This course covers both the law and practice of arbitration and negotiation. Class time will alternate between reviewing doctrinal law and preparing for a negotiation session and arbitration hearing based on case files. Students may choose to have their final grade based primarily on arbitral advocacy/negotiation skills and on writing an arbitration brief. Students may instead choose to take on fewer advocacy responsibilities and instead have their final grade be based primarily on a research paper

At the end of this course, you should be able to: 

1. execute oral communication skills of a lawyer in arbitration and negotiation; 
2. implement the principles of arbitration to solve client problems in oral and written communication;
3. apply the lawyering skills of fact investigation and development to client problems; 
4. produce effective legal documents written for negotiation and arbitration; 
5. recognize ethical dilemmas commonly arising in arbitration and negotiation; 
6. self-evaluate and reflect on lawyering skills in arbitrating and negotiating; and 
7. understand the legal principles and processes of arbitration.

Stone/Bales/Colvin, Arbitration Law (Foundation Press, 4th edition). At least one copy of this book is available on reserve in the library. If you are writing a research paper, I strongly recommend Eugene Volokh, Academic Legal Writing (any edition).

Any time before class.

If you use a computer, it should be for note-taking purposes or other purposes related to the class. Using a computer to surf the Internet, check e-mails, play games, or for other purposes unrelated to the class is distracting to other students.  I do not patrol computer use, but in this class it will be obvious, and if I notice or learn of improper use, expect to lose in-class computer privileges.

Missing more than three days of classes will put you out of compliance with ABA attendance rules. Please don’t do that.

ONU is dedicated to providing an equitable educational experience for all enrolled students. Universal course policies applicable to all courses can be found at the following link: https://my.onu.edu/registrars_office/policies. This website includes:  

• Academic Dishonest Policy
• Academic Accommodations Policy
• Health and Safety Policy
• Title IX Policy
• Diversity, Equity, and Inclusion Statement

You have three options:

1. Research paper. Your grade will be based 90% on the research paper and 10% on the simulations (if you show up and are reasonably prepared, you get full credit for this). You will play a minor role (witness) in the end-of-semester arbitration simulation. For more information on expectations for the research paper, see below.
2. Write a brief or award for the arbitration hearing you watched. These should be approximately 12-15 pages. Your grade will be based 90% on the research paper and 10% on the simulations (if you show up and are reasonably prepared, you get full credit for this). I have already sent you sample briefs and awards to use as templates. You will play a minor role (probably a witness) in the end-of-semester arbitration simulation, though you may get a more substantial role than the folks doing research papers. See generally the expectations for the research paper below. I expect you to turn in at least one draft so I can give feedback, and strongly encourage you to turn in as many drafts as you can. The more drafts you give me the more feedback I can provide and the better your award/brief will be.
3. Take a lead role on the end-of-semester arbitration simulation. Grades will be based primarily on performance assessments on a case file simulation. Case strategy and preparation will be the two main components of the grades. We will work in class on case strategy and preparation.

The first class period will provide an overview of the course and will discuss (for students electing the research paper option) expectations for the research paper. The next two classes will be spent on negotiation/mediation simulations. The following several weeks of class will consist of a combination of lecture, video, and Q&A on the black letter of arbitration law. The last several class periods of the semester will consist of an arbitration hearing. The intervening class periods will be spent preparing for those hearings.

The following criteria will be used in determining this part of the grade: structure, depth of analysis, research, grammar, bluebooking proficiency (perfection is not required but you should at least be in the ballpark), and density of writing. These criteria are not necessarily directly proportional:  if your grammar is so poor that I cannot understand analysis, do not expect a high grade.

The article should be roughly 7500 words, but do not pad your word count. See “density of writing” in the previous paragraph; see also papers.ssrn.com/abstract_id=907143.

You may choose your topic on a first-come, first-reserved basis by sending me an e-mail.  In your email, please describe your topic and, if you choose one from the attached list,[ I suggest reviewing the list from the bottom up. Whenever I see a good topic, I add it to the list – so the most recent ones are at the bottom.] please provide the topic number. Choose a novel legal topic – one that allows you to argue for a position that has not yet been advanced in a law review article. Circuit splits are ideal, because most of the arguments are already laid out for you and you can focus on collecting and testing them rather than on having to anticipate new arguments. You are not ineluctably tied to your topic selection. If subsequent research pulls you toward a tangential issue, just let me know and obtain my approval.

The attached list of topics is suggestive – feel free to choose a topic not on the list. However, you must clear it with me first. I want to make sure you choose a topic that is not too broad – if you can cover your topic thoroughly only by writing a book, your topic is too broad. You probably don’t have time this fall to write an entire book.

