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The Dodd-Frank Wall Street Reform and Consumer Protection Act addressed fundamental consumer protection issues involving securities, banking, and indeed the US economy. The act, known as Dodd-Frank, also contains language governing the use of predispute arbitration agreements (PDAAs) in consumer financial and investor contracts. Dodd-Frank created the Consumer Financial Protection Bureau (CFPB) and charged the new bureau with studying the use of PDAAs in consumer financial transactions and addressing PDAAs “if the Bureau finds that such a prohibition or imposition of conditions or limitations is in the public interest and for the protection of consumers…”
The lazy, hazy days of summer are upon us. It’s a time for reading and reflecting about our profession, and this issue of Dispute Resolution Magazine offers material that’s perfectly suited to the season: reviews of exciting new books you’ll want to read and articles on provocative, hot topics in our field.
Courts and disputants continue to seek out alternative processes to resolve disputes involving large numbers of parties. For the parties in these cases, establishing legal precedent may be less important than obtaining efficient relief. But the settlements crafted to resolve these disputes – often brought as class actions – sometimes give short shrift to procedural due process and substantive interests. Some disputes are not adjudicated so much as processed. But sometimes inspired interventions produce creative solutions, resulting in benefit not only to the immediate disputants but to the public at large.
The Art of Negotiation: How to Improvise Agreement in a Chaotic World With the proliferation of popular books about how to negotiate, successful authors need to serve two masters. On the one hand, they need to teach basic points of strategy because many readers will not have studied negotiation formally or learned this material elsewhere, and those who have will benefit from the review. On the other hand, to distinguish their approach from those of their many illustrious forebearers, dating all the way back to Getting to Yes, authors must also provide a unique perspective on the bargaining process. Otherwise, why should readers choose their particular book from the many available?
This volume is a treasured resource for every stakeholder to the commercial arbitration process: business parties and their advocates, arbitrators, ADR provider organizations, and policy makers. That is partly because the remarkably thoughtful contributors, all distinguished process participants, are keenly attuned to the interests of these multiple stakeholders.
In 2008, the Hamline University School of Law, in cooperation with several ADR organizations, convened a global discussion to reassess contemporary negotiation pedagogy and guide its future. The project sought to evaluate the fortes and flaws of “Negotiation 1.0,” or first-generation negotiation teaching, and articulate a vision for “Negotiation 2.0.” By any measure, this was an ambitious undertaking. Five years, four books, three conferences, and a course correction or two later, the Rethinking Negotiation Teaching series offers a valuable resource to negotiation scholars and practitioners, deriving as much from the thoughtful, critical dialogue it kindled as from the richly diverse collection of insights and reflections it offers its readers.
Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads has two very ambitious goals. The first is to propose a set of principles that can serve as a transnational “Guide for Regulating Dispute Resolution.” The second is to provide an up-to-date description of the status of dispute resolution procedures and their regulation in many European countries, Japan, and the United States. The book thus encourages a targeted “comparative” look at dispute resolution. Although many readers might assume that the book will be relevant only for those with an interest or practice in international dispute resolution, American practitioners and policy makers can just as easily use the book’s comparative approach to compare and contrast domestic dispute resolution systems and regulation. There are tremendous differences in the use and regulation of ADR from state to state within the United States and even from county to county within a single state.
Sharing a Mediator’s Power: Effective Advocacy in Settlement Dwight Golann has, perhaps for the first time, brought together in concise, useable form a variety of insights about how advocates in mediation can make the best use of and work with mediators of various skill levels. Advocates often err on the side of extremes, either trying to control the mediation process or sitting idly by, expecting the mediator to be knowledgeable and effective in soliciting information from the parties to bring about compromise. In reality, while the mediator may have substantial influence, knowing how to work with that influence and power is immensely helpful for advocates.
Integrating the perspectives and experiences of patients into the delivery of our health care is a key initiative of the Affordable Care Act. This article describes our experiences facilitating the development of a clinical practice guideline in a multi-stakeholder panel that included patient representatives and experts. Perhaps our greatest challenge was dealing with the ambiguity of the scientific evidence and integrating the patient representatives’ values into a technical dialogue. At the end, the implications of this challenge surprised us.
In this feature, Paul M. Lurie and Sharon Press raise issues of professionalism and their practical applications. In our experience, most commercial court cases and arbitrations settle before judgment or award. But many of those settlements occur only after expensive discovery and pretrial practice, including costs associated with lawyers, experts, depositions, and motions. Delays inherent in court and arbitration procedures also subject clients to the substantial costs associated with employee and executive time spent on litigation matters. Further, public companies bear the risk of being required to report unresolved claims on regulatory filings.
Editors’ note: Recognizing that conflict resolution procedures are being developed and used in a wide variety of multidisciplinary settings, this Dispute Resolution Magazine feature showcases lessons to be learned from empirical studies of our broad field. Twice a year Research Insights summarizes, in the authors’ own words, published or forthcoming articles with research findings relevant to readers. The editors welcome suggestions for articles to include in future issues.
Federal Privilege Law Governs Evidence Admissibility In Wilcox v. Arpaio, 2014 WL 2442531, ___ F.3d ___ (9th Cir. 2014), the court held that federal, not state, privilege law governs the admissibility of evidence arising from mediation of federal and state law claims. Because the county failed to argue any available federal privilege, the court held that the county had waived any privilege argument and that e-mails and testimony concerning the mediation were admissible as evidence. To read more: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/06/02/12-16418.pdf.
2014 Officers and Council Candidate Slate Announced The Nominations Committee has announced the nominees for Section of Dispute Resolution officer and Council Positions. The nominees will be voted on by the Section membership at the ABA’s Annual Meeting on August 9, 2014, at 2 pm at the Fairmont Copley Plaza in Boston.