Archive of all Volumes > Vol. 12 - 2019


VOL. 12 - 2019



Marsha Levinson
Santa Clara University School of Law
Introduction: John W. Salmon

Marsha Levinson graduated from Santa Clara Law in May of 2019 in the top 10% of her class. Marsha took and passed the July 2019 California Bar. While at Santa Clara Law, Marsha served as a senior editor on her law review, participated in honors moot court, and served in numerous leadership roles including as president of the Women & Law organization. Marsha is currently working at Temmerman, Cilley & Kohlmann, LLP, which specializes in trust and estate planning and litigation, and hopes to supplement her career as a trust and estate attorney by mediating trust and estate disputes.


When we publish the criteria for law students to enter our annual writing contest co-sponsored by the Dispute Resolution Section of the New York State Bar Association we ask for articles on the following topics:

Any aspect of alternative dispute resolution including reconciliation systems (negotiation, mediation), consensus based adjudicative systems (arbitration, private judging) or mixed processes (med-arb, arb-med), ADR process design, ADR practice techniques, case studies, ADR related legislation, ethical issues and standards, as well as the application of ADR processes to specific areas of law.

It is so interesting to me the depth and more importantly, the breadth of the articles received ranging from how to handle disputes in space to divorce mediation to international methods of conflict resolution to classic law review articles delving into specific ADR methodologies. 

Our winning article this year is an exceptional example of a scholarly discussion on a highly relevant and timely topic: how mandatory arbitration clauses apply to sexual harassment claims in employment settings. 

Marsha Levinson takes an in-depth critical look at the interrelationship between Title VII and the #MeToo movement in the context of the Fox News scandal. Her research is impeccable. Her inciteful proposals to address ways in which the current system might be improved are worth reading her article to its conclusion. Those of us in the ADR universe, practitioners and academics alike, should be pleased with the quality of the young minds poised to lead our practice in the years ahead.

John W. Salmon

Editor in Chief
Distinguished Fellow, American College of Civil Trial Mediators



Rachel Schwartzman
Benjamin N. Cardozo School of Law
Introduction: Donald R. Philbin

Rachel Schwartzman is a J.D. candidate at the Benjamin N. Cardozo School of Law, set to graduate in May 0f 2020. Ms. Schwartzman is passionate about Family Law and finds value in utilizing Alternative Dispute Resolution methods to make the divorce process more seamless for all parties involved. Ms. Schwartzman’s interest in the ADR field was sparked by her position as a student mediator in Cardozo’s Divorce Mediation Clinic, which operated in conjunction with the Office of the Court Administration. Ms. Schwartzman is also a Staff Editor of the Cardozo Journal of Conflict Resolution.


Author Proposes Baseball Arbitration to Efficiently End Divorces

Surveying the sheer number of divorces working through the system and the direct and indirect costs associated with them, the author thin-slices the continuum of dispute resolution options to propose baseball arbitration protocols to bring efficient finality to many of them.

Baseball arbitration is an arbitration hybrid successfully used in Major League Baseball to resolve salary disputes. It incentivizes parties to reduce posturing and tighten their demands since the arbitrator can only choose one of the parties’ demands (“day” protocol) rather than come up with her own award. Naturally, each side seeks to get closest to what the arbitrator might award so their demand is closer – and successful.

After contrasting benefits and weaknesses of mediation and arbitration in the context of lower asset divorces, the author proposes this hybrid to reduce impasse inducing posturing in mediation and the loss of control that unbounded arbitration could produce. Having thin-sliced the continuum of ADR options, the author also suggests that this form of arbitration could tag onto an otherwise impassed mediation. Of course, that brings a separate set of issues.

Under this model, both sides would propose a complete set of terms, including line items for parenting, assets, child support, spousal support, tax and other issues. While one option would be for the arbitrator to pick one complete demand or the other, the author proposes a menu option. The arbitrator would select between the parties’ demands on an issue-by-issue basis reducing the risk that one side throws in an aggressive point hoping that the overall package frames it to be the winning proposal with an outlier.