We all learn better writing techniques from having someone critique our written work.  If you do not turn in drafts, you will learn little from this writing experience. Please submit drafts to me by email in Microsoft Word so I can make comments using Track Changes.  I will be happy (I really mean this – do not feel like you are imposing on me by sending me a second or third or fourth draft) to review additional drafts as long as you submit them to me at least ten days before the final due date. When I receive a draft, I will reply to you quickly to confirm that I received it; if you do not receive a reply within about 24 hours, please contact me to ensure I received it. I try to get my comments back to you within a week; if you have not heard from me in that time, please email me to make sure I still have it. You are not bothering me by sending these emails – I would much prefer to respond to a dozen such emails than have one draft get lost in the web ether and have you lose three weeks of writing time before we figure that out.

Please send all drafts, outlines, etc. to me by email. I review drafts in the order I receive them, so getting a draft to me the day before the due date likely ensures that your draft is at the top of the pile and will be returned to you nearly a week before a draft submitted the afternoon of the due date.

This is the last significant writing experience that many of you will have in law school before you graduate and begin practice. It is my responsibility to make sure that when you leave this course, you have the research and writing skills necessary to practice successfully.  I take this responsibility very seriously.  (I have a personal interest in the issue; if an ONUL graduate is a poor writer, the legal community will think poorly not only of that graduate, but also of ONUL as an educational institution.)  If you are unwilling to do the work it takes to ensure that your article is grammatical, understandable, demonstrates a basic familiarity with the Bluebook, and avoids blatant misstatements of law, then I suggest taking a different course.  

I have higher expectations than you probably are accustomed to for student-written articles. You likely will work harder on this article than you have ever worked on a paper before. Your doing so will enable me to give a glowing recommendation to your prospective employers on your research/writing/analysis skills – the skills most in demand by legal employers. Also, if you look at my resume (available online), you’ll note a long list of co-authored articles. Most of those articles were written by students in one of my courses. Those articles give you a pretty good idea of what I am looking for in your article.

    I would love to help you get your article published, and there are a lot of topics on the list below that would be ideal for publication.

Everything below is approximate and may be adjusted to reflect simulations taking shorter or longer than anticipated. We will make up missed classes (e.g., 9/29) with video-recorded asynchronous lectures.

August  
    23    Introduction to arbitration; research paper workshop.  
    25    Expense reimbursement simulation; client interview video (:44-2:15)  
    30    Client interview simulation #1

September

    1    Client interview #2  
    6    Negotiation #1  
    8    Negotiation #2  
    13    Mediating a U.S.-China Business Dispute (90:00)  
    15    Mediation #1  
    20    Mediation #2  
    22    Choose arbitration problem; divide into teams; choose roles.  
    27    Work on arbitration problem.  
    29    No class.

October   
    4    Work on arbitration problem; due date for case theme.  
    6    Work on arbitration problem; due date for direct examination questions.  
    11    Fall break  
    13    Work on arbitration problem.  
    18    Work on arbitration problem.  
    20    Work on arbitration problem; due date for cross examination questions.  
    25    Work on arbitration problem; due date for opening statement.  
    27    Work on arbitration problem; due date for closing statement.

November  
    1    Prepare for hearings.  
    3    Prepare for hearings.  
    8    Hearing #1: Group Ryan/Jared/Ryan/Adam  
    10    Hearing #2: Group Cliff/Morgan/Reggie/Jarrod  
    15    Hearing #3: Group Kyle/Taylor/Daniel/Maddie/Myles/Samson  
    17    No class.  
    22    No class.

