Harvard Negotiation Law Review

Addressing Domestic Violence in Mediation: The Need for More Uniformity and Research

Richard McCutcheon[1]

Abstract

Mandatory mediation orders in the context of domestic violence have been a point of controversy for nearly three decades. As mandatory mediation has exploded in popularity across family court systems, legislators and courts have struggled to create best practices for mediating domestic violence. To ensure the suitability of mediation and the safety of the mediation participants, courts may use a screening device to detect domestic violence issues. However, due to poor screening devices or subpar legal models, many family court systems still fail to adequately protect victims of domestic violence.

This paper suggests a set of best practices for family court systems to address domestic violence in mandatory mediation. First, this paper argues that states should employ a uniform model of screening in order to detect domestic violence, collect cross-referenceable data, and reduce arbitrary variation between local courts and other states. Second, this paper discusses potential exemption models for courts to use — models tailored to the scope and budget of their mediation programs. Finally, this paper highlights the need for interdisciplinary support to continue to develop mediation best practices regarding domestic violence.

[Read more…]

What Are We Learning About Convening Peace in a Pandemic?: Authors Lisa Dicker and Danae Paterson Reflect on their Spring 2020 Article

Authors Lisa Dicker and Danae Paterson of “Covid-19 and Conflicts: The Health of Peace Processes During a Pandemic” spoke with HNMCP to dig more deeply into the article’s findings, provide a behind-the-scenes look into how they translated real-time developments into broader questions and learnings, and share an update on where these peace processes stand eight months into the pandemic. To read the full interview, click here.

Interview excerpt: 

HNMCP: Let’s rewind back to spring 2020. You both were working for a non-governmental organization that works in advising peace negotiations and post-conflict transitions—what inspired you to write “COVID-19 and Conflicts: The Health of Peace Processes During a Pandemic”?

Lisa Dicker (LD): The field of peace negotiations relies on extensive travel of the parties, mediators, and advisors. From 2018 to early 2020, a major component of my work portfolio was advising parties involved in Sudan’s civilian revolution and democratic transition, and advising delegations to the Sudanese Peace Process. So I spent a lot of time going back and forth to locations like Addis Ababa, Ethiopia; Paris, France; and Juba, South Sudan. On March 12, 2020, I woke up at around 6am in Juba, South Sudan, to prepare for another day of peace negotiations for Sudan. When I looked at my phone and saw over a hundred texts, WhatsApps, and calls, my first thought was, “It is so kind of everyone to reach out on my birthday!” But, I quickly realized that instead, the United States had announced the start of flight and entry restrictions due to the COVID-19 pandemic, and borders were rapidly closing around the world. I was in transit back to Washington, D.C. by that afternoon, and the flights and airports were filled with internationals traveling home as countries locked down. Seemingly overnight the landscape of the peace processes changed, and for me this article was born out of being on my flights home thinking, “Well, we are all going to have to innovate.”

Danae Paterson (DP): In a broadly similar vein, the first week of March I was in Amman, Jordan, meeting with various stakeholders and mediators in the context of ceasefire and peace agreement negotiations for Yemen and laying out plans for the next several months of work. I didn’t realize on my flight home that it was going to be the last time I would be inside a meeting room of any kind for more than half a year, let alone one on the other side of a transatlantic flight that gathered together advisers and mediators from three or four global regions. However, this also gave me an interesting seat by which to observe the quick pivot of many actors involved in the Yemeni negotiations to preserving as much momentum as possible, and identifying creative (if challenging) options for moving forward despite these barriers. Sitting side-by-side with my work on the Syrian context, whose mediation team responded to the pandemic very differently, it became apparent that there were highly differentiated responses to similar (though far from identical) travel conditions, and this certainly caught my attention and sparked curiosity about where we might find ourselves in these diverse peace processes—which were starting at very different points in their negotiating framework as well, I should be sure to emphasize—as the world continued to stagger forward in its pandemic response. [Read more…]

Forced into Employment Arbitration? Sexual Harassment Victims are Saying #MeToo and Beginning to Fight Back—But They Need Congressional Help

Samuel D. Lack

 

Abstract

 

As awareness of the prevalence and pervasiveness of workplace sexual harassment has grown in the United States, so too has the use of mandatory arbitration clauses in employment contracts, shepherding employee claims out of courtrooms and into private arbitration proceedings. Though private arbitration is often touted as cheaper and more efficient than traditional litigation, employees are significantly less likely to win in arbitration and, when they do, their awards are often much less.

