, to improve their ability to hear and serve constituents, and to strengthen connections among residents and their pride in community.

In terms of new challenges, unrest can occur with little warning; those concerned about an issue now have inexpensive and effective ways to tell a story, stir emotions, create a sense of involvement in a larger movement, and give notice of protest plans.  Community leaders can be even more challenged than before the social media age to distinguish between peaceful protesters and those seeking to take advantage of civil unrest for malicious trouble-making.  False rumors spread quickly.  Leaders can no longer count on traditional news sources to combat inaccurate news, as residents shift their news intake to social media.  Hate speech and bullying online have targeted disproportionately those groups already feeling the sting of discrimination and estrangement from the larger community.

This report offers strategies for community leaders dealing with community division against the backdrop of these opportunities and challenges.  It includes examples of what community leaders have done as well as advice from leaders and social media experts.  We use “community leaders” to include elected officials, such as mayors, and appointed officials, such as police chiefs and agency directors, as well as business, faith, civil rights, and interest group leaders who also have the opportunity to help communities turn division into positive change.  Increasingly, some of the people with substantial social media followings are also community leaders.  The suggested strategies deal with social media platforms, web-based networks, and even apps created by cities.

Community leaders are variously using the following general strategies (discussed under these section heads in more detail), each of which warrants creation of accompanying policies and training.

  1. Use social media, websites, and apps to create widely-used and trusted online information sources for residents that will help maintain and enhance residents’ confidence and become an antidote to inaccurate news and unsubstantiated rumors.
  2. Use social media, websites, and apps to increase input from residents in ongoing decisions respond to residents’ concerns.
  3. Use social media, websites, and apps to promote offline, face-to-face events and to support online dialogue among residents in order to build community resiliency.
  4. Work to reduce and combat online hate speech/discriminatory conduct through social media so as to reduce the effects.
  5. Mine social media and other online data as part of an overall ongoing initiative to better understand community concerns.

We suggest that you begin reading with the chart that follows immediately in Part II and lists strategies pertinent to three different situations:  during tranquil times, during unrest, and following unrest.  Use the chart as a stress test for your community – have you taken advantage of all the opportunities social media offers for building trust and dealing effectively with divisions?  If you want to learn more about a particular idea, these strategies are discussed in more detail in Part III (the strategies briefly identified in Part II link to detail in Part III).  Part IV is a glossary of social media terms.  Part V provides sites that offer additional guidance on social media use by community leaders.

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ARTICLE SUMMARY

From Dysfunction and Polarization to Legislation: Native American Religious Freedom Rights and Minnesota Autopsy Law

Mary Csarny

In From Dysfunction and Polarization to Legislation: Native American Religious Freedom Rights and Minnesota Autopsy Law, authors Gail T. Kulick, Tadd M. Johnson, Rebecca St. George and Emily Segar-Johnson present a case study of a conflict between Minnesota state officialsand Native Americans in Minnesota.  The authors highlight the historical background of dispute resolution mechanisms that have lead to, or failed to lead to, Native American religious protections.  They point to the conflicts and dialogue in Minnesota as a demonstration of “the dire need for an ongoing, meaningful dialogue between State officials at all levels and Minnesota’s Native American citizens”[1] The authors illustrate how conflict between Native American traditions and state medical examiners gave rise to the  amendment of Minnesota’s autopsy statute.  The amendment expressly allows Minnesota residents to object to autopsies on religious ground and mandates communication between medical examiners and families of the deceased.

The authors examine the deaths of two Native Americans, Mushkooub Aubid and Autumn Martineau and illustrate how  sincerely held religious beliefs, while perhaps previously unknown to outsiders,  prompted “a change in law and policy.”[2]

Mushkooub Aubid was a “fervent believer in the Midewiwin spirituality, the ancient religion of the Anishinabe” who believed “that any cuts or lacerations into a body after death is a desecration that can impede the person’s journey into the spirit world.”[3]  Aubid died after likely experiencing a medical event while driving.  His family’s beliefs required them to remain close to the body, wash the decedent’s body in cedar water within 24 hours, feast and pray close to the decedent’s body every sunset until burial, and to keep a “spirit fire” burning near the body.  Although no autopsy was ordered by the state patrol, the medical examiner insisted upon an autopsy without attempting to speak to Aubid’s family.  His family was denied the opportunity to perform the ceremonial washing or to even speak with the medical examiner.  Just days later, the same medical examiner refused to speak with the family of Autumn Martineau, a member of the Fond du Lac Band of Lake Superior Chippewa, whose family also objected to an autopsy due to Midewiwin beliefs.

