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Mediation

Dispute Resolution and Arbitration

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Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford Oct 2014

Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford

Mary F. Radford

Mediation is the ADR process by which a neutral third party works with disputants to reach a mutually agreeable resolution. Mediation is arguably the oldest and most popular ADR technique in use today. Part I of this essay discusses the commonly accepted advantages of mediation as an alternative to litigation, and, in some instances, questions whether those advantages become disadvantages in the context of probate, trust, and guardianship cases. Part II examines the use of mediation as a component of the actual estate planning process rather than as an alternative to litigation.


Cooperative Bargaining Styles At Fmcs: A Movement Toward Choices , Carolyn Brommer, George Buckingham, Steven Loeffler Apr 2012

Cooperative Bargaining Styles At Fmcs: A Movement Toward Choices , Carolyn Brommer, George Buckingham, Steven Loeffler

Pepperdine Dispute Resolution Law Journal

The Federal Mediation and Conciliation Service ("FMCS") was created in 1947. While an array of subsequent statutory enactments have expanded the FMCS charter, the core mission of FMCS has been, and remains, to assist labor and management to settle their disputes through mediation as well as to promote the development of sound and stable labor management relationships. The vision of how that mission will be realized has changed significantly in response to changes in our society, to expanded knowledge of conflict resolution and labor relations, and to lessons gathered by the nation's mediators over a half-century of work with ...


Construction Partnering: Can These Protocols Build A Stronger Labor-Management Community?, Jim Stott, Juan Carlos Gonzalez Apr 2012

Construction Partnering: Can These Protocols Build A Stronger Labor-Management Community?, Jim Stott, Juan Carlos Gonzalez

Pepperdine Dispute Resolution Law Journal

In an expansive marketplace where large organizations in the construction, manufacturing, service and union industries are facing increased global competition, collaborative labor relations are essential to maximizing efficiency and productivity. It is for this reason that developing collaboration between labor and management is highly researched and consulted by academics and professionals throughout the world. Although various models of collaboration have been developed, none have been found to clearly overcome that insidious conflict and paradigm of "Labor vs. Management." The purpose of this paper is to provide academics and consultants (mediators/facilitators) an additional perspective for designing, developing and implementing the ...


Battling School Violence With Mediation Technology , Gary Richard Hattal, Cynthia Morrow Hattal Apr 2012

Battling School Violence With Mediation Technology , Gary Richard Hattal, Cynthia Morrow Hattal

Pepperdine Dispute Resolution Law Journal

As we begin the Twenty-First Century public schools have become dangerous places, and not just high schools. Children as young as ten and eleven have brought the system to its knees by shooting down their teachers and fellow students on campus. No one is talking about "juvenile delinquency" anymore. We are hearing and talking about lethal incidents of juvenile violence among all social classes and races, suburban and inner city youth alike. This paper is a discussion of various issues surrounding school violence and its implications for our children. Our focus is to: (1) determine the root causes of extreme ...


Essential Collaborative Technology Tools For The 21st Century: Fmcs Tags System , Michael J. Wolf, Jon Numair, Jack Yoedt Apr 2012

Essential Collaborative Technology Tools For The 21st Century: Fmcs Tags System , Michael J. Wolf, Jon Numair, Jack Yoedt

Pepperdine Dispute Resolution Law Journal

Mediators employed by the Federal Mediation and Conciliation Service ("FMCS") utilize a powerful set of technology tools that helps groups more effectively solve problems, make decisions and implement those decisions more successfully. FMCS mediators use these tools to help customers conduct collective bargaining negotiations, strategic planning sessions, grievance meetings, internal elections, large conferences, as well as remote meetings and online surveys via the Internet. Known as the FMCS TAGS System, this network of Internet servers, mobile computers, electronic conferencing facilities, customized software and external partners has demonstrated significant achievements during its first two years of operation. FMCS customers report that ...


Issues Facing The Family Mediation Field , Joan B. Kelly Apr 2012

Issues Facing The Family Mediation Field , Joan B. Kelly

Pepperdine Dispute Resolution Law Journal

This article analyzes a number of important issues confronting family mediation in the new millennium. The article addresses family mediation as an interdisciplinary field and the certification of family mediators. The article also explores how to ensure competence in family mediators.


Mediating On The Internet Today And Tomorrow , James C. Melamed Apr 2012

Mediating On The Internet Today And Tomorrow , James C. Melamed

Pepperdine Dispute Resolution Law Journal

This paper will examine Internet opportunities for mediators and mediation participants. We will examine current Internet opportunities as well as where all of this may be taking us. The author suggests that there are unique qualities and opportunities for mediators on the Internet, including cost and convenience.


