Dispute Resolution and Arbitration Commons^™

Pass The Salt: Problem-Resolution Lawyering Across The Twenty-First Century Law Curriculum, Kris Franklin, F. Peter Phillips

Pepperdine Dispute Resolution Law Journal

Attorneys work with clients to resolve problems. Legal education can help prepare law graduates to do that work. As an added bonus, doing so would in turn help law students understand and retain the subjects they study. Law professors who teach alternative dispute resolution, lawyering skills, clinics, and sometimes traditional doctrinal courses, have all called for greater inclusion of dispute resolution in the law school curriculum. Some have urged the introduction of specific courses to prepare contemporary law students to work as problem resolvers. This Article builds on these and other calls for reform, but urges a genuine reconceptualization of …

Designing Interdisciplinary, Early Intervention Dispute Resolution Tools To Decrease Evictions And Increase Housing Stability, Christine N. Cimini

Articles

This Article provides a unique glimpse into the development of an early-intervention, pre-court, interdisciplinary dispute resolution project intended to decrease evictions and increase housing stability for recipients of subsidized housing in Seattle. With a grant from the Seattle Housing Authority (SHA), a coalition of non-profit organizations had the rare opportunity to design a dispute resolution system into existence. A dispute system design team was formed and began by examining the interconnected problems of housing instability, eviction, and houselessness. Despite thorough research on dispute system design and extensive meetings with stakeholders, the deign team encountered numerous challenges. This Article identifies the …

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 …

Mediation And Millennials: A Generational Shift In Dispute System Preferences, Shawna Benston, Brian Farkas

Pace Law Review

Millennials have been the subject of intense media scrutiny for more than a decade. Studies have examined their social, financial, technological, and work habits. However, few studies have examined this generation’s attitudes or proclivities towards civil litigation. Such an examination presents two problems: First, the absence of data on litigants’ age makes an empirical study virtually impossible. Second, generalizations about an entire generation are inherently problematic, glossing over countless cultural, economic, familial, and demographic differences. Nevertheless, this Article argues that millennials’ experiences and educations have primed them, at the margins, to avoid litigation more than prior generations. Instead, this generation …

What Dinosaurs Can Teach Lawyers About How To Avoid Extinction In The Odr Evolution, Elayne E. Greenberg, Noam Ebner

Faculty Publications

This paper is a wake-up call for the legal profession: Heed the justice changes that are upon us or risk extinction. Online dispute resolution (hereinafter ODR) is currently being incorporated into U.S and international court systems, re-shaping and re-defining justice as we know it today. Courts and clients, two stakeholders in our justice system, are increasingly receptive to ODR as a viable option to help provide and access justice efficiently and affordably. The legal profession, the third stakeholder in our justice system, however, has been slower to react. As ODR plays an increasingly prominent role in the court system, it …

Collaborating For Transformation, Marjorie A. Silver

Journal of Experiential Learning

No abstract provided.

Mediation, Legal Clinic Program

Course Descriptions and Information

Students will learn and develop skills crucial to the role of mediators and legal professionals. By focusing and implementing mediation methodologies, students will learn skills of active listening and communications; conflict, issue and interests spotting, information gathering and negotiations techniques; problem-solving strategies and approaches; and effective mediation settlement agreement drafting.

Law & Lawyering In The Work Place: Building Better Lawyers By Teaching Students To Exercise Critical Judgment As Creative Problem Solver, Alan M. Lerner

Akron Law Review

This article is about the evolution of that course from the earliest planning through its presentation. Hopefully, having the two of us involved in the day-to-day teaching of the course would send the message to our students that collaboration was a positive aspect of the learning and lawyering processes. Additionally, we hoped that the students would see that “academic” and “clinical” faculty are partners in their legal education.

Mindfulness: Foundational Training For Dispute Resolution, Leonard Riskin

Leonard L Riskin

This Article addresses the problem of mindlessness in counseling, negotiating, and mediating, and offers potential solutions and recommendations for developing foundational capacities through training in mindfulness meditation.

Teaching And Learning From The Mediations In Barry Werth's Damages, Leonard L. Riskin

Leonard L Riskin

This essay is based primarily on materials the author developed for courses taught at the University of Missouri-Columbia, School of Law, in the winter 2002 and 2003 semesters, based on Barry Werth's book, "Damages."

The Moral Lawyer And The Machiavellian Nature Of Law Practice, David Barnhizer

David Barnhizer

In Western culture the name Niccolo Machiavelli has become Machiavellianism, a pejorative signifying the willingness to do anything to achieve desired ends. American lawyers do have limits, however, and are expected to operate according to an ethical code that is at least intended to prevent the worst abuses. The effectiveness of this ethical code has often been questioned, as have the questionable efforts of the organized bar to enforce its rules, but on the surface it differentiates law practice from hand-to-hand combat and military struggles. Even though I have sometimes used the concepts of the warrior lawyer, the general and …

Client Problem-Solving: Where Adr And Lawyering Skills Meet, Katherine R. Kruse, Bobbi Mcadoo, Sharon Press

Faculty Scholarship

Influenced by critiques of legal education, law schools are scrambling to offer more and better opportunities for experiential education. To fulfill the new demands for experiential education, one obvious place to turn is clinic pedagogy, which has developed methodologies for teaching students in the real-practice settings of in-house clinics and externships. As the interest in experiential education broadens, a wider spectrum of teaching methodologies comes under the experiential tent, creating opportunities to tap new sources of guidance for reshaping legal education.