1. Where an employer discharges an employee for an offense that the collective bargaining agreement says merits discharge, and the arbitrator finds that the employee did in fact commit that offense, may the arbitrator mitigate the penalty, or by doing so does the arbitrator exceed her authority? 
2. Does a union or airline employee have a statutory right under Section 184 of the RLA to compel arbitration before a System Board of Adjustment when the matter in dispute involves the proper scope of jurisdiction of the Board but does not involve the interpretation or application of a provision in a collective bargaining agreement?  See Whitaker v. American Airlines, 285 F.3d 940 (11th Cir. 2002). 
3. Do statutes of limitations apply in arbitration?  Courts are split.
4. Does a choice-of-law provision in a contract containing an arbitration clause extend to issues of arbitrability?  The circuits are split.  See Cape Flattery v. Titan Maritime, 647 F.3d 914 (9th Cir. 2011).
5. Does the standard arbitration clause stating that “any dispute arising under this agreement shall be satisfied by arbitration” extend to disputes that do not require interpretation of the contract itself?  The circuits are split.  See Cape Flattery v. Titan Maritime, 647 F.3d 914 (9th Cir. 2011).
6. Do clauses in the American Express acceptance agreement forcing merchants to arbitrate individually violate the Sherman Act?  See In re American Express Merchants’ Litigation, No. 06-cv-1871, 5/29/12, 80 USLW 1665. (Double-check to make sure this issue wasn’t resolved in the Supreme Court resolution of this case.)
7. What is “arbitration” for purposes of the FAA?  There is considerable disagreement among the courts about this.  See, e.g., Advanced Bodycare Solutions, LLC v. Thione International, Inc., 524 F.3d 1235 (8th Cir.2008); Arbitration Law (3d ed.) 1.B; the 2016 First Circuit NFL “deflategate” case. Can you make the case that lopsided arbitration agreements are not “arbitration” and therefore are not enforceable under the FAA?
8. What is the standard of review for arbitrability determinations made by arbitrators under rules (such as those promulgated by the United Nations) that assign arbitrability determinations to an arbitrator?  See Schneider v. Kingdom of Thailand, No. 11-1458 (2d Cir. 8/8/12).
9. Religious arbitration (e.g., two parties with a dispute agree that their pastor/rabbi/imam will resolve the dispute for them). The topic is broad, though, so you’ll need to find a sub-topic that has not already been written about in the secondary literature. An example might be judicial review of arbitration awards where the arbitration clause says the dispute must be resolved consistent with Christian/Jewish/Islamic/etc. principles.
10. Arbitrating employee whistleblowers’ retaliation claims in light of Dodd-Frank’s anti-arbitration provisions. See http://www.employmentlawdaily.com/index.php/news/dodd-frank-anti-arbitration-provision-doesnt-apply-to-dodd-frank-whistleblower-claims/.
11. Find an open issue of law on the topic arbitrating Olympic or other sports drug testing.
12. Contemporary trends in the arbitration of family disputes.
13. The role of amicus briefs in international-trade arbitration.
14. Labor arbitration: are union reps who serve as advocates in arbitration hearings engaging in the unauthorized practice of law? Does it matter whether the collective bargaining giving rise to the arbitration is governed by federal or state law?
15. Is arbitration appropriate for resolving medical malpractice claims? Should it be institutionalized in this context? Perhaps as part of a broader dispute-resolution program that includes mediation?
16. Is arbitration appropriate for resolving insurance disputes, especially following natural disasters?
17. Is arbitration appropriate for resolving disputes concerning class action settlements?
18. What types of disputes is online arbitration good for? What is it not-so-good for?
19. Examine mandatory arbitration in connection with nursing home facilities. What are the trends? Is there state-law pushback? If so, are such laws preempted by the FAA?
20. There are several issues concerning third-party funding of international arbitration. Pick one of those issues and run with it. See http://kluwerarbitrationblog.com/2014/10/08/third-party-funding-again-under-the-spotlight/. 
21. Are arbitration agreements enforceable against a claimant where the claimant herself was not a contracting party but is arguably bound by a contract between others? 
22. Can nonparties to an arbitration clause invoke that clause? One possible example might be the sexual harassment suit brought in July 2016 by Gretchen Carlson’s sexual harassment lawsuit against Roger Ailes. As I understand it, Carlson’s employer was Fox News, and there was an arbitration clause in her contract with Fox. Can Ailes now invoke that arbitration clause in the lawsuit Carlson has filed against Ailes in his personal capacity, even though he did not sign that clause?
23. Interim and emergency measures (e.g., restraining orders and injunctions) in arbitration. See Arbitration Law (3d ed.) 4.2.A for a starting point. 
24. Ethics in international arbitration – pick a subtopic. Start with Catherine Rogers’ book and Carrie Menkel-Meadow’s review of it.
25. Differences in law and practice between domestic and international arbitration. You’ll need to find a way to narrow this topic.
26. Examine a specialized subject-area / tribunal, such as maritime shipping or international construction.
27. Compare the role of expert witnesses in different substantive areas.
28. Compare the role of expert witnesses in different legal cultures.
29. Preparing a witness for arbitration: how does this differ by forum and subject of arbitration?
