Law Commons^™

Reforming Ontario’S Family Justice System: An Evidence-Based Approach, Noel Semple, Nicholas Bala

Law Publications

This Report summarizes research about justice system responses to family disputes, makes recommendations for government action based on that empirical evidence, and identifies some as yet unanswered system design questions requiring further study. This document is provocative as it is premised on a realistic appreciation of the nature of family disputes and the limits of government action, especially in the present fiscal environment, and the fact that there are issues related to family justice that research has not adequately addressed and hence development of public policy must be undertaken in the face of uncertainty.

C-Drum News, Fall 2013

The C-DRUM News

No abstract provided.

‘Translating The Terrain’ Over Cultural Myths And Mistaken Assumptions, Marjorie Corman Aaron

Faculty Articles and Other Publications

Lawyers must recognize that, outside of the legal practice, people lack shared knowledge about its workings. Thus, the “lawyer-translator” must supply basic, missing knowledge of legal process, practice, and culture for her words to make sense. Without some of that knowledge, the lawyer’s words lack meaning.

Who Decides What In Mediation? Making Space For Difference, Robert A. Baruch Bush, John Peter Weldon, Joseph P. Folger

Hofstra Law Faculty Scholarship

No abstract provided.

The Thoughtful Integration Of Mediation Into Bilateral Investment Treaty Arbitration, Nancy A. Welsh, Andrea Kupfer Schneider

Faculty Scholarship

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: states and investors increasingly express concerns regarding the costs associated with the arbitration process, some states refuse to comply with arbitral awards, other states 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. This Article …

The Curious Case Of Transformative Dispute Resolution: An Unfortunate Marriage Of Intransigence, Exclusivity, And Hype, Robert J. Condlin

Faculty Scholarship

Why do proponents of Transformative Dispute Resolution (TDR) defend the Theory in such intransigent, exclusivist, and grandiose terms? TDR is a mature theory, and a relatively sophisticated one, and qualities of this sort usually go hand in hand with a balanced, refined, and well-modulated sense of self. But TDR proponents will have none of that. They make ambitious (some would say outlandish) assertions about the Theory’s capacity to develop moral and political character, reform deliberative government, and resolve ethno-political conflict, while simultaneously rejecting overtures from sympathetic outsiders to rein in the overstated aspects of these claims and craft a more …

Family Mediation After Hendershott: The Case For Uniform Domestic Violence Screening And Opt-In Provision In Montana, Eduardo R.C. Capulong

Faculty Law Review Articles

In Hendershott v. Westphal, the Montana Supreme Court held that § 40-4-301(2) of the Montana Code Annotated absolutely bars mediation in family law cases involving domestic violence. Yet neither the Court nor the statute prescribes a method by which to screen for such cases. In this article, the author argues that a uniform, statewide screening method is the only way by which to implement this policy. The author also argues that Hendershott should be interpreted narrowly and Montana should allow parties to opt in to mediation and other forms of alternative dispute resolution. The Court's understanding of domestic violence …

The Use Of Alternative Dispute Resolution Techniques To Resolve Public Sector Bargaining Disputes, Charles B. Craver

GW Law Faculty Publications & Other Works

Labor organizations and employers have used various dispute resolution techniques to assist them with contract negotiations and contractual grievances. They have used negotiation, mediation, and arbitration since the 1800s. When the ADR movement was developed for conventional legal disputes, many of the techniques adopted were derived from the industrial relations movement. As states enacted public sector bargaining laws granting representational rights to state and local government employees, the parties had to determine how to resolve controversies over the terms to be included in new contracts and over grievances arising under existing accords. Most states refused to allow government personnel to …

Judicial Review Of Mediated Settlement Agreements: Improving Mediation With Consent, Jacqueline Nolan-Haley

Faculty Scholarship

No abstract provided.

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 …

Interdisciplinary Psychology And Law Training In Family And Child Mediation: An Empirical Study Of The Effects On Law Student Mediators, Amy Applegate, Amy Holtzworth-Munroe, Brittany N. Rudd, Ann Freeman, Brian D'Onofrio

Articles by Maurer Faculty

There is growing interest in interdisciplinary training programs for law students. The goal of these programs is to prepare law students for the real world interdisciplinary settings they will face in their careers. However, there exists little research to provide evidence of the utility of such training. This study examined the effectiveness of an interdisciplinary psychology and law training program on law students using a multi-method approach (i.e., knowledge tests and focus group discussion). Findings suggest that interdisciplinary training of law students increased law students’ knowledge of law and psychology, was enjoyed by law students, and had a beneficial impact …

Managing Inner And Outer Conflict: Selves, Subpersonalities, And Internal Family Systems, Leonard L. Riskin

UF Law Faculty Publications

This article describes potential benefits of considering certain processes within an individual that take place in connection with external conflict as if they might be negotiations or other processes that are routinely used to address external disputes, such as mediation or adjudication. In order to think about internal processes in this way, it is necessary to employ a model of the mind that includes entities capable of engaging in such processes. The Internal Family Systems (IFS) model, developed by Richard C. Schwartz, works well for this purpose. The IFS model is grounded on the construct that the mind is composed …

Changing Minds: The Work Of Mediators And Empirical Studies Of Persuasion, James H. Stark, Douglas N. Frenkel

All Faculty Scholarship

The use of mediation has grown exponentially in recent years in courts, agencies, and community settings. Yet the field of mediation still operates to a considerable extent on folklore and opinion, rather than reliable knowledge. Mediator attempts at persuasion are pervasive in a wide variety of mediation contexts, yet “persuasion” is, for some, a pejorative word and a contested norm in the field. Perhaps as a result, there has been little, if any, evidence-based writing about what kinds of persuasive appeals might be effective in mediation, how they might operate, and how they might be experienced by disputants. In an …

Stories Mediators Tell: The Editors' Reflections, Eric R. Galton, Lela P. Love

Articles

One year after publication of Stories Mediators Tell, the editors comment in their reflections of the Symposium on the importance of stories generally, on the Symposium articles, and on the state of the modern mediation movement.

Regulation Of Dispute Resolution In The United States Of America: From The Formal To The Informal To The ‘Semi-Formal’, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The story of ADR in the US is one of ‘co-optation’ of what was to be a serious challenge to formalistic and legalistic approaches to legal and social problem solving and is now highly institutionalized by its more formal use in courts. At the same time, use of private forms of dispute resolution in mediation, arbitration and newly hybridised forms of dispute resolution among disputants who can choose (and afford) to leave the formal justice system (in both large commercial matters and private family matters) has resulted in claims of increased privatization of justice, with consequences for access to …

Confidentiality: The Illusion And The Reality— Affirmative Steps For Lawyers And Mediators To Help Safeguard Their Mediation Communications, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Confidentiality is one promise of mediation that is increasingly broken, even though judges, lawyers and mediators frequently extol the sacredness of mediation confidentiality as a primary benefit for considering mediation as a settlement forum. We observe that legal challenges to any aspect of the mediation have caused judges to scrutinize mediation communications in a way that renders mediation confidentiality vulnerable at a minimum and violated at the worst. We are finding it a chronic challenge to decipher the precise and appropriate boundaries of mediation confidentiality. Moreover, we are increasingly discomforted to see that even unsuccessful legal challenges to mediation …