Nancy A. Welsh
Professor of Law
William Trickett Faculty Scholar
B.A., Allegheny College, magna cum laude
Constitutional Law I
Dispute System Design Seminar
I love working with students—in the classroom, through “gently Socratic” questions and answers, hypotheticals, simulations, mock oral arguments, negotiations, etc.—and in informal interactions outside the classroom. Often, students arrive at law school with the sense that “the law” is a collection of straightforward rules that simply require memorization and easy application. If “the law” was as simple as that, people would not need lawyers! Instead, law reflects the complexity of human experience. In my classes, students learn how to focus on the specific language of rules, statutes, and judicial opinions to see what they say—and do not say. They learn to be curious about the facts of a case, because the law’s application will turn on those facts. They learn how to make arguments and consider the underlying policies of the law. Finally, students learn that how lawyers think about and use the law matters—in individual cases and for society at large. In my classes, we also take some time to consider when the law may not provide the only or best answers—and how lawyers need to be ready to listen to their clients and work with them to incorporate other interests. Being a lawyer, and helping people and organizations work through difficult situations, is a privilege. So is being a teacher—and helping future lawyers unlock the doors to new ways of understanding the world and their role in it.
My scholarship focuses on the legal procedures—negotiation, mediation, arbitration, and litigation—that people use to resolve disputes. Some would characterize this as “dispute resolution.” Others would call it “procedural law.” Regardless of the label, I care about the fairness of these procedures and whether they are serving the people who must rely on them. Do these procedures provide all people with sufficient “voice?” Do all people receive sincere and trustworthy consideration from the decision-makers who are involved? Do people have reason to trust that the decision-makers will be sufficiently even-handed, and that the forum is sufficiently neutral? Are people treated with respect? These procedural characteristics play a significant role in people’s perceptions of the fairness of outcomes, their compliance with such outcomes, and their trust in the legitimacy of institutions like the courts. Obviously, the fairness of procedures matters.These various procedures also interact with each other. So my scholarship also explores the synergies and deficits that exist in the relationships among negotiation, mediation, arbitration, administrative adjudication, litigation—and even dispute resolution pursuant to international treaties.
Most of my service is focused on the field of dispute resolution. Both arbitration and mediation are growing in their use and influence. With growth comes controversy, of course, and the potential for reform. I serve on the Council of one of the leading dispute resolution organizations in the U.S., the ABA Section of Dispute Resolution. I am also co-chair of the Editorial Board of the Section’s Dispute Resolution Magazine, mediate for the U.S. District Court of the Middle District of Pennsylvania, and consult with agencies and courts. I also serve as co-faculty advisor of the law school’s Penn State Yearbook on Arbitration and Mediation.
Truthfully, my teaching, scholarship and service all contribute to my engagement with our community. I enjoy debating and exploring questions with students and colleagues as we discuss current research projects, topics raised in class, or an upcoming Yearbook symposium. I enjoy bringing to the law school the lawyers, mediators, arbitrators, researchers, and academics I have come to know through my work with the ABA Section of Dispute Resolution and Pennsylvania mediation practice. I enjoy the sense of being part of a community of learners—and of a community that intends to affect the direction of dispute resolution within the state, nation, and even internationally.
I am constantly engaged with the practice of law. For example, in a course like Negotiation/Mediation, students learn the skills involved in representing clients in negotiation and mediation. They also learn the law and ethics of negotiation and mediation. When does a lawyer have the authority to bind her client in a negotiation? When does a “white lie” become a misrepresentation? Just how confidential are your communications during a mediation? Obviously, I am engaged with the practice of law when I mediate an employment discrimination case or teach lawyers during a CLE program. My scholarship also engages directly with the practice of law.
