Spotlight on Sections: ADR

Section on Alternative Dispute Resolution

By Barbra Elenbaas

The Section on Alternative Dispute Resolution promotes members’ interests, activities, and communication of ideas, and provides a forum for discussion of matters of interest in the teaching, research, and improvement of the law and practice relating to Alternative Dispute Resolution (negotiation, arbitration, mediation, and other dispute resolution processes).

Chair: Ellen E. Deason, The Ohio State University, Michael E. Moritz College of Law

Chair-Elect: Peter R. Reilly, Texas A&M University School of Law

Ellen Deason.Ellen Deason, photo courtesy of The Ohio State University
Peter ReillyPeter Reilly, photo courtesy of Texas A&M University School of Law

About your area of law

What can you tell us about the membership of the Section on Alternative Dispute Resolution and the work they do?

Ellen Deason: ADR combines theory with skills and practice as part of the transition in legal academics towards placing more value on skills, and understanding how skills are not divorced from doctrine or theory.

The way dispute resolution is taught varies from school to school. Many schools have a survey course—sometimes called “alternative dispute resolution,” sometimes called something else—that introduces the students to negotiation, mediation, arbitration, and other methods because they should know how to help a client choose from among them. Many schools also have a class devoted entirely to negotiation.

Class offerings start there, but become quite varied depending on the expertise of the faculty. [At Ohio State] we also offer a mediation clinic plus classes in arbitation, international commercial arbitration, dispute system design, international dispute resolution, and employment dispute resolution. And at many schools, dispute resolution is folded into classes on other subjects. There are often links between dispute resolution and subjects such as healthcare, sports, employee-employer relations, and disability rights.

Peter Reilly: There are relatively few schools able to offer that sort of depth. Many schools are lucky to have a full-semester survey course. Some may have free-standing negotiation and/or mediation courses for people who want to go into business—negotiation skills are required. Some may even offer mediator certifications.

ED: While Peter and I are lucky to be in schools with an emphasis on dispute resolution, many ADR professors are the only ones teaching at their school. One important aspect of the AALS section is its ability to create ties between and among people from other schools who can give a section member support, both in teaching and scholarship, that they may not be receiving from their own faculty. We’ve also had people who participate from other countries, helping to create a sense of global community.

What’s going on in the world of dispute resolution right now?

PR: The field is, relatively speaking, new. Those of us who teach it are fighting a bit of an uphill battle because it’s not one of the traditional academic subjects. Even the name—alternative dispute resolution—belies the fact that ADR is now the main way people solve problems. Only about five percent of cases go to traditional trial, so some people within the ADR community have proposed “appropriate” dispute resolution, for example.

ED: There is also a lively discussion that the “A” can stand for “active.” People tend to think of our core subjects as negotiation, mediation, and arbitration, both domestically and internationally, with all other topics related but outside of that. While resolving litigated disputes has always been an important aspect of the field, it is actually much broader than that. Many scholars are focused on restorative justice and conflicts that don’t present as litigation. In the very public sphere, for example, some in the field are trying to get people in divided communities to talk to each other in a way that can create structures to precent and prepare for violence. And facilitating conversations among people who disagree is well within the realm  of dispute resolution.

“It’s sometimes said that conflict is a growth industry. We are in a good field.” — Peter Reilly

While the field is increasingly diverse, we retain some basic concerns. Take the theme of our Annual Meeting program last year, “access to justice,” and the benefits, difficulties, and downsides of private settlement. The idea of ADR as a means of access to justice is contested. There are certainly people working on these and similar overarching issues that affect, or should affect, most of the legal academy.

PR: It’s sometimes said that conflict is a growth industry. We are in a good field. Now scholars are starting to specialize outside these three core areas—for example Andrea Schneider (Marquette) and Cynthia Alkon (Texas A&M), who are writing a textbook on plea bargaining as it relates to ADR. The field is mature enough that scholars are getting into niche areas and using highly-specialized ADR tools to solve problems without going to trial or through litigation.

What are some important conversations happening right now in legal education regarding alternative dispute resolution?