Mandatory arbitration clauses have grown with the expansion of the Federal Arbitration Act (FAA), passed in 1926, and now cover over half of non-union workers in the United States. Despite evident inequities, Congress has done little to abate the expansion, and the federal court system has adopted a strong pro-arbitration jurisprudence. In recent years, the Supreme Court has effectively mandated that arbitration be individualized—to the severe detriment of sexual harassment victims amid what can be an already arduous claim process. In response, states and localities have passed laws that forbid or limit the use of mandatory arbitration clauses. These laws, however, are often preempted by the FAA and never take effect. The public has also pushed back against mandatory arbitration and has achieved real success. Many corporations and law firms are stopping the practice amid public pressure, walk-outs, and boycotts.

This Article will detail the prominent inequities present in mandatory arbitration, particularly in cases of sexual harassment and workplace discrimination. Then, it will advocate for: (1) judicial reinterpretation of the FAA and its savings clause to permit states to pass laws that restrict the use of mandatory arbitration, or, in the alternative (2) congressional action, namely the passage of the Ending Forced Arbitration of Sexual Harassment Act, which, combined with strategic public pressure on legislators and businesspeople, would lead to immediate relief for sexual harassment victims and signal larger arbitration reform on the horizon.

[Read more…]

How Litigation Funders Have Improved the Quality of Settlements in America

Robert B. Fuqua

Abstract

Litigation finance is a form of specialty funding used by litigants and law firms to pay the high costs associated with maintaining a legal claim. In a typical agreement, a litigation funder pays a portion of a client’s litigation expenses in exchange for a share of the lawsuit’s recovery. The loan is non-recourse, so if the client loses the case, the funder will lose the investment.

This form of legal financing has rapidly grown throughout the United States. The practice is popular among clients for its risk-sharing benefits, popular among investors for its high returns, and popular among critics for its expansive ethical gray areas. This Article argues that litigation finance should be popular for one more thing: improving the quality of legal settlements. Because litigation funders use their capital and experience to reduce bargaining imbalances during pretrial negotiations, settlements in cases backed by litigation funders are more likely to reflect the merits of claims than economic disparities between the parties.

Today, various forms of litigation finance can be found throughout our legal system. Even newsworthy crowdfunding efforts by criminal defendants could qualify as a form of litigation finance. The scope of this Article, however, is limited to commercial lawsuits. The Article introduces the practice, discusses the implications of adding a third-party funder to a lawsuit, and concludes with a regulatory proposal for safely expanding the practice into the future.

[Read more…]

“Behind-the-Table” Conflicts in the Failed Negotiation for a Referendum for the Independence of Catalonia: A Student Note by Oriol Valentí i Vidal

By Oriol Valentí i Vidal*

Spain is facing its most profound constitutional crisis since democracy was restored in 1978. After years of escalating political conflict, the Catalan government announced it would organize an independence referendum on October 1, 2017, an outcome that the Spanish government vowed to block.

This article represents, to the best of the author’s knowledge, the first scholarly examination to date from a negotiation theory perspective of the events that hindered political dialogue between both governments regarding the organization of the secession vote. It applies Robert H. Mnookin’s insights on internal conflicts to identify the apparent paradox that characterized this conflict: while it was arguably in the best interest of most Catalans and Spaniards to know the nature and extent of the political relationship that Catalonia desired with Spain, their governments were nevertheless unable to negotiate the terms and conditions of a legal, mutually agreed upon referendum to achieve this result.

This article will argue that one possible explanation for this paradox lies in the “behind-the-table” conflicts on both sides. For Catalan secessionists, this conflict related to the role that unilateralism had to play, if any, in the negotiations with Spain to organize an official referendum for independence. For those against it, most notably the Spanish political parties, the pressing internal conflict concerned the scope of the negotiations that had to be conducted with the Catalan government. These internal “behind-the-table” conflicts blocked an “across-the-table” agreement, leading to a deadlock in negotiations.

This article hopes to contribute to the academic conversation around the barriers to progress in high-stake negotiations, and it suggests that the failure to negotiate an independence referendum for Catalonia reveals the limits of unilateral action in the context of a supranational region like the European Union, the dynamics in negotiations where there is a sharp power imbalance between the parties, the tensions between democratic legitimacy and the rule of law, and the risks of path dependency for negotiated agreements.

Read the full article here.

*Attorney; Lecturer in Law, Barcelona School of Management (Universitat Pompeu Fabra) as of February 2018. LL.M. ‘17, Harvard Law School; B.B.A. ‘13 and LL.B. ‘11, Universitat Pompeu Fabra; Diploma in Legal Studies ‘10, University of Oxford.

About HNLR

Negotiation, not adjudication, resolves most legal conflicts. However, despite the fact that dispute resolution is central to the practice of law and has become a “hot” topic in legal circles, a gap in the literature persists. “Legal negotiation” — negotiation with lawyers in the middle and legal institutions in the background — has escaped systematic analysis.

The Harvard Negotiation Law Review works to close this gap by providing a forum in which scholars from many disciplines can discuss negotiation as it relates to law and legal institutions. It is aimed specifically at lawyers and legal scholars.

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