Law Commons^™

Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr.

Maine Law Review

With these words of prophecy the Commission to Study the Future of Maine's Courts launched its discussion of alternative dispute resolution (ADR). Although conceding that “the adversary process ... has served the people of the state well” and acknowledging that “the state must continue to provide a forum for forceful advocacy that produces a definite and binding judicial decision” the Commission asked the Maine judicial and legislative branches to embrace ADR. For the last dozen years, the Author has been the Supreme Judicial Court's (SJC's) liaison to its ADR Planning and Implementation Committee and Chair of the Court's Advisory Committee …

Our Courts, Ourselves: How The Alternative Dispute Resolution Movement Is Re-Shaping Our Legal System, Deborah R. Hensler

Dickinson Law Review (2017-Present)

Twenty-seven years ago, Professor Frank Sander urged American lawyers and judges to re-imagine the civil courts as a collection of dispute resolution procedures tailored to fit the variety of disputes that parties bring to the justice system. Professor Sander’s vision of the justice system encompassed traditional litigation leading to trial, but his speech at the 1976 Roscoe Pound Conference drew attention to alternatives to traditional dispute resolution that he argued would better serve disputants and society than traditional adversarial processes.

Today, interest in dispute resolution is high. This interest cuts across many domains, ranging from the family, to the schoolyard, …

Product Liability Law In Japan: An Introduction To A Developing Area Of Law, Younghee Jin Ottley, Bruce L. Ottley

Georgia Journal of International & Comparative Law

No abstract provided.

Therapeutic Jurisprudence, David Wexler

Touro Law Review

No abstract provided.

Parallel Justice: Creating Causes Of Action For Mandatory Mediation, Marie A. Failinger

University of Michigan Journal of Law Reform

The American common law system should adopt court-connected mandatory mediation as a parallel system of justice for some cases that are currently not justiciable, such as wrongs caused by constitutionally protected behavior. As evidence that such a system is practical, this Article describes systemic and ethical parallels between court-connected mediation and the rise of the equity courts in medieval England, demonstrating that there are no insurmountable practical objections to the creation of “mediation-only” causes of action. The Article then explores the constitutional concerns surrounding the idea of “mandatory mediation-only” causes of action, using constitutional hate speech and invasion of privacy …

Institutionalization Of Alternative Dispute Resolution By The State Of California , Bruce Monroe

Pepperdine Law Review

No abstract provided.

Recent Developments In Alternative Dispute Resolution , Lee R. Petillon

Pepperdine Law Review

No abstract provided.

Mediation Of Marital Disputes Before It Is Too Late: A Proposal For Premarital Contract Provisions For Mediation Of Disputes Within The Intact Family And At Separation , Robert F. Cochran Jr.

Pepperdine Law Review

No abstract provided.

Rule 408: Maintaining The Sheild For Negotiation In Federal And Bankruptcy Courts, Leslie T. Gladstone

Pepperdine Law Review

No abstract provided.

Negotiating Better Superfund Settlements: Prospects And Protocols, Scott A. Cassel

Pepperdine Law Review

No abstract provided.

The Implications Of Alternative Dispute Resolution Processes For Decisionmaking In Administrative Disputes, Wallace Warfield

Pepperdine Law Review

No abstract provided.

Implementation Of California's Dispute Resolution Programs Act: A State-Local Partnership, Mary-Alice Coleman

Pepperdine Law Review

No abstract provided.

Mediation - A Preferred Method Of Dispute Resolution, Kenneth R. Feinberg

Pepperdine Law Review

No abstract provided.

Introduction: Second Symposium Issue On Alternative Dispute Resolution , L. Randolph Lowry

Pepperdine Law Review

No abstract provided.

