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My Favorite Resource Featuring John Lande

Nicole Wilmet, March 20th, 2020

Our series, My Favorite Resource, features interviews with our court ADR friends across the country to learn about their favorite resource. Prior to the COVID-19 epidemic, Resource Center Director Nicole Wilmet spoke with John Lande, Isidor Loeb Professor Emeritus at the University of Missouri School of Law, to learn about his favorite ADR resources.

NW:  What are some of your favorite ADR resources?

JL: I have been developing resources throughout my career, and I appreciate the opportunity to share these resources designed for practitioners, academics and students. I developed the following resources on my own or in collaboration with various colleagues.

My website includes practical forms I developed when I was in practice, materials for teaching courses, links to ADR resources and links to my publications. Readers can download for free my articles and a new edited book, Theories of Change for the Dispute Resolution Movement: Actionable Ideas to Revitalize Our Movement. The website also includes information about my two books published by the ABA Section of Dispute Resolution: Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions (with Michaela Keet and Heather Heavin) andLawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.

The Dispute Resolution Resources for Legal Education (DRLE) website, hosted by the University of Missouri School of Law, provides a wealth of resources for law school faculty including an extensive collection of syllabi for a wide range of courses, teaching materials, a list of dispute resolution programs at American law schools, links to other resources and information about the DRLE listserv.

The Stone Soup Dispute Resolution Knowledge Project is part of the DRLE website with lots of additional resources. It is designed to promote collaboration by faculty, students, scholars, practitioners, educational institutions and professional associations to produce, disseminate and use valuable qualitative data about actual dispute resolution practice. It provides an extensive collection of materials to (1) help faculty develop course assignments requiring students to learn about dispute resolution in real life and (2) help generate knowledge from student competitions and continuing education programs. It also includes a “mini-course” of blog posts about research on dispute resolution and how faculty can incorporate Stone Soup in their courses and scholarship.

The Legal Education, ADR, and Practical Problem-Solving (LEAPS) Project of the ADR in Law Schools Committee of the ABA Section of Dispute Resolution is designed to help faculty incorporate “practical problem-solving” (PPS) into a wide range of courses, including doctrinal, litigation, transactional and ADR courses. The website provides descriptions of various teaching methodologies, suggestions for how to engage colleagues in teaching more PPS in their courses, “talking points” for discussing the incorporation of PPS into doctrinal courses, a survey of how schools integrate PPS skills in their curricula, lists of consultants who can help with specific courses, suggestions for making discussions with faculty as productive as possible, examples of course exercises, approaches to introducing PPS in doctrinal courses and teaching materials and links to relevant resources on other websites.

The Planned Early Dispute Resolution (PEDR) Project of the ABA Section of Dispute Resolution promotes use of planned early dispute resolution techniques by lawyers and clients at the earliest appropriate time. The website includes the PEDR user guide, separate powerpoints for talks to groups of lawyers and business people and suggestions for speakers.

This post includes resources from the 2016 University of Missouri symposium, Moving Negotiation Theory from the Tower of Babel Toward a World of Mutual Understanding. It includes the articles from the symposium, an annotated reading list, blog posts with “virtual book club” conversations discussing the readings and videos of the symposium sessions.

More generally, I like the Indisputably blog, where I am one of nine bloggers writing about a wide range of dispute resolution issues. The bloggers are all law school faculty but many of the posts should be of interest to a wide variety of others interested in dispute resolution.

I also want to mention a different kind of resource. Since 1993, I have been taking photos of friends and colleagues at ADR events and I posted a collection of photo albums from these events. Our sense of identity in belonging to our wonderful community is an important resource and looking at photos of us is a great way to appreciate it.

NW:  Why do you value these resources?

JL: I’m a teacher and coach at heart and I want to help people learn cool and non-obvious insights, gain important skills and help others in turn. These resources don’t claim to provide the “best” or “right” way to analyze things or to act. Rather they provide ideas and options for people to consider as they make their own decisions.

NW: Can you share a time when you turned to one of these resources for either insight or to assist you in your work and how it was helpful to you?

JL: As a professor, the collection of syllabi was especially helpful to see how other faculty taught their courses. This gave me ideas about how to structure my courses and what readings to assign.

NW: You have such an impressive collection of resources here. What advice would you give to someone who is either just starting or hoping to develop a collection of reliable ADR resources?

