Discussions in Dispute Resolution

Art Hinshaw is the John J. Bouma Fellow, the Founding Director of the Lodestar Dispute Resolution Center, and a Clinical Professor of Law at the Sandra Day O'Connor College of Law at Arizona State University. Professor Hinshaw's scholarship focuses on mediation and negotiation theory and practice, and he is a co-author on the 6th edition of the classic textbook Dispute Resolution & Lawyers: A Contemporary Approach and author of numerous articles and book chapters. Currently he is a member of the ABA's Standing Committee on Mediator Ethical Guidance and a regular contributor to Indisputably: the ADR Prof Blog. He is a former member of the Arizona Commission on Judicial Conduct.Andrea Kupfer Schneider is a Professor of Law, the inaugural director of the Institute for Women's Leadership at Marquette University and the Director of the law school's nationally ranked dispute resolution program. She frequently publishes law review articles and book chapters on negotiation, gender, and international conflict and has co-authored several leading legal textbooks on ADR, Negotiation, Mediation and Plea Bargaining. Andrea is a founding editor of Indisputably, the blog for ADR law faculty and started the Dispute Resolution Works-in-Progress Annual Conference in 2007. She was named 2009 Woman of the Year by the Wisconsin Law Journal and, in 2016, gave her first TEDx talk entitled Women Don't Negotiate and Other Similar Nonsense. She was named the 2017 recipient of the ABA Section of Dispute Resolution Award for Outstanding Scholarly Work.Sarah Rudolph Cole is the Michael E. Moritz Chair in Alternative Dispute Resolution, Moritz College of Law, Ohio State University; Professor Cole clerked on the Ninth Circuit for Eugene A. Wright. She practiced labor and employment law and was on the faculty at Creighton University School of Law before joining the Moritz faculty in 1998. She is co-author, with Nancy Rogers, James Coben, Peter Thompson and Craig McEwen of Mediation: Law, Policy and Practice and Dispute Resolution: Negotiation, Mediation and Other Processes with Nancy Rogers, Stephen Goldberg and Frank Sander. She is the director of the Program on Dispute Resolution at Moritz. In 2013, Ohio State awarded her the Alumni Award for Distinguished Teaching. She serves on arbitration and mediation panels for AAA and the State of Ohio and visited at Harvard Law School in Fall 2019.

• IntroductionTable of Contributors Acknowledgments Part 1. Negotiation Article 1.1. Bargaining in the Shadow of the Law: The Case of Divorce (1979)--Robert H. Mnookin and Lewis KornhauserComments:Elizabeth C. Tippett--Bargaining in the Shadow of the Law: The Case for ADR as a Field of Study Rebecca Hollander-Blumoff--Taking Human Behavior SeriouslyRishi Batra--Bargaining in the Shadow of the Law: A Classic Article with a Contemporary Challenge Robert H. Mnookin--Bargaining in the Shadow of the Law Re-assessed Article 1.2. Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation (1980)--James J. WhiteComments:Michael Moffitt--Machiavelli and the Bar and Ethical RatchetingPeter R. Reilly--Machiavelli and the Bar: J.J. White as Negotiation Ethics Architect Lauren A. Newell--Machiavelli and the Bar: Prescient in PartJames J. White--Confronting Lying in Negotiation Article 1.3. Toward Another View of Legal Negotiation: The Structure of Problem Solving (1984)--Carrie Menkel-MeadowComments:Russell Korobkin--We Are All Problem Solvers NowErin R. Archerd--It's Not the Lawyers We Need to Convince: Commentary on Legal Negotiation by Carrie Menkel-Meadow Andrea Kupfer Schneider--Counseling About More than the LawCarrie Menkel-Meadow--The Origins of Problem Solving Negotiation and Its Use in the Present Article 1.4. The Limits of Integrative Bargaining (1996)--Gerald B. WetlauferComments:Jennifer Reynolds--Oversimplifying, Overselling, Overreaching Noam Ebner--Integrative Negotiation: Paying the Price of PopularityRobert C. Bordone--Strengthening Integrative Bargaining: How The Limits of Integrative Bargaining Sharpened the Work of Negotiation ScholarsGerald B. Wetlaufer--Reflections on The Limits of Integrative Bargaining Part 2. Mediation Article 2.1. Mediation: Its Forms and Functions (1971)--Lon L. FullerComments:Art Hinshaw--Lon L. Fuller: Private Ordering and MediationNancy A. Welsh--The Untethering of Mediation from RelationshipsJames J. Alfini--Lon Fuller's Influence on the Debate Over Mediator Orientations Becky L. Jacobs--Lon Fuller: A Progenitor of the Pedagogy of Skills? Article 2.2. The Theory and Practice of Mediation: A Reply to Professor Susskind (1981)--Joseph B. StulbergComments:Lela Porter Love--A Star to Steer Her ByBrian A. Pappas--Just Settlement? Rethinking the Mediator's GoalsBobbi McAdoo and Sharon Press--Neutrality in 2020: A Reply to 1981 Stulberg Joseph B. Stulberg--Revisiting Mediator Neutrality Article 2.3. The Mediation Alternative: Process Dangers for Women (1991)--Trina GrilloComments:Carol Pauli--Trina Grillo: Productive RageKaren Tokarz--Grillo's Rigorous Path to Intentional, Mindful Mediation Douglas N. Frenkel--The Grillo Effect at ThirtyKelly Browe Olson--Post-Grillo: New Family Mediation Protections and Revised Dangers Article 2.4. Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed (1996)--Leonard L. RiskinComments:Michael T. Colatrella, Jr.--"True Enough"Alyson Carrel--Dismantling the "Facilitative" "Evaluative" Dichotomy: Reflecting on Riskin's Grid and Predicting the Future Donna Erez-Navot--The Riskin Grid: A Mixed LegacyKimberlee Kovach--Growth from the Grid? Part 3. Arbitration Article 3.1. The New Federal Arbitration Law (1926)--Julius Henry Cohen and Kenneth DaytonComments:Carli N. Conklin--A Robust History of Arbitration in Early America: Commentary on The New Federal Arbitration LawImre S. Szalai--The Federal Arbitration Act in Its Infancy: Cohen and Dayton's The New Federal Arbitration Law Kristen Blankley--The New Federal Arbitration Law: A Call to Ethical Practice Not Yet RealizedAmy J. Schmitz--Emphasizing Efficiency in the Digital Age Article 3.2. Commercial Arbitration (1961)--Soia MentschikoffComments:Sarah R. Cole--Everything Old Is New AgainW. Mark C. Weidemaier--The Legacy of Soia Mentschikoff's Commercial ArbitrationDavid Horton--Inside the Black Box: A Short Comment on Soia Mentschikoff's Commercial Arbitration Stephen J. Ware--Lasting Lessons from Mentschikoff's Commercial Arbitration Article 3.3. Panacea or Corporate Tool?: Debunking the Supreme Court's Preference for Binding Arbitration (1996)--Jean R. SternlightComments:Jill I. Gross--Rethinking the Debunking: On Arbitration Myths, Preferences, and Legal Theory Hiro N. Aragaki--The Critical Theory Legacy of Jean Sternlight's Panacea or Corporate Tool?Michael Z. Green--Framing the Debate to Show How Big Guys Insist That Little Guys Arbitrate as a Corporate Tool Jean R. Sternlight--Panacea or Corporate Tool?: The Sequel Article 3.4. Employment Arbitration: The Repeat Player Effect (1997)--Lisa B. Bingham [Lisa Blomgren Amsler]Comments:Alexander J.S. Colvin--The River's Source: Empirical Research and Lisa Blomgren Amsler's Employment Arbitration: The Repeat Player EffectMartin H. Malin--Arbitration's Catalyst for Empirical StudiesRichard Bales--The Historical Context of Lisa Blomgren Amsler's Empirical Work on Employment ArbitrationLisa Blomgren Amsler--Why the Haves Come Out Farther and Farther Ahead: The Repeat Player Effect, Control Over Dispute System Design, and Justice Part 4. Dispute Resolution Public Policy Article 4.1. Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change (1974)--Marc GalanterComments:John Lande--For Pragmatic Romanticism in Law and Dispute Resolution: Reflections on Galanter's Remarkably Realistic Analysis of Why the Have-Nots Come Out BehindDwight Golann--A Prescient Warning of the Vulnerabilities in ADRCynthia Alkon--Galanter's Analysis of the "Limits of Legal Change" as Applied to Criminal Cases and ReformMarc Galanter--Reflections on Why the "Haves" Come Out Ahead Article 4.2. Varieties of Dispute Processing (1976)--Frank E. A. SanderComments:Donna Shestowsky--How Useful Is Court ADR If Litigants (Still) Don't Know About It? Lydia Nussbaum--Dispute Processing Beyond the Courts-New Complexity, Old Problems Deborah Thompson Eisenberg--Frank Sander: Father of Court-Based Dispute Resolution Yael Efron--Varieties of Dispute Processing: The Implications on Legal Education Article 4.3. Against Settlement (1984)--Owen M. FissComments:Amy J. Cohen--ADR and Public Values AgainEllen Waldman--What Against Settlement Got RightAdam S. Zimmerman--From Mass Adjudication to Settlement and Back Marjorie Corman Aaron--The Haunting Specter of Fiss's Against Settlement Article 4.4. Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-Opted or "The Law of ADR" (1991)--Carrie Menkel-MeadowComments:Ellen E. Deason--Dimensions of Quality of Justice Elayne E. Greenberg--ADR's Place at the Justice TableJames Coben--Foundational Because Prescient (and Unfortunately, Cassandra-like Prescience) Carrie Menkel-Meadow--Institutionalizing ADR: Clashing Values