PR: One of the topics at many schools is how to fill out a faculty with a limited budget. Schools are turning to adjuncts, and we tenured faculty are thinking about how we can support them. Dwight Golann (Suffolk) has been creating an ADR toolbox for adjuncts. People can tap into a website and get role plays, memos, and some helpful instruction.

ED: We are always looking for better teaching materials. At the legal educators colloquium during the ABA conference, everyone gets together to collect a list of new exercises and resources. It’s a joint effort between ABA and AALS, headed by Bobbi McAdoo and Sharon Press (Mitchell Hamline).

PR: It’s called the Resource Share— the last time I attended, there were 50 people in the audience. We have an archive that goes back several years. It’s a phenomenal resource for new ADR teachers and experienced ones. Another tough, common situation is advocating for ADR to be covered in traditional courses when they’re already required to cover so much ground—property, torts, contracts, and civil procedure. Professors teaching those classes really cannot give up a couple of hours to do an exercise in ADR.

ED: In addition to these very practical concerns, we’ve been having spirited discussions about the role we should play in society and in the classroom. After the Kavanaugh hearings, people talked about their experiences raising the topic in class and how to discuss it. This conversation was then expanded after the mass shooting in the Pittsburgh synagogue about how to raise (or not) difficult subjects in class.

PR: These are difficult and controversial topics—they raise basic questions about what role we should play through the current risks in our society.

You mentioned earlier the continuing upward climb of ADR in the legal academy. How has the study of ADR changed since you’ve been teaching it?

ED: I believe more people see links to it from other areas. There are different [teaching] models, and at some schools, they infuse an element of dispute resolution into general courses across the curriculum. As our reputation and acceptance has grown, people have more opportunities to branch out. Negotiation may be the aspect of ADR that has penetrated to the greatest extent. Many schools now have negotiation classes, and far more students are getting a rigorous introduction to the principles of negotiation.

PR: I think we’ve made inroads with professors who teach civil procedure courses, and criminal law with plea bargaining. When you think about it, when students graduate and practice criminal law, all that most of them will be doing is negotiating a plea-bargaining deal for their client. How can you spend a whole semester on criminal law, then, and not talk about plea bargaining? People are seeing that they have to alert their students to this because they will face it immediately upon graduation.

About your section

Your section is the winner of this year’s AALS Section of the Year award. What do you think was the winning combination of factors that led to the honor?

ED: We’re thrilled. Building the section has been a cumulative effort of a lot of people over many, many years and I think that should be recognized. In addition, I’d point to the way we now structure our section, which allows continuity to get things done.

PR: We have three people at the table at any given time: the incoming chair-elect, the current chair, and the chair regent (the previous chair). We don’t lose any institutional knowledge. Nobody has to recreate the wheel, and we know whom we can rely on. When someone on the leadership has an idea, they know they have three years to convince the group and get it done. That makes a big difference.

ED: The chair-elect puts together the Annual Meeting programs, the chair does tasks like constitute the executive committee and organize the selection of the works-in-progress, and the chair regent takes charge of the paper competition. Then the chair regent rotates off the executive committee so that we have new blood.

How do your section members interact and collaborate outside of the AALS Annual Meeting?

ED: We do a lot in conjunction with the ABA Section of Dispute Resolution, which serves a much broader constituency than just law professors. In fact, I think a lot of people would be hard-pressed to identify which things are ABA and which things are AALS. We have a legal educators colloquium on the last day of the annual ABA conference, which is a nice community for educators within the ABA. There’s huge overlap between participation in the ABA section and participation in the AALS section.

“The fact that we’re offering support brings them in with the right mindset. The support in itself goes a long way to making them feel welcomed.” — Ellen Deason

There are two listservs, the AALS listserv and one sponsored by the University of Missouri. Those serve as discussion boards throughout the year. In addition, there are 5 or 6 people who head up the blog They welcome guest posts, some of which are long think pieces, some are short announcements. We never felt the need to have a section newsletter, in part because we have these other avenues.

PR: They are always very active, but lately, there have been wonderful conversations. Somebody can throw out a question and get 10 to 20 people chiming in over the course of three days. From what I can tell, that has happened more this year than I’ve seen in the past.

How does your section support the scholarship of your members?

ED: Our works-in-progress conference is now in its 12th year. Each year we solicit proposals from schools who would like to sponsor it, who then bear the cost of the conference. There is no registration fee, [and] people pay for their own transportation.

