Law Commons^™

Mandatory Mediation And Its Variations, Nancy A. Welsh

Nancy Welsh

The use of arbitration to resolve international investment disputes clearly represents an improvement over “gunboat diplomacy” and its implicit threat of violent confrontation. Nonetheless, investors, States and other stakeholders have begun to express dissatisfaction with some elements of arbitration in the international investment treaty context. First, arbitration proceedings can be quite lengthy, and their transaction costs seem to be increasing. Second, parties’ compliance is not guaranteed. Some States suggest they may refuse to abide by arbitral awards. Third, the process focuses parties on their legal rights when non-legal issues may be equally important and useful to achieve resolution. Fourth, arbitration …

Making Reputation Salient: Using The Reputation Index With Law Students, Nancy A. Welsh

Nancy Welsh

Would negotiation students act the way they do in simulations, if they knew this might come back to haunt them? Analyzing the consequences of basing part of students’ final grades on objective results they achieve in negotiation simulations, Welsh found a need for something to counterbalance the expected incentives to engage in distributive tactics and “sharp practice.” She settled on an explicit focus on reputation. While the “reputation index” compiled for each student is only a small fraction of the student’s grade, it is based on recent thinking about the value of negotiators’ reputations even in the short term, and …

Look Before You Leap And Keep On Looking: Lessons From The Institutionalization Of Court-Connected Mediation, Bobbi Mcadoo, Nancy A. Welsh

Nancy Welsh

This article will use the institutionalization of general civil mediation into the courts as a case study, with both hopeful and cautionary lessons for policy makers. This article will (1) examine the goals created for court-connected ADR; (2) assess to what extent court-connected mediation has achieved these goals, from the perspective of judges, lawyers, and parties; and (3) and propose reforms of court-connected mediation to better ensure the achievement of justice.

Making Deals In Court-Connected Mediation: What's Justice Got To Do With It?, Nancy A. Welsh

Nancy Welsh

When mediation was first introduced to the courts, the process was hailed as “alternative.” Mediation gave disputants the opportunity to discuss and resolve their dispute themselves; the role of the third party was to facilitate the disputants’ negotiations, not to dictate the outcome; and because the disputants were able to focus on their underlying interests in mediation, the process could result in creative, customized solutions. The picture of mediation is changing, however, as the process settles into its role as a tool for the resolution of personal injury, contract, and other nonfamily cases on the courts’ civil dockets. Attorneys dominate …

Introduction To Volume 5 Of The Yearbook On Arbitration And Mediation, Nancy A. Welsh

Nancy Welsh

Professor Welsh introduces Volume 5 of the Yearbook on Arbitration and Mediation.

Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh

Nancy Welsh

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …

Magistrate Judges, Settlement, And Procedural Justice, Nancy A. Welsh

Nancy Welsh

This Article begins, in Part I, with an overview of magistrate judges’ history and role generally, including a discussion of the mechanism of “blind consent” that must be undertaken before a magistrate judge may conduct a trial. Part I then turns to magistrate judges’ role in settlement and ADR, outlines the procedural and ethical rules governing judges’ role in settlement, and highlights research revealing lawyers’ concerns regarding judges’ role in settlement. In Part II, the Article provides a brief overview of mediation in the federal courts and considers the relationship between judge-hosted settlement sessions and mediation. With this background regarding …

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

Nancy Welsh

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 …

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, Nancy A. Welsh

Nancy Welsh

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Grappling The Monster Case: The Next Frontier In Adr, Nancy A. Welsh, Ann Montgomery

Nancy Welsh

Not so long ago, "ADR" was just one more term in a legal jargon already filled with too many acronyms. While we concede that "ADR" might not rival "CPR" as a vital necessity, its use is extremely important to the practice of law today. Since the promulgation of Rule 114 of the Minnesota General Rules of Practice, nearly 80 percent of Minnesota attorneys report that they are using ADR to help resolve their civil cases filed in state trial courts.' Their reasons? ADR processes can cut litigation costs, reduce clients' expenses, save attorneys' and clients' time, and generate earlier settlements. …

Eyes On The Prize: The Struggle For Professionalism, Nancy A. Welsh, Bobbi Mcadoo

Nancy Welsh

Article Extract:

A mere fifteen years ago, the term mediation was confused regularly with meditation. Much has changed. The courts, frequently derided as overcrowded and expensive for individual litigants and the public, now rely on mediation to resolve cases and reduce dockets. Attorneys and judges are advocates; many have become mediators themselves.

Disputants generally express satisfaction with the process. It is not surprising that mediation-along with other ADR processes-has achieved institutionalization in the courts, public agencies and the private and nonprofit sectors.

