Sharing Resources:  Alternative Dispute Resolution Academics Create a Repository of Best Teaching Practices

By Ellen Waldman

What kind of legal professionals labor long and hard over their intellectual property . . . and then give it away? Law professors who teach alternative dispute resolution, that’s who.

In continuing acts of generosity not characteristic of the academy at large, educators focusing on providing students with knowledge and skills in conflict resolution mechanisms apart from litigation gather yearly to share teaching ideas and innovations with their friends and  colleagues. 

This community forum, under the banner of the American Bar Association’s Section of Dispute Resolution, often begins slowly, with participants feeling shy about presenting their newest simulation or in-class exercise as a practice worth emulating. But with the organizers’ encouragement, confidence grows, participants begin to shout out their contributions with growing enthusiasm, and the group takes on the call-and-response cadence of a jubilant church meeting.

ADR professors look forward to being with their colleagues, whether in the same room or virtually.  But, for those who can’t attend–the organizers say they hope to resume in-person gatherings soon–the ideas presented are dutifully captured in a document titled the Legal Educators Resource Share, which is made widely available.

The resource is a valuable tool for practicing attorneys and ADR professionals, too. It is now more than 25 pages long, with hundreds of more pages of appendices–the actual, ready-to-use, material that teachers can hand out in class, such as simulation roles, out-of-class assignments, in-class worksheets, etc.  

The resource is the brainchild of Sharon Press and Barbara “Bobbi” McAdoo of Mitchell Hamline School of Law, in Saint Paul, Minn. The decade-old effort, with support from the ABA Dispute Resolution Section, began when they convened a group at the ABA DR Section’s Annual Conference and encouraged attending professors to submit and describe teaching resources that could be shared with the teaching community.

They compiled those resources in a document and made them widely available on academic sites as well as the blogosphere. When Prof. McAdoo retired, Prof. Noam Ebner of Creighton University in Omaha, Neb., took her place as co-organizer.

The resource document is divided into several categories, all of which can be helpful to novices and veteran professors alike: list servs; conferences; teaching/training materials, videos, and more. A brief sampling of the ideas reveals the contributors’ creativity and focus on securing student engagement.

Here are examples of the materials:

  • A discussion of the use of mindfulness meditation in a Legal Negotiation Class, complete with references to articles exploring the connection between mindfulness practices and creativity, feelings of well-being and the reduction of bias.
  • Guidance offered by the International Council for Online Dispute Resolution website, including  the ICODR’s online dispute resolution training standards.
  • “A Trisolan Map: Getting to Yes Exercise,” designed to help students make the jump from understanding the integrative negotiation method in theory, to actually applying it before engaging in a negotiation scenario. The exercise is a solo activity where the student plays the role of a fictional character in a fictional world, making negotiation decisions that seem very real. (For non-sci-fi immersives: The exercise is based on a Star Wars-inspired scenario.)
  • An article titled “Designing binge-worthy courses: Pandemic pleasures and Covid-19 consequences,” which draws on “the literature examining psychological and neuroscientific aspects of binge-watching television shows” to suggest approaches “to designing courses our students will want to binge-learn.”
  • A website developed by the ABA’s Legal Education , ADR, and Practical Problems (LEAPS) Project, designed “to help faculty incorporate practical problem-solving . . . into their instruction of a wide range of courses, including doctrinal, litigation, transactional and ADR courses.”
  • The “Stone Soup” Dispute Resolution Knowledge Project, offered by University of Missouri School of Law, Columbia, Mo., Professor Emeritus John Lande , which contains resources and tools for those who want to incorporate practitioner interviews and case observations into their classroom assignments.
  • Links to a variety of videos demonstrating various mediation styles and techniques. One of the most prolific videographers is Boston-based Suffolk University Law School Prof. Dwight Golann, who has shot and edited many videos, housed at the ABA/Suffolk University Law School Dispute Resolution Video Center and made openly available to all dispute resolution professors.   
  • Role-play simulations treating diverse subjects, ranging from probate to community divisions, to college spats, to European Union policy wrangles.
  • Exercises to assist students with getting comfortable on Zoom.
  • “Donald Trump and Stormy Daniels: An Arbitration Case Study,” containing excerpts from Daniels’ suit seeking to invalidate the arbitration clause embedded in the settlement agreement she signed with the former president; the TRO issued by an arbitrator that she violated by filing suit, and excerpts from an article written by the submitter, Brian Farkas–a Yeshiva University Benjamin N. Cardozo School of Law adjunct professor and a New York-based Arentfox Schiff associate–examining the public policy issues raised by the case.   

