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Full-Text Articles in Law
How To Be A Better Plea Bargainer, Cynthia Alkon, Andrea Kupfer Schneider
How To Be A Better Plea Bargainer, Cynthia Alkon, Andrea Kupfer Schneider
Faculty Scholarship
Preparation matters in negotiation. While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs. A systemic model can be used to improve plea bargaining skills. This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context. The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own. The sheet highlights important considerations such as understanding the interests and goals of …
Introduction To Symposium On "Adr's Place In Navigating A Polarized Era", Nancy A. Welsh
Introduction To Symposium On "Adr's Place In Navigating A Polarized Era", Nancy A. Welsh
Faculty Scholarship
Ours is a nation built for conflict, for friction. Such conflict, while painful, can be good. It can signal newfound agency, and it can be a catalyst for dialogue, customized and creative solutions, and ultimately progress. This is what many dispute resolution academics teach their students. But we are caught in such an extraordinarily polarized time, and many wonder what role ADR can and should play in navigating a polarized era. That was the question addressed by Texas A&M School of Law's March 2020 symposium, with the resulting articles - by Baruch Bush & Peter Miller, Jonathan Cohen, Jill DeTemple, …
Trust And The Srba Mediation, Francis E. Mcgovern
Trust And The Srba Mediation, Francis E. Mcgovern
Faculty Scholarship
No abstract provided.
Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly
Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly
Faculty Scholarship
According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”
However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument …
Lawyers And Mediation: Lessons From Mediator Stories, Sharon Press
Lawyers And Mediation: Lessons From Mediator Stories, Sharon Press
Faculty Scholarship
In Stories Mediators Tell, Lela Love and Eric Galton have compiled a compelling anthology of stories about mediation. Not surprisingly, most of the stories involve a significant moment when something special happened for the parties. The author was reminded of presentations by Baruch Bush and Joe Folger in the early 1990's (around the time the first edition of The Promise of Mediation was published). They would ask mediators who attended their sessions to recount to a partner one of their memorable mediations. Inevitably, the stories were about transformative moments - of parties obtaining clarity for the first time - of …
Bargaining Without Law, Robert J. Condlin
Bargaining Without Law, Robert J. Condlin
Faculty Scholarship
Like a professional athlete on growth hormones, legal bargaining scholarship has transformed itself over the years. Once an amateurish assortment of war stories and folk tales, now it is a hulking behemoth of social science surveys and studies. There is a lot to like in this transformation. Much of the new writing is insightful, sophisticated, and spirited, with things to tell even the most experienced bargainer. But it also is missing something important: law. Bargaining scholars now routinely write about dispute settlement as if the strength of the parties’ competing legal claims is of no consequence. Rarely do they discuss …
The Remedy Gap: Institutional Design, Retaliation, And Trade Law Enforcement, Rachel Brewster
The Remedy Gap: Institutional Design, Retaliation, And Trade Law Enforcement, Rachel Brewster
Faculty Scholarship
One of the major innovations of the World Trade Organization’s (“WTO”) Dispute Settlement Understanding (“DSU”) is the regulation of sanctions in response to violations of trade law. The DSU requires governments to receive multilateral approval before suspending trade concessions and limits the extent of retaliation to prospective damages. In addition, the DSU permits governments to impose only conditional sanctions: sanctions for violations that continue after the dispute resolution process is complete. This enforcement regime creates a remedy gap: governments cannot respond, even to obvious breaches, until the end of the dispute resolution process (and then only to the extent of …
I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh
Faculty Scholarship
With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …
Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin
Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin
Faculty Scholarship
In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses on the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the …
Mindfulness, Emotions, And Mental Models: Theory That Leads To More Effective Dispute Resolution, Peter Reilly
Mindfulness, Emotions, And Mental Models: Theory That Leads To More Effective Dispute Resolution, Peter Reilly
Faculty Scholarship
At the core of nearly all great negotiators, mediators, lawyers, and leaders is a person who has learned to connect with other people, that is, to build relationships of trust, cooperation, and collaboration. This Article argues that when people learn a sense of "self" and "other" through both theoretical and practical knowledge and understanding of mindfulness and human emotion, connections with others are more likely to be made, and important relationships are more likely to be built.
