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Articles 1 - 15 of 15
Full-Text Articles in Dispute Resolution and Arbitration
From Common Law To Civil Law Jurisdictions: Court Adr On The Move In Germany, Nadja Alexander
From Common Law To Civil Law Jurisdictions: Court Adr On The Move In Germany, Nadja Alexander
Research Collection Yong Pung How School Of Law
In Australia today, ADR processes are recognised not only as a distinct system of dispute resolution, but also as a system that interacts interdependently with the legal system. This is most clearly demonstrated in the context of court-related mediation, which is increasingly seen as an effective way to increase access to, participation in, and satisfaction with the way legal disputes are resolved. Cappelletti categorises ADR as the third wave in the worldwide access-to-justice movement. ADR provides a different approach and a different sort of justice for solving disputes — what Cappelletti labels ‘co-existential justice’.
Mediation And Domestic Violence: A Practical Screening Method For Mediators And Mediation Program Administrators, Alexandria Zylstra
Mediation And Domestic Violence: A Practical Screening Method For Mediators And Mediation Program Administrators, Alexandria Zylstra
Journal of Dispute Resolution
Presented with such a dearth of standard practices and literature, family mediators have little guidance in whether and how to address cases involving domestic violence. Thus, this article sets forth a mediation screening framework that mediators and mediation program administrators can use to evaluate whether cases are appropriate for regular mediation (joint session without special safety measures), some modified form of mediation, or should be excluded from mediation. Such a method will better ensure a safe and fair mediation experience. Part II briefly examines the controversy surrounding the mediation of cases involving domestic violence, concluding that the arguments against mediating …
Be Careful What You Say In Mediation - Indiana Supreme Court Rules That Oral Settlement Agreements Reached In Mediation Must Be In Writing To Be Enforceable - Kirk E. And Martha Vernon V. Adam J. Acton, Garrett S. Taylor
Journal of Dispute Resolution
When parties use mediation as an alternative to litigation, they generally expect the agreement will be binding upon the parties and confidential. However, the parties must ensure that the agreement they reach is reduced to writing or the agreement may not be enforceable. Furthermore, certain things said during the mediation session may be admissible in future litigation proceedings. The Indiana Supreme Court, in Vernon v. Acton, held that until mediation agreements are reduced to writing and signed by the parties, they must be considered compromise settlement negotiations under the applicable evidence rules and are not admissible as evidence of an …
What's Law Got To Do With It: Mapping Modern Mediation Movements In Civil And Common Law Jurisdictions, Nadja Alexander
What's Law Got To Do With It: Mapping Modern Mediation Movements In Civil And Common Law Jurisdictions, Nadja Alexander
Research Collection Yong Pung How School Of Law
Context defines mediation and has a direct impact on how it is practised. National legal contexts reveal historically embedded systemic differences that can provide insights into the reasons behind the rapid expansion of mediation in common law jurisdictions, and the comparatively hesitant development of mediation in civil law jurisdictions. In this article I consider the legal and political forces behind the modern mediation movements in Australia and Germany: two countries that represent the common law and the civil law traditions respectively.
From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander
From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander
Research Collection Yong Pung How School Of Law
In this article I will outline the development of modern mediation in Sri Lanka. I use the term mediation to mean facilitative mediation. Accordingly, for the purposes of this article, mediation does not include processes such as conciliation or evaluative mediation, which are used in Sri Lanka, for example in industrial dispute resolution practice.
From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander
From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander
Research Collection Yong Pung How School Of Law
In this article I will outline the development of modern mediation in Sri Lanka. I use the term mediation to mean facilitative mediation. Accordingly, for the purposes of this article, mediation does not include processes such as conciliation or evaluative mediation, which are used in Sri Lanka, for example in industrial dispute resolution practice.
The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh
The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh
Faculty Scholarship
Ethical codes for mediators describe party self-determination as “the fundamental principle of mediation,” regardless of the context within which the mediation is occurring. The definition of self-determination, however, is a matter of dispute. Based on a review of the debate surrounding the promulgation and revision of ethical codes for court-connected mediators in Florida and Minnesota, this Article demonstrates that a vision of self-determination anchored in party-centered empowerment is yielding to a vision that is more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through …
Mediation – Seven Fundamental Questions, John Wade
Mediation – Seven Fundamental Questions, John Wade
John Wade
In parts of many countries, mediation is a commonly used process for managing and resolving conflict. In many other places, mediation is virtually unknown in both practice and theory. People confuse mediation with meditation or medication. Why do these interesting anthropological variations exist? Why are the various forms of mediation relatively uncommon in Sweden?
