Law Commons^™

Fitting The Forum To The Pernicious Fuss: A Dispute System Design To Address Implicit Bias And 'Isms In The Workplace, Elayne E. Greenberg

Elayne E Greenberg

This proposal is a heretofore untaken first step in the dispute system design for implicit bias. It offers a different type of thinking about workplace discrimination caused by implicit bias and a different way to resolve it.

Until now, workplace discrimination caused by implicit biases has gone unabated, because the courts and EEOC mediation programs are better designed to address workplace discrimination caused by explicit biases. As the social science research clarifies, there are salient differences between workplace discrimination animated by implicit biases and workplace discrimination shaped by explicit biases discrimination. We now understand that we all have implicit biases, …

Collaborative Lawyers’ Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients’ Informed Consent To Use Collaborative Law, John Lande, Forrest S. Mosten

John Lande

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. In CL, the lawyers and clients sign a “participation agreement” promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the “disqualification agreement,” which provides that both CL lawyers would be disqualified from representing the clients if the case is litigated. CL is designed to encourage parties to stay in the process which can be good, though sometimes parties feel stuck there, having invested thousands of dollars and at risk of …

The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John Lande

John Lande

This article identifies early case handling (ECH) as an important general phenomenon in dispute system design theory and practice, catalogs the major ECH processes, and urges practitioners and policymakers to encourage use of and experimentation with ECH processes when appropriate. The key element of ECH is that people intentionally exercise responsibility for handling the case from the outset. ECH processes in courts include early case management procedures, differentiated case management systems, early neutral evaluation, and other early alternative dispute resolution (ADR) processes. ECH in the private sector includes ADR pledges and contract clauses, early case assessment and ADR screening protocols, …

Principles For Policymaking About Collaborative Law And Other Adr Processes, John Lande

John Lande

This Article articulates a set of principles for policymaking about “alternative dispute resolution” (ADR) to promote values of process pluralism, choice in dispute resolution processes, and sound decisionmaking. It argues that policymakers should use a dispute system design (DSD) framework in analyzing policy options. DSD involves systematically managing a series of disputes rather than handling individual disputes on an ad hoc basis. It generally includes assessing the needs of disputants and other stakeholders, planning to address those needs, providing necessary training and education for disputants and dispute resolution professionals, implementing the system, evaluating it, and making periodic modifications as needed. …

Using Dispute System Design Methods To Promote Good-Faith Participation In Court-Connected Mediation Programs, John Lande

John Lande

This Article discusses what can be done to promote productive behavior in mediation and reduce bad conduct. Although most participants do not abuse the mediation process, some people use mediation to drag out litigation, gain leverage for later negotiations, and generally wear down the opposition. Rules requiring good-faith participation are likely to be ineffective and possibly counterproductive. This Article proposes using dispute system design principles to develop policies satisfying the interests of stakeholders in court-connected mediation programs. After outlining interests of key stakeholder groups including litigants, attorneys, courts, and mediators, the Article describes specific policies that could satisfy their interests. …