Professor James Coben has been busy publishing and presenting in recent months.
His article, “Creating a 21st Century Oligarchy: Judicial Abdication to Class Action Mediators,” has been published in the Penn State Year Book of Arbitration and Mediation (2013). In this critique of class action settlement practices, Coben documents how it has become a matter of routine for Federal and State judges to cite the involvement of a private mediator as evidence that bargaining in class action cases was conducted at arms-length and without collusion between the parties. In many such cases, class action mediators offer up testimony about the nature of the bargaining, as well as subjective (and most often summary) opinions on the merits of the settlements they helped to broker. Coben argues that this approach to mediator participation (and haphazard delivery and uncritical acceptance of mediator evidence) is an abdication of judicial fiduciary duty to ensure that proposed class action settlements are fair to absent class members. Instead, Coben suggests, class action mediators should be appointed as special masters under Federal Rule of Civil Procedure 53 (or state equivalent) and their reporting obligations to the court formalized. Arguably, the formal appointment would extend to the mediator the same fiduciary obligation to protect the interests of absent class members that the court itself holds, a fiduciary duty that private mediators do not have.
Professor Coben also presented a workshop entitled “Using Conflict Resolution and Problem-Solving Skills to Smooth Mergers and Acquisitions,” at the September 19-20 annual meeting of the Healthcare Human Resources Association of Minnesota (HHRAM). The session addressed the virtually limitless human resource challenges presented by merger and acquisition (M&A) and offered advanced negotiation strategies to utilize in the M&A environment, including the role of transparency; lessons to be learned from trust theory; and the essential skills of effective listening and problem-solving questioning in times of organizational stress.
And, the summer issue of Dispute Resolution Magazine, the flagship publication of the Alternative Dispute Resolution (ADR) Section of the American Bar Association, features two book reviews from Professor Coben. Published four times a year, the magazine provides timely, insightful and resourceful information regarding developments, news and trends in the field of dispute resolution throughout the world and features internationally-known scholars and practitioners as authors. Coben also created and serves as co-editor of a new regular feature in the magazine - Research Insights - designed to showcase lessons learned from empirical studies of the ADR field; he also continues to serve as a member of the magazine’s editorial board.