We are now embarking on the next stage: professionalization. There are increasing references to "dispute professionals" or "professional …

Institutionalization: What Do Empirical Studies Tell Us About Court Mediation?, Bobbi Mcadoo, Nancy A. Welsh, Roselle L. Wissler

Nancy Welsh

In the 25 years since the Pound Conference, federal and state courts throughout the country have adopted mediation programs to resolve civil disputes. This increased use of mediation has been accompanied by a small but growing body of research examining the effects of certain choices in designing and implementing court-connected mediation programs.

This article focuses on the lessons that seem to be emerging from the available empirical data regarding best practices for programs that mediate non-family civil matters. Throughout the article, we consider the answers provided by research to three questions: (1) How does program design affect the success of …

Enforcement Of Foreign Arbitration Agreements And Awards: Application Of The New York Convention In The United States, Louis Del Duca, Nancy A. Welsh

Nancy Welsh

Internationalc ommercial arbitrationp rovides customized and efficient resolution for disputes arising out of transnational commerce. When arbitration occurs in states that have ratified the New York Convention, the process also offers enforceable outcomes even in states other than the one where the arbitration occurred. The United States ratified the New York Convention in 1970, and its courts overwhelmingly enforce both arbitration agreements and arbitral awards. There are exceptions, however, and American courts require the use of certain procedures.

This Article provides a brief survey of American courts' recognition and enforcement of foreign arbitration agreements and arbitral awards. It begins by …

Does Adr Really Have A Place On The Lawyer's Philosophical Map?, Barbara Mcadoo, Nancy A. Welsh

Nancy Welsh

For nearly two decades, proponents of alternative dispute resolution (ADR) have touted the advantages of institutionalizing ADR within the courts. The anticipated benefits have included: quicker settlements, better settlements, resolution which is less expensive for the courts and litigants, and greater litigant satisfaction with both the procedure and the outcome. Many state and federal courts have listened. Indeed, in nearly every state, at least one local state and/or federal court has incorporated ADR in some manner. In Minnesota, with the promulgation of Rule 114 of the Minnesota General Rules of Practice, the Minnesota Supreme Court has chosen to institutionalize ADR …

Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh

Nancy Welsh

Professor Deborah Hensler suggests in the lead article of this Symposium issue that the courts' embrace of facilitative, interest-based mediation may have been ill-conceived. She argues that there is insufficient evidence to conclude that litigants are more satisfied with mediation than with adjudicative alternatives such as arbitration and trial. She also urges that there is sufficient evidence to show that litigants prefer processes that vest decision control in third parties. Both of these assertions are subject to challenge,' but this Comment will focus upon the significance of giving decision control to the disputants in consensual processes.

Using available research, this …

Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy A. Welsh

Nancy Welsh

Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their proposals have gained widespread adoption in the courts.

Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the opportunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and …

Court-Ordered Adr: What Are The Limits?, Nancy A. Welsh

Nancy Welsh

Increasingly, courts across the country are turning to non-judicial dispute resolution processes - "alternative dispute resolution" or "ADR" - to handle overwhelming caseloads.' Proponents of non-judicial processes state that ADR benefits courts and litigants by reducing the time between the filing and disposition of cases, saving judges' time so that they are available for the cases that really need them, saving money for the parties to the suit, and perhaps most importantly, increasing litigants' satisfaction with the manner in which their disputes are resolved.

A growing body of empirical evidence has begun to support the proponents' claims. A study of …

Arbitration And Beyond: Avoiding Pitfalls In Drafting Dispute Resolution Clauses In Employment Contracts, Nancy A. Welsh

Nancy Welsh

Article Extract:

You've just helped a mid-sized company, Allwell Corp., to reach a settlement in an action brought by a disgruntled former employee. The CEO turns to you and says, "Even though I still believe that we didn't do anything wrong, I'm glad this lawsuit is over. I can't believe how much money and time we've wasted in defending ourselves. Now, how can we keep this from happening in the future? I've been reading about companies putting arbitration clauses in all kinds of contracts. I want to know whether we can require our employees to arbitrate and maybe even require …

"Moving The Ball Forward" In Consumer And Employment Dispute Resolution: What Can Planning, Talking, Listening And Breaking Bread Together Accomplish?, Nancy A. Welsh, David B. Lipsky

Nancy Welsh

Article Extract:

