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Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stemple Jul 2000

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stemple

Journal of Dispute Resolution

Preparation for the University of Missouri's lecture on dispute resolution and consideration of commentary prompted additional thoughts on the issue and a more refined perspective on the issue of facilitation-versus-evaluation and its role in the continued development of modem ADR. Rather than attempt to fine-tune a completed article, this reply will address the additional perspectives as well as note points of distinct conflict or quibble with commentators. First, this reply provides some additional assessment framing the facilitative-evaluative debate as well as a modified brief in support of the legitimacy of some elements of evaluation in the eclectic mediation that ...


Facilitative Mediator Responds, A, Zena Zumeta Jul 2000

Facilitative Mediator Responds, A, Zena Zumeta

Journal of Dispute Resolution

I appreciate the thoughtfulness and conclusions of Professor Jeffrey Stempel in his article. His title, "The Inevitability of the Eclectic," seems completely right to me. Most mediators I know who have had training in mediation are more eclectic than squarely in one camp or another. They use techniques that are geared both to their own personalities and to the needs of the case. This, indeed, is a level of sophistication that is a heartening indication of the maturity of the field of mediation. However, there are many points in Stempel's argument that I disagree with, including some of his ...


Mediator's Privilege: Can A Mediator Be Compelled To Testify In A Civil Case - California Privilege Law Says Yes - Olam V. Congress Mortgage Co., The, Jennifer C. Bailey Jul 2000

Mediator's Privilege: Can A Mediator Be Compelled To Testify In A Civil Case - California Privilege Law Says Yes - Olam V. Congress Mortgage Co., The, Jennifer C. Bailey

Journal of Dispute Resolution

In the present case, Olain v. Congress, the United States District Court for the Northern District of California has, in a precedent-setting opinion, forced a mediator to testify in a subsequent civil procedure. 9 This Note will examine two recurring issues regarding mediation: first, the appropriate law to be applied when a case sits in federal court; and second, the history of the mediation privilege, the present state of the mediation privilege within the federal and state courts, and the consequences of the instant case.


Arbitration And Its Collateral Estoppel Effect On Third Parties - Vandenberg V. Superior Court, Thurston K. Cromwell Jul 2000

Arbitration And Its Collateral Estoppel Effect On Third Parties - Vandenberg V. Superior Court, Thurston K. Cromwell

Journal of Dispute Resolution

This Note examines why California's supreme court chose not to allow judicially confirmed arbitration awards to apply to third parties. The court based its decision on the contract model of arbitration and determined that an agreement to arbitrate was not necessarily an agreement binding third parties. However, this decision undermines the credibility of the arbitration process and fails to consider the negative impact relitigation of issues will have on the California courts.


Negligent Retention And Arbitration: The Effect Of A Developing Tort On Traditional Labor Law, Terry A. Bethel Jul 2000

Negligent Retention And Arbitration: The Effect Of A Developing Tort On Traditional Labor Law, Terry A. Bethel

Journal of Dispute Resolution

As negligent retention theories continue to grow, courts will inevitably address these questions. This article will offer a brief introduction to the tort of negligent retention and related doctrines and will discuss how courts will accommodate them within traditional labor law principles. Despite my impulsive reaction that negligent retention poses a threat to arbitration, I conclude that, for the most part, negligent retention and labor arbitration can coexist peacefully.


Mediating Citizen Complaints Against The Police: An Exploratory Study , Samuel Walker, Carol Archbold Jul 2000

Mediating Citizen Complaints Against The Police: An Exploratory Study , Samuel Walker, Carol Archbold

Journal of Dispute Resolution

This article examines the subject of mediating citizen complaints against the police. It reviews the history of citizen complaints, presents data on existing police complaint mediation programs, and discusses the potential contributions of mediation to police accountability.


Foreword, Leonard L. Riskin Jul 2000

Foreword, Leonard L. Riskin

Journal of Dispute Resolution

In 1994, I proposed the idea of charting a mediator's role on a facilitative evaluative continuum. Since that time, the notion surely has generated at least as much heat as light. In this Symposium, we are fortunate to have a lead article and final reflections by Professor Jeffrey Stempel, one of the most thoughtful and prolific commentators on this issue. Professor Stempel's argument that eclecticism in mediation is inevitable is well-honed, and yet our distinguished commentators - Gary Gill-Austem, Richard Birke, Kim Kovach, Lela Love, Jon Lande, and Zena Zumeta - found much to say about it.


