Ohio State Journal on Dispute Resolution

In late 2020, the Divided Community Project (DCP), housed at The Ohio State University Michael E. Moritz College of Law's Program on Dispute Resolution, envisioned hosting a collaborative event series designed to draw together and elevate dispute systems design lessons for enhancing racial equity from US-based truth, reconciliation, action, and equity commissions...

The demand for racial equity has acquired greater intensity and urgency in recent years. Advocacy groups are demanding policies designed to address racial inequality in housing, the criminal justice system, and health care systems, among other areas. These proposals being put forth are different in critical ways that are both substantive and form-based. In some cases, proposal solutions argue for race-specific or race-targeted interventions; in others, they call for universalistic or economic class-based interventions...

Truth and Reconciliation Commissions have played a valuable role internationally in providing an outlet for meaningful dialogue concerning systemic factors contributing to regional instability. At the same time, technology has become an important vehicle for dialogue. This Article therefore introduces considerations about how technology can be used to expand dialogue and strengthen the objectives of American truth commissions in addressing racial inequities. As a larger segment of the population shows increasing preference for technology-based systems, this Article emphasizes that technology can and should complement, rather than supplant, in-person engagements to respond to differing stakeholder preferences for online and in-person interactions. In discussing how some social media platforms have played a negative role in issues of national concern, this Article also emphasizes that there are alternate frameworks for developing online spaces that are inclusive and capable of fostering mutual understanding between different groups. The Article acknowledges the benefits and risks of communication platforms. Just as technology has introduced benefits for transportation, commerce, and entertainment, technology can also transform how reconciliation occurs without geographic limitations

In the American legal system, both the “intake valve” of policing and the “control valve” of courts and prosecution have served to compound racial bias, resulting in a system where race, wealth, and privilege remain determinative of legal outcomes. Understanding this fundamental inequity reveals an avenue to create change: Equity in the legal system can be promoted by seizing the tools of privilege and leveraging them on behalf of those to whom they have historically been denied. In bearing witness to the mercy, the system has shown people of privilege that those who wish to increase equity must not seek equal punishment for all, but rather equal mercy. This Article proposes a mechanism for change through expanding and empowering public defense, creating a new model: collaborative defense. Collaborative defense prioritizes the client experience over all other factors in defining a method of practice. It is a framework through which defenders can expand their role to better achieve client goals while tailoring the means of achievement to their local context. By extending the tools of privilege to historically excluded people, collaborative defense serves as a path to ensure that race and wealth no longer determine legal outcomes.

Numerous initiatives have emerged in the wake of increasing community unrest in America. Some training initiatives have taken a problemsolving approach to help communities de-escalate tension and mitigate ongoing conflict, while others have taken a proactive approach to equip communities to plan in advance of unrest. The Academy Initiative, a program under the Divided Communities Project (“DCP”) housed at The Ohio State University Michael E. Moritz College of Law, is an example of the latter that seeks to empower community leaders with conflict planning and conflict resolution skills ahead of significant unrest. Focusing on DCP’s Academy Initiative, this Article seeks to trace the various impacts of this type of training on three distinct communities. Through interviews with community leaders in these three different localities, this Article analyzes the context of each community prior to their participation in the Academy Initiative and draws out the benefits and challenges that have emerged as a result of participation. Taking a comparative case study approach, the focus is on synthesizing the similarities and differences of these communities to identify what local leaders can learn from outsiders versus what community leaders must cultivate from within to create stronger community cohesion. The findings suggest that collective leadership and a shared vision to make the community better, and the willingness to work with others towards that aim, is something that must be built locally. Once there is an identified group of local leaders invested in the work, outside experts can provide the insights and ideas on how to increase perspective taking, improve communication among local leadership and across the community, and to get community buy-in broadly. Strengthening the societal fabric through both organic and strategic means are necessary to mend the tears in today’s divided communities.

The use of traditional joint opening sessions to begin the first formal mediation session has declined in recent years, with a corresponding increase in initial separate caucuses. Mediators and lawyers have offered several possible explanations for this change and have suggested rationales for and circumstances under which either initial joint sessions or initial caucuses should be used. To date, however, empirical research exploring these issues has been quite limited. The present Article reports the findings of the first study to examine whether a wide range of factors, including dispute and mediator characteristics as well as pre-session communications and other aspects of the mediation, are related to the use of initial joint sessions versus initial separate caucuses. The study involved the survey responses of more than 1,000 mediators who conducted court-based and private mediations in general civil and family cases in eight states...

How did the criminal legal system respond to the early months of pandemic in 2020? This article reports the results of a unique national survey of judges, defense lawyers, and prosecutors that gives a snapshot of how the criminal legal system responded to the COVID-19 in the first five chaotic months... 