The Philosophical Underpinning And General Workings Of Chinese Mediation Systems: What Lessons Can American Mediators Learn?, Kevin C. Clark Apr 2012

The Philosophical Underpinning And General Workings Of Chinese Mediation Systems: What Lessons Can American Mediators Learn?, Kevin C. Clark

Pepperdine Dispute Resolution Law Journal

Of the various ADR processes available to the disputant seeking ADR, mediation has arguably become the "process choice of today" because -it is a very dynamic, user-friendly process" with a high success rate. Despite its recent successes, however, mediation is not a modern creation. It has been used for centuries in places all around the world. One of these places is China. This article introduces the reader to the philosophical underpinnings of the Chinese legal system as it relates to mediation and the general workings of the Chinese mediation model. It is the author's thesis that as western nations ...


Institutionalizing Mediation: The Role Of Lawyers And Bar Associations , Ronald R. Volkmer Apr 2012

Institutionalizing Mediation: The Role Of Lawyers And Bar Associations , Ronald R. Volkmer

Pepperdine Dispute Resolution Law Journal

The world of trusts and estates is changing before our eyes - the "multidiscipline practice" trend may radically change the traditional practice of the probate bar. There is one constant, however, besides change and that is conflict. That conflict is oftentimes lurking beneath the surface when a lawyer becomes involved in the estate planning process. All of the technical knowledge you may possess about the legal system and its rules is valuable and necessary. But, the estate planning lawyer is preeminently a counselor at law. In the strongest possible way I urge students to become aware of conflict management skills and ...


Internet Dispute Resolution (Idr): Bringing Adr Into The 21st Century , Richard Michael Victorio Apr 2012

Internet Dispute Resolution (Idr): Bringing Adr Into The 21st Century , Richard Michael Victorio

Pepperdine Dispute Resolution Law Journal

It was only a matter of time before ADR hit the Interet. The Internet has sweepingly transformed society just as ADR has wrought tremendous change in our society, by enabling the swift and economical settlement of disputes, and unclogging the legal system in the process. The application of alternative dispute resolution methods to the Internet, termed "iDR" in this comment, has the potential to impact the landscape of both traditional ADR and the Internet itself. It brings the communication technology of the Internet to the practice of traditional, non-virtual, "real world" ADR, reducing costs and speeding up the exchange of ...


Mediation And Jury Trials As Means Of Resolving Will Contests , Ronald Chester Apr 2012

Mediation And Jury Trials As Means Of Resolving Will Contests , Ronald Chester

Pepperdine Dispute Resolution Law Journal

In the vast range of human problems that law seeks to govern, there are certain areas in which legalisms and legal thinking are not particularly useful. It is my belief that one of these areas is that of will contests, in which nonlawyer dispute resolution seems particularly effective.


Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford Apr 2012

Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford

Pepperdine Dispute Resolution Law Journal

Mediation is the ADR process by which a neutral third party works with disputants to reach a mutually agreeable resolution. Mediation is arguably the oldest and most popular ADR technique in use today. Part I of this essay discusses the commonly accepted advantages of mediation as an alternative to litigation, and, in some instances, questions whether those advantages become disadvantages in the context of probate, trust, and guardianship cases. Part II examines the use of mediation as a component of the actual estate planning process rather than as an alternative to litigation.


Mediation Of Probate Matters: Leaving A Valuable Legacy , Lela Porter Love Apr 2012

Mediation Of Probate Matters: Leaving A Valuable Legacy , Lela Porter Love

Pepperdine Dispute Resolution Law Journal

Mediation has the power to bring parties to a different level of understanding about their underlying situation and about each other, to re-establish family harmony and to resolve both monetary and relationship issues that probate matters generally involve. To realize these advantages, this paper makes two suggestions. First, attorneys should urge testators to consider dispute resolution provisions in their will. Such provisions allow the testator to weigh in with a directive that the family pull together and attempt to resolve its conflicts creatively. A dispute resolution clause can also provide a vehicle to express and encourage family values connected with ...


