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Full-Text Articles in Law
Judicial Review Of Mediated Settlement Agreements: Improving Mediation With Consent, Jacqueline Nolan-Haley
Judicial Review Of Mediated Settlement Agreements: Improving Mediation With Consent, Jacqueline Nolan-Haley
Faculty Scholarship
No abstract provided.
Consent In Mediation , Jacqueline Nolan-Haley
Consent In Mediation , Jacqueline Nolan-Haley
Faculty Scholarship
This brief comparative analysis of the United States and English approaches to mediation consent raises policy questions about the merits of mandatory mediation. Is England on a better course by requiring consent at the front end of mediation? Will mediation be stronger in the long run when it has a consensual foundation? Arguably, the use of cost sanctions in England's mediation regime makes it close to a mandatory mediation system. For some litigants, participating in mediation will be potentially less costly than arguing that it was not unreasonable to refuse mediation. But despite the mandatory gloss, mediation is still a …
Teaching Comparative Perspectives In Mediation: Some Preliminary Reflections Symposium: Transatlantic Perspectives On Alternative Dispute Resolution, Jacqueline Nolan-Haley
Teaching Comparative Perspectives In Mediation: Some Preliminary Reflections Symposium: Transatlantic Perspectives On Alternative Dispute Resolution, Jacqueline Nolan-Haley
Faculty Scholarship
The study of comparative law and legal process in any subject area offers the usual advantages of learning about other countries' legal cultures and developing a deeper understanding of one's own legal tradition. In the case of mediation, it is important to evaluate critically what is learned through comparative analysis. Mediation is still developing as a profession; it is newly institutionalized in legal cultures; and, it is relatively new to the canon of legal education. National legal traditions have responded differently to the implementation of mediation. Thus, lawyers must have an understanding of the differences and nuances in mediation law …
Merger Of Law And Mediation: Lessons From Equity Jurisprudence And Roscoe Pound, The , Jacqueline Nolan-Haley
Merger Of Law And Mediation: Lessons From Equity Jurisprudence And Roscoe Pound, The , Jacqueline Nolan-Haley
Faculty Scholarship
This article examines Roscoe Pound's concerns with the decline of equity jurisprudence in the American legal system, suggesting that they resonate with those of modern ADR scholars who worry about the effects of blending settlement with adjudication and mediation with the law. It examines court-connected mediation with particular emphasis on the historic parallels between equity and mediation. Both equity and mediation offer a form of "individualized justice" unavailable in the official legal system, and each allow room for mercy in an otherwise rigid, rule-bound justice system. Yet, scholars question whether equity today is still equitable and whether institutionalized mediation offers …
Peace-Making Role Of A Mediator, The The Americanization Of International Dispute Resolution, John D. Feerick
Peace-Making Role Of A Mediator, The The Americanization Of International Dispute Resolution, John D. Feerick
Faculty Scholarship
Mediation, or the intervention of third parties, has been a tested and tried means of dispute resolution since the earliest history of the world. The theme for this program, the Americanization of International Dispute Resolution, asks whether there is an American style of dispute resolution and, if there is, whether it is positive or negative for the peaceful settlement of international disputes. In approaching my assignment of Mediation in Armed Conflict, I have focused my attention on Northern Ireland, a society that has experienced a violent conflict for the past thirty years, in which many efforts at mediation have taken …
Informed Consent In Mediation: A Guiding Principle For Truly Educated Decisionmaking , Jacqueline Nolan-Haley
Informed Consent In Mediation: A Guiding Principle For Truly Educated Decisionmaking , Jacqueline Nolan-Haley
Faculty Scholarship
Informed consent has a central role to play in mediation. Without it, mediation's promises of autonomy and self-determination are empty. This Article has given the theoretical and policy justifications for a reform of mediation practice that honors the principle of informed consent. I have argued for a contextualized approach that takes into account mediation's location, the voluntariness of the parties' consent, and their representational status. This kind of analysis will lead to a more informed practice of mediation decisionmaking than exists currently and provide a perspective that can more prudently guide a mediator's conduct. The proposed approach promotes greater fairness …
Mediation And Some Lessons From The Uniform State Law Experience , James J. Brudney
Mediation And Some Lessons From The Uniform State Law Experience , James J. Brudney
Faculty Scholarship
Virtually every practicing attorney and legal academic first encountered uniform statutes when studying the Uniform Commercial Code (UCC) in law school. Yet the UCC's widespread acceptance and periodic renewal are not the legacy of most uniform law ventures. Taking a harder look at the uniform statutory process and its products may allow participants in a new effort to set realistic goals, or at least assist them in anticipating problems they are likely to face. This Article offers an overview and some pointers regarding the distinct challenge of developing a successful uniform mediation law. It discusses problems that stem from the …
Lawyers, Clients, And Mediation , Jacqueline Nolan-Haley
Lawyers, Clients, And Mediation , Jacqueline Nolan-Haley
Faculty Scholarship
That the growth of mediation practice is changing the practice of law is obvious. The inability of many lawyers to understand the conceptual differences between adversarial lawyering and mediation practice strongly suggests the need to develop a theory of "good" representational mediation practice that takes into account competing client interests. On the one hand, lawyers must encourage client voice and participation. At the same time, however, the demands of professionalism require that lawyers guide their clients toward responsible decisionmaking. Representational lawyering in mediation may involve a number of distinct and traditional lawyering functions-- client counseling, negotiation, evaluation and advocacy. In …
Toward Uniform Standards Of Conduct For Mediators Symposium: The Lawyer's Duties And Responsibilities In Dispute Resolution, John D. Feerick
Toward Uniform Standards Of Conduct For Mediators Symposium: The Lawyer's Duties And Responsibilities In Dispute Resolution, John D. Feerick
Faculty Scholarship
It can no longer be doubted that alternative dispute resolution ("ADR") as a substitute for court-based litigation is growing in appeal. The high costs, adversarial nature, and time of traditional litigation have led to the development and popularity of other dispute resolution alternatives. ADR is making substantial inroads into the legal mainstream and is increasingly used in a wide variety of contexts by courts; federal, state, and local governments; businesses and private individuals. According to a recent survey conducted by the National Institute for Dispute Resolution, twenty-eight state courts now have mandatory, non-binding arbitration programs; more than half of the …
Standards Of Conduct For Mediators, John D. Feerick
Standards Of Conduct For Mediators, John D. Feerick
Faculty Scholarship
In 1992, the American Arbitration Association, the American Bar Association, and the Society of Professionals in Dispute Resolution (SPIDR) formed a joint committee to develop a code of conduct for mediators. After more than two years of work, the committee completed and submitted Standards of Conduct for Mediators for approval to their respective associations. The purpose was to develop a set of standards that could serve as a general framework for mediators, providing them with a helpful tool in their practice. The standards were to be broad enough to cover all types of mediation and flexible enough to evolve over …