Games, Dystopia, and ADR

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

Does ADR Feel like Justice?

This Article contends that modern conflict spectacles, fueled by snap disputing dynamics and foisted upon the polity through media and social media, are so far afield from traditional ADR principles and practices that they may keep ADR from “feeling” like justice to many people. How people feel about alternative practices and processes will have an impact on whether they avail themselves of those methods in their own disputes. In other words, even if we had widely available, high-quality, and free ADR services available to everyone, we might still have an access to justice problem because those services would not be seen as providing justice

Talking About Abortion (Listening Optional)

Whether we can expect others to listen—and whether we choose to listen to others—have become central challenges in handling conflicts around polarized and high-profile political matters. For those who study alternative dispute resolution (“ADR”), these concerns about listening hit especially close to the bone because they implicate some of the most foundational precepts of dispute resolution practice. This paper explores some of these implications in the context of the fight over reproductive rights, with special focus on the “listening dilemma” that people experience when navigating extremely difficult conversations around crucial political entitlements, especially when those entitlements are in the process of being made and unmade. Paying closer attention to the listening dilemma and other unusually challenging dynamics in public conflicts makes plain the importance of social context when deciding what interventions may be applicable or appropriate. As it turns out, these interventions include listening—but not as dogma and only to the extent that listening makes sense, given goals and context

On Commitments

In standard interest-based negotiations or mediations, commitments are the final stage of a process in which negotiators manage both substantive issues and relational concerns while intentionally dismantling unproductive positions so that the parties may explore the integrative potential of identifying underlying interests, and then generating value-creating options to satisfy those interests. Put another way, interest-based processes transform some number of party interests into action items, deliverables, contract provisions, memorandums of understanding, preambles, press releases, promises, declarations of intention; that is, interests become commitments. And often the opposite is true: commitments can become interests, insofar as they are constitutive elements (explicit or not) in future negotiations and decisions

Luck v. Justice: Consent Intervenes, but for Whom?

Consent in civil settlements should improve access to and delivery of justice by making luck (chance, contingencies, arbitrariness) less significant in process and outcomes. Consent-based processes and private settlement are supposed to support justice by redistributing decision-making power away from judicial-coercive authorities to the people most affected by the dispute. But consent today has become little more than a pro forma process lever for bypassing regulation, litigation, and other more formal structures. No longer does consent serve as a reliable bulwark against luck distortions and arbitrariness in legal systems. Opening shrink-wrap (consent to arbitrate!), being shunted into compulsory mediation (consent to mediate!), and showing up at a town hall (consent to public sector decision-making!) are troubling examples of how we are stretching the notion of consent beyond recognition. And the more we stretch consent, the more alienated we become from our own authentic participation, engagement, and empowerment in state and corporate contexts. Consent needs repair. To that end, this Article makes two new contributions: one, describing how theories of moral and legal luck can illuminate consent problems in in civil settlements; and two, proffering new participant-centered ideas about how to manage consent problems in alternative contexts

Breaking Batnas: Negotiation Lessons from Walter White

Breaking Bad ran for five seasons. This article examines five negotiations, one from each season, each featuring Walter White. The close readings provided show how the five negotiations demonstrate and/or disrupt foundational negotiation concepts or skills. The Article then suggests some possible takeaways for negotiators and analysts and concludes with a brief thought about ethical implications in negotiation theory and practice

The Impact of the COVID-19 Pandemic on School Psychology Internship Outcomes

The Ohio Internship Program in School Psychology was forced to adapt abruptly to the changing circumstances brought on by the novel coronavirus (COVID-19) pandemic beginning in March 2020. The purpose of this study was to determine the extent to which the school psychology internship outcomes were negatively affected by the COVID-19 pandemic in terms of supervisors\u27 ratings of intern competencies, the number of students served by interns, and the outcomes of academic and behavior interventions supported by interns. Findings of the annual evaluation of the Ohio Internship Program in School Psychology for the school year directly affected by the pandemic (2020–2021) were compared to the findings for the year the pandemic began (2019–2020) and the 3 years before the start of the pandemic. The results provide evidence of gains in professional competencies and positive outcomes for students served by interns. The results also highlight racial disparities in the counts of students provided school psychological services during the pandemic. Implications for school psychology graduate preparation and practice are discussed