Professor John Lande
University of Missouri School of Law
University of St. Thomas School of Law
Dispute System Design:
Justice, Accountability and Impact
November 13, 2015
Collaborative Research Project
 Working with Peter Benner, Connecticut
attorney and mediator
 Collaboration grows out of “conversation” on
Indisputably
Builds on My Book
ABA Section of Dispute Resolution
PEDR User Guide
Questions
 Since most corporations don’t seem to use
planned early dispute resolution (PEDR)
systems, why do some corporations use
them?
 Who initiated the systems?
 How do they work?
Preliminary Analysis
 Snowball sample of inside counsel in
companies using PEDR
 We conducted 12 interviews and plan to do
about 15-20 in total
 Obviously, this isn’t a representative sample
 But it does provide valuable insights to
answer our questions and develop
recommendations
What is PEDR, Anyway?
General approach for strategically handling matters early,
which includes some or all of the following:
 Regular and strategic use of ADR clauses
 Early case assessment and periodic review
 Inside counsel designated as “ADR counsel”
 Training of inside counsel and/or business people
 Written materials about PEDR
 Alternative fee arrangements for outside counsel
 Systematic use of mediation or other ADR processes
 Culture change
Why PEDR?
 Usually, individual inside counsel believe in it
and just do it, evolving process over time
 Some use an intentional DSD process
 Business leaders support or acquiesce
 Business motivations are to:
 Save time and money, or
 Achieve other business goals, or
 Do both
Business Motivations
 Resolve disputes without litigation
 Fair outcomes
 Improve results
 Avoid repeating bad results in court or arbitration
 Better manage litigation
 Maintain business relationships
 Maintain good reputation
 Be consistent with corporate philosophy, eg,
creating value, innovation, cooperation, or efficiency
So Why Not PEDR?
Subjects speculated why companies and lawyers don’t
use PEDR:
 Resistance to change
 Adversarial mindset
 Feels risky – eg, invite lawsuits, create perception of
weakness, internal criticism, could harm career
 Lack of data to demonstrate benefits
Survival of PEDR
 As long as PEDR is not the norm for business DR, the
survival of PEDR programs in particular businesses
generally will depend on the commitment of the
general counsel (or other key figures) at any given
time
 If PEDR becomes more routine and is
institutionalized in particular businesses, it will be
harder to uproot existing PEDR programs
Consumer Disputes, Class Actions and
Calls for Transparency: Arbitration and
the Dispute System Design Challenge
NANCY A. WELSH
W I L L I A M T R I C K E T T FA C U LT Y S C H O L A R & P RO F E S S O R O F L AW
P E N N S TAT E U N I V E RS I T Y, D I C K I N S O N L AW
Reasons for Interest
• Protection of our good processes
• Self-determination as a guiding principle
• Erosion of DR field’s commitment to self-determination
• Erosion of lawyers’ commitment to our courts
• Yearning for DR field and lawyers—perhaps through the ABA
Dispute Resolution Section—to be able to lead for social good
Dispute System Design in Consumer
Industries
• Goals
• Reduce expenses generally, including litigation-related expenses
• Protect corporate brand
• Learn about problems before they become public
• Dispute System Design Solutions?
•
•
•
•
•
•
•
Introduce—and require—that consumers provide notice of problems
Introduce—and require—that consumers use arbitration
Bar consumers’ use of litigation generally
Bar class proceedings
Reduce or eliminate opportunity for discovery
Shift own attorney’s fees to losing consumer
Require confidentiality
Consumer Disputes, Arbitration, Class Actions—A
Timeline
1997—American Arbitration Association’s “National Consumer Disputes Advisory Committee”
produces Consumer Due Process Protocol
1998—First USA adopts first credit card arbitration clause (per Ross et al. v. American Express et
al.)
1999—“Arbitration Coalition” (i.e., group of credit card-issuing banks, law firms, PR firm, with
some NAF involvement) holds first meeting
2000—Citi decides to adopt class action-barring arbitration clause (implemented in 2001)
2000—ABA Dispute Resolution Section’s “Task Force on Consumer Arbitration” begins meeting
2001—“Consumer Companies’ Class Action Working Group” (offshoot of Arbitration Coalition)
begins meeting
Consumer Disputes, Arbitration, Class Actions—A
Timeline (and the End of First Phase of DSD?)
2001—“In-House Counsel Working Group” (offshoot of Arbitration Coalition) begins meeting
2001—ABA Dispute Resolution Section’s Task Force determines that it cannot produce either a
resolution or due process protocols
2003—Arbitration Coalition holds last meeting
2003—Discover adopts first opt-out provision (providing 2 months for opt-out)
2003—Class action-barring arbitration clauses have been adopted by all defendant banks in Ross
et al. v. American Express et al. (approximately 87% of all general-purpose credit card
transactions are subject to both arbitration and class action bar)
Framework of Dispute System Design
•Goals
•Stakeholders
•Context and culture
•Processes and structure
•Resources
•Success
•Accountability
Consumer Disputes, Arbitration, Class Actions—A
Timeline (and Beginning of Second Phase?)
2008—ABA Governmental Affairs Office informs Dispute Resolution Section leadership that
Section cannot—based on RUAA, UMA and Model Standards--take position endorsing S. 1135 to
amend the FAA to establish minimum due process protections, allow opt-out in favor of small
claims court, and provide federal district court appeal rights for all parties