A vast and growing literature is available on conflict management and mediation. This short comment will outline seven fundamental and recurring questions about mediation. Similar questions can be asked helpfully about every profession, including lawyering, plumbing and judging. Every lawyer should be able to answer these …
“Don’T Waste My Time On Negotiation And Mediation, This Dispute Needs A Judge.” Which Conflicts Need Judges? Which Conflicts Need Filing?, John Wade
John Wade
This article contains two parts. First, there is a framework aimed at encouraging lawyers and other conflict managers to be overtly analytical when deciding which interventions may or may not be helpful in a particular conflict. Second, to illustrate this analytical framework, there are two lists of factors or diagnostic indicators that suggest that certain conflicts probably need the decision of an umpire or judge and that certain other conflicts probably need written claims to be filed in a court or tribunal. This article does not attempt to create lists of factors that indicate the suitability of many other processes, …
A Well-Founded Fear Of Prosecution: Mediation And The Unauthorized Practice Of Law, David A. Hoffman, Natasha Affolder
A Well-Founded Fear Of Prosecution: Mediation And The Unauthorized Practice Of Law, David A. Hoffman, Natasha Affolder
All Faculty Publications
To many mediators, "UPL" is an acronym with an increasingly ominous ring. This growing concern about the unauthorized practice of law (UPL) arises from reports around the country of charges filed against mediators who are not lawyers. These prosecutions - or in some cases warnings - are primarily directed at divorce mediators as a result of their drafting of detailed marital settlement agreements. However, all mediators have a reason to be concerned, because of uncertainties about what constitutes UPL in the context of mediation. This article surveys the legal terrain of UPL, and argues that it's time for new, clear …
Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel
Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel
Scholarly Works
One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One …
Making Deals In Court-Connected Mediation: What's Justice Got To Do With It?, Nancy A. Welsh
Making Deals In Court-Connected Mediation: What's Justice Got To Do With It?, Nancy A. Welsh
Faculty Scholarship
When mediation was first introduced to the courts, the process was hailed as “alternative.” Mediation gave disputants the opportunity to discuss and resolve their dispute themselves; the role of the third party was to facilitate the disputants’ negotiations, not to dictate the outcome; and because the disputants were able to focus on their underlying interests in mediation, the process could result in creative, customized solutions. The picture of mediation is changing, however, as the process settles into its role as a tool for the resolution of personal injury, contract, and other nonfamily cases on the courts’ civil dockets. Attorneys dominate …
Mediation In Practice: Common Law And Civil Law Perspectives Compared, Nadja Alexander
Mediation In Practice: Common Law And Civil Law Perspectives Compared, Nadja Alexander
Research Collection Yong Pung How School Of Law
Australian mediation practice is thriving. Effective forms of mediation are practised in court-connected schemes, in the public sector, in the community justice sector and in the private business sector. Indeed, no industry is excluded from the application of mediation. In contrast, Hoffmann-Riem laments that despite many years of discussions about ADR (alternative dispute resolution) in Germany, mediation plays a marginal role only. Further, Labes states that 'ADR mechanisms are relatively obscure methods in Germany.' The comparison between Australia and Germany is particularly interesting because it considers both a common law and a civil law tradition. This essay will discuss the …
The Institutionalization Of Mediation Developments In The Usa, Australia And Germany (In German), Nadja Alexander
The Institutionalization Of Mediation Developments In The Usa, Australia And Germany (In German), Nadja Alexander
Research Collection Yong Pung How School Of Law
No abstract provided.
The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie
The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie
Vanderbilt Law School Faculty Publications
Riskin's categorization of mediation has engendered much debate among academics and practitioners. Although most in the mediation community accept Riskin's positive assertion that mediation as currently practiced includes both facilitation and evaluation, a vocal group of purist critics rejects Riskin's pluralist view of mediation on normative grounds. These purist critics -- including such prominent mediator-scholars as Professors Kim Kovach, Lela Love," and Josh Stulberg -- argue that mediation is in fact, and should be, solely a facilitative process "designed to capture the parties' insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes." For …