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Full-Text Articles in Law
Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stemple
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 is …
Mediating Citizen Complaints Against The Police: An Exploratory Study , Samuel Walker, Carol Archbold
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.
Evaluation And Facilitation: Moving Past Either/Or, Richard Birke
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
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 …
Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande
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 example, …
Toward More Sophisticated Mediation Theory, John M. Lande
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.
Variations In Mediation: How - And Why - Legal Mediators Change Styles In The Course Of A Case, Dwight Golann
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 …
Concern Over Confidentiality In Mediation - An In-Depth Look At The Protection Provided By The Proposed Uniform Mediation Act, The, Mindy D. Rufenacht
Concern Over Confidentiality In Mediation - An In-Depth Look At The Protection Provided By The Proposed Uniform Mediation Act, The, Mindy D. Rufenacht
Journal of Dispute Resolution
This Comment will investigate the historical problems with confidentiality in mediation and evaluate the Proposed Uniform Mediation Act's (hereinafter "U.M.A." or "Act") approaches to remedying confidentiality issues. The reader should carefully note that the Uniform Mediation Act is in an on-going drafting phase at this time, and the content of the Act's drafts discussed herein are not final and are for discussion purposes only. This Comment's discussion will cover confidentiality in disclosure with respect to parties, waiver, and a mediator's duty of non-disclosure. This Comment will also compare the mechanisms the U.M.A. has put in place to govern confidentiality to …