The Greatest Heritage Is The Love Of A Family: The Larson Case And The Mediation Of Probate Disputes, Susan N. Gary Apr 2012

The Greatest Heritage Is The Love Of A Family: The Larson Case And The Mediation Of Probate Disputes, Susan N. Gary

Pepperdine Dispute Resolution Law Journal

In 1981, two brothers, Ben and William Larson, began litigation that would last for four years. By the time the lawsuit ended, the "winning" brother was dead, and the other brother was bitter and estranged from the family of his only sibling. Although one can only speculate, had the brothers chosen mediation, rather than litigation, to resolve their dispute, both brothers might have achieved a better outcome.


Mediation Of Proposition 187: Creative Solution To An Old Problem? Or Quiet Death For Initiatives?, Nicole E. Lucy Apr 2012

Mediation Of Proposition 187: Creative Solution To An Old Problem? Or Quiet Death For Initiatives?, Nicole E. Lucy

Pepperdine Dispute Resolution Law Journal

The initiative Proposition 187 has been a catalyst for change. Supporters heralded it as the solution to "Save Our State" from the ills of illegal immigration. Those who opposed it, used Proposition 187 as a battle cry to mobilize a disenfranchised minority. Irrespective of ideology, Proposition 187 ended as no one could have predicted in November 1994 when it passed, 59% to 41%. When Governor Gray Davis inherited the Proposition 187 appeal from former Governor Pete Wilson, Governor Davis took the unprecedented step of seeking to resolve the conflict through mediation rather than actively defending Proposition 187 on appeal to ...


Making Peace The Old Fashioned Way: Infusing Traditional Tribal Practices Into Modern Adr , Matt Arbaugh Apr 2012

Making Peace The Old Fashioned Way: Infusing Traditional Tribal Practices Into Modern Adr , Matt Arbaugh

Pepperdine Dispute Resolution Law Journal

Native Americans have their own unique traditional method of resolving disputes. Their processes, called peacemaking by some tribes, place the emphasis not on the guilt of the wrongdoer, but on restoring relationships and finding a solution that is amenable to all involved. This emphasis on saving the relationship has many similarities to current practices of mediation. Among the similar goals between mediation and peacemaking are the use of ADR allows both sides to reach a better conclusion and the desire to spend less money and to satisfy more people. However, this approach has critics who see it as another attempt ...


Making It Work At Work: Mediation's Impact On Employee/Employer Relationships And Mediator Neutrality , Allison Balc Apr 2012

Making It Work At Work: Mediation's Impact On Employee/Employer Relationships And Mediator Neutrality , Allison Balc

Pepperdine Dispute Resolution Law Journal

This Comment discusses the ADR process of mediation in the employment setting, specifically addressing its benefits and effects on the employer/employee relationship and the potential for a non-neutral mediator who is paid by, or has some previous tie to, one of the parties. Section IA examines judicial and legislative views of ADR and mediation. IB discusses mediation's effectiveness in the workplace. Section II discusses the mediation process in an employment dispute. Section III discusses the effects of mediation on the employer and employee, empirical studies, the neutrality of mediators, and potential remedies. Section IV discusses neutrality in the ...


When Does Familiarity Breed Content? A Study Of The Role Of Different Forms Of Adr Education And Experience In Attorneys' Adr Recommendations , Roselle L. Wissler Apr 2012

When Does Familiarity Breed Content? A Study Of The Role Of Different Forms Of Adr Education And Experience In Attorneys' Adr Recommendations , Roselle L. Wissler

Pepperdine Dispute Resolution Law Journal

This article first reviews proposed explanations for and solutions to the low rate of voluntary ADR use, as well as related empirical research. The article then reports the findings of a study that involved a survey of attorneys regarding their ADR education, experience with ADR as counsel or as a third-party neutral, and advice to clients about ADR. This study found that attorneys' direct experience with ADR, especially in their role as counsel but also as a neutral, was strongly related to whether they recommended ADR to clients. In contrast, ADR education had little or no relationship with attorneys' ADR ...


Substituting Mediation For Arbitration: The Growing Market For Evaluative Mediation, And What It Means For The Adr Field , Robert A. Baruch Bush Apr 2012

Substituting Mediation For Arbitration: The Growing Market For Evaluative Mediation, And What It Means For The Adr Field , Robert A. Baruch Bush

Pepperdine Dispute Resolution Law Journal

The past decade has seen significant expansion in the acceptance and use of mediation as a process for handling disputes. Indeed, old hands in the ADR field observe that mediation has begun to replace arbitration as the "process of choice" in the ADR (Alternative Dispute Resolution) "market," including institutional users like courts and major private consumers of ADR like businesses. All this is seen by some as part of the "mainstreaming" of mediation discussed by Joseph Folger's lead article in this Symposium. The primary question examined in this essay is: How do we best understand and interpret this development ...


