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Full-Text Articles in Law
Overcoming Roadblocks To Reaching Settlement In Family Law Cases, John M. Lande
Overcoming Roadblocks To Reaching Settlement In Family Law Cases, John M. Lande
Faculty Publications
In “litigation as usual,” settlement often comes only after adversarial posturing, the original conflict escalates, the relationships deteriorate, the process takes too long and costs too much, and nobody is really happy with the resolution. This article describes roadblocks to negotiation and ways to overcome them to reach good settlements in family law cases.
Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande
Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande
Faculty Publications
Although the ostensible purpose for pretrial litigation is to prepare for trial, such preparation is inextricably intertwined with negotiation because the expected trial outcome is a major factor affecting negotiation. Indeed, since most litigated cases are settled, good litigators prepare for negotiation at least as much as trial. The lawyers interviewed for this article, who were selected because of their good reputations, described how they prepare for both possibilities. They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases, …
Lost Options For Mutual Gain? The Layperson, The Lawyer, And Dispute Resolution In Early America, Carli N. Conklin
Lost Options For Mutual Gain? The Layperson, The Lawyer, And Dispute Resolution In Early America, Carli N. Conklin
Faculty Publications
In 1786, legal reform activist Benjamin Austin undertook a campaign to promote the use of arbitration over litigation as the primary method of dispute resolution in Massachusetts. Although supported by a groundswell of anti-lawyer sentiment, Austin ultimately failed in securing the triumph of arbitration. Exploring Austin's pamphlet campaign in its historical context not only provides us with a snapshot of the arguments for and against dispute resolution in early America, but also serves as a corrective to the prevailing accounts of arbitration in American legal history. This article explores the context and content of Austin's pamphlet campaign and its implications …
Helping Good Lawyers Help Clients Make Good Decisions About Dispute Resolution, John M. Lande
Helping Good Lawyers Help Clients Make Good Decisions About Dispute Resolution, John M. Lande
Faculty Publications
Counseling clients about dispute resolution options is easier said than done. These can be complex and difficult decisions, and lawyers may not have appropriate resources to help lawyers counsel clients in choosing dispute resolution options. While establishing rules requiring this kind of training may help to remedy this shortcoming, perhaps the most promising involves using dispute systems design (DSD) procedures to establish better ways of training lawyers to counsel clients.
Practical Insights From An Empirical Study Of Cooperative Lawyers In Wisconsin, John M. Lande
Practical Insights From An Empirical Study Of Cooperative Lawyers In Wisconsin, John M. Lande
Faculty Publications
This article reports on a study of members of the Divorce Cooperation Institute (DCI), a group of Wisconsin lawyers who use a "Cooperative" process to provide a constructive and efficient negotiation process in divorce cases. The study involved in-depth telephone interviews and several surveys of DCI members. Although DCI members use this process only in divorce cases, it can be readily adapted for other types of cases.DCI's approach generally involves an explicit process agreement at the outset, based on principles of: (1) acting civilly, (2) responding promptly to reasonable requests for information, (3) disclosing all relevant financial information, (4) obtaining …
Introduction To Vanishing Trial Symposium, John M. Lande
Introduction To Vanishing Trial Symposium, John M. Lande
Faculty Publications
This symposium shows that "vanishing trial" phenomena touch an extremely broad range of issues including transformations of society, courts, dispute resolution procedures, and even the nature of knowledge. These phenomena relate to decisions by litigants in particular cases, court systems, national policy, and international relations. This subject is too large and complex for any symposium to analyze fully, especially at this early stage of analysis. This symposium makes an important contribution to this study, with theories and evidence about the existence, nature, and extent of reductions in trials and similar proceedings. It elaborates a range of theories about possible causes …
Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong
Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong
Faculty Publications
Britain's Lord Denning once said that “as a moth is drawn to the light, so is a litigant drawn to the United States.” Certainly, as a pro-arbitration state and a signatory to various international conventions concerning the enforcement of foreign arbitral awards, the United States seems a natural place to bring an action to enforce an arbitral award against a foreign state or state agency. However, suing a sovereign has not traditionally been a simple task in the United States or elsewhere. Most nations grant foreign states the presumption of immunity, thus denying that their domestic courts have jurisdiction to …
Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John M. Lande
Faculty Publications
To say that The Vanishing Trial is a myth is not to suggest that the facts or analysis in Professor Marc Galanter's seminal report on the vanishing trial are fictional or inaccurate. Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts. The report documents an apparent paradox: the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the number …
Failing Faith In Litigation? A Survey Of Business Lawyers' And Executives' Opinions, John M. Lande
Failing Faith In Litigation? A Survey Of Business Lawyers' And Executives' Opinions, John M. Lande
Faculty Publications
To provide a more systematic assessment of contemporary faith in litigation, this article looks at a particular context-- business litigation--and analyzes the opinions of three groups of respondents: lawyers in private law firms who do commercial litigation (“outside counsel”), lawyers employed in business firms who do some litigation (“inside counsel”), and nonlawyer executives in business firms (“executives”). These groups have the greatest exposure to litigation in the corporate setting; furthermore, because they play powerful roles in our political, economic, and social life as well as the legal system, their opinions influence public opinion more generally.
Third Party Intervention And Joinder As Of Right In International Arbitration: An Infringement Of Individual Contract Rights Or A Proper Equitable Measure?, S. I. Strong
Faculty Publications
Arbitration has long been called a creature of contract, a dispute resolution mechanism that has no form or validity outside the four corners of the parties' arbitration agreement. Some feel, however, that it may be time to change this narrow interpretation of arbitration's function and scope, and nowhere is this need for reform more apparent than in the realm of multi-party international disputes. Arbitration has taken on an increasingly important role in international commercial transactions and has become the preferred dispute resolution mechanism in many types of transnational contracts. Although there are any number of reasons why this may be …
How Will Lawyering And Mediation Practices Transform Each Other?, John M. Lande
How Will Lawyering And Mediation Practices Transform Each Other?, John M. Lande
Faculty Publications
This article sketches out some aspects of both lawyering and mediation practice that may be affected by development of a litimediation culture. Part II examines the growth of the private market for mediation and an accompanying specialization of mediation practice. These changes seem likely to require mediators to develop market niches with identifiable characteristics of their mediation practices. Simultaneously, lawyers, as regular buyers of mediation services, will be expected to recognize and make decisions based on significant distinctions between mediation providers.