Law Commons^™

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Faculty Scholarship

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as …

Stepping Back Through The Looking Glass: Real Conversations With Real Disputants About Institutionalized Mediation And Its Value, Nancy A. Welsh

Faculty Scholarship

This Article describes what a group of real disputants perceives as most valuable about agency-connected mediation before, soon after, and eighteen months after they participated in the process. The Article is based primarily upon qualitative data from in-depth interviews with parents and school officials who participated in special education mediation sessions. Though the specific context of these interviews is obviously important, these disputants and their disputes share many commonalities with disputants and disputes in other contexts and, as a result, these disputants' views have relevance for the broader field of mediation.

These interviews suggest that both before and after disputants …

Institutionalization: What Do Empirical Studies Tell Us About Court Mediation?, Bobbi Mcadoo, Nancy A. Welsh, Roselle L. Wissler

Faculty Scholarship

In the 25 years since the Pound Conference, federal and state courts throughout the country have adopted mediation programs to resolve civil disputes. This increased use of mediation has been accompanied by a small but growing body of research examining the effects of certain choices in designing and implementing court-connected mediation programs.

This article focuses on the lessons that seem to be emerging from the available empirical data regarding best practices for programs that mediate non-family civil matters. Throughout the article, we consider the answers provided by research to three questions: (1) How does program design affect the success of …

The First International Competition For Online Dispute Resolution: Is This Big, Different And New?, Benjamin G. Davis, Franklin G. Snyder, Kay Elkins Elliott, Peter B. Manzo, Alan Gaitenby, David Allen Larson

Faculty Scholarship

In February of 2002, the International Competition for Online Dispute Resolution (ICODR) was held to address the issue of new uses of technology is dispute resolution. This article describes the competition with individual presentations from the perspectives of a problem drafter, a coach, a participant, the evaluators, and an organizer. In the conclusion, the author presents some observations on why this International Competition for Online Dispute Resolution is big, different, and new.

Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh

Faculty Scholarship

Professor Deborah Hensler suggests in the lead article of this Symposium issue that the courts' embrace of facilitative, interest-based mediation may have been ill-conceived. She argues that there is insufficient evidence to conclude that litigants are more satisfied with mediation than with adjudicative alternatives such as arbitration and trial. She also urges that there is sufficient evidence to show that litigants prefer processes that vest decision control in third parties. Both of these assertions are subject to challenge,' but this Comment will focus upon the significance of giving decision control to the disputants in consensual processes.

Using available research, this …

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 …

All In The Family: Darwin And The Evolution Of Mediation, Nancy A. Welsh

Faculty Scholarship

Maybe I’ve been thinking about evolution more than is normal for the average lawyer. I have a 5-year-old son who is fascinated by every species of dinosaur. As a result, I read to my son nearly every night about the events and the evolving cast of creatures that populated the Triassic, Jurassic and Cretaceous periods. Since the Triassic period began 240 million years ago, this provides a real sense of perspective.

I wonder how Charles Darwin would use his theory of evolution to explain the many strange and wonderful variations of mediation that have flowered in the past decade. And …

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 …

Arbitration And Beyond: Avoiding Pitfalls In Drafting Dispute Resolution Clauses In Employment Contracts, Nancy A. Welsh

Faculty Scholarship

Article Extract:

You've just helped a mid-sized company, Allwell Corp., to reach a settlement in an action brought by a disgruntled former employee. The CEO turns to you and says, "Even though I still believe that we didn't do anything wrong, I'm glad this lawsuit is over. I can't believe how much money and time we've wasted in defending ourselves. Now, how can we keep this from happening in the future? I've been reading about companies putting arbitration clauses in all kinds of contracts. I want to know whether we can require our employees to arbitrate and maybe even require …

The Abcs Of Adr: Making Adr Work In Your Court System, Nancy A. Welsh, Barbara Mcadoo

Faculty Scholarship

So you are thinking about making Alternative Dispute Resolution (ADR) a part of your existing statewide judicial process-but you don't know how. You want to provide litigants with alternative ways to resolve their disputes, through processes such as mediation, arbitration, and summary jury trials. In fact, you have been experimenting with these processes on an ad hoc basis and have had quite a few successes. You think you could accomplish even more if you made ADR a routine part of the judicial process. But you are cautious about the role that your state court system should take in promoting and …

Does Adr Really Have A Place On The Lawyer's Philosophical Map?, Barbara Mcadoo, Nancy A. Welsh

Faculty Scholarship

For nearly two decades, proponents of alternative dispute resolution (ADR) have touted the advantages of institutionalizing ADR within the courts. The anticipated benefits have included: quicker settlements, better settlements, resolution which is less expensive for the courts and litigants, and greater litigant satisfaction with both the procedure and the outcome. Many state and federal courts have listened. Indeed, in nearly every state, at least one local state and/or federal court has incorporated ADR in some manner. In Minnesota, with the promulgation of Rule 114 of the Minnesota General Rules of Practice, the Minnesota Supreme Court has chosen to institutionalize ADR …

Grappling The Monster Case: The Next Frontier In Adr, Nancy A. Welsh, Ann Montgomery

Faculty Scholarship

Not so long ago, "ADR" was just one more term in a legal jargon already filled with too many acronyms. While we concede that "ADR" might not rival "CPR" as a vital necessity, its use is extremely important to the practice of law today. Since the promulgation of Rule 114 of the Minnesota General Rules of Practice, nearly 80 percent of Minnesota attorneys report that they are using ADR to help resolve their civil cases filed in state trial courts.' Their reasons? ADR processes can cut litigation costs, reduce clients' expenses, save attorneys' and clients' time, and generate earlier settlements. …

The Times They Are A Changin' - Or Are They? An Update On Rule 114, Barbara Mcadoo, Nancy A. Welsh

Faculty Scholarship

When Rule 114 of the General Rules of Civil Practice arrived on the Minnesota legal scene in July 1994, it took many attorneys by complete surprise. Even in Hennepin County, which has had a nonbinding arbitration program since 1984, some attorneys asked, "ADR? Is that short for Another Darn Requirement'?" Nearly two years later, now that most attorneys know that ADR is the acronym for "Alternative Dispute Resolution," it is time to take stock of Rule 114, to evaluate its influence on the practice of law and its impact on the courts.

This review is timely for another, very important …

Court-Ordered Adr: What Are The Limits?, Nancy A. Welsh

Faculty Scholarship

Increasingly, courts across the country are turning to non-judicial dispute resolution processes - "alternative dispute resolution" or "ADR" - to handle overwhelming caseloads.' Proponents of non-judicial processes state that ADR benefits courts and litigants by reducing the time between the filing and disposition of cases, saving judges' time so that they are available for the cases that really need them, saving money for the parties to the suit, and perhaps most importantly, increasing litigants' satisfaction with the manner in which their disputes are resolved.

A growing body of empirical evidence has begun to support the proponents' claims. A study of …