Inevitability Of The Eclectic: Liberating Adr From Ideology, The, Jeffrey W. Stempel, Kimberlee K. Kovach Jul 2000

Inevitability Of The Eclectic: Liberating Adr From Ideology, The, Jeffrey W. Stempel, Kimberlee K. Kovach

Journal of Dispute Resolution

In this essay, I continue to argue against such rigid characterization of the mediation enterprise and in favor of what I term an "eclectic" approach to mediation. The eclectic style is one in which a mediator - while maintaining neutrality and impartiality at all times - attempts to both assist the disputants in finding acceptable solutions on their own and also remains free to provide necessary guidance as to the outcomes that might obtain in the legal regime that will govern their dispute should no agreement result from the mediation. In short, my view of good mediation practice is one where the ...


Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P, Love Jul 2000

Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P, Love

Journal of Dispute Resolution

The thesis of this essay is that when mediators try to resolve a controversy by providing their analysis fo the legal - or other- merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral's judgment, award or opinion to determine or jump-start a resolution. That add-on activity to mediation should be called by its proper name. This essay will not review the many reasons that a single neutral combining the roles of facilitator and evaluator is problematic, since that has been done extensively elsewhere.' Instead, in part one, we highlight ...


Evaluation And Facilitation: Moving Past Either/Or, Richard Birke Jul 2000

Evaluation And Facilitation: Moving Past Either/Or, Richard Birke

Journal of Dispute Resolution

In this essay, I argue that there is no such thing as a purely facilitative mediation of a legal dispute. Neither is there such a thing as a purely evaluative mediation of a legal dispute. Mediation of legal disputes is, by its nature, always facilitative and evaluative. The evaluative-facilitative divide is an artificial artifact of history. Following this introduction, I offer a brief description of the development of the field of legal mediation, and I attempt to place the Riskin grid in historical context. I then hope to push the debate toward a new moment, one in which all mediation ...


Toward More Sophisticated Mediation Theory, John Lande Jul 2000

Toward More Sophisticated Mediation Theory, John Lande

Journal of Dispute Resolution

Some of these benefits are due to the particular arguments of facilitation proponents, while others involve a general development of the field resulting from the debate. The first benefit is that facilitation proponents have highlighted how mediation can promote many important values such as party self-determination, and they have cautioned about risks of unfairness created by mediator evaluation as described in Part III. Second, the facilitation-evaluation debate has stimulated a better appreciation of the appropriateness of these techniques in different types of cases, as described in Part IV. Third, the debate has contributed to reducing ill-considered evaluation practice, as discussed ...


Faithful, Gary L. Gill-Austern Jul 2000

Faithful, Gary L. Gill-Austern

Journal of Dispute Resolution

The term "facilitative mediation" reminds me of the term "Old Testament." As we Jews from time to time have reminded Christians, the Jewish people call their canon the Tanakh, or, in English, the Hebrew Scriptures. That the same thirty-nine books - Genesis, Exodus, and so on - are labeled "Old Testament" by others indicates that another (later) religious community believes that an event occurred that requires what came before to be interpreted through the prism of an intervening event or reality. For Christians, this is expressed in the New Testament. Returning, then, to the current discussion, it takes a partisan of "evaluative ...


Employees Beware: Signing Arbitration Agreements May Limit Your Remedies In Suits Filed By The Eeoc - Equal Employment Opportunity Commission V. Waffle House, Inc., Sarah Baxter Jul 2000

Employees Beware: Signing Arbitration Agreements May Limit Your Remedies In Suits Filed By The Eeoc - Equal Employment Opportunity Commission V. Waffle House, Inc., Sarah Baxter

Journal of Dispute Resolution

Arbitration is used regularly to settle employment disputes, and federal policy supports these agreements between private parties. Federal statutes, however, also grant the Equal Employment Opportunity Commission the authority to pursue employment discrimination claims in court. These claims do more than vindicate the rights of individuals, they also safeguard the public interest in ending employment discrimination. A conflict may arise between these two policies when employees sign agreements to submit statutory discrimination claims to arbitration. This Note examines the split of authority on the issue of whether the Equal Employment Opportunity Commission should be permitted to seek money damages on ...


How Level Is The Playing Field - Should Employers Be Able To Circumvent State Workers' Compensation Schemes By Creating Their Own Employee Compensation Plans - Strawn V. Afc Enterprises, D/B/A Church's Chicken, Nathan E. Ross Jul 2000

How Level Is The Playing Field - Should Employers Be Able To Circumvent State Workers' Compensation Schemes By Creating Their Own Employee Compensation Plans - Strawn V. Afc Enterprises, D/B/A Church's Chicken, Nathan E. Ross

Journal of Dispute Resolution

Disputes resulting from workplace incidents are consuming increasingly greater proportions of our courts' dockets.2 In recent years, "[e]mployment litigation has grown at a rate many times greater than litigation in general ... almost one thousand percent greater than the increase in all other types of civil litigation combined."3 Due to the unequal bargaining power employers possess over employees in these disputes, states have passed workers' compensation laws to level the playing field.' However, employers have chosen not to subscribe to their states' workers' compensation systems, but instead have created their own employee compensation plans.' In addition, these employer-created ...