Institutionalizing Mediation: The Role Of Lawyers And Bar Associations , Ronald R. Volkmer

Pepperdine Dispute Resolution Law Journal

The world of trusts and estates is changing before our eyes - the "multidiscipline practice" trend may radically change the traditional practice of the probate bar. There is one constant, however, besides change and that is conflict. That conflict is oftentimes lurking beneath the surface when a lawyer becomes involved in the estate planning process. All of the technical knowledge you may possess about the legal system and its rules is valuable and necessary. But, the estate planning lawyer is preeminently a counselor at law. In the strongest possible way I urge students to become aware of conflict management skills …

Mediation And Jury Trials As Means Of Resolving Will Contests , Ronald Chester

Pepperdine Dispute Resolution Law Journal

In the vast range of human problems that law seeks to govern, there are certain areas in which legalisms and legal thinking are not particularly useful. It is my belief that one of these areas is that of will contests, in which nonlawyer dispute resolution seems particularly effective.

Mediation Of Probate Matters: Leaving A Valuable Legacy , Lela Porter Love

Pepperdine Dispute Resolution Law Journal

Mediation has the power to bring parties to a different level of understanding about their underlying situation and about each other, to re-establish family harmony and to resolve both monetary and relationship issues that probate matters generally involve. To realize these advantages, this paper makes two suggestions. First, attorneys should urge testators to consider dispute resolution provisions in their will. Such provisions allow the testator to weigh in with a directive that the family pull together and attempt to resolve its conflicts creatively. A dispute resolution clause can also provide a vehicle to express and encourage family values connected with …

Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford

Pepperdine Dispute Resolution Law Journal

Mediation is the ADR process by which a neutral third party works with disputants to reach a mutually agreeable resolution. Mediation is arguably the oldest and most popular ADR technique in use today. Part I of this essay discusses the commonly accepted advantages of mediation as an alternative to litigation, and, in some instances, questions whether those advantages become disadvantages in the context of probate, trust, and guardianship cases. Part II examines the use of mediation as a component of the actual estate planning process rather than as an alternative to litigation.

The Greatest Heritage Is The Love Of A Family: The Larson Case And The Mediation Of Probate Disputes, Susan N. Gary

Pepperdine Dispute Resolution Law Journal

In 1981, two brothers, Ben and William Larson, began litigation that would last for four years. By the time the lawsuit ended, the "winning" brother was dead, and the other brother was bitter and estranged from the family of his only sibling. Although one can only speculate, had the brothers chosen mediation, rather than litigation, to resolve their dispute, both brothers might have achieved a better outcome.

Mediation Of Proposition 187: Creative Solution To An Old Problem? Or Quiet Death For Initiatives?, Nicole E. Lucy

Pepperdine Dispute Resolution Law Journal

The initiative Proposition 187 has been a catalyst for change. Supporters heralded it as the solution to "Save Our State" from the ills of illegal immigration. Those who opposed it, used Proposition 187 as a battle cry to mobilize a disenfranchised minority. Irrespective of ideology, Proposition 187 ended as no one could have predicted in November 1994 when it passed, 59% to 41%. When Governor Gray Davis inherited the Proposition 187 appeal from former Governor Pete Wilson, Governor Davis took the unprecedented step of seeking to resolve the conflict through mediation rather than actively defending Proposition 187 on appeal to …

Making Peace The Old Fashioned Way: Infusing Traditional Tribal Practices Into Modern Adr , Matt Arbaugh

Pepperdine Dispute Resolution Law Journal

Native Americans have their own unique traditional method of resolving disputes. Their processes, called peacemaking by some tribes, place the emphasis not on the guilt of the wrongdoer, but on restoring relationships and finding a solution that is amenable to all involved. This emphasis on saving the relationship has many similarities to current practices of mediation. Among the similar goals between mediation and peacemaking are the use of ADR allows both sides to reach a better conclusion and the desire to spend less money and to satisfy more people. However, this approach has critics who see it as another attempt …

The Center Of The Center For Alternative Dispute Resolution, Wayne D. Brazil

Pepperdine Dispute Resolution Law Journal

Hawaii was one of the first states to establish within its judiciary a Center for Alternative Dispute Resolution. The Center's mission is: to mediate major public policy disputes and to facilitate policy formulation dialogues, to design and help implement mediation and other ADR programs for state and local governmental agencies, to provide education about and training in mediation for the public and for employees of state and local government, and to oversee the extensive network of community mediation centers that provide grass-roots mediation services throughout the Islands. In November of 2005 the Center celebrated its 20th anniversary by sponsoring various …