Dispute Resolution and Lawyers, 5th ed. (co-authored with Leonard Riskin, Chris Guthrie, Richard Reuben, and Jennifer Robbennolt) (2014)
Dispute Resolution and Lawyers, 4th ed. (2009) (co-authored with Leonard Riskin, James Westbrook, Chris Guthrie, Richard Reuben, and Jennifer Robbennolt)
Monographs and Reports
National Roundtable on Consumer and Employment Dispute Resolution: Consumer Arbitration Roundtable Summary Report (April 17, 2012) (co-authored with Tom Stipanowich, Lisa Blomgren Bingham and Larry Mills)
Chapters in Books and Proceedings
Magistrate Judges, Settlement and Procedural Justice, __ Nev. L. J. __ (forthcoming 2016)
Using The Theories of Exit, Voice, Loyalty and Procedural Justice to Reconceptualize Brazil’s Rejection of Bilateral Investment Treaties, 45 Wash. U. J. of Law & Pol’y 105 (2014) (co-authored with Andrea Kupfer Schneider and Kathryn Rimpfel)
Recognition and Enforcement of Arbitration Agreements and Foreign Arbitral Awards: Application of the New York Convention in the United States, 62 Am. J. of Comp. Law 69 (2014) (supplement) (co-authored with Louis Del Duca)
Ross et al. v. American Express et al.: The Story Behind the Spread of Class Action-Barring Arbitration Clauses in Credit Card Agreements, 21 Disp. Resol. Mag. 18 (2014) (co-authored with Stephen J. Ware)
“Interpretation and Application of the New York Convention in the United States,” in The Recognition and Enforcement of Foreign Arbitral Awards — Application of the New York Convention by National Courts (George A. Bermann ed., forthcoming 2016) (co-authored with Louis Del Duca)
"The Application of Procedural Justice Research to Judicial Actions and Techniques in Settlement Sessions," in The Multi-Tasking Judge: Comparative Judicial Dispute Resolution (Tania Sourdin and Archie Zariski, eds., 2013) (co-authored with Bobbi McAdoo and Donna Stienstra)
“The Importance of Context in Comparing the Worldwide Institutionalization of Court-Connected Mediation” and “The Bi-Modal Pattern of Mediation in the United States and Canada,” in ADR in Business: Practice and Issues Across Countries and Cultures (Arnold Ingen-Housz, ed., 2011)
“Mandatory Mediation and Its Variations,” in Investor-State Disputes: Prevention and Alternatives to Arbitration II, Washington & Lee & UNCTAD Symposium Proceedings (Susan Franck & Anna Joubin Brett, eds., 2010)
“Online Communication Technology and Relational Development,” in Rethinking Negotiation Teaching (Christopher Honeyman, James Coben & Giuseppe De Palo, eds., 2009) (co-authored with Anita Bhappu, Noam Ebner, & Sanda Kaufman)
“Mediation Confidentiality in the U.S.,” in Mediation en Vertrouwelijkheid (Hester Montree & Alexander Oosterman, eds., 2009)
“Perceptions of Fairness,” in The Negotiator’s Fieldbook (Andrea Schneider & Christopher Honeyman, eds., 2006).
“Institutionalization and Professionalization,” in The Handbook of Dispute Resolution (Michael Moffitt & Robert Bordone, eds., 2005).
“Reconciling Self-Determination, Coercion and Settlement” in Divorce Mediation: Current Practices and Applications (J. Folberg, Ann Milne and Peter Salem, eds., 2004).
"The Thoughtful Integration of Mediation into Bilateral Investment Arbitration," 18 Harv. Negotiation L. Rev., 71 (2013) (co-authored with Andrea Schneider)
"Mandatory Predispute Consumer Arbitration, Structural Bias, and Incentivizing Procedural Safeguards," 42 Southwestern L. Rev. 187 (2012) (part of AALS program on the Supreme Court and the future of arbitration)
"Becoming Investor-State Mediation," 1 Penn St. J. L. & Int'l Aff. 86 (2012) (co-authored with Andrea Schneider)
“The Current Transitional State of Court-Connected ADR,” 95 Marquette L. Rev. 873 (2012) (part of symposium issue on the future of court-connected ADR)
"The Reputational Advantages of Demonstrating Trustworthiness: Using the Reputation Index with Law Students, 28 Negotiation J. 117 (2012)
“Integrating ‘Alternative’ Dispute Resolution Procedures into Bankruptcy: As Simple (And Pure) as Motherhood and Apple Pie?” 11 Nev. L. J. 397 (2011)
“Musings on Mediation, Kleenex, and (Smudged) White Hats,” 33 La Verne L. Rev. 5 (2011) (part of symposium issue on worldwide future of mediation)
“Judicial Review of Arbitration Awards and Mediation Agreements: Tips for Sustaining Deference,” 67 APR Disp. Rol. J. 48 (2012) (co-authored with Julia Rabich and Sarah Stoner)
“I Could Have Been a Contender: Summary Jury Trial As A Means to Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution,” 114 Penn St. L. Rev. 1149 (2010)
“You’ve Got Your Mother’s Laugh: What Bankruptcy Mediation Can Learn from the Her/History of Divorce and Child Custody Mediation,” 17 Am. Bankr. Inst. L. Rev. 427 (2009)
“Is That All There Is? 'The Problem' in Court-Oriented Mediation,” 15 Geo. Mason L. Rev. 863 (with Leonard Riskin, 2008)
“Looking Down the Road Less Traveled: Challenges to Persuading the Legal Profession to Define Problems Humanistically,” 2008 J. Disp. Res. 45 (2008)
“Look Before You Leap and Keep On Looking: Lessons from the Institutionalization of Court-Connected Mediation,” 5 Nevada L. J. 399 (2005) (co-authored with Bobbi McAdoo)
“The Place of Court-Connected Mediation in a Democratic Justice System,” 5 Cardozo J. of Conflict Resol. 117 (2004)
“Stepping Back Through the Looking Glass: Real Conversations with Real Disputants About Institutionalized Mediation and Its Value,” 19 Ohio St. J. on Disp. Resol. 573 (2004).
“Disputants’ Decision Control in Court-Connected Mediation: A Hollow Promise[,] Without Procedural Justice,” 2002 J. Disp. Res. 179 (2002).
“Making Deals in Court-Connected Mediation: What’s Justice Got To Do With It?,” 79 Wash. U. L. Q. 787 (2001)
“The Thinning Vision of Self-Determination in Court-Annexed Mediation: The Inevitable Price of Institutionalization?,” 6 Harv. Negot. L. Rev. 1 (2001)