What Works In Transformative Mediator Coaching: Field Test Findings , James R. Antes, Judith A. Saul Apr 2012

What Works In Transformative Mediator Coaching: Field Test Findings , James R. Antes, Judith A. Saul

Pepperdine Dispute Resolution Law Journal

A process for the formative assessment (coaching) of mediators practicing from the transformative orientation was field tested at six different sites. Specifically varied were whether or not the mediator's original training was in the transformative orientation, the mediator's amount of experience practicing from the transformative orientation, and whether the role-play mediation sessions were live or videotaped. In addition to drawing conclusions about the qualifications necessary for a coach and the pros and cons of videotaped sessions versus live stop-action sessions, we developed guidelines for structuring the coaching process. We also identified a range of possible uses of the ...


Clarifying The Theoretical Underpinnings Of Mediation: Implications For Practice And Policy , Dorothy J. Della Noce, Robert A. Baruch Bush, Joseph P. Folger Apr 2012

Clarifying The Theoretical Underpinnings Of Mediation: Implications For Practice And Policy , Dorothy J. Della Noce, Robert A. Baruch Bush, Joseph P. Folger

Pepperdine Dispute Resolution Law Journal

In this article we examine developments in explaining and understanding "the when and why" of mediation practice - from the "lay theories" that have informed much of the field, to Bush and Folger's articulation of three distinct and coherent ideologically based theoretical frameworks: the problemsolving framework, the harmony framework, and the transformative framework. We then trace the development of the transformative framework since its articulation in 1994, and share the insights we have gained along the way regarding the impact of increasing theoretical clarity and differentiation in the mediation field. We conclude with a discussion of the implications of ideologically ...


Changing The Quality Of Conflict Interaction: The Principles And Practice Of Transformative Mediation , Robert A. Baruch Bush, Sally Ganong Pope Apr 2012

Changing The Quality Of Conflict Interaction: The Principles And Practice Of Transformative Mediation , Robert A. Baruch Bush, Sally Ganong Pope

Pepperdine Dispute Resolution Law Journal

Many practitioners now identify themselves as transformative mediators, who practice from the transformative perspective in some or all of their work. This article explains the unique character of transformative mediation by offering answers to three basic questions: Why is transformative mediation being sought and used by parties in conflict? What is the basic nature of the mediation process, especially the mediator's role, according to this model? How does a mediator work with the parties in transformative mediation? Answering these three questions why, what and how-will provide the reader a good overview of the transformative model in theory and practice ...


Assimilative, Autonomous, Or Synergistic Visions: How Mediation Programs In Florida Address The Dilemma Of Court Connection , Dorothy J. Della Noce, Joseph P. Folger, James R. Antes Apr 2012

Assimilative, Autonomous, Or Synergistic Visions: How Mediation Programs In Florida Address The Dilemma Of Court Connection , Dorothy J. Della Noce, Joseph P. Folger, James R. Antes

Pepperdine Dispute Resolution Law Journal

Over the past twenty-five years, the state of Florida has been recognized across the United States as a leader in the development of court-connected alternative dispute resolution programs. Mediation, in particular, has flourished across the state, with one hundred eleven programs in place in family, civil, community, and dependency sectors. Administrative support and oversight for court-connected mediation programs are provided by The Florida Dispute Resolution Center (DRC) - the administrative arm of the Florida Supreme Court - housed within the Office of the State Courts Administrator. In collaboration with the DRC, we designed and conducted a benchmarking study of seven selected mediation ...


Renegotiating Third World Debt , Arash S. Arabi Apr 2012

Renegotiating Third World Debt , Arash S. Arabi

Pepperdine Dispute Resolution Law Journal

The debt crisis facing the Third World is one so severe that it threatens to shatter the economy of countless nations and leaves the future of their lenders in doubt. The only viable solution is to come up with an "alternative" method of dispute resolution to deal with the debt crisis - one that is a cross between arbitration and mediation. A disinterested body should be created to recover some, or if possible, all of the outstanding loans owed to financial institutions, while alleviating the extreme hardships the debt and current debt repayment methods have inflicted. It should be noted, however ...


