Law Commons^™

Ethical Compass: Celebration, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Let’s raise our glasses to toast our esteemed Chief Judge, the Honorable Janet DiFiore, for making Presumptive ADR a central part of the New York Office of Court Administration’s civil case management. In her February 26, 2019 State of the Judiciary Address, Chief Judge Janet DiFiore announced that the New York Office of Court Administration is formally adopting Presumptive ADR. Although all ADR processes such as settlement conferences, negotiations, arbitration and early neutral evaluation may be used to help settle cases, a focus will be on mediation. Presumptive ADR will apply to almost all civil cases filed in New …

Newsroom: Court As Classroom 03-01-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Influence Of Arbitrator Background And Representation On Arbitration Outcomes, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch

Articles

We study the role of arbitrator background in securities arbitration. We find that several aspects of arbitrator background are correlated with arbitration outcomes. Specifically, industry experience, prior experience as a regulator, and status as a professional or retired arbitrator are correlated with statistically significant differences in arbitration awards. The impact of these characteristics is affected by whether the arbitrator in question serves as the panel chair and by whether the parties to the arbitration are represented by counsel. Our findings offer some preliminary insights into the debate over possible arbitrator bias. On the one hand, they suggest that the party …

No Alternative: Resolving Disputes Japanese Style, Eric Feldman

All Faculty Scholarship

This article critiques the simple black/white categorisation of mainstream versus alternative dispute resolution, and argues that what is needed is a cartography of dispute resolution institutions that maps the full range of approaches and traces their interaction. It sketches the first lines of such a map by describing two examples of conflict resolution in Japan. Neither can justly be called “alternative”, yet neither fits the mould of what might be called mainstream or classical dispute resolution. One, judicial settlement, focuses on process; the other, compensating victims of the Fukushima disaster, engages a specific event. Together, they help to illustrate why …

Lawyers And Mediation: Lessons From Mediator Stories, Sharon Press

Faculty Scholarship

In Stories Mediators Tell, Lela Love and Eric Galton have compiled a compelling anthology of stories about mediation. Not surprisingly, most of the stories involve a significant moment when something special happened for the parties. The author was reminded of presentations by Baruch Bush and Joe Folger in the early 1990's (around the time the first edition of The Promise of Mediation was published). They would ask mediators who attended their sessions to recount to a partner one of their memorable mediations. Inevitably, the stories were about transformative moments - of parties obtaining clarity for the first time - of …

Show Me The Money: Part One, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Until now, the discussion of how to ethically monetize “the value added” that settlement savvy attorneys bring to the client has been one of the few remaining taboos that is rarely, candidly discussed among lawyers. How should settlement-proficient lawyers calculate the value of efficient, quality outcomes? How does a lawyer who bills by the hour ethically deal with the inherent conflict of interest between his desire to make as much money as he can and the economic disincentive to be settlement proficient? What are some creative billing incentives to more closely align the clients’ desire for contained legal costs …

Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh

Faculty Scholarship

Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a …

Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

All Faculty Scholarship

This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication.

Attorneys As Arbitrators, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch

Articles

We study the role of attorneys as arbitrators in securities arbitration. We find that arbitrators who also represent brokerage firms or brokers in other arbitrations award significantly less compensation to investor-claimants than do other arbitrators. We find no significant effect for attorney-arbitrators who represent investors or both investors and brokerage firms. The relation between representing brokerage firms and arbitration awards remains significant even when we control for political outlook. Arbitrators who donate money to Democratic political candidates award greater compensation than do arbitrators who donate to Republican can-didates. We also study the dynamics of panel interaction. We find that the …

The Jelly Beaner Challenge: How Attorneys Serving As Neutrals Identify And Coordinate The Ethical Mandates Of The 2009 Rules Of Professional Conduct With The Ethical Mandates Of Dispute Resolution, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Many of us may remember as children trying to master the coordination game Jelly Beaner, a joust in which the player is challenged to pat his or her head up and down with one hand while simultaneously rubbing his or her belly in a circular pattern with the other hand. Competing movements, but with practice even those less coordinated can master how to synchronize their hands and play the game. So, too, those of us who are lawyers serving as neutrals are now engaging in a variant of the Jelly Beaner Challenge when it comes to discerning ethical behavior. …

The Role Of Lawyers In Resolving Environmental Interest Disputes, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

This article explores the role of lawyers and the tools they can use in the resolution of environmental interest disputes. We draw on the decades-long work of ADR professionals in this area as well as the professional experience of attorneys and the skills they have honed in the context of “rights based” and “rights to process” disputes. By “environmental interest disputes” we include both emerging conflicts and current disputes among multiple parties over the use and abuse of land, air, water, surface, and subsurface resources whose resolution is unlikely to occur in traditional adjudicatory tribunals such as courts and administrative …

Second Generation Environmental Justice: Challenges And Opportunities, Rachel D. Godsil

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Rachel D. Godsil, Professor of Law, Seton Hall Law School

3 pages.