In both cases a court order was secured ordering the body be released to the respective families based on the Minnesota Constitution’s free exercise of religion statement.  In both cases the medical examiner initially refused to comply with the court order.  However, the respective bodies were eventually released to the families after mediation and dialogue between the medical examiners, the respective families, and county officials was the catalyst for resolving both cases.

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Ally-Ship and Dispute Resolution Practitioners: A Continuum

Mary Bockstahler

I. Ally-Ship

In Ally-Ship and Dispute Resolution Practitioners: A Continuum, Benjamin Lowndes and Sharon Press explore how dispute resolution practitioners can serve justice. The authors suggest providing opportunities via creation of space and development of skills for individuals to resolve conflicts.[i]

The authors begin the article by providing definitions of ally. Merriam-Webster defines an ally as follows: “to join (yourself) with another person, group, etc., in order to get or give support.”[ii] The authors then offer “snapshots” of ally-ship to add deeper meaning to the term. The first snapshot describes the ally-ship between Abraham Joshua Heschel, a Polish born rabbi, and Martin Luther King Jr. marching to protest racism in Selma.[iii] After the march, Heschel said, “When I marched in Selma, my feet were praying.”[iv]

The second snapshot describes same-sex marriage laws in Minnesota. In 2011, Minnesota voters rejected a same-sex marriage ban. The authors suggest the rejection of the marriage ban was accomplished by the LGBT community working together with allies in the community. A powerful aspect of the campaign was a “conversation drive,” where supporters of same-sex marriage talked about voting no on the amendment.[v]

The third snapshot refers to an advertisement in a Minnesota newspaper calling on Minnesota residents “to reject anti-Muslim expression as ‘un-Minnesotan.’”[vi] The list of allies in the advertisement included non-Muslims, Muslims, Democrats, and Republicans alike. The authors presented these snapshots as examples where allies helped affect a change in a community.[vii]

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CASE SUMMARY

Kindred Nursing Centers Limited Partnership v. Clark

Amanda M. Morris

The Supreme Court recently released an opinion on consolidated cases out of Kentucky in which the Federal Arbitration Act (FAA) was found to preempt a state rule targeting arbitration agreements in nursing home contracts. This decision is in line the Court’s previous FAA preemption cases, which hold that arbitration agreements must not be treated differently than other contracts.[1]

Background: Kindred Nursing Centers Limited Partnership v. Clark[2] arose out of cases originating in Kentucky state courts. The estates of two residents filed cases against a nursing home facility alleging wrongful death and personal injury claims.[3] The defendants filed a motion to dismiss and compel arbitration.[4] The Kentucky Supreme Court consolidated the cases and affirmed the lower courts’ denial for interlocutory relief to compel arbitration.[5] The Kentucky Supreme Court held that the right to a trial is a “God-given” and “sacred right” which a principal cannot waive without granting explicit authority to agents to enter arbitration agreements in a power of attorney.[6]

Before the Supreme Court, the question presented was “[w]hether the FAA preempts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement.”[7]

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HEADLINE NEWS

  • Eleven Graduate with Certificate in Dispute Resolution

    This year eleven law students graduated with the program’s Certificate in Dispute ResolutionCertificate students take at least 15 dispute resolution course credits, complete the mediation clinic, write a seminar paper on a dispute resolution topic and complete 112 dispute resolution externship hours.  This year’s certificate students are as follows:

    • Courtenay Balvin spent significant time as an extern with the Supreme Court of Ohio’s Dispute Resolution Section
    • Brooks Boron worked as a research assistant for Prof. Cole and for the Divided Community Project.
    • Holly Cline served as a research assistant for Prof. Cole.
    • Christian Davis participated in an online dispute resolution competition, served as a volunteer negotiator in Prof. Lee’s negotiation class, and engaged in ADR activities while working for private employers
    • Jackie Fisher was a research assistant for Prof. Cole and worked to develop Moritz’s Truancy Mediation Program.
    • Jennifer Mensah served as a research assistant for the Divided Community Project and worked on grievance and arbitration projects for a private employer.
    • Mary Kate Moller observed several mediation sessions and was a research assistant for the Divided Community Project.
    • Alex Pribil participated in a number of dispute resolution activities, including the International Conference on Conflict Resolution Education.
    • Robby Southers worked as a research assistant for the Divided Community Project and mediated disputes with AUTOCAP.
    • Devin Spencer participated in collective bargaining activities with a private law firm.
    • Callie Tucker served as a volunteer negotiator in Prof. Lee’s negotiation class and engaged in numerous dispute resolution projects including several mediations for OSU’s Student Mediation Program.