In the mid-1980’s, I asked Bob Coulson, then president of the American Arbitration Association (“AAA”), to envision the future of alternative dispute resolution (“ADR”). Without hesitation, he replied, “These delicate flowers are bound to wither in our careless hands.” The flowers of which he spoke were varieties and hybrids of negotiation, mediation, and arbitration. Not known for pessimism and hyperbole, much less hackneyed poeticism, Coulson’s response surprised me...

The study uncovers how judges implement transplanted constructs related to settlement reform in three legal systems—Italy, Israel, and England and Wales. It does so with a view towards the U.S. legal system, from which many of the transplants originated...

The COVID-19 pandemic of 2020-21 changed working conditions for millions of Americans and Canadians quickly and dramatically. Employers responded by requiring employees to quarantine, implementing workplace COVID policies, disciplining employees who violated those policies, changing work schedules, canceling leaves or vacations, and furloughing or laying off employees. Unions have challenged many of these actions, raising a variety of novel issues that are now being resolved through labor arbitration. This article surveys the resulting labor arbitration awards and then comparatively analyzes the awards from Canada and the United States.

The ADR movement, as we know it today, developed from the United States in the 1960s and 1970s and expanded first in countries that share the same Anglo-American legal tradition, mainly England, Canada, Australia, and New Zealand. Today, the ADR model developed by this movement has been embraced worldwide by both Common Law and Civil law countries. The success of this model in Civil Law countries remains, however, a challenge. Comparing the development of ADR in countries of the Anglo-American legal tradition and those of civil law tradition, this article identifies and studies four sources of these challenges: (1) lack of overall assessment of the civil law system to identify which problems could be addressed by legal and procedural reforms and which ones could be solved by the introduction of ADR, (2) introducing ADR in isolation rather than approaching it as one of the solutions in a broader, coherent and complementary reforms of the entire legal system, (3) transplanting ADR mechanisms without reshaping and adapting them to fit specific legal and procedural problems of the country; and (4) failure to identify and strengthen elements of the civil law system that can support ADR mechanisms. It also proposes some solutions to address these challenges and build effective ADR mechanisms in civil law countries.

Kleros—a decentralized blockchain-based arbitration solution that relies on smart contracts and crowdsourced jurors—was conceived to bridge the trust gap that separates e-commerce participants, as in the paradigmatic example of “Alice and Bob.” Previous studies have mainly focused on describing blockchain-based arbitration solutions such as Kleros, and at least one has warned about the potential risks to essential procedural safeguards presented by anonymous and economically-incentivized jurors. Using Kleros as a sociolegal case study of a token-based business providing cutting-edge decentralized blockchain arbitration services, we paint the “big picture” of how Kleros works and analyze its efficacy to improve on traditional online dispute resolution. We also report the results of our exploratory, observational user survey and a series of interface trials. We make a number of contributions to the literature. First, our case study introduces the concept of the “decentralized sheriff,” which we use to refer to the crowd-based compliance mechanism implemented by Kleros to certify crypto tokens. We argue that Kleros’ “decentralized sheriff” contributes to the public good by filling a regulatory hole with respect to the crypto market. Second, building on the work of scholars who studied Kleros, we analyze the major obstacles to widespread adoption of Kleros. Third, we explore whether social interactions of trust and claiming present unique characteristics under Kleros compared to models described in Law and Society literature. Throughout our analysis, we formulate questions for future research and investigation.

This research paper aims to explore, a concept once considered distant and remote, the usage of artificial intelligence (“AI”) in arbitral proceedings. The sphere of arbitration has, to date, been regarded as one that is inherently conservative, where change and development has been slow. This essay endeavors to demonstrate that the recent wave of the technological revolution has now made it difficult for arbitration to stay far behind and carry-on obsolete practices. However, this is not without challenges, therefore, the author seeks to strike a balance between the advantages and disadvantages of AI in arbitration, without undermining the essence of the arbitral process. Resultantly, it is argued that its usage needs to be gradually phased in. The discipline referred to in this paper concerns and addresses the realm of International Commercial Arbitration.

While seeing equity and modern mediation as forms of individualized justice is not new, there are characteristics which may suggest that mediation can be equity’s heir in offering a new forum for equitable-type redress and even novel remedies where none exist in equity. Ashburner’s Principles of Equity explained that equity seeks to create a “cathartic jurisdiction,” meaning a jurisdiction involving the release of strong emotions through open expression leading to relief. What could be more descriptive of the mediation process? Mediators seek to facilitate the sharing of perspectives to enable parties to meet their needs and find durable solutions. So far, so equitable. Thomas Main, referring to arbitration and mediation as ADR, has stated that the “freedom, elasticity and luminance of ADR bear a striking resemblance to traditional Equity, offering relaxed rules of evidence and procedure; tailored remedies; a simpler and less legalistic structure; improved access to justice.” In this presentation, I will suggest to you several ways in which modern mediation can be seen as equity’s heir. Without doubt there are significant differences. However, there are also significant echoes. And beyond that, I will explore if modern mediation can provide remedies that even equity has not considered nor has the capacity to address...

