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Nathan P. Feinsinger and the rigins of Alternate Dispute Resolution

William G. Moore

With litigation costs skyrocketing, and the courts increasingly overburdened, a search has begun for practical alternatives to stand- ard dispute resolution. Mediation and arbitration, methods in the past confined to the handling of disputes between labor and management, are now being recognized as potential vehicles to the resolution of conflicts outside of the labor sphere. Loosely grouped under the title A.D.R.- Alternate Dispute Resolution-these options may offer swifter and more private settle- ment of conflicts between parties. More and more, law schools are begin- ning to offer classes in A.D.R. Harvard, for example, recently offered an optional semi- nar in negotiation. And Hofstra Law School now claims that it did "much of the pioneer- that arbitration and mediation might be Other law faculty members with dif- ing work in the field." applied to non-labor areas of law is now ferent interests and specialties pursued But at the University of Wisconsin Law beginning to be recognized as an idea whose similar tacks in linking law to broad soci- School, Professor Nathan P Feinsinger had time has come. etal concerns. expressed ideas about A.D.R. as early as The article below traces Feinsinger's Nathan P. Feinsinger was among 1960. career and the history of his ideas on these. He joined the Law School faculty And in 1966, the Law School curriculum A.D.R. in 1929, after a year as Visiting Professor boasted a course called "Methods of Dis- of Socio-Legal Research at Columbia putes Settlement," instructed by Feinsinger: For the UW Law School, the 1920's and University. With colleague Eleanore Roe, Feinsinger 1930's were important years during His work had already begun to take a also established in 1967 the Dispute Resolu- which a course and a vision for the functional approach to law: he character- tion Center at the Law School. There, "tech- future of law and legal education were ized his year at Columbia as research on niques were studied for application to all forged. Promoted was a brand of legal "how a law that has passed by the legisla- kinds of disputes." The Center's key concept education designed to reach out to help ture and been tested in the courts actu- was that "lessons learned in the specific society-the concepts of "law in action" ally works out in practice." area of labor relations should be capable of and the Wisconsin Idea. Feinsinger came to UW Law school some transference to other problem fields." Under the auspices of Dean Harry with initial specialties in family law, Feinsinger died in 1983, but not before Richards, and through close contact with domestic law and bills and notes. He his effort to "re-examine the techniques of Professors John Commons, Selig Perlman began as an instructor of domestic rela- arbitration and mediation in light of future and Edwin Witte of the economics tions and insurance law, and also taught and present-day needs" brought him broad department, work in this direction began a course for the business school. acclaim. in 1924with a seminar in collective bar- He was, however, shortly to switch At the Law School the efforts begun by gaining, taught by Law Professor William fields and emerge as a leading labor law- him have continued and have been Rice. It was "one of the first such courses yer. When Bill Rice was called to Geneva expanded. And, more broadly, his notion in the nation." for a meeting of the Internatiolnal Labor 4

Organization in 1935, Dean Lloyd Garri- was chairman of the National Wage Stabi- "As long as I can remember:' Christen- son called on Feinsinger to substitute. lization Board. Feinsinger, then, had son said, "Feinsinger had been asking It was Feinsinger's teaching of Rice's quickly established himself as "one of himself and his students whether media- course that got him into labor law. the superstars of the mediation and arbi- tion and arbitration techniques were Feinsinger had had little experience in tration field." transferable:' that is, applicable to other labor law. "I hadn't even had the course, He later became permanent arbitrator areas of law. much less taught it," he said in a inter- in labor disputes between General Feinsinger was an early believer that view in the late '70's. "AllI learned about Motors and the mediation and arbitration techniques labor law at Law School I learned in a (1954-68).and helped to engineer scores need not be confined to use in labor dis- course on equity!' of successful settlements including the putes. Perhaps it was his recognition of He learned as he taught. And substi- Transit Strike of 1966, and the human factor in labor and mange- tuting for Rice put him in the position of the Newspaper strike of 1967-68. ment disputes that convinced him of this. adviser whether he liked it or not. "The only way to settle labor-manage- When Gov. Philip La Follette sought The Human Factor ment problems is to treat them as human mediators under the state's "little problems," he said. "Eventually each of Wagner" act to settle the burgeoning U.W.Law Professor Arlen Christenson, the parties will discover that the other number of labor disputes, he turned to who specializes in arbitration, remem- fellow doesn't have horns." Feinsinger, whose "outstanding legal abil- bers having Feinsinger as a professor in Feinsinger shortly had an opportunity ities" more than made up for his lack of 1958 and 1959. to exercise his mediation skills in a non- labor experience. labor dispute. And from 1937-39 Feinsinger served In 1966, he "calmed hot tempers in as general counsel to the State Labor the racial struggle between the whites- Board and special assistant to the State only Eagles Club and the Milwaukee Attorney General. Feinsinger was an early believer Youth Council of the NAACP,spear- His first case came in 1941in Minne- headed by Father James Groppi," apolis at the Honeywell Corporation. that mediation and arbitration Later, Feinsinger noted that "there u.w. Economics Professor Edward Witte techniques need not be confined is hardly a controversy mentionable- was called up to mediate, but was unable including the one in Vietnam-that can- to do so because of a prior commitment. to use in labor disputes. not be mediated." Feinsinger took on the case and handled This conviction-that the "techniques it successfully. used to settle labor disputes could be From there he won wide renown as a applied to virtually any type of social skillful mediator. During the war years problem"-led him and a colleague, Pro- he served on the National Defense Medi- fessor Eleanore Roe, to form the Law ation Board; from 1951through 1953 he School's Center for Teaching and Research in Disputes Settlement in 1967.