2009—ABA Dispute Resolution Section Council adopts resolution supporting mandatory predispute arbitration clauses that include meaningful opt-outs, and then withdraws the resolution
2010--Dodd-Frank Wall Street Reform and Consumer Protection Act passes, giving Consumer
Financial Protection Bureau authority to issue regulations that would “prohibit or impose
conditions or limitations on the use of an agreement between a covered person and a consumer
for a consumer financial product or service providing for arbitration of any future dispute
between the parties,” if doing so is “in the public interest and for the protection of consumers.”
Act also requires a study and regulatory findings to be consistent with the Study
2010—Dispute Resolution Section Consumer Arbitration Study Group meets
2010—American Arbitration Association’s “National Task Force on the Arbitration of Consumer
Debt Collection Disputes” produces Consumer Debt Collection Due Process Protocol Statement
of Principles
Consumer Disputes, Arbitration, Class Actions—A
Timeline
2011—Supreme Court decides AT&T Mobility v. Concepcion (involving multi-step clause with
potential for payment of premium and attorney’s fees)
2012—Supreme Court decides CompuCredit v. Greenwood
2012—National Roundtable on Consumer Arbitration meets
2013—Supreme Court decides American Express v. Italian Colors
2013—CFPB releases Preliminary Results of study
2015—CFPB releases Study
2015—CFPB announces preliminary regulatory proposals
2015—New York Times publishes series on mandatory pre-dispute arbitration
2015—ABA Section of Dispute Resolution establishes Task Force to determine response to
proposals
National Roundtable on Consumer
Arbitration: Selected Questions
• What is the prevalence of arbitration clauses, industry by industry? What do we know about how
arbitration works in each industry?
• How many consumers initiate arbitration? How many initiate action under a clause like AT&T’s?
• How do consumers fare in individual lawsuits? Individual arbitrations? Class actions?
• Do class actions deter bad behavior and encourage responsible internal conflict management—or is
such action motivated by crisis (i.e., bad publicity, damage to the brand, threat of governmental
activity)?
• What are the “take rates” in consumer class actions? How do the amount of attorney’s fees compare to
benefits received by class members?
• If consumers knew the impact of mandatory arbitration clauses on their options, would they oppose or
support them?
• What is the impact of arbitration provisions on prices for consumer goods and services?
• Do businesses collect data on consumer complaints/claims to make changes in operation, billing, etc.?
At what point do they make these changes?
• What data could CFPB require to be reported to alert it to existence of bad actors or systemic problems?
National Roundtable on Consumer
Arbitration
• Areas of Common Ground
• Interest in working together to make it easier for consumers to identify, raise and present claims that
consumers currently find difficult to identify and pursue on their own.
• Interest in trying to find reasonable ways to assure that class actions are used only when necessary,
consumers with valid claims get access to needed information and legal representation, and
companies provide consumers with real redress
• Selected Ideas
• Industry-specific minimum and best practices for dispute resolution
• Accessible mechanisms to correct for inappropriate arbitral behavior or exercise of discretion
• Easy, accessible online dispute resolution process that informs consumers of rights, and with trigger
that results in 1) referral of systemic problems to regulatory authority or 2) form of redress
approximating collective or class actions
• Publication of arbitration awards
• Third party standing for consumer organizations
Framework of Dispute System Design
•Goals
•Stakeholders
•Context and culture
•Processes and structure
•Resources
•Success
•Accountability
Consumer Financial Protection Bureau
Selected Findings
•“Tens of millions of consumers use consumer financial products that are subject
to arbitration agreements”
•Share of contracts that include arbitration agreements
•
•
•
•
•
53% of credit card market (but for Ross settlement, 94%)
44% of insured deposits in the checking account market
92% for a sample of prepaid card agreements
99% for a sample of storefront payday loan agreements (CA, TX)
99% of the mobile wireless market
Consumer Financial Protection Bureau
Selected Findings
•Share of providers of financial services (credit cards)
• 75% of largest bank issuers in credit card market
• 42% of smaller and mid-sized bank issuers
•Share of providers of financial services (checking accounts)
• 46% of largest banks
• 7% of small and mid-sized banks
•Share of providers of financial services (payday loans)
• 100% of large lenders
• 84% of sample of smaller lenders
Consumer Financial Protection Bureau
Selected Findings
•Few consumer-initiated cases against financial service providers in either
arbitration or in court
• 1,847 arbitration disputes filed with AAA, largest administrator of agreements, in 2010-2012
• 870 consumers filed credit card claims in small claims court in 2012 (for jurisdictions with combined
total population of around 85 million)
•Potential benefit to consumers from class action settlements
• At least 32 million class members eligible for relief pursuant to class settlements between 2008 and
2012
• Settlements totaled $540 million per year in cash, in-kind relief, and attorney’s fees and expenses
(roughly 18%)
• Changes in behavior not quantified
•Arbitration agreements more likely to be used to stop cases filed on behalf of class than in cases
filed on individual basis
•Arbitration agreements did not lead to lower prices for consumers, at least in the credit card
