Center for Dispute Resolution

Overcoming Barriers in Preparing Law Students for Real-World Practice

October 19, 2012

There is a growing consensus that American law schools need to do a better job of preparing students to practice law. Teaching students to "think like a lawyer" is still important but it is not enough for students to be able to act like a lawyer soon after they graduate.

Training lawyers is especially difficult because lawyers work on many types of problems, both when handling disputes and negotiating transactions. Some legal disputes are resolved at trial or on appeal, but most are resolved through other processes in the "shadow of the law." Although legal education has evolved in recent decades, the legacy of the Langdellian system makes it hard to combine instruction in legal doctrine, practical skills, and clinical experience.

Recognizing the general problems of legal education is fairly easy. Solving them can be quite hard. Law schools serve many constituencies that have demanding and diverse interests. Needed time and money are scarce and there is no one-size-fits-all solution.

This symposium brings together scholars, practitioners, and judges to analyze the needs of stakeholders of legal education and how law schools can most effectively satisfy those needs.

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Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration

October 21, 2011

Once upon a time, international commercial arbitration and litigation were considered mutually exclusive means of resolving transnational disputes. However, those days appear to be gone forever. Instead, the existence of an arbitration agreement in a transnational dispute seems to be nothing more than an invitation for lawyers to engage in extensive (and expensive) tactical maneuvering in a variety of venues, both arbitral and judicial.

Some may see creative strategizing as the natural by-product of the significant amounts of money that are often at issue in these sorts of disputes. However, the border skirmishes between international commercial arbitration and litigation can also be attributed to the uncertainty that arises when the substantive and procedural laws of different jurisdictions collide.

Keynote speaker Gary Born joins panelists from Canada, Austria, Switzerland and the United States in a frank and timely discussion of some of the issues that can develop when parties attempt to combine litigation tactics with international commercial arbitration. This group of experts provides a uniquely transnational perspective on some of the most pressing questions facing the legal community today.

This event is offered in cooperation with the Chartered Institute of Arbitrators (CIArb) North American Branch, the University of Missouri International Center and the University of Missouri Transatlantic Center, with additional media support from the American Bar Association Section of International Law, the American Society of International Law (ASIL) and Transnational Dispute Management (TDM). The University of Missouri School of Law and Center for the Study of Dispute Resolution are also pleased to host a works-in-progress conference in association with this symposium, as well as a student writing competition in cooperation with CIArb.

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Alternative Dispute Resolution and The Rule of Law: Making the Connection

October 15, 2010

On the face of it, the Rule of Law and Alternative Dispute Resolution seem fundamentally at odds.

The Rule of Law, after all, compels the use of formal rules to decide disputes. ADR, on the other hand, calls for the resolution of disputes through processes that do not depend upon the application of formal rules, such as negotiation and mediation. The two could not seem to be farther apart.

But a closer look suggests that ADR and the Rule of Law are not mutually exclusive. Judicial and administrative dispute resolution programs are common throughout the state and federal courts and governments. Increasingly, too, ADR processes such as town halls, study circles, and citizen juries, are being used to facilitate community dialogue on a wide range of public issues, from neighborhood blight to national health care. Moreover, many of our most established ADR processes - arbitration, mediation, even negotiation - are dependent upon the law to secure such crucial functions as enforcement, confidentiality, and legitimacy.

So, just what is the relationship between the ADR and the Rule of Law? Are they simply incompatible? Can they be mutually supportive? What do we know about this relationship, and what do we need to fine out?

To date, little consideration has been given to such questions. It is time, now, to have that discussion. Domestically, judicial and administrative ADR programs have become institutionalized, but serious questions about their legitimacy remain. Internationally, promotion of the Rule of Law remains a hallmark of U.S. foreign policy, but implementation remains a challenge in the face of traditions of graft, corruption and violence. Can ADR help?

This symposium is a first-ever convening of scholars and practitioners from across the globe to consider this relationship more deeply.

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The Creeping Legalism Labor Arbitration

October 9, 2009

As a method of dispute resolution, labor arbitration falls somewhere in between non-binding forms of dispute resolution and more formal dispute resolution processes. This "in-between" status has made it difficult at times for the participants in labor arbitration to decide what role the law and legally related constructs should play in labor arbitration.

For many years, practitioners and scholars intensively debated the extent to which labor arbitration was becoming too legalistic. While little attention was paid to this issue in the 1990s, recent developments have made the "creeping legalism" issue particularly relevant. First, the increased regulation of the employment relationship has placed labor arbitrators in a position to interpret issues of external law when deciding collective bargaining disputes. Second, the proliferation in the use of individual employee rights arbitration, which by nature is more legalistic, might have affected the practice of labor arbitration. To the extent that some of the same players participate in both, labor and employee rights arbitration, one would expect the legalistic character of individual employee rights arbitration to spillover to labor arbitration, and perhaps other forms of alternative dispute resolution. The recent United States Supreme Court's decision in 14 Penn Plaza LLC v. Pyett, which holds that a bargaining contract provision requiring employees to arbitrate age discrimination claims is enforceable and thus precludes later litigation of such claims, accentuates the importance of this issue.

This symposium seeks to reignite the discussion on the legalization of labor arbitration. The presenters will explore the history of "creeping legalism" and evaluate its effect on the practice of labor arbitration. The presenters will also assess the effect of the legalization of labor arbitration in other forms of dispute resolution, as well as identify future trends.

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Collaborative Governance: The Future of Regulation: An Interdisciplinary and International Review

April 2-3, 2009

President Obama recently emphasized that government should be both participatory and collaborative. Collaboration, when properly executed, expands the information and insight that is available to agencies, and the focused deliberation can result in policies that would be difficult to achieve otherwise. The essence of collaboration is the bilateral nature of the discussions, with the agency engaging in a give and take, instead of simply informing itself to make the decision alone.

Collaboration can take many forms and be employed throughout the regulatory process: it might be a scoping session to develop the issues that need to be taken into account in a new rule; it might be a policy dialogue or roundtable in which the science or other important components are discussed; it might be recommendations to the agency concerning a proposed rule; or, indeed, the collaboration might be entirely within the private sector to establish a policy in lieu of mandatory regulation. While these are certainly helpful in informing the agency, they stop short of securing the ultimate benefit of collaboration: an actual agreement on the major provisions of a new policy.

On the other hand, if not used properly, a collaborative approach can waste valuable time or lead to deficient decisions. Thus, doing right and in the right situations is critically important.

This timely program will explore the regulatory use of collaborative governance and develop recommendations for its appropriate use.

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Innovative Models of Lawyering: Collaborative Law and Other Processes

October 12, 2007

The Center sponsored a symposium entitled "Innovative Models of Lawyering: Collaborative Law and Other Processes." David Hoffman, the founding partner of the Boston Law Collaborative, LLC, and a former chair of the ABA Section of Dispute Resolution, gave the keynote presentation entitled, "Practicing Law as Form of Dispute Resolution: Towards a Unified Field Theory of ADR." Prof. John Lande presented the results of his empirical study of Cooperative Practice in Wisconsin and Center Director Robert Bailey and Prof. Stephen Easton moderated discussions. Articles based on the presentations will be published in the Journal of Dispute Resolution, including an article by Lawrence P. McLellan (LLM '06).

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