Recent Developments: The Uniform Arbitration Act, S. Owen Griffin, Kelli Hopkins, Scot L. Wiggins, Emily Woodward Jul 2000

Recent Developments: The Uniform Arbitration Act, S. Owen Griffin, Kelli Hopkins, Scot L. Wiggins, Emily Woodward

Journal of Dispute Resolution

This Article is an overview of recent court decisions that interpret state versions of the Uniform Arbitration Act ("U.A.A.").' Arbitration statutes patterned after the U.A.A. have been adopted by thirty-four states and the District of Columbia. The goal of this project is to promote uniformity in the interpretation of the U.A.A. by articulating the underlying policies and rationales of recent court decisions interpreting the U.A.A?


Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande Apr 2000

Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande

Faculty Publications

Do you believe in mediation? That may seem like an odd question. Normally one thinks of ‘believing in‘ (or having faith in) things like magic, God, or the market. These are typically things that are beyond verifiable human knowledge (such as magic and God) and/or deeply held values (such as whether the market is a better mechanism than government for managing the flow of goods and services). At first blush, one might not think that mediation would fall into either category. There have been numerous empirical studies about many different aspects of mediation, so one can confidently say, for ...


Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben Jan 2000

Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben

Faculty Publications

Under the traditional bipolar model, civil dispute resolution is generally divided into two spheres: trial, which is public in nature and therefore subject to constitutional due process, and alternative dispute resolution (ADR), which is private in nature and therefore not subject to such constraints. In this article, Professor Richard Reuben proposes a unitary understanding of public civil dispute resolution, one that recognizes that ADR is often energized by state action and thus is constitutionally required to comply with minimal but meaningful due process standards. Depending upon the process, such standards might include the right to an impartial forum, the right ...


Toward More Sophisticated Mediation Theory, John M. Lande Jan 2000

Toward More Sophisticated Mediation Theory, John M. Lande

Faculty Publications

In the lead article in this symposium, Professor Jeffrey Stempel provides a very thoughtful analysis of the mediation field. He focuses on the debate over facilitative and evaluative mediation and he is critical of many of the arguments made by proponents of facilitative mediation. I have expressed some similar concerns, and I generally agree with his analysis (with a quibble here and there). I do think that the facilitation-evaluation debate has been productive (though admittedly wearisome), and that proponents of facilitative mediation deserve more credit than he gives them in his article.


Role Of Federal Courts In Assisting International Arbitration - National Broadcasting Co. V. Bear Stearns & (And) Co., The, Thurston K. Cromwell Jan 2000

Role Of Federal Courts In Assisting International Arbitration - National Broadcasting Co. V. Bear Stearns & (And) Co., The, Thurston K. Cromwell

Journal of Dispute Resolution

This Note examines a Second Circuit decision that determined private, international arbitration proceedings do not qualify for the same discovery assistance as do foreign, governmental proceedings under 28 U.S.C. § 1782 ("§ 1782"). This Note will focus on the Second Circuit's controversial interpretation of § 1782 and its impact on the future of private, international arbitration.


Federalism Versus The Greater Good ... Should Powerful Franchisors Be Allowed To Contract For The Home Court Advantage Through Forum Selection Clauses - Kkw Enterprises, Inc. V. Gloria Jean's Gourmet Coffees Franchising Corp., Nathan E. Ross Jan 2000

Federalism Versus The Greater Good ... Should Powerful Franchisors Be Allowed To Contract For The Home Court Advantage Through Forum Selection Clauses - Kkw Enterprises, Inc. V. Gloria Jean's Gourmet Coffees Franchising Corp., Nathan E. Ross

Journal of Dispute Resolution

When Congress condified the Federal Arbitration Act (F.A.A.), it sought to make arbitration a viable alternative to tradition litigation. Since the enactment of the FAA, the United States Supreme Court has addressed and answered numerous issues regarding the functioning of the FAA. However, the Supreme Court has yet to determine whether the FAA preempts state laws that invalidate forum selection clauses contained in franchise agreements. In Gloria Jean's, the First Circuit Court of Appeals squarely faced this issue and held that the FAA preempts state laws that attempt to negate the terms contained in a forum selection ...