Cutting The Cord: Ho'oponopono And Hawaiian Restorative Justice In The Criminal Law Context , Andrew J. Hosmanek Mar 2012

Cutting The Cord: Ho'oponopono And Hawaiian Restorative Justice In The Criminal Law Context , Andrew J. Hosmanek

Pepperdine Dispute Resolution Law Journal

Ho'oponopono is a traditional Hawaiian dispute resolution system that has recently experienced a resurgence of interest. The word ho'oponopono literally means to make right. In this system, both the offender and victim participate in a type of guided mediation along with other stakeholders in the offense. Ho'oponopono is different from typical mediations because after the session is successfully completed, the participants figuratively cut the cord of legal and psychological entanglement which binds them - in other words, the dispute is put to rest forever. When victim and offender come to a true resolution of the problem, and jointly ...


California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon Mar 2012

California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon

Pepperdine Dispute Resolution Law Journal

Confidentiality serves as a cornerstone of mediation. The public policy underlying confidentiality is the promotion of candid communications between disputing parties. As explained in this article, mediation confidentiality affects more than just communication. It affects other important mediation values, such as party self-determination and mediator impartiality. Mediation confidentiality affects parties' ability to enforce their mediated agreements. Finally, confidentiality affects multiple dispute resolution processes, as seen by the interrelated nature of mediation and arbitration in the seminal case of Fair v. Bakhtiari.


Mediation Outcomes: Lawyers' Experience With Commercial And Construction Mediation In The United Kingdom , Penny Brooker, Anthony Lavers Mar 2012

Mediation Outcomes: Lawyers' Experience With Commercial And Construction Mediation In The United Kingdom , Penny Brooker, Anthony Lavers

Pepperdine Dispute Resolution Law Journal

This paper reports on the final phase of a three-year study into the role of lawyers in the development of Alternative Dispute Resolution (ADR) following the implementation of the Civil Procedure Rules in 1999 and draws comparisons between US and Canadian studies. The paper centres on the use of mediation, which is recognised as the pre-eminent ADR process in the UK. Data are analysed from 30 interviews with specialist commercial and construction-related lawyers who have utilised mediation in the dispute resolution process. Interviewees were selected from respondents to a national survey of lawyers specializing in commercial and construction-related practice. Whereas ...


New Amendments To Resolving Special Education Disputes: Any Good Ideas?, Demetra Edwards Mar 2012

New Amendments To Resolving Special Education Disputes: Any Good Ideas?, Demetra Edwards

Pepperdine Dispute Resolution Law Journal

This article first analyzes the state of affairs under the Individuals with Disabilities Education Act (IDEA), prior to the passage of the Individuals with Disabilities Education Improvement Act of 2004, and the affects that the 1997 reauthorization alternative dispute resolution amendments had on special education law. Next, this article will address the appropriateness of the newly enacted negotiation and settlement methods, specifically the resolution session provision, and the benefits and detriments for resolving special education issues using these processes. This article will further discuss the amendments regarding attorneys' fees, and finally the House's failed proposal for voluntary binding arbitration ...


Available Dispute Resolution Processes Within The Reauthorized Individuals With Disabilities Education Improvement Act (Ideia) Of 2004: Where Do Mediation Principles Fit In? , Andrea F. Blau Mar 2012

Available Dispute Resolution Processes Within The Reauthorized Individuals With Disabilities Education Improvement Act (Ideia) Of 2004: Where Do Mediation Principles Fit In? , Andrea F. Blau

Pepperdine Dispute Resolution Law Journal

The Individual Disabilities Education Act of 1997 first offered mediation processes to parents and school systems as an available dispute resolution process. Congress mandated that mediation be made available whenever a due process hearing was filed. The intent was to assist parents and school systems in resolving their differences regarding the educational needs for children with disabilities through increased discussions and collaborative efforts; this would reduce the need for costly and adversarial litigation. Alternative dispute resolution processes have taken an increasingly dominant role within the newly reauthorized IDEIA of 2004, reflecting Congressional promotion of parent and district collaboration for achieving ...


Team Mediation: An Interdisciplinary Model Balancing Mediation In The "Matrix" , David C. Hesser, Elizabeth Jarrell Craig Mar 2012

Team Mediation: An Interdisciplinary Model Balancing Mediation In The "Matrix" , David C. Hesser, Elizabeth Jarrell Craig

Pepperdine Dispute Resolution Law Journal

The Team Mediation model proposed in this article lays a foundation for the resolution of civil disputes utilizing an interdisciplinary team, which will attempt to balance mediation styles in a team dynamic in such a way as to provide the parties with a greater chance of success. Such a model will likely be met with skepticism and, as with any new idea, its benefits will need to be demonstrated to overtake the skeptics.