Law Commons^™

Merging Mediation Models – And Other Lessons, John Lande

Faculty Blogs

This post offers suggestions for teaching about mediation practice without focusing primarily on the problematic traditional mediation theories described in Section 3.C. It suggests that faculty (1) help students understand dynamics related to assessments of court outcomes, (2) teach students to strategically combine elements from the traditional models, (3) teach them how to manage the counteroffer process, (4) include lawyer-client relationships in simulations, and (5) use longer simulations including preparation for mediation sessions.

Lira In Criminal Cases, John Lande

Faculty Blogs

This post describes how the LIRA framework can be adapted in criminal cases and used in plea bargaining. It suggests how to calculate and use bottom lines in these cases.

Concepts That Can Help Practitioners Help Parties Make Decisions In Disputes, John Lande

Faculty Blogs

A fundamental purpose of dispute resolution practitioners is to help people make decisions about processes, procedures, and issues in managing their conflicts. This post lists concepts to help people make decisions about the choice of dispute resolution process, specific procedures in a given process, and resolving issues in dispute. In resolving disputes, people should consider the value of plausible options and the future tangible costs and intangible costs and interests of continuing the dispute. The post lists specific cognitions, possible actions, and practitioner interventions promoting good decision-making.

Seven Keys To Unlock Mediation’S Golden Age: The Introduction, Nadja Alexander, Lela P. Love

Research Collection Yong Pung How School Of Law

Mediate.com has published a series of peer reviewed articles under the collective title Seven Keys to Unlock Mediation’s Golden Age. The objective of the Seven Keys is to encourage discussion among all stakeholders on navigating mediation’s best future. The seven keys are: Leadership, Data, Education, Profession, Technology, Government and Usage. Each key has between two and four articles, each no more than 1,200 words in length, contributed by some 40 leading authors around the world. Professors Nadja Alexander and Lela P. Love introduce the series with “Imagine.” The Seven Keys articles portray a variety of images and understandings of mediation. …

Mediation And Appropriate Dispute Resolution, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

2019 was a significant year for mediation. On 7 August 2019, 46 states – an unprecedented number – came together in Singapore to sign the United Nations Convention on International Mediated Settlement Agreements Resulting from Mediation (“Singapore Convention”). The Convention, which comes into force on 12 September 2020, provides a legal framework for the recognition and enforcement of mediated settlement agreements across borders and thereby addresses one of the major criticisms of international mediation, namely, the lack of an internationally recognised expedited enforcement mechanism. The Singapore Convention aims to be for mediation what the Convention on the Recognition and Enforcement …

Mediating Consumer Financial Disputes: Financial Industry Disputes Resolution Centre's Unique House Style, Eunice Chua, Beverly Wee

Research Collection Yong Pung How School Of Law

The Financial Industry Disputes Resolution Centre (“FIDReC”) was established in August 2005 with the purpose of providing a low-cost avenue for consumers to resolve their disputes with financial institutions. This article seeks to outline the role of FIDReC and its processes and, at the same time, seeks to define the house style of mediation that has served FIDReC well over the years. This article also highlights some of the different techniques adopted by FIDReC mediators in the course of facilitating the mediation.

Problems With Teaching “Integrative” Negotiation, John Lande

Faculty Blogs

This post responds to Debra Berman’s piece, Is Our Over-Emphasis on Integrative Negotiation Pedagogy Falling Short of Reality? My answer is “yes.” Much – perhaps most – negotiation and mediation of civil cases these days in the US involves a counteroffer process where lawyers focus almost exclusively on allocating money based on a zero-sum assumption. So if our courses focus too much on interests-and-options processes, students get a misimpression about the frequency of what happens in the real world. If we don’t prepare them to operate effectively in practice, they will be in for a rude surprise after they graduate. …

A Message For Law Students To Prepare Themselves For Legal Practice, John Lande

Faculty Blogs

This post includes suggestions to help plan self-directed learning to supplement what students learn in law school. It recommends that students (1) appreciate the values and limitations of the law, (2) recognize the “hidden curriculum” in law school, (3) understand that “thinking like a lawyer” really is about helping clients achieve their goals, (4) develop a strategic plan for their education, (5) compile a portfolio, (6) take clinical, externship, and practice courses, (7) interview practitioners, and (8) join the ABA and other bar and professional associations.

You Really Should Know About Kris Franklin, John Lande

Faculty Blogs

This post profiles New York Law School Professor Kris Franklin. She teaches a negotiating, counseling, and interviewing course, which she says really should be called “Client Representation and Case Handling.” Her course on family law practice teaches all the family law doctrine covered in traditional family law courses but she does it exclusively using simulations. In contrast to my suggestion for renaming law school as “negotiation school,” she suggests calling it “legal problem-solving school,” which I think is even better.