This hybrid proposal would according to the author reduce time and expense by optimally mixing ADR options to fit the fuss.

Donald R. Philbin, Jr.

Editorial Board
Fellow, American College of Civil Trial Mediators



Stacy Dettwiller
The Ohio State University Moritz College of Law
Introduction: John. W. Salmon

Stacey Dettwiller is a student at The Ohio State University Michael E. Moritz College of Law. Prior to law school, she taught middle school for seven years; her research for this paper was inspired by both her experiences and her students. Stacey lives in Westerville, Ohio with her husband, Will, and two children.


In 1994, I was named an Outstanding Business Partnership Volunteer at my son’s elementary school for mentoring a fifth-grade mediation program. Fast forward to 2019, my son, David, is a successful attorney and mediator with my mediation firm.  My daughter, Michelle, likewise became a peer mediator in middle      school.  For the past ten years, she has been selected as a “Highly Effective” algebra teacher by the state of Florida. If you ask her, there is little doubt that the conflict resolution skills she learned in 8th grade have greatly contributed to her being so recognized.

No wonder that this article about how peer mediation can be utilized as part of a larger framework to combat bullying in our high schools stands out as one of my favorites of all the entries to this year’s writing contest.

Many of you may remember the story of the siblings fighting over the last orange that each needed for a school project due the next day. A third sibling, younger of course, resolved the dispute via a win-win-win solution.  The skills imparted in peer mediation programs stick with these young people for the remainder of their lives. 

I highly recommend that each of you reading this journal, whether a parent or not, reach out to your local school system and volunteer to become involved in an existing peer mediation program or, better yet, help to develop one in your community’s school system. This is the type of legacy that we, as mediators and conflict resolution professionals, should work to foster in future generations.

John W. Salmon

Editor in Chief
Distinguished Fellow, American College of Civil Trial Mediators



Gina Gonzalez
University of Florida Levin College of Law
Introduction: Lawrence M. Watson, Jr.

Gina Nicolle Gonzalez was raised near Ft. Lauderdale, Florida and graduated as a "Double Gator" from the University of Florida Levin College of Law. She was an active member of the Florida Moot Court Team and was awarded the title "Best Oral Advocate." Gina developed an interest in medical malpractice during her final year of law school and sought to begin her legal career in personal injury. Gina currently practices personal injury law at Morgan & Morgan in Tampa, Florida and hopes to eventually enter the niche field of medical malpractice.



         As a Florida Law School graduate (Class of 1969, if you must know) and a 25-year fulltime ADR practitioner, I was delighted to see a Florida Law student submitting this finalist piece in our New York State Bar Association/American College of Civil Trial Mediation Annual $10,000 ADR Law Student Writing Contest. Ms. Gina Gonzalez provides us with an intriguing and insightful work on yet another potential threat to arbitration programs resulting from a collateral series of courtroom challenges to statutory damage caps in Florida medical malpractice claims. It all starts with a 1980’s movement in the Florida legislature to curb excessive non-economic medical damage awards by statutorily capping available malpractice awards. Unfortunately, those damage limitations were coupled with a pre-suit damage arbitration program which, in many instances, was effectively mandated to both claimants and defendants. As successful challenges to the constitutionality of the monetary damage caps wound their way through the Florida courts, a clear path has been laid for an additional attack on the coupled arbitration program as well. In this time of constant judicial challenges to contractual and statutorily imposed arbitration procedures in other industries, Ms. Gonzalez’s piece becomes a timely and thoughtful exploration of a much broader situation.

         A well written, well researched and well-reasoned submission that quickly rose to the top of those submitted nationwide in our competition and ended up only a few points short of winning the entire contest. This is an excellent reflection on the Florida Law School and its ADR Department. Along with the entire Editorial Board of the American Journal of Mediation, I am proud to recommend its publication.