Mediation In The Health Care System: Creative Problem Solving , Sheea Sybblis

Pepperdine Dispute Resolution Law Journal

Part I of this paper provides a comparison of the use of litigation and mediation in the health care context. Part II explores how mediation can be used to improve many of the often criticized aspects of adjudication systems and alleviate tension between parties in health care disputes. Part III provides an evaluation of current mediation programs and studies in health care, as well as the expanding role of mediators. Part IV incorporates assessments of the potential success of mediation to resolve health care disputes in the future and provides suggestions to strengthen the process.

California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon

Pepperdine Dispute Resolution Law Journal

Confidentiality serves as a cornerstone of mediation. The public policy underlying confidentiality is the promotion of candid communications between disputing parties. As explained in this article, mediation confidentiality affects more than just communication. It affects other important mediation values, such as party self-determination and mediator impartiality. Mediation confidentiality affects parties' ability to enforce their mediated agreements. Finally, confidentiality affects multiple dispute resolution processes, as seen by the interrelated nature of mediation and arbitration in the seminal case of Fair v. Bakhtiari.

Mediation Outcomes: Lawyers' Experience With Commercial And Construction Mediation In The United Kingdom , Penny Brooker, Anthony Lavers

Pepperdine Dispute Resolution Law Journal

This paper reports on the final phase of a three-year study into the role of lawyers in the development of Alternative Dispute Resolution (ADR) following the implementation of the Civil Procedure Rules in 1999 and draws comparisons between US and Canadian studies. The paper centres on the use of mediation, which is recognised as the pre-eminent ADR process in the UK. Data are analysed from 30 interviews with specialist commercial and construction-related lawyers who have utilised mediation in the dispute resolution process. Interviewees were selected from respondents to a national survey of lawyers specializing in commercial and construction-related practice. Whereas …

Revisiting The Promise Of Mediation For Employment Discrimination Claims , Susan K. Hippensteele

Pepperdine Dispute Resolution Law Journal

This paper generally examines the theory and practice of alternative dispute resolution (ADR) and specifically examines the role mediation has played in propelling rights discourse away from the center of efforts to achieve equal employment opportunity in the United States. It further addresses assumptions regarding individual employee goals in the context of a legal environment in which litigating to achieve rights-based remedies is increasingly difficult for grievants.

Why We Still Litigate, Phillip M. Armstrong

Pepperdine Dispute Resolution Law Journal

The benefits of Alternative Dispute Resolution ("ADR"), particularly mediation, are well documented and often touted. Some of these benefits are: cost savings, confidentiality, preservation of business relationships, finality, better outcomes, and more control. The list goes on, and rightfully so. The Comell/PERC study and the more recent BTI study, among others, have made it clear that corporate America has embraced ADR, particularly mediation, as a preferred means of resolving many disputes. As a long-time member of an in-house law department, I have watched our own management of commercial litigation and claims evolve from a typical "winner takes all" approach to …

The Disempowering Relationship Between Mediator Neutrality And Judicial Impartiality: Toward A New Mediation Ethic, Ronit Zamir

Pepperdine Dispute Resolution Law Journal

The issue I shall discuss in this article is whether the concept of mediator neutrality advances the empowering and effective participation of parties from disadvantaged groups. Section II will deal with the relationship between the concept of neutrality in the adversarial legal process, in the mediation process, and the concept of procedural justice. I shall then present the meanings ascribed to the concept of mediator neutrality in the two prevailing models of mediation: the problem-solving model and the transformative model. The affinity between these meanings and the concept of judicial impartiality will be discussed and critiqued. Finally, I shall suggest …

Can New York's New Commercial Division Resolve Business Disputes As Well As Anyone?, Robert L. Haig

Touro Law Review

No abstract provided.

New York: The Right To Discharge At-Will Employees Post Weiner, John V. Dember

Touro Law Review

No abstract provided.