In 2013, a team of mediators and support staff traveled to South Central Asia to assist with a long-standing conflict between local residents and an international organization attempting to make certain changes in the region. The conflict was sectarian, political, and complicated by the numerous and diverse grievances between and within the groups involved. The mediation team, accompanied by guards for their safety, interviewed all the disputants separately and then assembled a group of twenty-five representatives for further discussion...

Despite a global pandemic, Middle East politics have not failed to give the world a show. For Israel and Palestine, in particular, what appeared to be a stagnant, interminable dispute in the face of failed attempts at peace has seen a significant shift in recent months. In September 2020, the world saw powerful regional leaders in the Middle East step away from the Palestinian problem and begin to see a potential trading partner in the modern Israeli state, taking significant steps back from what once were uncompromising policies in support of the Palestinian cause. Four months later, the Palestinian leadership announced, and subsequently cancelled, its first national legislative and presidential elections in over 15 years. In late May 2021, tensions between the Israel and Palestine hit a climax, as unlawful Israeli claims to Palestinian lands led to a bombardment of Gaza by the Israeli military and rocket fire into Israel by Hamas. The 11-day battle impelled settler violence in Jerusalem and international protests, further complicating the already instable and vastly evolving regional atmosphere. While Palestinians await their rightful freedoms, however, internal societal cooperation must be cultivated to encourage growth and development—beginning in the economic sphere...

Water is the most precious resource in the world, and there is no doubt that it is necessary for the continued existence of all life on Earth. Yet, water supplies across the world have been pushed to their limits by the overuse and poor management of available water sources. For some time now, countries around the world, the United States included, have experienced more frequent instances of water shortage and water scarcity. As the global environmental crisis grows in severity and scope, these problems will only be amplified. Clashes over water rights and use between neighbors have been a common occurrence for time immemorial. In today’s interconnected global economy, the scale of these clashes has grown exponentially as the disputes are more often between cities, states, and countries...

Nelson Mandela once said, “There can be no keener revelation of a society’s soul than the way in which it treats its children.” Child welfare has created tensions throughout the years by juxtaposing the need to prioritize parental rights and the societal prerogative to provide for the best interest of the child. In the United States, a parent’s right to the care, custody, and control of their children is deemed fundamental, and thus any interference with such rights should be avoided wherever possible. However, by the same token, states possess a parents patriae interest, affording the ability to step in when parents fail to meet the obligations to their children that are circumscribed by law. Although there have been significant strides towards promoting child welfare over the last century, current research indicates there is much more work to be done to ensure the best possible outcomes for children.

Mediation has been shown to provide significant benefits to both litigants and court systems. Mediation surveys and statistics confirm that its use reduces costs, saves time, and increases satisfaction in the judicial system. Every year, there are 100 million or more civil lawsuits filed across the globe. Most court systems appear to be overworked and litigation costs are significant, even prohibitive. In many instances, lawsuits can take years before obtaining judicial disposition often resulting in justice delayed, or in other words, justice denied. Even in the most developed and mediation-friendly court systems, mediation is largely underused by disputants. Governments, court systems, and disputants should consider implementing early mandatory mediation with an easy opt-out for all civil cases.

What are the ethical rules that apply to mediators and guide their conduct? Are mediators of diverse styles of practice governed by different rules of ethics? Are separate codes of ethics required for mediators of diverse styles of practice? In 2016, I published A Theory of Mediators’ Ethics: Foundations, Rationale, and Application (“A Theory of Mediators’ Ethics”), presenting and defending a comprehensive approach to mediation ethics. The theory identified a core ethics for mediators: a set of minimum ethical requirements that all mediators must comply with, irrespective of style. These requirements were summarized in a Proposed Model Code of Conduct for Mediators (“Proposed Model Code”) which, I argued, was suitable for the guidance of facilitative, transformative, and narrative mediators.

Millions of Americans have never set foot in a courtroom, and their first introduction to the legal process may very well come from the media through television. Syndicated courtroom TV, or “syndi-court,” dramas have continued to top ratings charts for years. However, it is important to remember that many of the top courtroom TV shows such as Judge Judy, The People’s Court, and Hot Bench are not court proceedings—they are arbitration-based court shows. Although nearly 10% of college graduates incorrectly believe that Judy Sheindlin (“Judge Judy”) is on the Supreme Court, Judge Judy is not a “real” judge. She is an arbitrator, as are Jerry Springer, Marilyn Milian, and Greg Mathis. The televised proceedings are not governed by formal legal...