    Collectively these eleven students completed more than 1900 hours of dispute resolution externship work!

  • Program Launches Mentoring Lunches

    In winter 2017, the Program on Dispute Resolution kicked off a dispute resolution mentoring lunch program where a handful of students meet with a seasoned ADR practitioner over lunch.  Each month ADR practitioners share lessons for developing a dispute resolution career with Moritz Certificate in Dispute Resolution students.

    In March, students met with Ohio Supreme Court Dispute Resolution Section Manager Catherine Geyer (pictured above).  In April Students met with The Ohio State University's faculty Ombudsman, Lynne Olson.

    We look forward to continuing the dispute resolution mentoring program in the 2017-18 school year.

     
  • Program on Dispute Resolution Honored Among the Nation’s Best

    Moritz's Program on Dispute Resolution was recently ranked among the best Programs on Dispute Resolution housed at a Law School in several publications.

    U.S. News and World Report ranked the Program on Dispute Resolution as the second-based dispute resolution program in the country for training "law students to handle clients' conflicts through negotiation, mediation, arbitration and problems-solving."

    The LLM Guide online publication for Master of Law Programs Worldwide ranked the Program on Dispute Resolution among the top LL.M. Programs for Alternative Dispute Resolution in 2017.

    The Program on Dispute Resolution is honored to be recognized as one of the best dispute resolution programs in the county.

  • Four LL.M. Students Earn ADR Concentration

    The Ohio State University Moritz College of LL.M. Program is designed for foreign lawyers who wish to advance their legal education in a stimulating academic environment. The College offers the dual advantages of a highly-regarded law curriculum at a major U.S. university and an LL.M. program of limited size that allows for individualized attention and support.  The program offers concentrations in Corporate Law, Criminal Law, Dispute Resolution, Intellectual Property and Information Law, International and Comparative Law, and Labor and Employment Law.

    Students completing the Dispute Resolution Concentration must complete twelve semester hours in Moritz's Dispute Resolution Program.  This year four LL.M. students graduated with a Dispute Resolution Concentration: Ivan Bracho, Kraisit Sethameteekul, Handy Trinova, and Juan Carlos Vargas Alvarez.  Congratulations!

     
  • Rogers Writing Prize Winners Announced

    The program on dispute resolution is pleased to announce the winners of this year’s Rogers Writing Prize.  Thanks to the dozen upper-class students who entered dispute resolution seminar papers.  This year’s winner is recent graduate Brooks Boron for his paper “Let the Healing Begin: Building Consensus in the City of Strongsville Through the Strong Model”.  Rising 3L Alex Karcher took second prize for his paper “An Argument for the Integration of Dogs in Mediation: The Impact of Dogs on the Building and Maintenance of Trust and Cooperation”.

    The Rogers Writing Prize was created in 1999 by an anonymous donor, with the stipulation that it be named in honor of Nancy H. Rogers, who, at that time, was the Joseph S. Platt-Porter Wright Morris & Arthur Professor of Law and Director of the Program on Dispute Resolution.  Each year, the award recognizes two students who, in the judgment of a committee of faculty members who teach dispute resolution, wrote research papers on a dispute resolution topic that, in the donor’s language, “reflect the analytical rigor and intellectual breadth associated with highly-regarded scholarly contributions.”

EDITOR'S CORNER

Welcome to the fourth and final issue of the Mayhew-Hite Report for 2016-17. I’m your editor, Ben Cahn.

Our fourth issue presents the OSU Divided Community Project’s recently published report, Divided Communities and Social Media: Strategies for Community Leaders. This report seeks to offer practical advice to community leaders on how to best utilize social media when a community faces division. The Divided Community Project is led by Grande Lum, Josh Stulberg, Nancy Rogers and Bill Froehlich.

