Saltman Center Faculty Feature: Upon Further Review

Friday, November 15, 2019

One of the key reasons for the Saltman Center’s steady rise up the national rankings has been the scholarly contributions of faculty. This year, Saltman Center professors authored several extensively researched and thought-provoking articles that examine various facets of alternative dispute resolution, from mediation and arbitration to intellectual property rights and cyber law.

Here is a sampling of our faculty’s latest scholarly works that appeared (or will appear) in such prominent publications as the Ohio State Journal on Dispute Resolution, the Harvard Civil Rights - Civil Liberties Review and the Journal of Dispute Resolution:

Thomas Main, William S. Boyd Professor of Law, published Our Passive-Aggressive Model of Civil Adjudication in the Pacific Law Review, as well as Mediation: An Unlikely Villain in the Ohio State Journal on Dispute Resolution. In both articles, Main explores aspects of the relationship between formal adjudication and alternative methods of dispute resolution. His research particularly focuses on historical events between 1976 (when the courts began to embrace not only ADR’s methods but also its message) and 1985 (when courts abandoned trials). By locating these events within a constellation of reforms, Main argues that ADR’s anti-trial message has transformed the practice and procedure of courts.

Lydia Nussbaum, who is Director of both the Saltman Center for Conflict Resolution and Boyd Law’s Mediation Clinic, published Mediator Burnout in the Ohio State Journal on Dispute Resolution. The article draws upon occupational psychology and workplace management literature to better understand the regular stressors that mediators encounter. Mediating requires high levels of emotional control and exposes mediators to professional role and value conflicts, and the practice often involves inadequate social support from supervisory and peer relationships. Professor Nussbaum discusses how these stressors impact the quality of the mediation process, then offers recommendations for improving the regulatory framework designed to ensure mediation quality.   

Jeffrey Stempel, Doris S. and Theodore B. Lee Professor of Law, published Constructing More Reliable Law and Policy: The Potential Benefits of the Underused Delphi Method in the University of Missouri Kansas City Law Review (with Juan Battaler-Grau, Elies Segui-Mas and Javier Vercher-Moll). This article examines the prospects for greater use of the Delphi method as a means of decision making in law, public policy, and dispute resolution. Developed by the Rand Institute during the 1960s, the Delphi method seeks to foster systematic rational analysis using expert input. Stempel also continued his work as a member of the Drafting Committee of the Project Group for the Principles of Reinsurance Contract Law (PRICL), serving as reporter for PRICL Chapter 2 (Articles 2.1.1 through Article 2.4.5) of Duties of the Reinsurer and the Reinsured. The PRICL is a dispute resolution code being crafted for use by reinsurers as well as insurance companies that purchase reinsurance.

Jean Sternlight, the Saltman Center’s Founding Director and Michael & Sonja Saltman Professor of Law, wrote three articles focused on issues that have made recent news. In Mandatory Arbitration Stymies Progress Towards Justice: Where To @MeToo?, which was published in the Harvard Civil Rights - Civil Liberties Law Review, Sternlight argues that mandatory employment arbitration hinders the progressive evolution of sexual harassment law when disputes remain private and judicial decisions are avoided. In Justice in a Brave New World?, which is forthcoming in the Connecticut Law Review, Sternlight takes a big-picture look at how our civil and criminal justice system should change to accommodate modern technology. In a world where pictures, videos, DNA, brain scans, and computer records will seemingly answer many legal questions regarding who did what to whom, this article examines the appropriate role of a system of justice, and how such a system should be designed. Finally, Pouring a Little Psychological Cold Water on ODR, which is forthcoming in the Journal of Dispute Resolution, applies cognitive and social psychological insights to consider when online dispute resolution is likely most and least useful, and how such processes should be designed to account for our very human perspectives on disputes. 

Marketa Trimble, Samuel S. Lionel Professor of Intellectual Property Law, authored two articles this year focused on intellectual property and dispute resolution. Published in the Ohio State Journal on Dispute Resolution, Enforcement of Intellectual Property Rights at Trade Shows: A Review and Recommendations was written in connection with the October 2018 conference she organized at Boyd that focused on intellectual property rights enforcement at trade fairs and trade shows. It assesses ADR mechanisms as complements to (rather than alternatives to) court proceedings and points out the positive and negative aspects of ADR mechanisms when they are used to address intellectual property rights disputes at trade shows. Trimble’s second article, The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies, was published in the Lewis & Clark Law Review. It was inspired by her work on the International Law Association’s Committee on Intellectual Property and Private International Law, as well as by debates that arose in connection with the Canadian case Equustek v. Google. The article reviews various types of extraterritorial remedies in intellectual property and points out the problems caused by discrepancies between the territorial scope of claims and the territorial scope of the resultant remedies.