Open Access. Powered by Scholars. Published by Universities.®

Other Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 11 of 11

Full-Text Articles in Other Law

Our Courts, Ourselves: How The Alternative Dispute Resolution Movement Is Re-Shaping Our Legal System, Deborah R. Hensler Oct 2017

Our Courts, Ourselves: How The Alternative Dispute Resolution Movement Is Re-Shaping Our Legal System, Deborah R. Hensler

Dickinson Law Review

Twenty-seven years ago, Professor Frank Sander urged American lawyers and judges to re-imagine the civil courts as a collection of dispute resolution procedures tailored to fit the variety of disputes that parties bring to the justice system. Professor Sander’s vision of the justice system encompassed traditional litigation leading to trial, but his speech at the 1976 Roscoe Pound Conference drew attention to alternatives to traditional dispute resolution that he argued would better serve disputants and society than traditional adversarial processes.

Today, interest in dispute resolution is high. This interest cuts across many domains, ranging from the family, to the ...


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 ...


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 ...


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 ...


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 ...


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 ...


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.


Style Vs. Model: Why Quibble? , Susan Oberman Mar 2012

Style Vs. Model: Why Quibble? , Susan Oberman

Pepperdine Dispute Resolution Law Journal

This article raises some of the questions necessary to address criticisms about quality and ethics of mediation practices: (Part I) Is there a "mandate" to provide informal justice through mediation? (Part II) Why challenge the generic mediation mythology? (Part III) Does naming differences as 'styles' result in greater clarity? (Part IV) Is mediation fulfilling its "mandate" to serve the court? (Part V) What are the obstacles to changing the dominant discourse on mediation? (Part VI) In answering these questions, an alternative framework is proposed to shift the current discourse about generic mediation based on artistry or style, to a discourse ...


Negotiating And Mediating Peace In Africa , Nancy Erbe, Chinedu Bob Ezeh, Daniel Karanja, Neba Monifor, George Mubanga, Ndi Richard Tanto Feb 2012

Negotiating And Mediating Peace In Africa , Nancy Erbe, Chinedu Bob Ezeh, Daniel Karanja, Neba Monifor, George Mubanga, Ndi Richard Tanto

Pepperdine Dispute Resolution Law Journal

Last year, a law review solicited my thoughts about, in their words, pushing the envelope with social justice and negotiating peace in a world dominated by power and violence. Taking their language literally, one must ask how to effectively address contemporary obstacles to ensure that the message and, most importantly, the means of justice are truly delivered to those in need. One answer-which may seem obvious to readers but is actually much too rare in practice-is to work with, empower, and support the conflict work of the community members themselves. This article introduces the plans of five African professionals, demonstrating ...