The first article summary, written by Mary Bockstahler, current member of the Ohio State Journal on Dispute Resolution, and next year’s co-editor of the Mayhew-Hite Report, focuses on the article Ally-Ship and Dispute Resolution Practitioners: A Continuum, by Benjamin Lowndes and Sharon Press. This article can be found at: Benjamin Lowndes and Sharon Press, Ally-Ship and Dispute Resolution Practitioners: A Continuum, 42 Mitchell Hamline L. Rev. 1572 (2016). Mary previews the author’s discussion of how dispute resolution practitioners can serve justice. The authors suggest providing opportunities via creation of space, and development of skills for individuals to resolve conflicts.

The second article summary, by Mary Csarny, current member of the Ohio State Journal on Dispute Resolution, focuses on the article From Dysfunction and Polarization to Legislation: Native American Religious Freedom Rights and Minnesota Autopsy Law, by Gail T. Kulick, Tadd M. Johnson, Rebecca St. George, and Emily Segar-Johnson. This article can be found at: Gail T. Kulick et. al., From Dysfunction and Polarization to Legislation: Native American Religious Freedom Rights and Minnesota Autopsy Law, 42 Mitchell Hamline L. Rev. 1699 (2016). Mary’s article summary delves into a conflict between Minnesota state officials and Native Americans concerning Native American religious protections. Mary reviews how a dispute between Native Americans and Minnesota medical examiners led to legislative changes in Minnesota’s autopsy law.

The case summary, by rising 3L Amanda Morris, discusses a recent decision by the U.S. Supreme Court in the case Kindred Nursing Centers Limited Partnership v. Clark, 137 S.Ct. 1421 (2017). This case concerns the Federal Arbitration Act and its preemption of a Kentucky rule targeting arbitration agreements in nursing home contracts.

Lastly, the student spotlight presents Alexander Karcher’s paper, An Argument for the Integration of Dogs in Mediation: The Impact of Dogs on the Building and Maintenance of Trust and Cooperation. This paper was awarded first runner up in the 2017 Roger’s Prize Competition. Alex’s paper discusses the benefits dogs can provide in the mediation setting.

Thank you for reading the Mayhew-Hite Report this academic year. I have thoroughly enjoyed serving as the Mayhew-Hite Report editor.

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

STUDENT SPOTLIGHT

An Argument for the Integration of Dogs in Mediation: The Impact of Dogs on the Building and Maintenance of Trust and Cooperation

Alexander Karcher

I. Introduction

Forty-four percent of Americans own a dog,[1] and it’s easy to understand why. Dogs often provide a tremendous amount of varied support to their owners. In a recent poll, 60% of dog owners believed they led more satisfying lives than non-pet owners,[2] and this belief is supported by scientific research that shows dogs can have measured positive effects on the general health and wellbeing of their owners, including by means of emotional support and companionship, reduction in stress and anxiety, and by measured reductions in blood pressure, cholesterol, and triglyceride levels.[3] But despite the recognizable benefits dogs provide to humans, even a cursory observance of our everyday lives shows us their roles have remained largely in our homes. That is until the last few decades, when the presence of dogs in settings beyond the home expanded quite significantly to venues such as hospitals,[4] prisons,[5] libraries,[6] nursing homes,[7] and even in courtrooms.[8]

Even with the rising presence of dogs in workplace environments, one venue where a wagging tail will rarely greet you is in mediation, where mediators, in their ever-present quest to improve and to enhance the practice of mediation, have largely overlooked the value a dog may bring to the table.[9] In fact, dogs have the ability to enhance mediation and to enhance the experience and satisfaction of the parties in many ways, but especially by aiding mediators in the management and reduction of common negative psychological dynamics of mediation. These dynamics, if left unmanaged, often undermine a mediator’s efforts to build and maintain trust and cooperation between the parties.[10]

The article will first discuss the importance of cooperation and trust in mediation before analyzing five of a mediator’s common obstacles to building and maintaining those two key elements. In discussing the five obstacles, or mediation dynamics, the article will outline methods and strategies mediators currently use to manage them in the absence of dogs.[11] Each discussion of current methodology will be followed by a discussion of the benefits dogs can provide in mediation, demonstrating how in many cases dogs further the current methods of mediators, and in other cases add an entirely new and beneficial element to mediation that would be impossible to achieve in their absence. The article will conclude with a brief discussion of the potential limitations of dog integration in mediation.

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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