Technology Mediated Dispute Resolution (TMDR): A New Paradigm for ADR

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Artificial Intelligence: Robots, Avatars, and the Demise of the Human Mediator

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Technology Mediated Dispute Resolution (TMDR): A New Paradigm for ADR

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Artificial Intelligence: Robots, Avatars, and the Demise of the Human Mediator

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Designing a State Court Small Claims ODR System: Hitting a Moving Target in New York During a Pandemic

When I began helping the New York State Unified Court System design a pilot online dispute resolution (“ODR”) system back in October 2016, I never imagined more than four years would pass before a system was implemented. One reason our journey was so long is because our target kept moving. After completing a detailed credit card debt collection ODR platform, we had to change direction before implementation and focus instead on small claims cases. Then like the rest of the world, we suddenly had to deal with the COVID-19 pandemic. Although it took longer than anticipated, we achieved our goal and the New York State Civil Court Small Claims ODR platform went live on January 29, 2021. We learned a great deal along the way, and I hope it will be useful to share some of what we did and what we learned. This short article will not describe every detail of the small claims ODR system. It will instead focus on distinct stages of our ODR system design that required close attention

Conflicts of Interest and Disclosures: Are We Making a Mountain Out of a Molehill

The ethical standards governing conflicts of interest disclosure requirements for arbitrators and mediators are numerous and varied. In spite of the considerable attention that conflict of interest questions attract, both the extent to which an arbitrator must disclose past, present, and potential conflicts of interest and the consequences of a failure to make an appropriate disclosure remain unclear. This article examines disclosure requirements themselves, as well as the sanctions and penalties that may result from a failure to disclose information concerning a neutral\u27s impartiality. Particular attention is paid to what generally is regarded as the most extreme consequence of failure; that being, vacatur. Much of the confusion regarding disclosure requirements results from the fact that it is not always clear which conflict of interest and disclosure standard is controlling. Relevant standards include arbitral associations\u27 codes of conduct, local codes of ethics, statutes, rules of professional conduct, and judicial decisions. The existing myriad of relevant guidance, regulations, and judicial decisions concerning conflicts of interest and required disclosures can lead arbitrators to make choices that conceivably result not only in sanctions but the nuclear option of the arbitral world, vacatur. Arbitral institutions, such as the American Arbitration Association and the National Arbitration Forum, have not been sufficiently careful to ensure that their codes, standards, and bills of rights do not articulate inconsistent standards as to what conflicts of interest must be disclosed and the consequences of both disclosure (possible removal) and failure to disclose (sanctions and vacatur). A cynic might assert that in an apparent effort to assure potential clients that their arbitration services are as credible, ethical, and trustworthy as any other dispute resolution process, arbitral institutions have aggressively incorporated every available, recognized external ethics code or codes of conduct (such as judicial codes and local ethics codes) into the arbitral association\u27s own code. A more forgiving commentator might reply that the associations are incorporating external codes because those codes generally have been in existence for a significant period of time, have undergone intense scrutiny, and can help achieve the arbitral association\u27s goal of providing reliable and ethical services. Adopting and incorporating external codes that may have been drafted to regulate services other than arbitration, however, can create obligations inconsistent with the arbitral association\u27s own codes and incompatible with the goals and realities of arbitration. A call for the courts to adopt a more uniform standard for determining when a failure to disclose a conflict of interest will result in evident partiality warranting vacatur may not be answered any time soon. But there is no reason why arbitral institutions cannot review and, if necessary, amend their own codes and recommendations to ensure that their expectations concerning conflict of interest and disclosures are defined as clearly as possible

Mental Impairments and the Rehabilitation Act of 1973

This article examines the question of whether an asserted mental disorder should be regarded as a statutory impairment. The article begins by outlining the Rehabilitation Act and by discussing the diagnostic difficulties that exist in the mental health field. It then surveys specific cases arising under the Rehabilitation Act. Selected cases reviewing state statutory language are also examined. The article provides a broad discussion of the questions and concerns that must be considered when formulating a nondiscrimination policy protecting mentally impaired persons. It concludes by suggesting an approach for handling cases alleging discrimination due to a mental impairment

Technology Mediated Dispute Resolution (TMDR): Opportunities and Dangers

Technology Mediated Dispute Resolution (TMDR) presents opportunities and dangers that we cannot yet fully envision. Technologies are available or imminent, such as tele-immersion, that will dramatically change the ways we think about dispute resolution in a virtual environment. Whether or not one finds the idea of TMDR appealing, a generation of teens and preteens is integrating technology so deeply into their daily lives that they not only will expect, but will demand, that those technologies be used in a dispute resolution proceeding. Because girls communicate differently than boys when using technology, it will be interesting to learn if women prove to be more effective technology mediated dispute resolvers than men. TMDR already is proving to be the most appropriate process when great distances are involved or safety and security are paramount. Despite the fears some may have, virtual spaces do not produce only virtual agreements. TMDR can enable us to achieve long-term process goals, and technology usage does not cause us to be less satisfied or content. Although the dangers of technology can be formidable, a number of protective measures are possible. We must be vigilant to ensure that neutrals are not using technology to manipulate dispute resolution processes. And finally, parties and neutrals must take care to protect confidential information from wrongdoers intent on taking advantage of technology\u27s inherent vulnerabilities

What Can You Say, Where Can You Say It, and to Whom?: A Guide to Understanding and Preventing Unlawful Sexual Harassment

After an increase in visibility for sexual harassment cases in 1991, employers have had to treat allegations of sexual misconduct more seriously now that juries have the authority to award both compensatory and punitive damages. Many employers and employees remain confused, however, as to what conduct is considered unlawful sexual harassment. This article explains how courts have analyzed allegations of unlawful sexual harassment under Title VII of the Civil Rights Act of 1964 by discussing what a court must find before it will impose liability. In response to the very real and immediate demand for a straightforward discussion of the law concerning sexual harassment in the workplace, this article provides a summary that is hoped to educate and assist both employers and employees. This article also discusses relevant sections of the Civil Rights Act of 1991