Study Finds That Law Schools Fail To Prepare Students To Work With Clients And Negotiate, John Lande

Faculty Blogs

This post provides excerpts from the Building a Better Bar study about new law school graduates’ unmet instructional needs. The study found that new lawyers were “woefully unprepared” to work with clients. They had difficulty (1) communicating with clients, (2) managing expectations, (3) breaking bad news, (4) coping with difficult clients, (5) negotiating with counterparts and clients, and (5) understanding the “big picture” of client matters.

Need For Clear Language Initiative To Un-Babel Our Models, John M. Lande

Faculty Blogs

Professional jargon is helpful in some fields because it promotes communication between professionals like brain surgeons and rocket scientists.

But jargon is extremely problematic for dispute resolution because it confuses and excludes laypeople and other stakeholders.

Briefing Note: Aligning International Investment Agreements With The Sustainable Development Goals, Lise Johnson, Lisa E. Sachs, Nathan Lobel

Columbia Center on Sustainable Investment Staff Publications

Policy makers and other stakeholders are currently asking fundamental questions about whether and to what extent international investment agreements (IIAs) are consistent with and are helping to advance sustainable development objectives at home and abroad.

A 2019 paper from CCSI examines the alignment of IIAs with the 2030 Sustainable Development Agenda, arguing that while FDI will play an important role in advancing development outcomes, existing treaties must be reformed and future IIAs reimagined in order to achieve deep alignment with the sustainable development goals.

The paper proposes that IIAs should be designed and evaluated with respect to their ability to …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Unwaivable: Public Enforcement Claims And Mandatory Arbitration, Myriam E. Gilles, Gary Friedman

Articles

This essay, written for a conference on the “pathways and hurdles” that lie ahead in consumer litigation, is the first to examine the implications of California’s recent jurisprudence holding public enforcement claims unwaivable in standard-form contracts of adhesion, and the inevitable clash with the U.S. Supreme Court’s decisional law interpreting the Federal Arbitration Act. With its rich history of rebuffing efforts to deprive citizens of public rights through private contract, California provides an ideal laboratory for exploring this escalating conflict.

Jeff Trueman’S Study On Nightmares Of “Positional” Tactics In Mediation, John M. Lande

Faculty Blogs

This post reports on an excellent study about the challenges of lawyers, mediators, and insurance claims professionals in mediation. His findings are consistent with my observations about the emotional pains of positional negotiation. Many of the cases in his study involve insurance, which are supposedly “money-only cases” because the parties generally haven’t had a prior relationship and have no interest in a future relationship. But Jeff found that emotions and relationships actually can be very important in these cases – the professionals’ emotions and relationships with each other.

Donna Shestowsky’S Presentation On Litigants’ Views Of Court Adr Options, John M. Lande

Faculty Blogs

This post hightlights findings from Donna Shestowsky’s research finding that litigants seem to be unaware of ADR options, and that knowing about some of these options improves their opinions of the court itself. Surprisingly, having a lawyer did not make litigants more aware of ADR options, even when those options were offered by the court system.

Confessions And Redemption—And Politics—For An Un-Neutral Person Who Mediates, Marjorie Corman Aaron

Faculty Articles and Other Publications

Within ADR’s house, and now in our arbitration and mediation rooms, we mediators, court ADR administrators, process designers,and arbitrators can construct and conduct processes that reflect moral values our law makers seem to have abandoned.

Law And Covid-19, Aurelio Gurrea-Martinez, Yihan Goh, Mark Findlay

Research Collection Yong Pung How School Of Law

This book is a collection of essays from scholars at Singapore Management University School of Law analysing the challenges and implications of COVID-19 from the perspective of different areas of law, including private law, corporate law, insolvency law, data protection, financial laws, public law, privacy law, commercial law, constitutional law, law and technology, and dispute resolution. It also analyses how the COVID-19 pandemic will affect the judicial system, the study of law, and the future of the legal profession. Beyond considerations of the pandemic’s influence on law and legal service delivery the authors consider how law can help facilitate the …

Ascertaining The Proper Law Of An Arbitration Agreement: The Artificiality Of Inferring Intention When There Is None, Darius Chan, Jim Yang Teo

Research Collection Yong Pung How School Of Law

The common law choice of law principles for determining the proper law of an arbitration agreement previously thought to be settled by the English Court of Appeal’s decision in Sulamérica v. Enesa [2013] 1 W.L.R. 102 have now been thrown into disarray after a recent string of three judgments: starting with the Singapore Court of Appeal’s decision in BNA v. BNB [2019] S.G.C.A. 84, followed by two decisions from the English Court of Appeal in Kabab-Ji v. Kout Food Group [2020] EWCA Civ 6 and Enka Insaat Ve Sanayi A.S. v. OOO ‘Insurance Company Chubb’ [2020] EWCA Civ 574.This article …

To Boycott Proceedings Or Not? Recourse Against Arbitral Awards On Jurisdictional Grounds By Different Categories Of Respondents Under The Model Law, Darius Chan, Claire Neoh

