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Dispute Resolution and Arbitration

Pepperdine Dispute Resolution Law Journal

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Collaborative Lawyering: A Closer Look At An Emerging Practice, William H. Schwab Mar 2012

Collaborative Lawyering: A Closer Look At An Emerging Practice, William H. Schwab

Pepperdine Dispute Resolution Law Journal

A critical analysis of collaborative law (CL) is only now beginning, and should be based on actual, not hypothetical information about the practice and its impact on clients as courts, the bar, and the public begin to digest the idea of CL. This Article intends to present a more comprehensive picture of collaborative practice than is currently available, to better inform the ongoing conversation about what role CL will play in the legal system. Toward that end, the following sketches some basic questions about CL, and provides some preliminary answers. Part I recounts the origin of CL and introduces the …


Collaborative Family Law, Pauline H. Tesler Mar 2012

Collaborative Family Law, Pauline H. Tesler

Pepperdine Dispute Resolution Law Journal

Collaborative Law appears to meet significant needs both among family law clients and among the lawyers who assist them through divorce. As will be discussed more fully below, clients appear to want the advantages of a contained, settlement-oriented, creative, private, respectful process without sacrificing the benefits of having a committed legal advocate at their sides. For that reason Collaborative Law appeals to clients who may hesitate to commit to a dispute resolution process facilitated solely by a neutral mediator. And, while many family lawyers suffer considerable professional angst as a consequence of their awareness that family law courts are neither …


The Narrative Approach To Mediation, Toran Hansen Mar 2012

The Narrative Approach To Mediation, Toran Hansen

Pepperdine Dispute Resolution Law Journal

Narrative Mediation is an approach and methodology that can offer mediators an innovative way to handle conflict intervention. It is important to note that "it is not a model that can be ransacked for techniques without damaging the intent and process it requires.. .because the foundational view is vastly different [from other approaches]." It may, however, particularly appeal to mediators with a postmodernist theoretical bent who prefer to work with the accounts of parties in conflict rather than attempting to get at "the truth" because they recognize that any truth brings with it implicit bias. The explicit role of mediator …


Facillitative Mediation: The Classic Approach Retains Its Appeal, Carole J. Brown Mar 2012

Facillitative Mediation: The Classic Approach Retains Its Appeal, Carole J. Brown

Pepperdine Dispute Resolution Law Journal

In this additional step in the civil litigation process in Ontario, the mediator is assigned a primarily "facilitative" role. This paper advances the position that mandatory mediation in Ontario was not designed as a process where a third party would offer an evaluation of the legal merits of a dispute. Instead, the goals of mandatory mediation are best achieved, and the parties know what to expect, when a mediator takes on the role of a neutral third party who facilitates communication, and takes an interest-based approach to problem-solving. This paper further posits that the mandatory mediation process, which requires the …


Defining The Ethical Limits Of Acceptable Deception In Mediation, John W. Cooley Mar 2012

Defining The Ethical Limits Of Acceptable Deception In Mediation, John W. Cooley

Pepperdine Dispute Resolution Law Journal

In a recent law review article I authored for the Loyola University of Chicago Law Review, Mediation Magic: Its Use and Abuse, I addressed the perplexing problem of the current lack of ethical guidance available to mediators and mediation advocates on the question of permissible uses of deception in mediation generally and in caucused mediation, in particular. This article is a sequel to that publication, offering the reader a condensation of some of the ideas contained in that article and some additional thoughts on criteria that might be appropriate to consider when designing a truthfulness standard for mediation.


The Neutral As Lie Detector: You Can't Judge Participants By Their Demeanor, Bruce Fraser Mar 2012

The Neutral As Lie Detector: You Can't Judge Participants By Their Demeanor, Bruce Fraser

Pepperdine Dispute Resolution Law Journal

As mediators we are often faced with sharply conflicting stories. One of the advantages of mediation is that we sometimes can solve the underlying problem without determining who did what, to whom, and when. Indeed, experience has shown that mediation is not a good process for finding the truth because it has none of the tools (such as testimony under oath) used for this purpose in the judicial system. Still, mediators often spend a good deal of time and effort trying to determine who is telling the truth.


The Truth About Deception In Mediation, Jeffrey Krivis Mar 2012

The Truth About Deception In Mediation, Jeffrey Krivis

Pepperdine Dispute Resolution Law Journal

Now that the court system has institutionalized the use of mediation in virtually all civil proceedings, trial lawyers are paying closer attention to their negotiation skills. While those skills involve less structured behavior than presenting a case to a jury, they nonetheless involve one common strategy that even the most skilled practitioners refuse to acknowledge: deception.


Getting To The Heart Of The Matter - Taking Risks That Honor Yourself And Your Work, Linda E. Meyer Mar 2012

Getting To The Heart Of The Matter - Taking Risks That Honor Yourself And Your Work, Linda E. Meyer

Pepperdine Dispute Resolution Law Journal

I am here to talk to you about what got you into this profession in the first place. And that was a feeling. A feeling that is very hard to articulate, except maybe to yourself. It was a sense that there was something here for you that was new, that was different, that was amazing, and that you could actually be part of a process where things happened and changed. You could be respected. You could be honored. You could feel that you had actually done something that made a difference. I want to tell you that is why I …


Lawyers, Faith, And Peacemaking: Jewish Perspectives Of Peace, Rabbi Yitzchok Adlerstein Mar 2012

Lawyers, Faith, And Peacemaking: Jewish Perspectives Of Peace, Rabbi Yitzchok Adlerstein

Pepperdine Dispute Resolution Law Journal

We can only consider the role of peacemaking in Jewish law after examining the meaning and place of peace. Accuracy prevents me from opening with some platitude about how peace occupies a central, pivotal position in Jewish thought. It doesn't. Peace and peacemaking have a curious habit of not turning up in the middle of things, but all the way at the end. There are too many instances of this to be coincidental. There are nineteen blessings in the Amidah, the central (indeed!) prayer that Jews recite three times a day, every weekday of their lives. The very last …


The Negotiator-As-Professional: Understanding The Competing Interests Of A Representative Negotiator, Trevor C. W. Farrow Mar 2012

The Negotiator-As-Professional: Understanding The Competing Interests Of A Representative Negotiator, Trevor C. W. Farrow

Pepperdine Dispute Resolution Law Journal

This article is about lawyers as negotiators, and in particular, it is about identifying and understanding the influential and potentially competing interests that are - or at least should be - in the minds of lawyers (and potentially other third party representatives) during the overall negotiation process. While there continues to be an increasing amount of literature on the mechanics and strategies of negotiation, the underlying interests that are typically at stake in representative negotiations from the perspective of representatives - particularly negotiations involving lawyers - have not been adequately studied. And until all interests are identified and placed squarely …