market
Consumer Financial Protection Bureau
Tentative Proposals
• Bar class action waivers in mandatory pre-dispute arbitration clauses
• “[R]equire any arbitration agreement included in a contract for a consumer financial product or
service offered by an entity subject to the proposals to provide explicitly that the arbitration
agreement is inapplicable to cases filed in court on behalf of a class unless and until class certification
Is denied or the class claims are dismissed.”
• Require reporting of arbitral filings and written awards to the Bureau
• “[R]equire covered entitites that use arbitration agreement sin their contracts with consumers to
submit initial claim filings and written awards in concumser finance arbitration proceedings to the
Bureau. . .”
• Make information regarding filings and awards available to the public
• “The Bureau is also considering whether to publish the claims or awards to its website, making them
available to the public.”
Framework of Dispute System Design
•Goals
•Stakeholders
•Context and culture
•Processes and structure
•Resources
•Success
•Accountability
A Dispute Systems Design Approach to
Integrating Advance Care Planning Within a
Community
Dispute System Design: Justice, Accountability and Impact
University of St. Thomas School of Law, November 13, 2015
Jacqueline N. Font-Guzmán, M.H.A., J.D., Ph.D.
Professor of Law and Interim Director
Jnfont@Creighton.edu
© JACQUELINE N. FONT-GUZMÁN
28
© JACQUELINE N. FONT-GUZMÁN
29
 Goals for
the article
 Where it
all started
Where it is
headed
© JACQUELINE N. FONT-GUZMÁN
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Goals
Explore the use of DSD beyond the purview
of problem solving.
Use DSD principles as a framework to
integrate ACP in a community and reduce
healthcare disparities and related conflicts.
© JACQUELINE N. FONT-GUZMÁN
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Some definitions
Dispute System Design
Advance Care Planning (Patient Self-Determination
Act of 1990)
 Living Will
 Durable Power of Attorney
Health Disparities
© JACQUELINE N. FONT-GUZMÁN
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Examples of healthcare disparities
African Americans and Hispanic Americans are less willing than
other groups to complete advance directives (Dying in
America, 2015, p. 70, citing Caralis et al., 1993).
Hospice use is low in Latinos and there is a need to learn how
this decision-making process takes place (Dying in America, p.
250, 2015).
There is disparity along racial lines in responses to end of life
care when considering extraordinary means (Prices et al. 2006,
citing Wojtasiewicz 2006).
Latinos have limited access to quality and culturally
appropriate healthcare (UNMC Health profile report 2013, p. 2
citing, Aguirre-Molina, M., Molina, C.W., & Zambrana, R.E.
(2001).
© JACQUELINE N. FONT-GUZMÁN
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Why is disparity in ACP a problem?
Patients without written advance care goals tend to
receive unwanted, futile, painful, and expensive care
Negative impacts include placing an excessive
emotional and physical burden on patients, caregivers,
and family members
© JACQUELINE N. FONT-GUZMÁN
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Where it started?
2014 Haddix Grant: Starting the Conversation…
Profs. Helen Chapple, Center for Health Policy and Ethics &
Jacqueline N. Font-Guzmán, The Werner Institute
What constitutes a good death in NE?
Literature Review:
Advance Care Planning
& Dying Experience
Comparison of
parameters and
demographics around
dying in NE and
surrounding states
© JACQUELINE N. FONT-GUZMÁN
Facilitated
conversations through
WCDs on how dying
occurs in NE &
participation in Older
Nebraskans Day at NE
State Fair
35
Preliminary studies
Three World Café Dialogues
in English
One World Café Dialogue in
Spanish in South Omaha
Data analysis is ongoing
Preliminary findings
© JACQUELINE N. FONT-GUZMÁN
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Why minorities?
Current minorities will become majority by 2050
Minorities, now
roughly one-third
of the U.S.
population, are
expected to
become the
majority in 2042,
with the nation
projected to be
54 percent
minority in 2050.
100%
33%
54%
80%
60%
40%
67%
46%
20%
0%
2010
Majority
2050
Minorities
US Census Bureau, 2010
© JACQUELINE N. FONT-GUZMÁN
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• Ury 1995, 11(4) Negotiation Journal
• Byock et.al 2001, 22(3) Journal of Pain and Symptom Management
© JACQUELINE N. FONT-GUZMÁN
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Integrating the
tension between
community &
autonomy
Conflict interveners work
with disputants to move
them through conflict &
retain their sense of
autonomy by assisting
them in
1) staying in touch with
sense of self; and
2) coming to terms to
how they are
changing
Asking disputants to revisit how
a decision reflects their values,
their goals, their hopes and their
fears.
Giving disputants permission to
stay in conflict
Breaking seemingly big decisions
into small steps.
Helping people develop a rich
vision of what big changes would
look like.
Naming the challenge.
Mayer (2015) The Conflict Paradox, pp. 248-254
© JACQUELINE N. FONT-GUZMÁN
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Thanks for listening!
Questions, Comments, Feedback?
© JACQUELINE N. FONT-GUZMÁN
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Maureen Weston
Pepperdine University School of Law
Nov. 13, 2015
DISPUTE SYSTEM DESIGN
FOR SAFE SPORT
ADDRESSING MISCONDUCT IN SPORT
An
athlete reports
inappropriate behavior
by the coach.
What would you do?
LIFELONG BENEFITS OF SPORTS
COACH/ATHLETE CONNECTION
BUT WHEN THAT GOES AWRY