Research Collection Yong Pung How School Of Law

The remedies that award debtors have under Articles 16(3), 34 and 36 of the Model Law, and more critically the inter-relationship between those remedies, has attracted much debate. Yet there is a dearth of analysis on how the availability of each remedy may differ according to the award debtor’s degree of participation in the arbitral pro- cess. Such analysis carries significant practical value for parties in considering whether and to what extent they should participate in any arbitral process when they harbour jurisdictional objections. This article distils Singapore’s experience, describing how Singapore has implemented the ‘choice of remedies’ principle for …

Mediation, The Rule Of Law, And Dialogue, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this paper the author urges discussion on the legitimacy of mediation processes, a discussion that is not prevalent in legal scholarship. The author argues that mediation outcomes can be inconsistent with the rule of law given that the same case can have a different outcome depending on whether it is litigated or mediated. On the other hand, crucial and valuable aspects of mediation can result in a presumption of legitimacy. With the rule of law critique in mind, the author discusses how dialogue theory can be used to improve upon the mediation process.

The author begins by exploring the …

Mediation: The New Normal?, Nadja Alexander

Research Collection Yong Pung How School Of Law

Imagine a tightrope walker, walking along a tightrope, holding a long, light rod. To help her balance, the performing artist continually moves the rod, changing the angle of the rod to maintain a constant – her balance in space. If she were to hold the rod in a fixed position, what would happen? She would fall off. In other words, the variation of the rod has the function of maintaining the deeper continuity which enables the artist to make it to the other end, alive. In this essay, the tightrope walker offers a metaphor for dispute resolution systems. In order …

They Should Call It Negotiation School, Not Law School, John Lande

Faculty Blogs

Considering that lawyers spend much more time negotiating than going to trial, I offered suggestions for fundamentally reorganizing law school curricula and policies. This somewhat mischievous thought experiment includes ideas that are too radical for any law school to consider given the deeply entrenched institutionalization of legal education. But it is useful to ponder how law schools generally do a poor job of preparing students for the reality of practice and how schools might reform their curricula to do a better job.

Transactional Interest And Risk Assessment, John Lande

Faculty Blogs

This post describes how the LIRA can be adapted for transactional negotiations.

Reflections On Untethered Philosophy, Settlements, And Nondisclosure Agreements, Marjorie Corman Aaron

Faculty Articles and Other Publications

The potentially harmful consequences of nondisclosure agreements in private settlements are troubling. They are a legal system problem, however, for which ADR is not to blame. Unless NDAs were prohibited for all legal claims, prohibiting them in mediated settlements would create greater incentives for pre-litigation direct settlements. The result would be less, not more, public awareness of (alleged) misdeeds.

Circuit Split Deepened By Second Circuit's 'Functional' Test Application In Recent Section 1782 Ruling, Peter B. Rutledge, Emina Sadic Herzberger

Popular Media

Federal law authorizes district courts to order discovery for use in a proceeding before a "foreign or international tribunal." While that law, 28 U.S.C. § 1782, permits interested persons to request such discovery, neither the statutory language nor Supreme Court jurisprudence definitively resolves whether private arbitral tribunals fall within its scope. Unsurprisingly, the lack of clear guidance on this matter has triggered a circuit split, with the Second and Fifth Circuits generally declining to extend § 1782 to private arbitral tribunals while the Fourth and Sixth Circuits broadly interpret the statutory language to apply § 1782 to private arbitral tribunals. …

Restorative Practices In Baltimore City Schools: Research Updates And Implementation Guide, Open Society Institute-Baltimore, Deborah Thompson Eisenberg, Anastasia W. Smith

C-DRUM Publications

Baltimore City Public Schools (City Schools) and other school districts across the United States are implementing restorative practices (RP) to improve school climate by building meaningful relationships in school communities, reframing school discipline, and supporting student safety, well-being, and success. This transformational approach centers student voice and agency, and enhances students’ engagement and participation in their own learning. The Center for Dispute Resolution at the University of Maryland Francis King Carey School of Law and Open Society Institute – Baltimore (OSI) collaborated to create The Restorative Practices in Baltimore City Public Schools: Research Updates and Implementation Guide. The purpose of …

Taking Disputes Online In A Pandemic-Stricken World: Do We Necessarily Lose More Than We Gain?, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

Online dispute resolution (ODR) used to be a secondary feature of the courts, arbitration institutions and mediation providers. ODR systems involving problem diagnosis, facilitation and online adjudication were primarily utilised for low value claims and not extended to all legal claims. Private mediation was largely conducted only on online platforms to bridge physical distances. However, the COVID pandemic has very abruptly compelled the courts and other dispute resolution practitioners to shift face-to-face processes to the virtual environment. ODR is likely to be the mainstream, and no longer the alternative, way of managing disputes in the immediate future.

The rapid migration …

Japan-Singapore Joint Mediation Protocol Announced, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this post, the potential impact of the Japan-Singapore Joint Mediation Protocol is analysed.

12 September 2020: The Singapore Convention On Mediation Comes Into Force, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the potential impact of the Singapore Convention on Mediation is analysed.