The list is extensive.

What is particularly noteworthy is the alignment between what these educators profess in the classroom and what they actually do. As proponents of dispute prevention and management, they teach their students to be creative problem solvers, to search for mutually beneficial outcomes and to “grow the pie”–not just look for ways to self-servingly apportion it.

And this is how they approach their life’s work. Far from hoarding their intellectual capital, they spread it around, assuming that if the next generation of lawyers has the benefit of the best teaching and writing out there, then we all win.  

The current version of the Legal Educators Resource Share linked above, and recent past versions, are located at ADRhub.com, a website maintained by Creighton’s Negotiation and Conflict Resolution Program. There also are plans by the organizers to have open access on the Mitchell Hamline School of Law Dispute Resolution Institute web page, which provides its DRI Press books and other teaching materials.

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The author, a longtime former law professor, joined CPR earlier this year and is Vice President, Advocacy & Educational Outreach.  Her bio on CPR’s website can be found here.

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‘Oncoming Tsunami’: With CDC Eviction Moratorium Ending July 31, Will ADR Programs Come to the Rescue of Tenants, Landlords, and Courts?

By Mylene Chan

The Covid-19 pandemic has had a number of negative economic effects, and one of the most significant is the exposure of renters across the United States to increased eviction risks.

And mediation, in turn, has been a significant response.

According to Princeton University’s eviction tracking system–monitoring five states and 29 cities in the United States–landlords have filed about 386,000 evictions during the pandemic, including an estimated 6,250 filed last week.

In response, governments at the federal, state, and local levels have developed short-term eviction moratoriums and similar measures to help renters keep their homes. But in the long run, eviction proceedings are likely to rise.

Federal, state, and local governments have adopted a variety of temporary emergency measures aimed at helping renters. For example, in September 2020, the U.S. Department of Housing and Urban Development and the Centers for Disease Control issued a nationwide moratorium on evictions. See the Federal Register announcement, since extended, here.  

This moratorium was challenged by real estate groups, but a U.S. Supreme Court ruling this week allowed it to remain in effect through the end of the month. Alabama Association of Realtors, et al. v. Department of Health and Human Services, et al., No. 20A169 (June 29); see also analysis at Amy Howe, “Divided court leaves eviction ban in place,” Scotusblog (June 29) (available at https://bit.ly/3xhd74c).  

In addition, Congress allocated $46 billion in rental assistance to struggling renters through the American Rescue Plan Act of 2021 and the December 2020 Covid-19 relief package; much of the relief funding, however, has yet to reach struggling renters. See, e.g., “Emergency Rental Assistance through the Coronavirus Relief Fund,” Congressional Research Service (June 8) (available at https://bit.ly/3Ak9vjX).  See also Kristian Hernández, “As CDC’s Eviction Moratorium Ends, States Prepare for Flood of Cases,” Pew Stateline (June 22) (available at https://bit.ly/3AqTHw2).

Several states and cities–such as Maryland, New York, Vermont, Hawaii, Philadelphia and Washington, D.C.–have adopted eviction bans or limitations. These moratoriums have sharply reduced eviction filings during the extent of the pandemic. 

But eviction restrictions will not remain in place indefinitely. After being extended several times, the federal moratorium is scheduled to expire on July 31. (See the CDC press release on the extension at https://bit.ly/3684qNN.) State and local eviction protections are also expected to end at some point this year. As a result, states and cities are preparing for a potential wave of eviction actions in their housing courts once moratoriums lift.

Some states and local governments have attempted to modify eviction procedures to make the process less burdensome on renters. For example, Maine passed a bill instructing landlords to explain the eviction process, options for legal assistance and rent relief, and eviction notices. Nevada and Illinois each adopted a law requiring courts to seal records of evictions relating to defaults during the pandemic.

