Discussions in Dispute Resolution
The Foundational Articles
Published on 7. September 2021
Book
Hardback
440 pages
978-0-19-751324-8 (ISBN)
Description
While arbitration was robust in colonial and early America, dispute resolution lost its footing to the court system as the United States grew into a bustling and burgeoning country. And while dispute resolution processes emerged briefly from time to time, they were dormant until the enactment of the Federal Arbitration Act and collective bargaining grew out of the labor movement. But it wasn't until 1976, when Frank Sander delivered his famous remarks at the Pound Conference, that the modern dispute resolution movement was born. By the year 2000, alternative dispute resolution had transformed from a populist rebellion against the judicial system to mainstream legal practice. Today, lawyers and retiring judges look to arbitration and mediation for a career pivot, and law schools train law students in the finer arts of dispute resolution practice as both providers and advocates.
Discussions in Dispute Resolution brings together the modern dispute resolution field's most influential commentaries in its first few decades and reflects on what makes these pieces so important. This book collects 16 foundational writings, four pieces from each of the field's primary subfields--negotiation, mediation, arbitration, and public policy. Each piece has four commenters who answer the question: why is this work a foundational piece in the dispute resolution field? The purpose in asking this simple question is fourfold: to hail the field's foundational generation and their work, to bring a fresh look at these articles, to engage the articles' original authors where possible, and to challenge the articles with the benefit of hindsight. Where possible, the book gives the authors of the original pieces the opportunity either to reflect on the piece itself or to respond to the other commenters.
Discussions in Dispute Resolution brings together the modern dispute resolution field's most influential commentaries in its first few decades and reflects on what makes these pieces so important. This book collects 16 foundational writings, four pieces from each of the field's primary subfields--negotiation, mediation, arbitration, and public policy. Each piece has four commenters who answer the question: why is this work a foundational piece in the dispute resolution field? The purpose in asking this simple question is fourfold: to hail the field's foundational generation and their work, to bring a fresh look at these articles, to engage the articles' original authors where possible, and to challenge the articles with the benefit of hindsight. Where possible, the book gives the authors of the original pieces the opportunity either to reflect on the piece itself or to respond to the other commenters.
More details
Language
English
Place of publication
New York
United States
Target group
Professional and scholarly
Product notice
sewn/stitched
Cloth over boards
Dimensions
Height: 241 mm
Width: 160 mm
Thickness: 23 mm
Weight
816 gr
ISBN-13
978-0-19-751324-8 (9780197513248)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Classification
Other editions
Additional editions
Art Hinshaw | Andrea Kupfer Schneider | Sarah Rudolph Cole
Discussions in Dispute Resolution
The Foundational Articles
E-Book
05/2021
1st Edition
OUP eBook
€67.49
Available for download
Art Hinshaw | Andrea Kupfer Schneider | Sarah Rudolph Cole
Discussions in Dispute Resolution
The Foundational Articles
E-Book
05/2021
1st Edition
OUP eBook
€67.49
Available for download
Persons
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.
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.
Editor
John J. Bouma Fellow in Alternative Dispute Resolution, Clinical Professor of Law, and Director of the Lodestar Dispute Resolution CenterJohn J. Bouma Fellow in Alternative Dispute Resolution, Clinical Professor of Law, and Director of the Lodestar Dispute Resolution Center, Arizona State University
Professor of Law, Director of the Marquette University Institute for Women's Leadership, Director of the Marquette University Law School Dispute Resolution ProgramProfessor of Law, Director of the Marquette University Institute for Women's Leadership, Director of the Marquette University Law School Dispute Resolution Program, Marquette University Law School
Michael E. Moritz Chair in Alternative Dispute ResolutionMichael E. Moritz Chair in Alternative Dispute Resolution, Moritz College of Law, The Ohio State University
Content
Introduction
Table 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 Kornhauser
Comments:
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 Seriously
Rishi 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. White
Comments:
Michael Moffitt--Machiavelli and the Bar and Ethical Ratcheting
Peter R. Reilly--Machiavelli and the Bar: J.J. White as Negotiation Ethics Architect
Lauren A. Newell--Machiavelli and the Bar: Prescient in Part
James J. White--Confronting Lying in Negotiation
Article 1.3. Toward Another View of Legal Negotiation: The Structure of Problem Solving (1984)--Carrie Menkel-Meadow
Comments:
Russell Korobkin--We Are All Problem Solvers Now
Erin 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 Law
Carrie 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. Wetlaufer
Comments:
Jennifer Reynolds--Oversimplifying, Overselling, Overreaching
Noam Ebner--Integrative Negotiation: Paying the Price of Popularity
Robert C. Bordone--Strengthening Integrative Bargaining: How The Limits of Integrative Bargaining Sharpened the Work of Negotiation Scholars
Gerald B. Wetlaufer--Reflections on The Limits of Integrative Bargaining
Part 2. Mediation
Article 2.1. Mediation: Its Forms and Functions (1971)--Lon L. Fuller
Comments:
Art Hinshaw--Lon L. Fuller: Private Ordering and Mediation
Nancy A. Welsh--The Untethering of Mediation from Relationships
James 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. Stulberg
Comments:
Lela Porter Love--A Star to Steer Her By
Brian A. Pappas--Just Settlement? Rethinking the Mediator's Goals
Bobbi 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 Grillo
Comments:
Carol Pauli--Trina Grillo: Productive Rage
Karen Tokarz--Grillo's Rigorous Path to Intentional, Mindful Mediation
Douglas N. Frenkel--The Grillo Effect at Thirty
Kelly 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. Riskin
Comments:
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 Legacy
Kimberlee Kovach--Growth from the Grid?