JL: The goal of a resource developer should be to help people do what they want to do. So, I would think about what people need in particular situations and what could help them achieve their goals and solve their problems. It helps to have been in the situation, which enables one to better understand others’ needs and what would be most helpful.

People have limited attention spans, so it’s important to be as concise as possible while providing the key material that people need. Generally, eliminate unnecessary words, use short sentences and paragraphs whenever appropriate and leave “white space’ to make it easier for readers to grasp the ideas. I try to write in plain English, spiced with a dash of humor. Here’s a post with more suggestions for writing well.

How COVID-19 is Impacting Court ADR Programs

Nicole Wilmet, March 18th, 2020

It is without a doubt an understatement to say that the coronavirus (COVID-19) global health crisis is drastically impacting communities worldwide. News about COVID-19 is changing at a rapid pace (and has likely changed drastically since this piece was written). Words like “lockdown” and “social distancing” are becoming commonplace as states across the country are taking new measures to limit social interactions and keep communities and individuals safe. Here in the United States, this epidemic continues to raise all sorts of questions about what should remain open, what should be closed, and when? 

Courts across the country are also grappling with these types of questions. Here in Illinois, courts are considering these concerns and are currently taking a variety of different approaches at this time with some courts postponing certain types of cases and non-essential meetings or choosing to remain open but promoting remote access services. In Georgia, the chief justice has issued an order declaring a statewide judicial emergency and is ordering courts and clerk’s offices to suspend all non-essential court functions and “to the extent court proceedings are held, they should be done in a manner to limit the risk of exposure, such as by videoconferencing, where possible.” In Michigan, the state Supreme Court has released an administrative order detailing emergency procedures in court facilities and some courts have closed business operations via local administrative orders

As a hub for court ADR, here are the issues we have been hearing at our organization that court ADR programs are encountering as they address the coronavirus:

  • Responses to COVID-19 by court ADR programs are shaped by what their courts decide  to do. 
  • ADR program administrators are concerned for the health of their neutrals, the health of the parties, and their own health. 
  • ADR program administrators are concerned they will not have sufficient neutrals available due to actual illness or a neutral’s need to protect themselves by quarantining. 
  • This might be a good time for courts to use online platforms (such as Zoom) or telephonic conference options to conduct ADR sessions. However, online dispute resolution options also have their own set of considerations like:
    • The free Zoom account has a limit of 40 minutes for group meetings and courts may need to pay for a premium account that would allow them to access certain features to conduct their meetings. 
    • Courts are unlikely to have sufficient neutrals who are trained in how to conduct ADR processes online and there may be a learning curve to conduct sessions telephonically or online. 
    • Parties may not have the resources to be able to access online ADR options at this time. 
    • Online platforms, like Zoom, will likely become overly burdened as an entire workforce and education systems transition to these platforms.

With information surrounding the coronavirus changing so quickly, for the latest information on how your court program is responding to COVID-19, I recommend visiting your court’s website or calling your local court directly. If your state has a state court ADR office (which you can find by searching your state on RSI’s Court ADR Across the U.S. resource), that office may have more information about how court ADR programs are moving forward in your state. If your state does not have a court ADR office, visit your local bar association’s website, which may have more information. In the meantime, I hope you are all staying well!

My Favorite Resource Featuring Joel Shapiro

Nicole Wilmet, March 4th, 2020

Our series, My Favorite Resource, features interviews with our court ADR friends across the country to learn about their favorite resource. This month, Resource Center Director Nicole Wilmet spoke with Joel Shapiro, Chief Circuit Mediator for the U.S. Court of Appeals for the Seventh Circuit Mediation Program, to learn about his favorite resource.

NW: What is your favorite ADR resource?

JS: For information, I turn to RSI. (Seriously, there is no better source to keep up with developments in ADR in Illinois and around the country.) For insight and guidance, I turn to my immediate professional community – the cadre of forty to fifty mediators who work full-time for the federal appellate and district courts. We are few enough to feel connected and to call on one another when the need arises. Of course, the closest to hand are my fellow Seventh Circuit Mediators. We consult informally on a daily basis and have lunch together once a week to make sure we stay in touch. 

NW: Can you share an example of when you turned to your network for support?