My goal, then, is to begin thinking about how one might bring mindfulness and emotions from the “mind level” to what human relations …
Online Communication Technology And Relational Development, Anita D. Bhappu, Noam Ebner, Sanda Kaufman, Nancy A. Welsh
Online Communication Technology And Relational Development, Anita D. Bhappu, Noam Ebner, Sanda Kaufman, Nancy A. Welsh
Faculty Scholarship
Key to success in negotiation is managing and enhancing relationships. This concept can be difficult to convey in short-term executive training courses where students have little time for relational development. Not to worry: the authors assert that by strategically using online communication before, during, and after such courses, students can effectively both train for, and depend on, good relations at a distance.
Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly
Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly
Faculty Scholarship
The majority of law review articles addressing lying and deception in negotiation have argued, in one form or another, that liars and deceivers could be successfully reined in and controlled if only the applicable ethics rules were strengthened, and if corresponding enforcement powers were sufficiently beefed up and effectively executed. This article takes a different approach, arguing that the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation. The article concludes that lawyers, businesspeople, and everyone else …
Technology Mediated Dispute Resolution Can Improve The Registry Of Interpreters For The Deaf Ethical Practices System: The Deaf Community Is Well Prepared And Can Lead By Example, David Allen Larson, Paula Gajewski Mickelson
Technology Mediated Dispute Resolution Can Improve The Registry Of Interpreters For The Deaf Ethical Practices System: The Deaf Community Is Well Prepared And Can Lead By Example, David Allen Larson, Paula Gajewski Mickelson
Faculty Scholarship
The work of American Sign Language (ASL)/English interpreters is filled with complex interpersonal, linguistic and cultural challenges. The decisions and ethical dilemmas interpreters face on a daily basis are countless and the potential for disagreement regarding those decisions is great. Technology Mediated Dispute Resolution (TMDR) processes can be particularly helpful when misunderstandings and conflicts arise. Technology Mediated Dispute Resolution is a more inclusive phrase than Online Dispute Resolution (ODR) and includes cellular telephones, radio frequency devices, and satellite communication systems. The Deaf Community has learned to adapt and rely upon a variety of technologies and, because many Deaf individuals already …
Perceptions Of Fairness In Negotiation, Nancy A. Welsh
Perceptions Of Fairness In Negotiation, Nancy A. Welsh
Faculty Scholarship
In all of negotiation, there is no bigger trap than "fairness." This chapter from the Negotiator's Fieldbook explains why among multiple models of fairness, people tend to believe that the one that applies here is the one that happens to favor them. This often creates a bitter element in negotiation, as each party proceeds from the unexamined assumption that its standpoint is the truly fair one. For a negotiation to end well, it is imperative for both parties to assess the fairness of their own proposals from multiple points of view, not just their instinctive one – and to consider …
Problem-Solving Negotiation: Northern Ireland's Experience With The Women's Coalition Symposium, Jacqueline Nolan-Haley, Bronagh Hinds
Problem-Solving Negotiation: Northern Ireland's Experience With The Women's Coalition Symposium, Jacqueline Nolan-Haley, Bronagh Hinds
Faculty Scholarship
This paper is part of a Symposium that considered the relevance of domestic conflict resolution theories in broader cultural contexts. The Northern Ireland Women's Coalition (Women's Coalition) participated in the negotiations leading up to the 1998 Good Friday/Belfast Agreement. Members of the Woman's Coalition responded to thirty years of sectarian violence with a negotiation process based on accommodation, inclusion, and relationship building, concepts that resonate with American-style problem-solving negotiation. Using the Women's Coalition as a case study, this Article suggests that there are procedural aspects of problem-solving negotiation theory that may work across domains, specifically in multi-party, intractable conflict situations, …
Negotiations Goes To War, Charles J. Dunlap Jr., Paula B. Mccarron
Negotiations Goes To War, Charles J. Dunlap Jr., Paula B. Mccarron
Faculty Scholarship
No abstract provided.
Making Deals In Court-Connected Mediation: What's Justice Got To Do With It?, Nancy A. Welsh
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 …