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Works-In-Progress Conference Provides Treasure Trove of ADR Research

Jennifer Shack, November 30th, 2012

Each year, the Works-In-Progress Conference brings ADR researchers and professors together to share what they are working on and gain insights from the other participants. At this year’s conference, held at Ohio State University in November, topics relevant to court ADR were well represented. Below is a short synopsis of the most relevant items in the materials. Be aware that they are still works in progress and not in final form.

In “Adding By Subtracting? How Limited Scope Agreements for Dispute Resolution Representation Can Increase Access to Attorney Services,” Kristen Blankley argues for a new model of attorney representation that combines limited scope representation, or unbundled legal services, with ADR. Although unbundling legal services isn’t a new idea, the traditional approach focuses on navigating the litigation process. It therefore doesn’t provide assistance for what litigants need most: resolving their disputes. Enlisting lawyers to provide representation in ADR processes would open access to legal assistance and help litigants reach resolution.

Andrea Kupfer Schneider and Jennifer Gerarda Brown suggest changes to the Thomas Kilmann Conflict Mode Instrument (TKI) in “Negotiation Barometry: A Dynamic Measure of Conflict Management Style.”  The TKI assesses an individual’s approach to conflict.  Schneider and Brown note that a weakness in the TKI is that it provides only a snapshot in time, while one’s approach to conflict can change as the conflict itself does. They propose instead an instrument that examines one’s approach both at the outset of conflict and after the conflict has deepened. A draft of the instrument is included.

In “Lawyering Up? Mediation, Public Values and the Legal Profession,” Andrea Carter argues that the enforcement of unauthorized practice of law (UPL) against mediators who aren’t lawyers is harmful to mediation.  She claims that the threat that UPL will be enforced causes courts and the mediation field to limit their mediator rosters to those with law degrees and to reinforce dichotomous facilitative/evaluative view of mediation, seeing the latter as the purview of lawyer mediators. Such a framework doesn’t reflect mediation practice and takes the process away from its traditional values of party participation and “reasoned decision-making,” as well as mediator impartiality. Carter calls on courts to allow mediators on their rosters regardless of whether they are lawyers.

Rule 16 of the Federal Rules of Civil Procedure is the subject of Ellen Deason’s paper, “Limiting Judicial Discretion: Distinguishing “Managing” from “Settling” Under Rule 16.” The rule blends two roles of judges: helping parties plan for ADR and serving as a neutral in a settlement process. Deason argues that these two roles are “functionally and philosophically distinct” and need to be separated. Some districts have separated these two roles and prohibit the assigned judge from conducting settlement conferences. Others, however, make the assigned judge responsible for conducting settlement conferences. Deason claims that this opens the judge to bias when adjudicating the case.

In “How Do Mediators Decide What to Do? Implicit Schemas of Practice and Mediator Decision Making,” Kenneth Kressel summarizes three studies that use reflective post-mediation debriefs to peer into the minds of mediators. The studies found that tacit knowledge plays a large role in mediator decision-making. Further, the mediators’ conscious understanding of their mediation style or schema is often very different from their observed behavior in mediation. For example, mediators who explicitly stated that a win/win outcome was their primary goal were observed instead searching for compromise between the parties.

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