Lawrence M. Watson, Jr.
Editor Emeritus

Emeritus Fellow, American College of Civil Trial Mediators


Brandon Thompson
William S. Boyd School of Law University of Las Vegas, Nevada
Introduction: Richard B. Lord

Brandon Thompson a recent graduate of William S. Boyd School of Law's part-time evening program; set to sit for the February 2020 Bar Exam. On a personal level, Brandon is an avid traveler, as well as a reader and writer of fantasy novels and short stories. Mr. Thompson currently works as a Judicial Law Clerk and hopes to transition into some type of Public Interest and/or Appellate work after the Bar.



The development, incorporation, and modification of legal frameworks often follow societal change.  In his detailed and optimistic article, “Collectively Bargained For & Statutorily Arbitrated: Resolution of Sexual Orientation Discrimination and Other Statutory Claims in the Unionized Workforce”, Brandon Thompson of William S. Boyd School of Law at the University of Nevada, Las Vegas examines the current and potential role of arbitration under collective bargaining agreements in resolving employee statutory claims generally and claims of discrimination based on sexual orientation in particular.

The context of this article includes the debates in favor of and opposed to arbitration generally, a unionized workforce often exposed to mandatory arbitration clauses, and the need for employees to be protected against discrimination based upon their sexual orientation.  The author importantly urges us all to move beyond the knee-jerk arguments often heard for or against arbitration and to look more deeply at how concerns can be minimized and processes improved.  He notes that the prohibition of discrimination “because of…sex” does not expressly prohibit discrimination on the basis of sexual orientation.  Following a dive into the origins and landmarks of American labor and employment law, the rise of collective bargaining, the utilization of arbitration, Title VII of the Civil Rights Act of 1964, and legal precedent to date, he argues for an improved arbitral framework and for the Supreme Court to affirmatively hold that the “because of…sex” provision protects against discrimination based on sexual orientation.

Citing that approximately 6.5 million employees in the U.S. identify as lesbian, gay, bi-sexual, or transgender, the author notes that the lack of an explicit prohibition against discrimination based on sexual orientation in Title VII leaves employees vulnerable to too many variations and too little protection at the state and local levels.  Through his discussion of the past and present, and steps to be undertaken, the author gives us a glimpse of what the future dispute resolution landscape can look like for such claims. 

Mr. Thompson offers views on how to improve arbitration requirements and processes included in collective bargaining agreements.  And while the focus is on discrimination based on sexual orientation, he suggests that the recommendations he makes can find application to other types of statutory claims under collective bargaining agreements.  Thus, he provides a process to improve the utilization of arbitration in an important context and in furtherance of important societal interests.

Richard B. Lord
Editorial Board
Fellow, American College of Civil Trial Mediators


Ahdieh Alipour Herisi
Benjamin N. Cardozo School of Law
Introduction: Rev. Wendy Trachte- Huber

Ati Alipour is a member of New York Bar. She was born in Iran and has experience studying and working in the U.S. and the Middle East. She has an LLM degree in Dispute Resolution from Pepperdine University in Malibu, California, and has completed her second LLM in Intellectual Property Law from Cardozo Law School in New York, where she was awarded the Jacob Burns Medal for excellence in the Mediation Clinic.


The subject matter of this article is the Convention on International Settlement Agreements Resulting from Mediation, popularly known as the Singapore Convention. The Convention was promulgated by the United Nations Commission on International Trade Law (UNCITRAL) in June 2018.  The objective for the Singapore Convention is to do for international mediation what the New York Convention has done for international arbitration – the recognition and enforcement of commercial arbitration awards and mediated settlements.  This excellent article by  Ahdieh Alipour Herisi   provides a comprehensive overview of the Singapore Convention, with particular attention to its major provisions.


In addition, the article provides a comparison with the provisions of the New York Convention. The Singapore Convention applies to “international” transactions (with modest exceptions), while the New York Convention is limited to “foreign” transactions. The Singapore Convention does not require a seat for a mediation; this delocalization means that a failure to follow local mediation rules will not be a basis for refusing enforcement of a mediated settlement. Settlement agreements that are rendered as arbitral awards can be directly enforced through the Singapore Convention as well as the New York Convention.

Professor Stephen Huber, and

Rev. Wendy Trachte-Huber
Editorial Board, Member
Emeritus Fellow, American College of Civil Trial Mediators






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