I am struck by the camaraderie at this conference. The section leadership takes care to review proposals and make sure there’s time built in for coffee breaks, discussions, and social events that serve to get everyone introduced to each other more informally. I think for many people the collegiality and sense of being part of a group is the draw of the conference just as much as the content of the presentations and the opportunity for helpful feedback.

For the first time, this year’s conference received additional support from the JAMS Foundation, which is important as schools tighten their belts. JAMS is a group of retired judges and others who serve as arbitrators and mediators. We’ve been a little concerned about whether we could continue to find schools to sponsor the conference going forward, but so far there’s a lot of enthusiasm.

PR: It’s like a mini-reunion. Some of it has intentionally been made formal—we have formal mentoring, for example. We match people submitting a paper for mentorship with a more seasoned person who will give comments and make time during the event to talk about the paper. Ellen was my mentor when I did it. Her mentorship made my paper substantially better, and I got a great placement. Sometimes, junior scholars may be intimidated to talk to senior people. A formal mechanism helps.

Do you have any programs to support the mentorship of junior professors?

ED: Over the last several years we have been offering financial support to junior scholars who haven’t attended the works-in-progress conference before to help defray their transportation costs. In addition to providing food and facilities and organization, that is a meaningful way to encourage junior faculty to participate. The fact that we’re offering support goes a long way to making them feel welcomed.

What does your section do to recognize new scholars and/or particularly great scholarship from longtime members?

PR: We just started a section award for best article. Actually, Ellen was the first winner of that.

ED: The ABA gives a lifetime achievement award, but we wanted an award that could recognize anyone no matter where they are in their career. Sometimes you produce your best work in the early stages, when you’re trying to get tenure and under a lot of pressure.

PR: We had maybe 15 people enter the competition, which of course wiped out a huge contingent of would-be judges on our executive committee. In the spirit of our section and the way we support each other, many other people stepped forward saying they would judge.

What do you have planned for the 2018 Annual Meeting?

PR: We try to put together programs that appeal to more than just ADR scholars. This year we wanted to do something with technology, and the Sections on Litigation and Technology, Law and Legal Education are co-sponsors. Online dispute resolution is one of the biggest topics in ADR right now, in part because there are so many questions revolving around the technology. Can people hack it? Do people even have access to it? There are all sorts of access issues.

Missouri Law, a huge ADR school, happened to have a group of scholars writing under the umbrella of dealing with technology in dispute resolution. I approached them to suggest they present their papers at AALS, and all of them agreed to it. Nine people are coming, so it’s going to be a huge panel. Most participants are law professors, but we have two other people, Colin Rule at Tyler Technologies and Ethan Katsh at the National Center for Technology and Dispute Resolution, who make significant contributions to the field and who are very much in demand.

Future goals

What is your vision for the section, this year and in the years to come? What new initiatives, project-based or ongoing, would you like to see as part of the section?

PR: I think we’re at a critical moment. People probably always say that, but I have some evidence that we are at a critical moment in terms of ADR and law. When you read the news today, all of the conflict—Kavanaugh was just the latest thing. Every month it seems like something’s blowing up in this country. There’s strong disagreement. ADR has been around in American law schools for about 30 years. Lately, we’ve been having so many conversations about what our societal role should be. What are we doing here? As scholars and practitioners in this field, as people who think about this stuff, what is our role? Many faculty who get involved in ADR come from backgrounds where they were active in clinics or involved in practice. Part of the lure is a comparatively more practice-oriented approach, so I believe they won’t let it go at just thinking about it and talking about it on our listservs.

I don’t have a specific answer, but this topic is very much on people’s minds. The section is very engaged right now, and I think the conversations we have online will be translated into teaching in short order. I don’t think we’re at a stage where I could give you specific evidence of what we’re planning to do, but I’ve been teaching ADR since 2002 and I’ve never seen this kind of activity before. I know it can’t just be on our minds, it’s got to be in the wider academy. If we cannot have a civil conversation, how are we ever going to go anywhere? We are having so much conflict that people cannot even talk to each other. If you can’t have a conversation, how are you ever going to come up with a resolution?