Former boxer Sugar
Ray Leonard wrote of
being sexually
molested by a coach.
Gymnastics Coach Accused of Raping Teenage
Student,
THE PROBLEM: ABUSE IN SPORT
One in four girls,
 One in six boys

will be sexually abused by
age 18

More so in Sport than
society at large
ISSUE AT ALL LEVELS OF SPORT (AND SOCIETY)
Professional
International/Olympic
College
Club
Youth
DEFICIENCIES IN CURRENT APPROACH
Report to League/Club/Team/NGB
 Fear in Reporting
 Power and Influence of Coach/Athlete Support
Team
 Consequences to Athlete: leave sport, lasting
trauma
 Trauma & Silence

 Conflict

of Interest/Expertise
TIME TO CHANGE THE ODDS

With 44 million kids under the age of 18
participating in sport
 “Preventing
Sexual Abuse Among
Athletes is the agency’s most
important role”
USOC
President
TACKLING ABUSE IN SPORT THROUGH DISPUTE SYSTEMS
DESIGN AND FAIR PROCESS

THE OBJECTIVE:

Designing a system to educate, prevent,
facilitate and fairly adjudicate issues
concerning abuse in sport.
METHODOLOGY: U.S. OLYMPIC COMMITTEE

Diversity of Working Group Expertise and
Knowledge:
 Legal
 Psychiatrists
& Medical Professionals
 Specialists in Compliance, Reporting
 Insurance
 Athletes & Coaches
 Law Enforcement

STAKEHOLDER INPUT PROCESS

NGBs, coaches, athletes, parents, security experts,
training providers, and grassroots organizations
 Individual Discussions
 Panels
 Written
 Best Practices & Policies
 Surveys
 Relevant Research
DEFINING ABUSE?
 1-
Sexual
 2- Emotional
 3 – Physical
 4- Bullying
 5- Harassment, and
 6- Hazing.
 7 - “GROOMING”
 8 - Strict Coach/Discipline

What types of misconduct are reportable
offenses? Grounds for sanction?
IS THIS OKAY? CREEPY OR CRIMINAL?

