Seminar: Ethics in ADR Suzanne Schmitz
This seminar is open to students with or without a background in ADR. Attached is a schedule for the seminar. See memo which will issue by April 30 regarding students assigned to lead discussions June 4-7.
We will use the week prior to the start of regular summer school to learn about the various forms of ADR. This will be very short overview of ADR and will be a review for those who have had ADR and an introduction for those who have not had ADR. Very quickly, we will begin reading materials that raise ethical issues related to ADR. In addition to the readings everyone will read, each student will read, summarize, and report to the class on one article. By the end of the week, we will have identified a number of areas for further research. If you came into the seminar with no ideas for topics, you will soon gain ideas.
During the first week, we will learn how to choose a “hot topic,” research and plan a research strategy, attribute sources and write a thesis statement. During the June 10 week of classes, we will learn to write topic sentences, outline, use proper citation format, write well, and self-edit. We will engage in some in-class editing of each other’s papers. By June 17, you should be well on the way to writing your first draft. During the week of June 24, each student will meet with me individually concerning the paper, to clarify the organization of the paper and to ask any questions you may have about the topic or the paper.
Your first draft will be due July 1. The first draft is not the first draft you write. In fact, the draft that you submit on July 1 should have had at least two edits. The first draft should be the best form of the final paper that you can produce. I will return the draft to you with my critiques by around July 15. You will meet with me once more for individual conferences during the week of July 15, to clarify my comments on your first draft. You will submit the final draft by July 31.
You will make an oral presentation of your paper during classes on July 26, 29, 30 and 31. Please note that we can negotiate the dates and times of the final presentations if the entire class and I agree, and so long as we have about 30 minutes per student for the presentation.
Note that under this schedule you will make two presentations: one during the first week on an article and one during the end of the summer on your paper. These constitute 15% of your grade.
We will have a writing text, that is worth keeping. We will also have readings on ADR and on ethical issues. Finally, the attached list suggests the sort of topics I expect we will cover.
A. Reading Assignment: Read the chapters in Fajans and Falk as assigned on the schedule. Watch for the announcement of the reading assignment from the Supplement for the first day. Further assignments will be made in class. Each student will read one law journal article and report on it; see schedule of assigned readings.
B. Writing Assignments: Note the several writing assignments required at the beginning of the semester – the thesis statement, the outline and the 3-pages of background.
C. The Topic: Your paper should be written on a topic that is chosen by you and approved by me. I look for a topic that is original and consists of a subject related to ADR ethics. Generally, ethics relates to the Cs, F and J: competence (of counsel or the neutral), client-centered, confidentiality, conflicts of interests, fairness, and justice.
Select a topic broad enough that there is enough literature to be researched and narrow enough that you can comprehensively address the topic in 25 or so pages. Students often encounter difficulty in preparing seminar papers because they lack focus or because the topic they have selected is too broad.
The attached list of topical areas may inspire you; these are only examples. Pick a topic or area that interests you, so long as it focuses on ADR and ethics. E.g., if you are interested in sports, then choose a topic that relates to ethical issues about ADR in the sports field.
Consult Scholarly Writing for Law Students, chapter two, in choosing your topic.
D. The Paper: The paper should provide comprehensive coverage of an issue, argue in a logical and legally rational way, and offer some commentary that is evaluative, critical and analytic. The paper should not be solely a review of the law. Ideally, there will be three pages of original evaluation, criticism, analysis and conclusions. The paper should be readable and interesting.
The major assignment of the semester is a paper, written in the nature of a law review article, of 25-40 pages in length, excluding endnotes.
If you are unfamiliar with law review articles, you have several helps. First, you will read at least one such article during the first week. Second, the outline attached here provides an outline of a typical law review article. Third, Fajans and Falk instruct on this topic. Fourth, consult pages 4-22 of the Law Journal Handbook, on reserve. Fifth, feel free to read several law review articles to observe the structure and purpose.
See the outline attached as an example, and only an example, of how to structure a paper. See chapter one of Fajans and Falk for other suggested structures.
The paper must be supported by appropriate references cited as endnotes as opposed to footnotes. For the endnotes, follow the format of Scholarly Writing, ch. 6 and the citators.
Your seminar paper and all other written assignments should be typed or computer-generated, doubled spaced in 12 point font or the equivalent, on 8˝ by 11" paper with 1" margins all around. Do not use erasable paper. You will submit a hard (paper) copy and a disc copy of your paper. On the disc, indicate the version of word or word perfect used, as well as your name. Keep a copy of all materials submitted.
Use standard style, grammar, punctuation and spelling. In case of a dispute, it will be your responsibility to show me the relevant rule:
A Uniform System of Citation (Harvard Citator or “Bluebook” 17th ed.)