Part 3. Arbitration
Article 3.1. The New Federal Arbitration Law (1926)--Julius Henry Cohen and Kenneth Dayton
Comments:
Carli N. Conklin--A Robust History of Arbitration in Early America: Commentary on The New Federal Arbitration Law
Imre 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 Realized
Amy J. Schmitz--Emphasizing Efficiency in the Digital Age
Article 3.2. Commercial Arbitration (1961)--Soia Mentschikoff
Comments:
Sarah R. Cole--Everything Old Is New Again
W. Mark C. Weidemaier--The Legacy of Soia Mentschikoff's Commercial Arbitration
David 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. Sternlight
Comments:
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 Effect
Martin H. Malin--Arbitration's Catalyst for Empirical Studies
Richard Bales--The Historical Context of Lisa Blomgren Amsler's Empirical Work on Employment Arbitration
Lisa 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 Galanter
Comments:
John Lande--For Pragmatic Romanticism in Law and Dispute Resolution: Reflections on Galanter's Remarkably Realistic Analysis of Why the Have-Nots Come Out Behind
Dwight Golann--A Prescient Warning of the Vulnerabilities in ADR
Cynthia Alkon--Galanter's Analysis of the "Limits of Legal Change" as Applied to Criminal Cases and Reform
Marc Galanter--Reflections on Why the "Haves" Come Out Ahead
Article 4.2. Varieties of Dispute Processing (1976)--Frank E. A. Sander
Comments:
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. Fiss
Comments:
Amy J. Cohen--ADR and Public Values Again
Ellen Waldman--What Against Settlement Got Right
Adam 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-Meadow
Comments:
Ellen E. Deason--Dimensions of Quality of Justice
Elayne E. Greenberg--ADR's Place at the Justice Table
James Coben--Foundational Because Prescient (and Unfortunately, Cassandra-like Prescience)
Carrie Menkel-Meadow--Institutionalizing ADR: Clashing Values
Table 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 Kornhauser
Comments:
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 Seriously
Rishi 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. White
Comments:
Michael Moffitt--Machiavelli and the Bar and Ethical Ratcheting
Peter R. Reilly--Machiavelli and the Bar: J.J. White as Negotiation Ethics Architect
Lauren A. Newell--Machiavelli and the Bar: Prescient in Part
James J. White--Confronting Lying in Negotiation
Article 1.3. Toward Another View of Legal Negotiation: The Structure of Problem Solving (1984)--Carrie Menkel-Meadow
Comments:
Russell Korobkin--We Are All Problem Solvers Now
Erin 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 Law
Carrie 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. Wetlaufer
Comments:
Jennifer Reynolds--Oversimplifying, Overselling, Overreaching
Noam Ebner--Integrative Negotiation: Paying the Price of Popularity
Robert C. Bordone--Strengthening Integrative Bargaining: How The Limits of Integrative Bargaining Sharpened the Work of Negotiation Scholars
Gerald B. Wetlaufer--Reflections on The Limits of Integrative Bargaining
Part 2. Mediation
Article 2.1. Mediation: Its Forms and Functions (1971)--Lon L. Fuller
Comments:
Art Hinshaw--Lon L. Fuller: Private Ordering and Mediation
Nancy A. Welsh--The Untethering of Mediation from Relationships
James 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. Stulberg
Comments:
Lela Porter Love--A Star to Steer Her By
Brian A. Pappas--Just Settlement? Rethinking the Mediator's Goals
Bobbi 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 Grillo
Comments:
Carol Pauli--Trina Grillo: Productive Rage
Karen Tokarz--Grillo's Rigorous Path to Intentional, Mindful Mediation
Douglas N. Frenkel--The Grillo Effect at Thirty
Kelly 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. Riskin
Comments:
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 Legacy
Kimberlee Kovach--Growth from the Grid?
Part 3. Arbitration
Article 3.1. The New Federal Arbitration Law (1926)--Julius Henry Cohen and Kenneth Dayton
Comments:
Carli N. Conklin--A Robust History of Arbitration in Early America: Commentary on The New Federal Arbitration Law
Imre 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 Realized
Amy J. Schmitz--Emphasizing Efficiency in the Digital Age
Article 3.2. Commercial Arbitration (1961)--Soia Mentschikoff
Comments:
Sarah R. Cole--Everything Old Is New Again
W. Mark C. Weidemaier--The Legacy of Soia Mentschikoff's Commercial Arbitration
David 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. Sternlight
Comments:
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 Effect
Martin H. Malin--Arbitration's Catalyst for Empirical Studies
Richard Bales--The Historical Context of Lisa Blomgren Amsler's Empirical Work on Employment Arbitration
Lisa 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 Galanter
Comments:
John Lande--For Pragmatic Romanticism in Law and Dispute Resolution: Reflections on Galanter's Remarkably Realistic Analysis of Why the Have-Nots Come Out Behind
Dwight Golann--A Prescient Warning of the Vulnerabilities in ADR
Cynthia Alkon--Galanter's Analysis of the "Limits of Legal Change" as Applied to Criminal Cases and Reform
Marc Galanter--Reflections on Why the "Haves" Come Out Ahead
Article 4.2. Varieties of Dispute Processing (1976)--Frank E. A. Sander
Comments:
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. Fiss
Comments:
Amy J. Cohen--ADR and Public Values Again
Ellen Waldman--What Against Settlement Got Right
Adam 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-Meadow
Comments:
Ellen E. Deason--Dimensions of Quality of Justice
Elayne E. Greenberg--ADR's Place at the Justice Table
James Coben--Foundational Because Prescient (and Unfortunately, Cassandra-like Prescience)
Carrie Menkel-Meadow--Institutionalizing ADR: Clashing Values