ALTERNATIVE DISPUTE RESOLUTION

FALL 2020
BROOKLYN LAW SCHOOL

END OF SEMESTER RESEARCH PAPER

ADR Research Paper (30%) Due on 12/17/20 @ 5 PM

• Please reference the Syllabus instructions for the paper format (e.g. 12 pt type,
page numbers, proofreading).
• The paper length should be 8-10 double-spaced typewritten pages.
• Papers will be submitted via Canvas Assignments. Please include your BLS ID#
only (no name) on your paper.

In General. The end of semester research paper is the culmination of the time spent in
the ADR survey course. It is an opportunity to explore and analyze an area we discussed
that interests you (ie: restorative justice, negotiation, mediation, arbitration, hybrid
processes, or ADR more generally). The paper should demonstrate that you understand
the key theories, principles, practices discussed in class and/or in the text.

Form. I will be looking for a thesis statement – what question or theory you are
exploring, why is it important to you or to the field of ADR, and what you have learned –
that follows with research, analysis, and conclusion on a given topic. Sources should be
used and cited appropriately. While I will not penalize you incorrect bluebooking, please
follow the general bluebook citation rules as citations should be used in a way that is
clear and enables the reader to find the sources used. They should be listed as
footnotes and not within the text. Please limit your use of non-academic sources, the
analysis will be stronger with primary and secondary sources.

Possible Paper Topics.

Here is a non-exhausting list of topics that you may wish to write about. These are
provided as a reference or a place to get started, but topics that interest you in ADR are
fair game. To learn what is being written about in conflict resolution journals, please
check out this list of resources and feel free to email me if you are running into
challenges with ideas or resources.

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Effectiveness of ADR process: How do we measure the efficiency of a particular process?
For Whom? The parties? The larger society?

Comparative processes: Compare a use of mediation or arbitration in the US to another

country’s use of that process. What can be learned? What could be exported? How do
particular forms of dispute or conflict resolution vary in different legal/national or other
“cultures”?

Substantive and Procedural Justice: How do we know when “justice” has been done in a
particular process? Where does ADR fall within these two measures of justice? Where
should we go from here to ensure more ‘just’ processes?

Credentialing in ADR: How do we and should we credential arbitrators? Mediators?

What are the pros and cons of our current credential process? Should it be unified like
attorney bar exams or based on regional or case specific area of resolution? What is the
oversight mechanism when something goes wrong?

Recent case law or legislation affecting mediation: What laws are there to govern
mediation? To govern mediators? Where has mediation disclosures (or confidentiality)
been discussed in our judicial system? Who is enacting laws about mediation and on
what level of society is it impacting?

Recent case law or legislation affecting arbitration: This is also endless (more so than
mediation). Domestic cases of interest and their impact? International cases or
legislation of interest?

Critique or analyze a recent book or article on ADR. This is really endless. Secondary
sources such as law journals are the best places to look for topics on mediation/ADR.

Problematic Arbitration: What should be done around problematic arbitration uses, in

light of me too movement, consumer arbitration, and deterioration of class actions in
arbitration? Is binding arbitration unconstitutional? Should arbitration be reined in? If
so, who does it?

Online ADR: What has the pandemic taught us about ADR? What did we already know
about online methods and what have we learned? Where do the lessons of 2020 go
after year end? Where does online dispute resolution fit in our current spectrum of
options for disputants?

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The future of ADR: Where is the field going? What are the topics for neutrals, attorneys,
and the parties and clients should be looking towards and preparing for in the next 10-
20 years? What are the challenges?

Specialized applications of ADR (criminal, employment, environmental, family, corporate,

international, bankruptcy, foreclosure etc.): In what areas are there increased use of ADR
methods? What does it look like in those areas? What are the considerations or
specialized uses aiming to achieve that our ‘traditional’ system does not?

Court Annexed Programs of ADR: In what ways and to what effectiveness is ADR used in
our state and federal courts? Why are some programs more successful than others?
What are the design choices that the administrators have made? If mediation is not
voluntary (ie: mandatory mediation), is it still mediation? Where does neutrality come in
if one party keeps using the same court panel neutral?

Diversity in ADR: How can the field attract and retain more diverse neutrals? Why is
having diversity in our neutrals important? How does it compare to the judicial
composition? The bar in general?

Cultural considerations or gender related issues arising in ADR processes: How does the
neutral’s personal background (culture, education, gender) impact the process? How do
differences in the parties’ background impact the process? In what ways must there be
more scrutiny and attention to cultural considerations?

Power Dynamics: What power dynamics exist in more collaborative conflict resolution
processes? How are they accounted for? What is the role of the neutral?

Attorney Advocacy in ADR processes: What should attorneys know about representing
parties in mediation? What should attorneys know about representing clients in an
arbitration? How do attorneys prepare clients for a mediation? An arbitration? How does
the role of law differ as an advocate in ADR processes as compared to a litigation
process?

Interview with dispute systems designers: Interview an ADR professional about how they
have been involved in designing or administering an ADR process. Analyze where the
challenges they face align or depart from what was learned in class or in the text.

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