The plight of undocumented workers in their continued effort to achieve a just workplace is one that has continued to be hampered by our current federal legal framework. Undocumented workers are particularly situated in a confusing position as the typical remedies for unfair labor practices and poor working conditions aren’t available to them as a result of their undocumented status. With that said, traditional means of dispute resolution such as labor arbitration could serve as a fruitful process to achieve certain demands. Alternative dispute resolution often serves as an affordable option to attain justice and thus could serve as a pathway to relief for undocumented workers who do not have enough resources to afford litigation.

International law has always considered negotiation as one of its means to settle disputes, but the treatment of negotiation in public international law has changed. Today we find international conventions and customary norms that force states to negotiate in such areas as international environmental, nuclear, and maritime law. A growing number of legal sources include this requirement, and diverse international tribunals are interpreting and applying their clauses to this effect. These clauses are of two types. The majority are compromissory and require states to negotiate before starting a judicial procedure. Others require a substantive result; merely engaging in a negotiation process does not suffice. My attention will be devoted to the former, because their interpretation has repercussions for the way other obligations to negotiate are analyzed.

Today, collegiate sports maintain a nearly year-long stranglehold on sports media coverage. Under this scrutiny, however, the harsh realities of student-athlete compensation (or lack thereof) have come to the forefront of societal discourse. Although the National Collegiate Athletic Association (hereafter the “NCAA”) has remained a regulatory giant in the collegiate world, they continue to face intense opposition to many of their policies. Specifically, with the growing pressure to remove restrictions on a student-athlete’s ability to profit off their name, image, and likeness, individualized arbitration/mediation should be incorporated into the NCAA model to maintain fair collegiate competition and academic growth.

Despite the #MeToo movement, the flashpoint confirmation hearing of Supreme Court Justice Kavanaugh involving alleged high school peer sexual assault and heightened public awareness about sexual and genderbased violence (SGBV), the experiences of individuals under age 18 remain largely ignored, mishandled, and misunderstood. Remedies for SGBV among minors are likewise under-examined and ineffective, despite a crisis that cannot be understated. Failure to aptly address incidents of SGBV perpetuates cycles of oppression and presumes that the “rape culture” and “toxic masculinity” underlying frequent incidents of harm are inevitable. This author’s recent work critiqued the current criminal law paradigm for responding to SGBV among youth, created an interdisciplinary typology of instances of SGBV, and proposed a tiered response system defaulting to public health education and harm-reduction, which reserves justice system intrusion and state surveillance of youth as a last resort for the most severe situations...

#MeToo and Black Lives Matter movements and issues involving the dignity, identity and self-worth of individuals have rarely been topics in negotiation and mediation exercises. Ballet’s #MeToo & Black Lives Matter is a public, multi-party mediation where these issues must be resolved if a sixparty agreement will be reached. The circumstances causing the dispute are real, “ripped from the headlines,” covering the opening of West Side Story in NYC on February 20, 2020. The mediation over a contract to perform a run of the show in Salt Lake City is fictitious. A male dancer of color with the NYC Ballet (Amar Ramasar) displayed nude photos of a female dancer (Alexandra Waterbury) and was terminated. An arbitrator overturned the discharge and ordered a suspension without pay and counseling. Shortly thereafter, the lead producer of West Side Story hired Ramasar for a principal role. Waterbury—the victim of the nude photo display—was furious over Ramasar’s reinstatement and his hiring for West Side Story, sued the NYC Ballet, Ramasar, et al. and led demonstrations before and at the NYC premiere...

While settlement has long taken center stage in common law cultures, giving rise to the “settlement judge”, it is also gaining ground in continental civil law cultures, creating unique judicial roles that broaden the repertoire of judicial function. The study uncovers an informative new judicial role arising from reforms in Italy, one that combines mediation awareness, adversarial settlement-seeking and inquisitorial truth-seeking, and which we named: “fitting the forum to the fuss while seeking the truth.” We focus on the Florence first-instance court in Italy, whose model for implementing recent reforms encouraging settlement, mediation and judicial conciliation, is being replicated by other courts in the country. We examine the actual involvement of Italian judges in reaching consensual dispositions of civil cases and include a docket analysis of civil cases, findings from interviews with judges and an analysis of court observations.

Protests urging fundamental rethinking of police practices took place throughout the United States in the summer of 2020. The deaths of George Floyd at the hands of police in Minneapolis and of Breonna Taylor in Louisville were the sparks for protests, building upon the steady work of activists within the Movement for Black Lives and related movements over the past several years.1 These protests operate on two distinct registers: they demand recognition of the lives of the specific individuals who have been killed by insisting that we “say their names,” and they simultaneously highlight the structural nature of racism that puts every Black body in our society at risk...