AWLD Citation Manual: A Professional System of Citation
Scholarly Writing for Law Students, 2d edition
Strunk and White, The Elements of Style, latest edition.
E. Research: To be most persuasive, use primary sources - cases, statutes, code of professional regulation, empirical studies, rather than secondary sources - articles. Before going “on-line for research,” review textbooks, newsletters, law and bar journals and on-line discussion groups for “hot” topics. Consult practitioners in the field. Maintain notes from your interviews and cite as a telephone interview. Of course, you need a thorough grounding in the field before consulting practitioners.
F. Grading: Grading will not be anonymous. Each assignment must be satisfactorily completed and timely submitted. There will be a deduction in the final grade for any late submission, even if the assignment is not graded. If an assignment is not completed in a satisfactory fashion, a student may be required to redo it in whole or in part.
The following factors will be the primary ones considered in grading: originality of thesis; choice of topic that is timely; quality and thoroughness of research; use of primary and balanced sources; organization of the paper; comprehensive coverage of the topic; logic and coherency of argument; reasoned criticism and analysis; analysis supported by evidence and law; clarity of expression; writing style; grammar, spelling and punctuation; and citation form. See the attached critique sheets for the first and final drafts.
The assignments upon which your course grade will be calculated and their relative weight in the grading process are as follows:
Assignment Percentage of Grade First Draft 35% Class Presentations
20% Final Draft 45%
G. Completion of Assignments and Class Attendance: As lawyers, many demands will be placed upon your time, with many people, expecting to receive your work in a timely fashion. I will grant extensions rarely, only in cases of extreme hardship and then only when requested prior to the due date of the assignment, if feasible.
Further, each of you is to attend scheduled seminar class meetings. Since we have several class days off, no absences will be allowed during the week of June 4, except in an unforeseeable and genuine emergency, or on the date when you are to make a presentation. All other absences are limited to two and must be arranged in advance, if feasible. An unauthorized absence from a scheduled class will result in a reduction in your final course grade.
H. Class Discussion and Participation: During the week of June 4 or 10, you will be the discussion leader for some of the material. Discussion leaders will present the assigned materials in an interesting fashion, that takes no more than 10 minutes. They will also identify at least two issues that might be the topic of a someone’s seminar paper. See the April 30 memo that will schedule the June presentations. See Tips for Presenting, attached.
You are also expected to engage in quality participation. Quality participation consists of comments or questions that are relevant, contribute to moving the discussion and analysis forward, builds on other comments, include some evidence or support from the readings or simulations, demonstrate understanding of basic concepts from the readings, raise questions for study, or integrate experiences, other readings, and other reflections. Personal feelings and opinions (of the lunchroom or talk radio variety) are usually not quality participation.
Lastly, you will participate in editing each other’s paper through in-class exercises. Class participation and questions, in-class editing exercises, and the two presentations will constitute 20% of your grade.
I. Presentations of Papers: During the last part of July, each of you will make a formal oral presentation of the main ideas from your paper, a presentation of about 20 minutes in length. You will receive a schedule later.
J. TWEN: By May 30, please register for TWEN and check regularly for messages, announcements and discussion topics or suggestions concerning your papers.
K. Consultations: I will be available to you for individual consultations as much possible. The best times to reach me usually are: Tuesday and Friday, 9-11 a.m. or 2-4 p.m. To be safe, schedule an appointment in advance with Carol Manis in Room 114. You may e-mail me at or call me at (618) 453-3257.
Here are several excellent journals on ADR issues:
- Mediation Quarterly
- Ohio State Journal on Dispute Resolution
- Dispute Resolution Journal (AAA)
- Dispute Resolution Magazine (ABA journal in 114)
- Negotiation Journal (Harvard Program on Negotiation)
- Journal of Dispute Resolution (U of Missouri)
- Harvard Negotiation Law Review
- Willamette Journal of International Law and Dispute Resolution
- Pepperdine .....
There are on-line sources, including:
Professional organizations’ web sites:
- Association of Conflict Resolution Home Page -http://www.igc.apc.org/
- AAA Home Page - http://www.adr.org/index.htm/
- CAADRS Home Page -- www.caadrs.org
- CPR Home Page – www.cpradr.org
- CRInfo – www.crinfo.org
Private web site:
University linked web sites:
Finally, journals and newsletters in specific substantive areas such as ABA’s Family Advocate or Business Law Today often raise issues related to ADR.