This article turns the spotlight on one of these other, less obvious resources within legal education: the alternative dispute …

International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers

Journal of Dispute Resolution

This essay sketches an account of how investment arbitration affects development of local legal institutions, in particular domestic courts. When investment arbitration is introduced into a local legal environment, it becomes integrated with international commercial arbitration, and often domestic arbitration. This integration occurs because the local economic elites, private law firms, and local businesses that deal with (or compete with) foreign investors and investment arbitration disputes also deal with international commercial matters, international commercial disputes, and domestic arbitration.

'Experiential Education Through The Vis Moot' And 'Building On The Bergsten Legacy: The Vis Moot As A Platform For Legal Education', Ronald A. Brand

Articles

Recent discussions of experiential education have at times considered the role of moot opportunities in legal education. Many, if not most, moot courts and related activities have been designed primarily as competitions. One moot, the Willem Vis International Commercial Arbitration Moot, is different in that it was designed, and has been consistently administered, as a tool for educating future lawyers. That education has included both skills training of the highest order and the development of a doctrinal understanding of important international legal instruments, especially those created and administered by the United Nations Commission on International Trade Law (UNCITRAL). This pair …

Judicial Education And Regulatory Capture: Does The Current System Of Educating Judges Promote A Well-Functioning Judiciary And Adequately Serve The Public Interest?, S. I. Strong

Journal of Dispute Resolution

First, the Essay considers certain obstacles to research concerning judicial education as a means of determining why more scholars have not sounded an alarm regarding practices in this field (Section II). The Essay then addresses a number of issues relating to the current approach to judicial education to determine whether and to what extent judicial control over this issue can be considered problematic (Section III). That analysis leads logically into a discussion of various ways that the possibility of regulatory capture of judicial education could be diminished (Section IV). Finally, the Essay concludes by drawing together various strands of analysis …

What Judges Want And Need: User-Friendly Foundations For Effective Judicial Education, Duane Benton, Jennifer A.L. Sheldon-Sherman

Journal of Dispute Resolution

This article evaluates the connection between judicial education and judges’ needs and preferences. In Part I, we begin by discussing the history, purpose, and form of judicial education, charting its evolution over time. In Part II, we examine current judicial education programs and scholarship, highlighting differences and similarities between federal and state programming. In Part III, we analyze the limitations of existing scholarship and programming, arguing judicial education programs are insufficiently tied to evidence of judicial demands. We conclude in Parts IV and V by suggesting two proposals to align programming with needs: (1) an annual needs-based assessment of judicial …

Towards A New Paradigm Of Judicial Education, Mary R. Russell

Journal of Dispute Resolution

When talking about judicial education, a central question emerges: What is the goal of judicial education for judges? A simple answer springs to mind: To make us better judges, of course. This of course is a deceptively simple question with a deceptively simple answer, until there is an attempt to specifically identify how to accomplish this worthy judicial education goal, and that is where simplicity disappears

Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong

Journal of Dispute Resolution

Producing well-written reasoned judgments (a term that is used herein to denote both trial court decisions and appellate opinions) is the goal of all members of the bench. Badly written rulings can have significant legal consequences for both the parties, who may incur costs as a result of a need to appeal a poorly worded decision or opinion, and society as a whole, since a poorly drafted precedent may drive the law in an unanticipated and unfortunate direction or lead to increased litigation as individuals attempt to define the parameters of an ambiguous new ruling. As a result, helping judges …

Educating Judges—Where To From Here?, Livingston Armytage

Journal of Dispute Resolution

In this article, I present a critique of the emerging global practice of judicial education, which has been established and grown substantially over the past thirty years. There are four challenges relating to vision, pedagogy, knowledge and leadership that confront the continuing development of judicial education.

Judicial Education: Pedagogy For A Change, T. Brettel Dawson

Journal of Dispute Resolution

Canadian judges have maintained a steadfast, long-term commitment to judicial education. Through teaching one another, judges renew their vision over time, and more concretely, address their concerns and challenges today. Since its inception in 1985, the National Judicial Institute (NJI) has sought to be a partner and a resource to judges and Courts in a shared endeavour to create relevant, practical, and effective judicial education. Working together, the NJI, judges, and Courts have built a “Canadian model” of judicial education widely respected and emulated.