Eleanor Roe, Robben Fleming and Nathan Feinsinger 5

And Feinsinger's "great contribution to the development of mediation, arbitra- "[Tjhere is hardly a controversy tion and conciliation techniques in the mentionable-including the one settlement of labor management contro- versies" met with great praise. So did his in Vietnam-that cannot be effort to "re-examine these techniques in mediated:' light of present-day needs in this and all areas of conflict." Feinsinger retired in 1973 after 43 years of teaching. Until 1977, however, The Center was established at UW he continued to direct the Center for with the financial support of labor and Teaching and Research in Disputes Settle- industry and the" cooperation of other ment with Eleanore Roe. He died in 1983 universities and colleges." Through semi- at the age of 81. nars and research, it sought to "discern For a brief time after Feinsinger's ways to better mediate in various areas death, the center was run by Emeritus of human relations." Professor Abner Brodie. Brodie had Though the concept was new, "Fein- joined the faculty in 1950, and had singer's extensive experience as arbitra- worked with Feinsinger as an associate tor, fact finder and mediator provided -United Auto Workers ample subject matter for the seminar." umpire. Brodie later succeeded him as The first seminar, in fact, was offered umpire. He took on emeritus status in before the Center was fully functioning, 1976. in the fall of 1966: Since 1977, disputes settlement Methods of Disputes Settlement: This research and teaching has flourished at seminar consists of a study of "volun- the Law School. Through the work of the tary" methods of disputes settlement Disputes Processing Research Program, including mediation as contrasted with part of the Law School's Institute for settlement imposed by military force, Legal Studies, "empirically-grounded economic force, compulsory arbitration theory about conflict resolution is devel- and the like. Students undertake a oped through research and intellectual research project which attempts (a) to exchange." The DPRP emerged from the define the techniques of mediation and "tradition of interdisciplinary research the attributes of a good mediator, (b) to on disputing" of which Feinsinger's pio- determine whether those techniques and attributes can be taught, and [c]to neering work was also a part. determine whether mediation proved to be successful in one area of conflict Ground Breaker such as labor-management disputes, can be transferred to other areas such as When Nathan Feinsinger recognized civil rights, international disputes, etc. the potential for expansion of media- tion and arbitration uses, the idea was a novel one. Seminal Role Recognized And his "Methods of Disputes" Semi- nar, and the Center for Teaching and In October of 1969, the Center sponsored Research in Disputes Settlement were a Conference on Studies in Disputes Set- tlement. The conference sought to important beginnings to the emerging explore "what other organizations and options to slow, costly, and sometimes excrutiating litigation. Prof. Marc Galanter institutions-public or private, academic A.D.R. today, still in its infant stages, or otherwise-have and active interest in has a promising future. And a substantial disputes settlement, and to exchange helpful and relevant information among beginning to that future was made by those interested." Feinsinger's ground-breaking work. Transferability of mediation tech- niques emerged as a key theme of the conference.