TENTATIVE SEMINAR SCHEDULE
|I.||WEEK ONE (June 4-7)
Faculty and Student led discussions:
|9 a.m.-12 p.m.
|what is ADR||June 4: Fajans & Falk, ch. 1|
|ethical issues in controversy||June 4: Supplement, pp. 1-17|
|research in ADR field||June 5: Fajans & Falk: ch. 2|
|how to select a topic||June 6: Fajans & Falk, ch. 3|
|II.||WEEK TWO (June 10-14)
Discuss thesis statements
Meets each day
|share ideas||Fajans & Falk, ch. 2, 4, 5, 6|
|discuss preparation of the outline||Monday, June 10:
Topic Statement due
|work on writing||Friday, June 14: Outline due|
|III.||WEEK THREE (June 17-21)
Discuss problems and progress
Meets Friday only
|in-class editing and critique||Fajans & Falk, ch. 6-7|
|Friday, June 21:
3 pages of background due
|IV.||WEEK FOUR (June 24-28)
Meets Friday only
|in-class editing and critique||Fajans & Falk, ch. 8|
|discussion of polished writing|
|Week of June 24: Individual consultations. You will meet individually with me during the week of June 24 through June 28 concerning your paper.|
|V.||WEEK FIVE (July 1-5)
||9 a.m.-12 p.m.
|No class July 1: First draft due|
|This should be in the best form you can produce. It should not be a rough draft or a first writing effort. It should be a final product that is as good as you can produce. -- 35% of your grade.|
|VI.||WEEK SIX (July 8-12)||No class.|
|VII.||WEEK SEVEN (July 15-19)|
|Week of July 15: Individual consultations. You will meet with me during the week of July 15-19 to discuss and clarify my comments concerning your paper.|
|WEEKS EIGHT & NINE
(July 26, July 29-31)
Consult schedule to be posted of presentations.
Meet July 26, 29, 30, 31
*Unless otherwise agreed.
|We will hear presentations from you -- along with class participation, 20%.|
|July 31: Final draft due – publishable quality – 45% of your grade.|
Sample of the Structure of a Seminar Paper
I. Introduction – states thesis of the paper
II. Background – provides the background for understanding why there is a problem
III. Problem – explains what the problem is, building on the background in Part II
IV. Proposed solution – explains how problem might be solved
V. Conclusion – summarizes the problem and the solution
Sample Thesis Statement
This paper will demonstrate that the American Arbitration Association (AAA) due process protocols for the arbitration of consumer cases fail to provide consumers with justice, in situations where the consumer signed an adhesion contract.
This topic is timely given the debates in Congress and the state legislatures seeking to prohibit the mandatory use of arbitration for consumer matters. Many scholars believe that consumers are not well-served by these agreements. Because they are popular and because the U.S. Supreme Court is consistently upholding these agreements against many challenges, the subject deserves careful examination.
Although the AAA has developed these due process protocols to provide some protections to consumers they do not provide due process. They provide for only limited discovery, do not alleviate the favoritism inherent in repeat players, do not ensure affordable access, and do not result in published decisions that expose the bad actors. Further, there is no assurance that AAA will continue to require adherence to these protocols and no penalty if they do not.
So far I have read the AAA due process protocols, the opinion in Green Tree [give full cite], Brower v. Gateway [full cite] and Hill v. Gateway [full cite], and these two articles critiquing the use of arbitration in consumer cases:
1) [You would list]
Ethics and ADR: A few topics
1. What, if anything, is the ethical duty of the lawyer who advises a client, to advise about the options that are alternatives to litigation? If there is a duty, should there be a rule? Is there already a rule?
2. Regardless of the duty to advise generally, is there a duty to relay to the client offers to negotiate, to mediate, to arbitrate, etc., even when no settlement terms are offered?
3. What constraints are there on “dirty tricks” in negotiation? Should there be a duty of good faith in negotiations, such as that in the labor context?
4. Should there be a duty of good faith participation in mediation? How is it defined? How is it enforced? What are the arguments against such a duty being regulated?
5. How does the mediator who also performs other professional duties (lawyer, therapist) avoid confusion of roles during mediation? How does this professional remain impartial? What are the conflicts of interests constraints on mediators?
6. What degree of mental competence must a client have to participate in mediation? To authorize a settlement?
7. Is there a duty of truth in mediation? In arbitration?
8. What ethical norms should be expected of arbitrators?
9. Should there be national standards of practice for neutrals?
10. Should neutrals be licensed? What competence requirements should neutrals meet? Should neutrals be de-licensed? Should there be grievance boards to hear complaints about neutrals?
11. Should corporate and institutional ombuds have any confidentiality expectations?
12. What conflicts of interests issues are created by the existence of institutional neutrals?
13. Should neutrals be entitled to immunity? Under what theories?
14. What responsibilities should neutrals have for ensuring fairness or for protecting vulnerable parties?
15. What duties do neutrals have to third parties not at the table, such as the children, the public?
16. Does the ABA Code of Professional Responsibility adequately address issues that arise in negotiation and mediation and other such processes?
Copyright 2003 Suzanne Schmitz. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.