“Sometimes my coach or another adult sends
me weird texts. He or she asks me whether I’m
having sex or other things about sex. Is this
normal?”

My coach gives me gifts that I like a ton and
takes me to games where it's just the two of us.
He told me not to tell anyone about the gifts .
Is this normal?
SIX AREAS OF FOCUS
CENTER FOR SAFE SPORT (2016)
 Independent:
Funded by USOC &
NGBs
 USADA Model: outsource
 Exclusive jurisdiction over alleged
sexual abuse cases; NGBs give up
these types of cases
 Model for Other Sport Programs?
CENTER FOR SAFE SPORT
Education, Training, Online Toolkit, Model
Policies
 Background Checks
 Reporting Systems: Confidential, Hotline
 Practices & Policies
 Center Investigation
 Center Adjudication and Internal Hearing

QUESTIONS: SAFE SPORT INVESTIGATION
How?
 By whom?
 Notice to Accused
 Treatment of Reporting
 Contact with criminal authorities?
 Discovery- opportunity in evidence exchange?
 Protocols & Development of an International
Code of Safe Sport

Adjudication: Due Process Considerations
Center Investigates & Enforces
 Standard of Proof
 Process
 Sanctions
 U.S. Amateur Sports Act – Right to AAA Hearing
 Role of and Working with Criminal Authorities
 Concerns of Civil Liability
 Dealing with Other Forms of Abuse?

USING PROCESS DESIGN FOR SAFE SPORT
Your Thoughts?
AREAS FOR FURTHER ACTION
Addressing bullying and emotional abuse as an
important topic for promoting safe training
environments
 Providing a centralized hotline as an educational
and support resource for victims or other parties
that require information related to sexual and
physical abuse
 Providing further guidance and resources for NGBs
in navigating the adjudication process, including
the potential to provide centralized investigative
services for NGBs


Establishing a coaches’ code of conduct that
prohibits sexual and physical misconduct

Developing a system for a club certification
OLYMPIC COACH ACCUSED OF SEXUALLY
ABUSING TEEN GYMNASTS

There is a special relationship between a coach
and an athlete, particularly in an individual
event sport like gymnastics, swimming, tennis.
The coach is very important to the success of
the athlete, and there are no other places to
find that support, or at least that's what the
athlete believes, usually because the coach has
taught the athlete that message: 'Without me,
you wouldn't be able to do this.'
DISCUSSION ON VARIOUS MODELS

The direct delivery of all policies, practices, programs and
services by individual NGBs, clubs and other grass roots
organizations, with limited to no involvement by the USOC.

The USOC, with direct input from NGBs, centralizes the
delivery of core resources, such as best practice training /
education and suggested policies, practices and services.

The development of a USADA-type model that outsources all
centralized services, including resources, programs,
services and enforcement to an external provider.

Hybrids of the above models.



AMATEUR SPORTS ACT
§ 220502 RESOLUTION OF DISPUTES.
(a) USOC to establish and maintain bylaws for
swift and equitable resolution for disputes
involving any of its members and relating to the
opportunity of an amateur athlete, coach trainer,
manager, administrator, or official to participate
in the Olympic Games … a court shall not grant
injunctive relief against the USOC within 21 days
before such games…
(b) Ombudsman – provide independent advice to
athletes at no cost about [rules] relating to
opportunity to participate in Games, world
championships or other protected competition
USOC BYLAWS SECTION 9 COMPLAINTS
This Complaint Form must be used when filing a
Section 9 complaint with the USOC involving an
alleged denial of an opportunity to compete
 I. The Claimant
 II. The Respondent
 III. The Competition
 IV. The Dispute: factual and legal basis
 V. The Remedy
 VI. Affected Party