JS: Confidentiality is fundamental in mediation, even more so when mediation is conducted under the aegis of the court. Dilemmas regarding confidentiality arise from time to time, requiring principled and pragmatic responses. Years ago, I was subpoenaed to give testimony and produce my notes in a state court action to enforce a settlement I had mediated. In addition to consulting the Judiciary’s Office of Legal Counsel and the leadership of my court, I asked colleagues in other circuits how they had responded to similar demands. Those conversations reinforced my own belief that I must not comply with the subpoena unless directed to do so by the Court of Appeals. I requested representation from the Office of the U.S. Attorney, which removed the subpoena to federal district court and successfully moved to quash it. 

NW: In what ways have you found that your network has been better able to serve your needs than a traditional print resource?

JS: Whatever the commonalities among mediators and mediations, performing this work as court staff is a specialized role. My counterparts in the other federal courts share that experience and an outlook rooted in the utmost respect for judicial institutions. They “know the territory.” Their collective wisdom is not available in traditional print resources.  Perhaps it should be.

NW: What do you value most about the input you receive from your network?

JS: The input I receive from my network is generous, honest, on-point, and well-informed. I know I can count on my “posse.”

NW: How did you develop your network and what would you recommend for someone looking to develop their network?

JS: In the performance of their regular duties, Chief Circuit Mediators meet at least once a year and confer intermittently by phone and email. The entire corps of federal appellate and district court staff mediators meets biennially for a three-day workshop sponsored by the Federal Judicial Center. These periodic meetings are the trellis on which our network has developed. In addition, I host monthly conference calls that are in the nature of “self-reflective practice” conversations. Those sessions, populated by eight or ten colleagues at a time, provide an opportunity to think deeply about our work, help one another “brainstorm” about particular day-to-day challenges, and continually reaffirm the values and friendships that bind us together. 

If someone were looking to develop a network of mutually supportive ADR practitioners, I would suggest they form a self-reflective practice group – it could be as few as three or four colleagues – whose shared professional experience and values can create a foundation of trust.  Mediators who have done this find it to be not only informative but invigorating. Anyone who would like to tap into my thoughts about “self-reflective practice” is welcome to contact me at joel_shapiro@ca7.uscourts.gov.

Ohio’s Fifth District Court of Appeals to Launch Appellate Mediation Program

Nicole Wilmet, February 27th, 2020

Ohio’s Fifth District Court of Appeals will be launching an appellate mediation program. The Fifth District Court is the largest appellate court in Ohio and serves the Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas counties. Recent news about the appellate mediation program reports that the program will be voluntary and limited to civil cases. The program is expected to launch by spring 2020.

According to the Court’s announcement about the program, the Court is currently in the process of drafting a local mediation rule. Once drafted, the proposed rule will be published on the Court’s website with a request for comment from the public and legal community. Recent news reports that once published, the rule will be available for comment for 30 days. The Court has selected Aletha Carver to serve as the Court’s mediator. Those interested in additional information about the program should please contact Ms. Carver at amcarver@starkcountyohio.gov.

My Favorite Resource Featuring Howard Herman

Nicole Wilmet, February 4th, 2020

Our series My Favorite Resource, features interviews with ADR friends across the country to learn about their favorite resources. This month, I spoke with Howard Herman, Director of the ADR Program for the U.S. District Court, Northern District of California, to learn about his favorite ADR resource.

NW: What is one of your favorite ADR resources?

HH: One of my favorite resources is the book Bringing Peace Into the Room, edited by Daniel Bowling and David Hoffman.

NW: Why do you value this particular resource?

HH:  The book is particularly valuable because it consists of a series of short, approachable essays concerning the qualities that make a truly effective mediator. The book links theory to practice in a direct, easily understandable way. Rather than prescriptions about what all mediators should do, the book provides a set of examples of practitioners authentically developing their own approaches grounded in their awareness of personal strengths and weaknesses. I was particularly moved by the essay “Tears” by David Hoffman, which helped me change my approach to the emotions I feel when I’m mediating.

NW: How did you first learn about this resource?

HH:  I first became aware of this book right when it came out – back in 2003 – but it remains every bit as relevant today.

NW: For those unfamiliar with this resource, what is one part of this resource that you wouldn’t want someone to miss?

HH: A particular feature, not to be missed, is the inclusion of stimulating and challenging reflective practice questions at the conclusion of each essay. For the past 15+ years, I’ve led reflective practice groups for the mediators on the panel of the Northern District of California. The questions raised by Bringing Peace Into the Room continue to guide many of the discussions we have each month as mediators examine their cases in an effort to improve their practices.