Some Reflections On Adr, James F. Henry Jan 2000

Some Reflections On Adr, James F. Henry

Journal of Dispute Resolution

It may be time for practitioners and theorists who have contributed quality and innovation to the ADR movement to declare victory. It also may be time to "cut and run," because ADR must address some difficult issues if it is to realize its full potential. So far, we have assembled an excellent state-of-the-art in a relatively short period, but we have paid relatively little attention to the ADR infrastructure required to fulfill the quality and promises of ADR. It is that delivery system of ADR which will determine the degree of economy, accessability, expedience, innovation and party control that are ...


Table Of Contents - Issue 2 Jan 2000

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.


Future Of Adr - The Earl F. Nelson Memorial Lecture, The, Frank E. A. Sander Jan 2000

Future Of Adr - The Earl F. Nelson Memorial Lecture, The, Frank E. A. Sander

Journal of Dispute Resolution

Because I've been fortunate to observe the ADR scene for much of its recent development, I'm often asked my views of where we stand now. My somewhat flip answer is, "On Monday, Wednesday and Friday, I think we've made amazing progress. On Tuesday, Thursday and Saturday, ADR seems more like a grain of sand on the adversary system beach." So I think we have a way to go. Let me try to elaborate a little on those thoughts


Search To Clarify An Elusive Standard: What Relationships Between Arbitrator And Party Demonstrate Evident Partiality - Anr Coal Co. V. Cogentrix Of North Carolina, Inc., The, Jennifer C. Bailey Jan 2000

Search To Clarify An Elusive Standard: What Relationships Between Arbitrator And Party Demonstrate Evident Partiality - Anr Coal Co. V. Cogentrix Of North Carolina, Inc., The, Jennifer C. Bailey

Journal of Dispute Resolution

In Commonwealth Coatings Corp. v. Continental Casualty Co.,3 the Supreme Court adopted a standard to determine and define an arbitrator's evident partiality in arbitration proceedings. Lower courts have relied on the Court's treatment of the issue, but this reliance has proved problematic, and led to both federal and state courts adopting inconsistent standards of evident partiality. This Casenote will examine the problems of Commonwealth, its impact on the standards of arbitrator partiality over the past thirty years, its continuing influence on the recent Fourth Circuit Court of Appeals decision in ANR Coal Co. v. Cogentrix of North ...


Appeals From Arbitration Orders Under The Federal Arbitration Act: Pro-Arbitration Policy Clashes With The Right To Appeal Final Decisions - Randolph V. Green Tree Financial Corp., Sarah Baxter Jan 2000

Appeals From Arbitration Orders Under The Federal Arbitration Act: Pro-Arbitration Policy Clashes With The Right To Appeal Final Decisions - Randolph V. Green Tree Financial Corp., Sarah Baxter

Journal of Dispute Resolution

Some circuits have also taken the position that when a court rules on an arbitration order in an embedded proceeding and dismisses the remaining claims in the action, those decisions are also not final or appealable. Other circuits, however, have taken the view that when a court rules on an arbitration order and dismisses the remaining claims in an action, such a decision is final and appealable. A decision on an arbitration order in an independent action is a final decision. This Note explores the circuit split over the issue of whether orders compelling arbitration in embedded proceedings may be ...


Title Page Jan 2000

Title Page

Journal of Dispute Resolution

No abstract provided.


Table Of Contents - Issue 1 Jan 2000

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.


Preface, Ryan D. O'Dell Jan 2000

Preface, Ryan D. O'Dell

Journal of Dispute Resolution

No abstract provided.


Continuing The Conversation About The Current Status And The Future Of Adr: A View From The Courts, Wayne D. Brazil Jan 2000

Continuing The Conversation About The Current Status And The Future Of Adr: A View From The Courts, Wayne D. Brazil

Journal of Dispute Resolution

In this essay I would like to complement the picture that Professor Sander has presented by adding information about and commentary from the perspective of the courts. After offering some general observations about the current status of ADR in the courts, I will describe what I think the near-term future looks like. Then I will articulate values that we need to take special care to preserve in court-sponsored ADR programs. I also will identify dangers that we, as courts, must try to avoid on the road ahead. Along the way, I will respond specifically to three of the concerns that ...


Variations In Mediation: How - And Why - Legal Mediators Change Styles In The Course Of A Case, Dwight Golann Jan 2000

Variations In Mediation: How - And Why - Legal Mediators Change Styles In The Course Of A Case, Dwight Golann

Journal of Dispute Resolution

I will seek to show in this article that professional legal mediators in fact use a variety of styles, and that they change their approach constantly during a single mediation, even within a single meeting with a disputant. I will argue that these stylistic changes are the norm rather than the exception in the mediation of civil legal disputes and that the use of evaluative techniques is also frequent, even among those mediators who favor a broad, facilitative approach. Finally, I will describe the contrasting styles that the filmed mediators used in the same dispute and argue that these variations ...