Judging As Judgment: Tying Judicial Education To Adjudication Theory, Robert G. Bone

Journal of Dispute Resolution

The thesis of this Article, simply stated, is that judicial education makes sense only against the backdrop of general ideas and beliefs about law, courts, and adjudication. These ideas and beliefs motivate a focus on educating judges and help guide more specific pedagogical choices. I explore this broad thesis from both a historical and a normative perspective. Historically, I argue that interest in judicial education caught fire in the 1960s in large part because of prevailing beliefs about law and the proper function of courts. Normatively, I argue that the connection between judicial education and normative views of courts and …

Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Leonard Riskin

Leonard L Riskin

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …

The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin

Leonard L Riskin

This Article proposes that introducing mindfulness meditation into the legal profession may improve practitioners' well-being and performance and weaken the dominance of adversarial mind-sets. By enabling some lawyers to make more room for - and act from - broader and deeper perspectives, mindfulness can help lawyers provide more appropriate service (especially through better listening and negotiation) and gain more personal satisfaction from their work. Part I of this article describes a number of problems associated with law school and law practice. Part II sets forth a variety of ways in which lawyers, law schools, and professional organizations have tried to …

Book Review: “The Good Lawyer: Seeking Quality In The Practice Of Law”, Linda H. Edwards

Scholarly Works

In their first collaboration, The Happy Lawyer, the writing team of Nancy Levit and Doug Linder tackled a crucially important subject: how to have a happy life in the law. As part of that project, they interviewed more than two hundred lawyers about what makes them happy in their jobs. Levit and Linder noticed that happy lawyers nearly always talked about doing good work. Curious about the connection, the authors turned to recent research in neuroscience and learned, not to their surprise, that a key to a happy life is, indeed, the sense of doing good work. It is …

Online Alternative Dispute Resolution And Why Law Schools Should Prepare Future Lawyers For The Online Forum, Jordan Goldberg

Pepperdine Dispute Resolution Law Journal

Goldberg discusses traditional law school curriculums and how the addition of ADR courses has supplemented the traditional law school curriculum in a way that helps law schools achieve educational and academic recommendations, suggested by various studies including the Carnegie Report and the Best Practices for Legal Education. The author then shows that the effects of globalization and the increased use of technology in daily life have caused a higher demand for OADR in legal practice. Further, because there is a growing use of technology in K-12 curriculums and the nation’s youth are becoming more technologically savvy every year, it is …

Escaping From Lawyers' Prison Of Fear, John Lande

Faculty Publications

Lawyers regularly experience numerous fears endemic to their work. This is not surprising considering that lawyers generally operate in environments that frequently stimulate many fears. Lawyers’ fears can lead them to enhance their performance due to increased preparation and effective “thinking on their feet.” Fear is problematic when it is out of proportion to actual threats, is expressed inappropriately, or is chronically unaddressed effectively. It can lead to sub-optimal and counterproductive performance through paralysis, ritualized behavior, or inappropriate aggression. Some lawyers’ fears unnecessarily prevent them from performing well, producing good results for clients, earning more income, and experiencing greater satisfaction …

Patent Prosecution As Dispute Resolution: A Negotiation Between Applicant And Examiner, Jaron Brunner

Journal of Dispute Resolution

The phrase "negotiation is ubiquitous" has been used countless times by negotiation scholars, corporate executives, and cognitive psychologists.' At its most basic level, negotiation is simply a communication between parties when one party wants something from the other. In the legal setting, parties use negotiation to attempt to divide up limited resources, reach a settlement and attempt to execute a contract. Even procedures as mundane as filing for a patent in the United States can, and have been, described as a complex negotiation.4 However, while many practitioners describe responding to the United States Patent and Trademark Office (USPTO) as a …

Lessons From Teaching Students To Negotiate Like A Lawyer, John M. Lande

Faculty Publications

This article reports my observations from teaching those courses and offers suggestions for future efforts to improve legal education. My experience supports the (1) focus on negotiation in a wide range of situations in addition to the final resolution of disputes and transactions, (2) addition of "ordinary legal negotiation" to the two traditional theories of negotiation, and (3) use of multi-stage simulations in addition to traditional single-stage simulations. These approaches were critical in providing students with a more realistic understanding of negotiation. This article also describes experiments with other teaching techniques in my courses.

Lessons From Teaching Students To Negotiate Like A Lawyer, John Lande

John Lande

The legal education system is in a major crisis now, in part because law schools do not prepare students adequately to practice law. Law schools should do a better job of teaching negotiation, in particular, because it is a significant part of the work of virtually every practicing lawyer. This includes lawyers who handle civil and criminal matters and lawyers who do litigation as well as those who do transactional work. Negotiation is especially important because most litigated cases are settled and virtually all unstandardized transactions are negotiated. Most law school negotiation courses rely primarily or exclusively on simulations in …

Reforming Legal Education To Prepare Law Students Optimally For Real-World Practice , John Lande

Journal of Dispute Resolution

This article synthesizes some of the main points of the symposium contributors. They covered a wide range of key issues and thus this symposium provides a good overview of the challenges of and options for legal education reform. Of course, given the vast scope of the problems presented, this symposium issue of the Journal of Dispute Resolution cannot provide an all-encompassing analysis nor a comprehensive set of recommendations for reform. We do, however, hope that it will be a useful contribution to the growing movement and literature designed to improve legal education in the U.S. Part II of this article …