Dispute Resolution and Arbitration Commons^™

Decriminalizing Violence: A Critique Of Restorative Justice And Proposal For Diversionary Mediation, M. Eve Hanan

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The movement to reduce over-prosecution and mass incarceration has focused almost exclusively on non-violent offenders despite data showing that over half of all prisoners incarcerated within the United States are sentenced for crimes of violence. As a consequence of the focus on nonviolent offenses, the majority of current and future defendants will not benefit from initiatives offering alternatives to criminal prosecution and incarceration.

A discussion of alternatives to the criminal justice system in cases of violent crime must begin by acknowledging that violent crime is not monolithic. Many incidents meet the statutory elements of a violent crime, that is, the …

Improving Lawyers’ Judgment: Is Mediation Training De-Biasing?, Douglas N. Frenkel, James H. Stark

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When people are placed in a partisan role or otherwise have an objective they seek to accomplish, they are prone to pervasive cognitive and motivational biases. These judgmental distortions can affect what people believe and wish to find out, the predictions they make, the strategic decisions they employ, and what they think is fair. A classic example is confirmation bias, which can cause its victims to seek and interpret information in ways that are consistent with their pre-existing views or the goals they aim to achieve. Studies consistently show that experts as well as laypeople are prone to such biases, …

Law – Made In Germany: Global Standort Or Global Standard?, James Maxeiner

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Earlier this year the Federal Ministry of Justice released the second edition of the brochure, Law - Made in Germany. For those readers who do not know the brochure, it is the product of an umbrella group of German professional organizations known as the Bündnis für das deutsche Recht. A purpose of the Bündnis, as stated at its founding in 2008, and of the brochure, is to improve the position of German law in the ― "international competition of legal systems" (internationalen Wettbewerb der Rechtsordnungen). Catalyst for founding of the Bündnis and for publication of Law - Made in Germany …

The Machinery Of Criminal Justice, Stephanos Bibas

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Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased …

The Dispute On The Horizon: Contracting For Effective Dispute Resolution In International Business Transactions A U.S. Perspective, William P. Johnson

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This Article offers a view, from a U.S. perspective but for a non-U.S. readership, on the significant aspects of planning for dispute resolution in the context of cross-border business transactions involving U.S. and non-U.S. parties. Specifically, this Article identifies the issues that parties who are located in Brazil or in other jurisdictions throughout the Americas should consider at the time of drafting, negotiating, and finalizing business contracts with U.S. counterparties, as well as business contracts that are entered into in connection with other cross-border arrangements that could involve U.S. law even when there is no U.S. counterparty, to prepare for …

Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

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This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication.

Wikitruth Through Wikiorder, David A. Hoffman, Salil K. Mehra

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How does large-scale social production coordinate individual behavior to produce public goods? Hardin (1968) denied that the creation of public goods absent markets or the State is possible. Benkler (2006), Shirky (2008), Zittrain (2008), and Lessig (2008) recently countered that the needed coordination might emerge though social norms. However, the means to this coordination is under-theorized. Focusing on Wikipedia, we argue that the site’s dispute resolution process is an important force in promoting the public good it produces, i.e., a large number of relatively accurate public encyclopedia articles. We describe the development and shape of Wikipedia’s existing dispute resolution system. …

Law, Culture, And Conflict: Dispute Resolution In Postwar Japan, Eric Feldman

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The 1963 publication of Takeyoshi Kawashima’s “Dispute Resolution in Contemporary Japan” has indelibly influenced the study of law and conflict in postwar Japan. A mere nineteen text pages of Arthur Taylor von Mehren’s seven hundred–page volume, Law in Japan: The Legal Order in a Changing Society, Kawashima’s observations about the infrequency of litigation in Japan, and his emphasis on the sociocultural context of conflict, continue to resonate. As a noted scholar of Japanese law has succinctly written, “Virtually every scholarly work [about Japanese law] in the last thirty-five years has been framed in some way or another by the conceptual …

It's About The Relationship: Collaborative Law In The Employment Context, Marcia L. Mccormick

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Work is central to American life and drives us in fundamental ways. And the workplace, as a result, dominates our lives. We are spending ever greater amounts of time in the workplace and less time in civic and social engagements. As a consequence, our relationships at work have become so significant that they are nearly as important to us as our family relationships. In fact, the employment relationship is similar to the family relationship in the emotional support from coworkers it can provide and in the financial support it provides. Because the employment relationship is so common and psychologically so …

Objecting To Court Ordered Mediation, Jane C. Murphy

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Maryland judges have wide discretion to refer parties to mediate a variety of civil matters. Title 17 of the Maryland Rules, enacted in 1998, governs mediation of civil cases in the circuit courts. These rules are supplemented by Maryland Rule 9-205, which addresses mediation of child custody and visitation disputes. Although these rules define mediation and address mediator qualifications in some detail, they say very little about either a party's right to object to mediation or the court's authority to compel participation in mediation.

Given that the mediation rules are relatively new and mediation orders would generally be considered interlocutory, …

Confidentiality In Mediation, Jaime Alison Lee, Carl Giesler

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As mediation has become a more widely practiced method of dispute resolution, many jurisdictions have enacted rules forbidding participants to divulge information discussed during the mediation. Two recent cases, Paranzino v. Barnett Bank and Bernard v. Galen Group, are among the first to deal with the enforcement of such rules by judicial sanction. In both cases, participants in judicially required mediations were severely sanctioned for breaching confidentiality in violation of mediation rules and/or court orders.