Mandatory pre-dispute arbitration has been a divisive issue for many years, particularly since the Supreme Court began enforcing the arbitration clauses that businesses and employers impose on consumers and employees, respectively, in contracts of adhesion. In 2009, the Dispute Resolution Section’s Council proposed to weigh in on this issue through the vehicle of an ABA House of Delegates resolution. The compromise position developed by the Section, expressing support for pre-dispute mandatory arbitration clauses provided they offer a meaningful opt-out, generated such a firestorm of opposition from both pro-arbitration and anti-arbitration advocates that the Council ultimately chose to abstain …

All In The Family: Darwin And The Evolution Of Mediation, Nancy A. Welsh

Nancy Welsh

Maybe I’ve been thinking about evolution more than is normal for the average lawyer. I have a 5-year-old son who is fascinated by every species of dinosaur. As a result, I read to my son nearly every night about the events and the evolving cast of creatures that populated the Triassic, Jurassic and Cretaceous periods. Since the Triassic period began 240 million years ago, this provides a real sense of perspective.

I wonder how Charles Darwin would use his theory of evolution to explain the many strange and wonderful variations of mediation that have flowered in the past decade. And …

Becoming "Investor-State Mediation", Nancy A. Welsh, Andrea Kupfer Schneider

Nancy Welsh

While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed. Increasingly, states and investors express concerns regarding the costs associated with the arbitration process; some states are refusing to comply with arbitral awards; other states now hesitate to sign new bilateral investment treaties; and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. …

Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green

Michael Z. Green

In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the power differentials exacerbated by informal dispute resolution, and the article contributed immediately to a surge of robust critiques of the increasing use of alternative dispute resolution for those most vulnerable in our society.

More than thirty years after the Delgado article, a community of respected and prominent ADR and discrimination scholars, …

Can Nfl Players Obtain Judicial Review Of Arbitration Decisions On The Merits When A Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, Michael Z. Green, Kyle T. Carney

Michael Z. Green

Several recent court cases, brought on behalf of National Football League (NFL) players by their union, the NFL Players Association (NFLPA), have increased media and public attention to the challenges of labor arbitrator decisions in federal courts. The Supreme Court has established a body of federal common law that places a high premium on deferring to labor arbitrator decisions and counseling against judges deciding the merits of disputes covered by a collective bargaining agreement (CBA). A recent trend suggests federal judges have ignored this body of law and analyzed the merits of labor arbitration decisions in the NFL setting.

NFL …

The Metaphysics Of Arbitration: A Reply To Hensler And Khatam, Hiro N. Aragaki

Hiro Aragaki

No abstract provided.

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney

Susan S. Fortney

Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …

Delegating Procedure, Matthew A. Shapiro

Matthew Shapiro

Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly

Peter R. Reilly

According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”

However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument …

Incentivizing Corporate America To Eradicate Transnational Bribery Worldwide: Federal Transparency And Voluntary Disclosure Under The Foreign Corrupt Practice Act, Peter Reilly

Peter R. Reilly

In 1977, it was discovered that hundreds of U.S. companies had spent hundreds of millions of dollars in bribes to improve business overseas. In response, Congress passed the Foreign Corrupt Practices Act (FCPA), thereby making it illegal to bribe foreign officials to obtain a business advantage. A major tension has emerged between the federal agencies charged with enforcing the FCPA (i.e., the DOJ and SEC), and the corporate entities trying to stay within the legal and regulatory bounds of the statute. Specifically, while the government appears to be trying to maximize discretion and flexibility in carrying out its enforcement duties, …

Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel

Katharine Van Tassel

This Article proposes a solution to the problems associated with the current use of vague standards in peer review. This Article will examine the proposal that medical staffs switch from ad hoc judicial decision-making to rule-making. This switch will allow medical staffs to abandon the troublesome practice of applying vague 'standard of care' measures ex post facto. In its stead, express contractual terminology could be adopted, such as 'expectations of performance,' which incorporates specifically chosen and uniquely tailored clinical practice guidelines ('CPGs') directly into the medical staff by-laws. Describing the expectations of physician performance in express contractual terms enables physicians …

The Elimination Of Child “Custody” Litigation: Using Business Branding Techniques To Transform Social Behavior, Elena B. Langan

Elena B. Langan

This article discusses how rebranding principles, already being used to alter social behavior in other non-consumer contexts, could be utilized to accomplish the legislative goal to reduce litigation as well as diminish animosity in custody cases. Part II of this article discusses the impetus for a transformation in the way parents view custody disputes. Part III discusses basic branding principles and how companies establish a brand and can successfully change their branding. Part IV explores the evolution of the current custody brand, identifies eight states that have eliminated “custody” and, in some cases, “visitation” from their vernacular, and discusses, in …