30. Do a comparative analysis of discovery (especially document production and depositions) in various arbitration forums. E.g., different domestic arbitration forums; different international arbitration forums; different subject areas of arbitration; same subject area but international v. domestic).
31. Examine public policy grounds for refusing to enforce arbitration awards under the New York Convention (for international arbitration) or the FAA (for U.S. arbitration). Focus on one, or compare the two.
32. Should arbitrators include interest in their awards? How should interest be computed? Compare different arbitration systems.
33. If an arbitration award is appealed, can the arbitrator be compelled to testify (arbitral privilege)?
34. What is the time limit for confirming awards? An arbitral award can be enforced as if it were a court judgment if it is “confirmed” by the court.  The Federal Arbitration Act § 9 gives parties one year to do this.  Is the limit mandatory or permissive?  The 4th & 8th Circuits say “may” language in statute means petitions to confirm awards can be filed outside the one year time frame.  Second Circuit says 1 year is a strict limit.
35. Can arbitration panels subpoena documents before a hearing from nonparties?  The Federal Arbitration Act gives arbitrators power to subpoena nonparty witnesses to bring documents to the hearing, but there is a circuit split at the discovery stage.  Third Circuit says they can’t; Eighth says they can.  
36. Arbitrable Questions.  Ninth and Eleventh Circuits hold that whether remedial limitations in an arbitration agreement are permissible is a question for the court.  First, Third, Seventh and Eighth Circuits disagree, holding that the arbitrator should decide this.
37. Arbitrator disclosure:  Positive Software Solutions Inc. v. New Century Mortgage Corp.  Ninth Circuit splits with other circuits on the issue of when an arbitrator's failure to disclose to parties information that might create an impression of bias justifies vacatur of the arbitration award.  Ninth Circuit states that nondisclosure requires vacatur; other circuits disagree.
38. Find other topics by searching “arbitration” in the cert petition files on Lexis or Westlaw. A research librarian can show you how to do this.
39. China is a signatory to the U.N. Maritime Convention, but on 7/12/16 it rejected a decision by the Permanent Court of Arbitration dismissing China’s claims of sovereignty over the so-called South China Sea. What are the legal (not political) implications of a signatory rejecting such a decision?
40. Re-write and update Marvin F. Hill, Jr., and James A. Wright, Employee Lifestyle and Off–Duty Conduct Regulation (BNA 1993). This was written in in the pre-internet age. I think it’s a hoot that folks then found off-duty conduct to be a “knotty issue”, but now folks look back on those as halcyon days when line-drawing was relatively easy.
41. Fifty years ago, the “scope of management rights clauses” issue was one of the hottest topics in labor arbitration. Now, it’s all but dead.  My theory is that “management rights clauses” have become mostly superfluous as collective bargaining agreements have gotten longer and much more specific – items that 50 years ago turned on interpreting the relative breadth of a management-rights clause now are addressed by specific language in CBAs. Turn my theory into an article. I can show you where to start your research.
42. Re-write and update Roger I. Abrams and Dennis R. Nolan, Seniority Rights Under the Collective Agreement, 2 The Labor Lawyer 99 (1986). 
43. Re-write and update Roger I. Abrams and Dennis R. Nolan, Resolving Holiday Pay Disputes in Labor Arbitration, 33 Case W. Res. L. Rev. 380 (1983).  
    Re-write and update Roger I. Abrams and Dennis R. Nolan, The Common Law of the Labor Agreement: Vacations, 5 Indus. Rel. L.J. 603 (1983). 
44. Does federal question jurisdiction extend to claims premised on violations of internal FINRA rules?  The circuits are split. See Doscher v. Sea Port Group, 85 USLW 231 (8/18/16).
45. Can arbitrators compel production of evidence from third parties outside of arbitration hearings? The circuits are split. See CVS Health Corp. v. Vividus LLC FKA HM, 86 USLW 877 (9th Cir.).
46. How have labor arbitrators dealt with academic freedom issues in higher education? 
47. Appropriate review of labor arbitrations.  In the 6th Circuit case of Michigan Family Resources Inc., Judge Sutton wrote a concurring opinion in which he claims that the 6th Circuit test for judicial review of labor arbitration awards is not deferential enough and that the Circuit is vacating far too many awards.  He calls for en banc review and lists all the relevant 6th Circuit cases in an appendix.  This would be a powerful topic – SCOTUS always sides with the position Judge Sutton takes here. Update: there have been several judicial reversals of arbitration awards reinstating egregious sexual harassors and perpetrators of police misconduct. These cases make the issue a hot one today.
48. Analyze labor arbitration awards on the issue of vaccine mandates in the workplace. I can show you how to look for awards. You might start with Canadian awards, which are easy to search. If you can’t find any covid-related awards, can you find awards from other contexts – e.g., healthcare workers who refuse to get their standard immunizations?
49. Does section 10 of the FAA apply in state courts to a motion to vacate on preemption grounds? State courts are split, and the Supreme Court has never held explicitly that section 10 of the FAA preempts conflicting state law (there are lots of SCOTUS cases finding that section 2 of the FAA is preemptive). The issue arises when two opposing parties in arbitration are citizens of the same state (thus no diversity) and no federal statutory claims are at issue (thus no federal question jurisdiction).