Dispute Resolution and Arbitration Commons^™

Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin

Robert J. Condlin

In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses on the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the …

Rehearsing In Poetry, But Practising In Prose - The Anatomy Of A Manly Mediation, Geoff Sharp

Geoff Sharp

As arranged, the cast gathered at 9.30am for yesterday's production in the sort of law offices where, if you want a coffee, you need to say whether it's a latte, macchiato, cappuccino or espresso with soy/trim/creamer...

40 Sites In 40 Minutes, Geoff Sharp

Geoff Sharp

The best of free mediation resources on the world wide web

I Know It's Not My Problem... But It Happened On My Watch, Geoff Sharp

Geoff Sharp

It is at some risk that I set out to promote my expertise in the area of what to do when mediation ends in disagreement.

Nevertheless, I dread those times when the smell of napalm hangs in the air as the parties depart the room with their final exchanges of the ‘see you in court’ variety ringing in my ears.

To assist my investigation of what we do as mediators when destination Yes eludes us, I polled a number of experienced commercial mediators. I am indebted to my friends from Bond University in Queensland, Australia and colleagues from the International …

Desert Island Questions For Mediators, Geoff Sharp

Geoff Sharp

When I was a wee lad, I drove others nuts by asking questions. They were, I am told, good open ones usually starting ".... but, why?"

As time passed, I grew into a know-it-all teen and forgot about asking questions, more intent on doing the telling. Now at age 40 and in my role as a commercial mediator, I seem to have come full circle and once again appreciate the value of the well-timed, well-constructed question aimed at the essence of a discussion.

So what are my all-time favourites? What questions do I ask that make people sit back in …

The Legal Scholarship Of Blogs, Geoff Sharp

Geoff Sharp

If you’ve ever felt the need to share your opinions with the world, then blogs just may provide you with the global audience you’ve been longing for. Geoff Sharp surfs the wave of the future and finds out the skinny on blawging.

Where Angels Fear To Tread, Geoff Sharp

Geoff Sharp

The Tricky Matter of How a Commercial Mediator Shows Respect for the Attorney/Client Relationship...

Those of us who were lawyers in a previous life and are now mediators, or those of us who dabble in both worlds, will know that there is a sensitivity surrounding the whole question of the mediator and the attorney / client relationship. This tension is largely unspoken but it is nevertheless an anxiety for most attorneys as they head into a mediation session.

Cuarto Congreso Nacional De Organismos Públicos Autónomos, Bruno L. Costantini García

Bruno L. Costantini García

Memorias del Cuarto Congreso Nacional de Organismos Públicos Autónomos

"El papel de los Organismos Públicos Autónomos en la Consolidación de la Democracia"

In Praise Of Joint Sessions, Geoff Sharp

Geoff Sharp

This paper deals with the increasing trend amongst mediators to do away with a joint session (where the parties meet face-to-face) at mediation in favour of meeting with the parties privately and adopting a shuttle mediation model.

This is an especially topical debate amongst mediators with some advocating that a purely private session or caucus model of mediation where the parties never meet saves time and is what the market now requires. This compares with other mediators resisting the demise of the joint session, saying it is at the heart of what mediators do and of what mediation is.

For …

Recent Private International Law Developments Before The Supreme Court Of Canada, Antonin I. Pribetic

Antonin I. Pribetic

A trilogy of interesting cases involving private international law recently wended their way to the Supreme Court of Canada: (1) King v. Drabinsky (an Ontario case addressing the applicability of the Charter in respect of the enforcement of a foreign judgment); (2) Teck Cominco Metals Ltd. v. Lloyd's Underwriters (a British Columbia case involving declaratory relief in the context of parallel proceedings and forum non conveniens); and (3) Yugraneft v. Rexx Management Corporation (an Alberta case which affirmed that the two-year limitation period under s.3 of Alberta's Limitations Act, governs when a party seeks the recognition and enforcement in Alberta …

Introduction, Laurence Boulle, Bobette Wolski

Bobette Wolski

This issue of the Bond Law Review is devoted to developments in alternative dispute resolution (ADR) in international perspective.

Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin

Robert J. Condlin

In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses on the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the …

The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander

Faculty Working Papers

In Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized the right of an individual to sue federal government officials for a violation of constitutional rights. Drawing on interviews with some of the participants, including Webster Bivens himself and one of the agents who conducted the search, this chapter in the forthcoming book Federal Courts' Stories describes the events that led to the litigation and the complex array of factors that informed the Court's approach to the case. After placing the Bivens decision in context, the chapter evaluates the competing narratives that have grown …

Recognition Of Overseas Same Sex Marriages: A Matter Of Equality And Sound Statutory Interpretation, Dr Leonardo J. Raznovich

Dr Leonardo J Raznovich

It is accepted that the institution of marriage is more than economic benefits. The availability of marriage to same sex couples in eight western democratic jurisdictions exerts pressure on courts to consider the substance and ethical dimension of marriage across borders. This paper analyses the legal and ethical problems that exclusion of same sex couples from marriage generates in relation to equality and individual freedoms in a democratic society. The paper focuses on the particular case of overseas same sex married couples that seek to immigrate to England. Part I analyses the legal recognition of overseas same sex marriages under …

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis

Faculty Working Papers

The Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics provides an uncertain framework for the enforcement of constitutional rights against the federal government. Rather than recognizing a federal common law right of action for use in every case, the Court views itself as devising actions on a case-by-case basis in light of a range of factors. Critics on all sides question the Court's approach, doubting either its power to fashion federal common law or the tendency of its case-by-case analysis to create gaps in constitutional enforcement. Particularly when compared with actions under …

Consumer Harm Acts? An Economic Analysis Of Private Actions Under State Consumer Protection Acts, Henry N. Butler, Jason S. Johnston

Faculty Working Papers

State Consumer Protection Acts (CPAs) were adopted in the 1960s and 1970s to protect consumers from unfair and deceptive practices that would not be redressed but for the existence of the acts. In this sense, CPAs were designed to fill existing gaps in market, legal and regulatory protections of consumers. CPAs were designed to solve two simple economic problems: 1) individual consumers often do not have the incentive or means to pursue individual claims against mass marketers who engage in unfair and deceptive practices; and, 2) because of the difficulty of establishing elements of either common law fraud or breach …

Is The Door Open Or Closed? Evaluating The Future Of The Federal Medical Peer-Review Privilege, 42 J. Marshall L. Rev. 561 (2009), Ghazal Sharifi

UIC Law Review

No abstract provided.

Why The Chinese Public Prefer Administrative Petitioning Over Litigation, Taisu Zhang

Faculty Scholarship

In recent years, the Chinese public, when facing disputes with government officials, have preferred a non-legal means of resolution, the Xinfang system, over litigation. Some scholars explain this by claiming that administrative litigation is less effective than Xinfang petitioning. Others argue that the Chinese have historically eschewed litigation and continue to do so habitually. This paper proposes a new explanation: Chinese have traditionally litigated administrative disputes, but only when legal procedure is not too adversarial and allows for the possibility of reconciliation through court-directed settlement. Since this possibility does not formally exist in modern Chinese administrative litigation, people tend to …

When The Music Stops, Why Not Require Certain Title Vii Plaintiffs To Find A Chair On Which To Rest Their Complaint?, 42 J. Marshall L. Rev. 505 (2009), Catherine R. Caifano

UIC Law Review

No abstract provided.

Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin

Robert J. Condlin

In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses to the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the …