Lincoln & ADR: Pepperdine’s Stipanowich Discusses Evolution in Arbitration

By Alice Albl

The second series of New York Law School’s Conversations in Conflict drew to a close Sept. 23 with an interview featuring Pepperdine University Caruso School of Law Prof. Thomas J. Stipanowich.

The discussion centered around the progress of arbitration since the release of Stipanowich’s five-volume treatise on federal arbitration law in the 1990s; his expansive view included advancing the practice with lessons taken from the life of Abraham Lincoln.

Stipanowich’s theories focused on a tension between familiarity and efficiency. In drawing from what they know as lawyers, neutrals in arbitration may bind the process too closely to the establishment of litigation, he explained.

While neutrals may believe that apparently tried-and-true procedures inspired by litigation form the best avenues to successful dispute resolution, this mindset hinders the use of more creative, and potentially more effective, methods.

Instead, Stipanowich invited neutrals to follow in the footsteps of President Lincoln, whom he considered to be a “super functional” arbitrator. Like Lincoln, modern ADR community members should seek to work for the parties’ interests and not a nominal win.

But when Stipanowich began studying arbitration in the 1980s, neutrals weren’t the focus. Back then, arbitration suffered from a lack of procedural structure, most notably missing protocols for discovery and case management, he said.

In the ensuing years arbitrators filled these gaps. Stipanowich described this as the “legalization” of ADR, a process by which neutrals appropriated features from the practice of law into their work.

While legal processes may be effective in arbitration, their familiarity causes them to monopolize the roles they serve. Stipanowich cited examples in both the United States and abroad to demonstrate that the dominant legal processes are not necessarily the best.

Domestically, Stipanowich discussed the double-blind arbitration process used in contracts by the Writers’ Guild of America. Under this process, the disputants’ and arbitrators’ identities are not known to each other. This has the practical purpose of preventing conflict in the industry beyond the dispute, but it may also prove for a more equitable resolution beyond the reach of “legalized” ADR.

Abroad, Stipanowich, who is former president and chief executive officer of the CPR Institute, which publishes this blog, looked to the “multi-lane” duties neutrals performed in other cultures, such as the way German arbitrators help craft settlements or Chinese arbitrators often double as mediators.

U.S. arbitrators seem to be gradually warming to the idea of building multi-lane brands, something that Stipanowich encourages. He praised those who use a variety of roles and techniques to find the true conflict in disputes.

Stipanowich emphasized that finding the true conflict as early as possible will allow a neutral to spend more time balancing resolution with the interests and relationships among parties. After 40 years of study, he has found that this balance is key to success in ADR.

For Stipanowich, few could exemplify care for interests and relationships more than Abraham Lincoln. He closed the session by emphasizing the icon’s willingness to look beyond wins and vengeance during the Civil War, instead focusing on a goal of rights and equity. To see beyond the fray toward a fair resolution, Stipanowich says, is what ADR is about.

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Recordings of NYLS’s Conversations in Conflict Resolution series are being posted at the school’s Alternative Dispute Resolution Skills Program at https://bit.ly/32A3aAP.  

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The author, a CPR Institute Fall 2020 intern, is a second-year student at Brooklyn Law School in New York.

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