When Lawyers Move Their Lips: Attorney Truthfulness In Mediation And A Modest Proposal, Donald C. Peters

UF Law Faculty Publications

This article examines whether the punch line that you can tell when lawyers are lying by confirming that their lips are moving applies to their conduct when negotiating in mediations. General surveys of lawyer honesty suggest that this perception probably does apply to the way lawyers negotiate in mediations. Only 20% of people surveyed in a 1993 American Bar Association poll described the legal profession as honest, and that number fell to 14% in a 1998 Gallup poll. However, research demonstrates a connection between honest negotiating and perceived effectiveness. A study of 5,000 Denver and Phoenix lawyers found that honest, …

The Lawyer's Role(S) In Deliberative Democracy, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this paper I will explore the idea of a "neutral" lawyer who may have neither "client" (in the conventional sense of client) to represent nor advocacy to perform, yet still be functioning fully as a lawyer or "learned professional" schooled in the law. Indeed, in this paper I will suggest that lawyers may be especially useful in performing a variety of "new" functions that depart from traditional conceptions of the lawyer's role, but which lawyers may be especially well suited to perform. It may be counter-cultural to think of lawyers as "consensus builders," rather than as advocates or makers …

Maps Of The Klamath Basin And Key Water-Related Events In The Upper Klamath Basin, University Of Colorado Boulder. Natural Resources Law Center

Water Negotiation Workshop (June 4-5)

5 pages.

Contents:

Maps of Klamath Basin -- Key water-related events in the Upper Klamath Basin

Excerpted from: Ron Hathaway & Teresa Welch, Water Allocation in the Klamath Reclamation Project, 2001: An Assessment of Natural Resource, Economic, Social, and Institutional Issues with a Focus on the Upper Klamath Basin 31-34, 43 (Oregon State University, University of California, reprinted May 2003). Full report available in Klamath Waters Digital Library at http://digitallib.oit.edu/cdm/ref/collection/kwl/id/9442.

David E. Feller: The Happy Warrior, Theodore J. St. Antoine

Articles

Dave Feller and I first became acquainted when we were both union lawyers in Washington, D.C. Dave was the ultimate happy warrior. He went joyous into combat, and years later he could recount, joyously, objectively, and without rancor toward old foes, the exact details of the many triumphs and the few defeats. A favorite story came from his Supreme Court clerkship. Dave was already seven years out of Harvard Law School, with experience in university teaching, Army intelligence, and the Justice Department, and he didn't hesitate to tell Chief Justice Vinson he should vote for certiorari in a case close …

Can Saints Negotiate? A Brief Introduction To The Problems Of Perfect Ethics In Bargaining, Scott R. Peppet

Publications

No abstract provided.

Practicing "In The Interests Of Justice" In The Twenty-First Century: Pursuing Peace As Justice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In these comments I suggest that in our current world, both international and domestic, practicing "in the interests of justice" includes-indeed, should give great priority to-the "peace-seeking" and "problem solving" aspects of lawyering. I continue to see this as counter-cultural to the more common practices of lawyers who are argumentative, persuasive and articulate debaters, who believe fervently and vigorously that seeking justice, on behalf of a client or cause, means advocating for and "winning" a legal claim. To the contrary, seeking peace for parties (and, indeed, nation-states) in conflict, searching for consensus solutions to seemingly intractable public policy and legal …

Mandatory Arbitration: Bane Or Boon?, Theodore St. Antoine

Other Publications

Buy a new car that turns out to be a lemon and you may find you can't sue. Fine print in the sales contract often restricts you to arbitration. That means presenting your case before a private person instead of a judge and jury. And the arbitrator may be someone drawn from a panel compiled by the car seller.

Lawyers' Representation Of Clients In Mediation: Using Economics And Psychology To Structure Advocacy In A Non-Adversarial Setting, Jean R. Sternlight

Scholarly Works

Many believe that lawyers' adversarial methods and mindsets are inherently inconsistent with mediation. Lawyers' emphasis on advocacy and winning is seen as ill-suited to mediation's nonadversarial, problem-solving approach to dispute resolution. Yet, as mediation grows increasingly common, lawyers are frequently accompanying their clients to mediation and often play a critical and direct part in the process. Particularly where disputes are complex or involve relatively large sums of money, it is likely that one or both disputants will be represented by an attorney at the mediation. This Article argues that attorneys need not and ought not to abandon their advocacy or …

Interpreting Insurance Policies, Jeffrey W. Stempel

Scholarly Works

Like any other contract, an insurance policy may become the subject of a legal dispute. When disputes arise over insurance coverage, lawyers must combine their skill in contract interpretation with their knowledge of insurance law, bringing both to bear on the special problems related to this type of contract. Each dispute has unique traits, but a few basic ground rules of contract law and insurance law can help you interpret insurance policies and resolve disputes over insurance coverage.

Machiavelli And The Bar: Ethical Limitations On Lying In Negotiation, James J. White

Articles

Upon the enactment of the Model Rules of Professional Conduct, published ethical norms will for the first time give explicit consideration to the lawyer's behavior in the process of negotiation. Rules 4.1, 4.2, and 4.3 deal with negotiation. Although the Canons, the interpretations of the Canons, and the Disciplinary Rules and Ethical Considerations gave tangential consideration to negotiating, 1 none of the Disciplinary Rules or Ethical Considerations explicitly considered negotiation apart from the process of litigation or counseling. The mere recognition of negotiation as a separate process worthy of unique rules is a large step. The purpose of this paper …

The Lawyer As A Negotiator: An Adventure In Understanding And Teaching The Art Of Negotiation, James J. White

Articles

In the fall of 1965 we enlisted experience as a teacher in an experimental seminar called "The Lawyer as a Negotiator." We gave the students experience not by simulation but by making them negotiate with one another for their grades in the course. In this as in many other "experience" courses the teaching supplement consisted of readings and of classroom participation by the students and teachers. However the supplement differed from the standard trials and appeals or legal writing course in that a psychiatrist was a full partner in the teaching and in the discussion and analysis of the student …