One possible solution that could help both the courts and renters adapt to the expected rise in evictions is alternative dispute resolution. These programs aren’t new.  But recently, interest has been heightened due to the pandemic, and many U.S. jurisdictions have turned to ADR eviction programs to encourage tenants and landlords to negotiate.

According to the Urban Institute, as of April, there were 38 ADR eviction diversion and prevention programs nationwide. Mark Treskon, Solomon Greene, Olivia Fiol & Anne Junod, “Eviction Prevention and Diversion Programs,” Urban Institute Housing Research Crisis Collaborative (April 2021) (available at https://urbn.is/3qI9C4j).

The states with programs include California, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, Ohio, Oregon, Pennsylvania, Tennessee, Texas, and Washington. See https://bit.ly/3xdHMPP, collected by Chicago’s Resolutions Systems Institute.

ADR eviction programs have been successful in several jurisdictions over the past few years. One example is a St. Paul, Minn., housing clinic. Colleen Ebinger & Elizabeth Clysdale, “Justice Served, Housing Preserved: The Ramsey County Housing Court Model,” 41:3 Mitchell Hamline L.J. of Pub. Policy & Practice: Article 10 (2020) (available at https://bit.ly/2V1DaON).

In July 2018, the Ramsey County court—covering part of the Minneapolis-St. Paul area–launched a housing clinic with the target of reducing eviction by 50%  in five years. Eighteen months after implementation, eviction judgments declined, settlements rose, the court trial calendar lightened and expungements doubled.

Another successful eviction mediation program was developed by the Washington University School of Law Civil Rights & Mediation Clinic and the Metropolitan St. Louis Equal Housing and Opportunity Council in St. Louis in 2012. Karen Tokarz, Samuel Hoff Stragand, Michael Geigerman & Wolf Smith, “Addressing the Eviction Crisis and Housing Instability Through Mediation,” 63 Washington U. J. of Law & Policy 243 (available at https://bit.ly/3694AEG).  

In the St. Louis Mediation Project, professional mediators and students provide free mediation services for landlord-tenant cases. In 2018, 71% of pro se landlord-tenant cases mediated by the project resulted in a settlement. More than half of these agreements resulted in a dismissal of eviction proceedings.

There is some evidence that even many landlords support ADR in the eviction context. Last month, the American Bar Association and the Harvard Negotiation & Mediation Clinical Program published a report identifying nationwide best practices to divert eviction filings and enhance housing stability. See “Designing for Housing Stability: Best Practices for Court-Based and Court-Adjacent Eviction Prevention and/or Diversion Programs” (available at https://bit.ly/3yn3FN7).

This research revealed that stakeholders generally supported eviction prevention efforts during the pandemic. More than 70% of the landlords surveyed were willing to discuss tenant non-payment outside of court. 

Report author Deanna Parrish, Clinical Instructor and Lecturer at Harvard Law School’s Dispute Systems Design Clinic, wrote in an e-mail:

Effective eviction prevention and/or diversion programs use a multi-sector and holistic approach to provide parties with a combination of legal representation, quality mediation, cash or rental assistance, and self-help or supportive services. Investing in eviction prevention and/or diversion programs is not just urgent, it is doable. These programs enjoy wide support across landlords, court staff, and tenants. Over 81% of property owners surveyed reported being less likely to pursue eviction if their tenant had access to rental or cash assistance.Court staff and judicial stakeholders reported eviction diversion programs as essential to helping lighten what they described as an “oncoming tsunami” of eviction filings once the CDC moratorium lifts. Tenant advocates have long been calling for legal representation and easily accessible rental and cash assistance, among other interventions, to help increase housing stability. Legislatures and courts should act swiftly to formalize eviction prevention. Doing so would be nothing short of a lifeline for millions of Americans, landlords and tenants alike.

As the Covid-19 pandemic winds down and emergency measures are lifted, alternative dispute resolution eviction programs may soften the blow to tenants as eviction moratoriums end. Although these ADR programs are in the early stages of adoption, there are promising signs that they might help the U.S. economy’s housing segment return to normalcy without significant housing disruptions.

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The author, an LLM candidate, at Yeshiva University’s Benjamin N. Cardozo School of Law in New York, is a 2021 CPR Summer Intern.

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