Law Commons^™

Mediation In The Modern Millennium, Nadja Alexander

Research Collection Yong Pung How School Of Law

In Australia we call it "Mediation", the French say "la mediation", and the Germans "die Mediation". The term is global, stemming from the Latin, mediatio'; the process universal, its inherent flexibility transcending historical and national legal norms and systemic differences. Indeed, forms of mediation can be traced back to sources in ancient Greece, the Bible, traditional communities in Asia and Africa, and to the fourteenth Century English 'Mediators of Questions'. Mediation, however, does not exist in a vacuum. It operates against a backdrop of national dispute management culture and institutional rules and regulations. Accordingly, it is nothing less than misleading …

Cyberspace And Domain Name Disputes: A Look At The Forums And Remedies Available To Trademark Holders In Cyberspace, J. Kyle Mccurry

Journal of Dispute Resolution

The purpose of this Comment is to define the scope and advantages of using both the UDRP and the ACPA. In the same regard, this Comment looks at the limitations of the UDRP and the ACPA and the problems which have arisen in the arbitrations and cases that have come under both.

Retaining Bargained-For Finality And Judicial Review In Labor Arbitration Decisions: Dual Interests Preserved In Major League Baseball Players Association V. Garvey - Major League Baseball Players Assn. V. Garvey, Emily J. Huitsing

Journal of Dispute Resolution

Arbitration has for years been the principal means of labor dispute resolution. As a part of labor contracts, workers agree to arbitrate disputes with their employers, bargaining for this forum as their choice method of dispute resolution. Occasionally, however, the decision of an arbitrator strays far from what a court believes the outcome of the dispute between employer and employee should be. In these cases, a conflict arises between the finality and stability of the bargained-for arbitrator's decision and the need for judicial upset of clearly errant arbitral decisions

Emergencia, Derecho , Justicia Y Seguridad Jurídica, Horacio M. Lynch

Horacio M. LYNCH

Análisis de la respuesta judicial a la crisis económica de 2002 involucrando, entre otras, las siguientes cuestiones: los amparos, su tramitación, y sus secuelas; la declaración de la inconstitucionalidad de oficio, "órdenes imposibles de cumplir", la colisión de derechos; y cuestiones político institucionales, como la gobernabilidad y el gobierno de los jueces.

Appellate Mediation In New Mexico: An Evaluation, Roger A. Hanson, Richard Becker

The Journal of Appellate Practice and Process

No abstract provided.

On The Importance Of Institutions: Review Of Arbitral Awards For Legal Errors, Peter B. Rutledge

Scholarly Works

In my view, legislatures, rather than courts or parties, should decide whether (and to what extent) courts should review arbitral awards for errors of law. The optimal legislative mechanism should not be compulsory but should offer parties the choice whether to "opt-in" to this regime of expanded review by inserting language to that effect in their arbitration agreement. A legislative solution with an "opt-in" feature has a sounder doctrinal foundation, better respects the distribution of power between various branches of government, involves a lower risk of error and minimizes transaction costs. From this position, two additional conclusions follow: first, courts …

Legislating Apology: The Pros And Cons, Jonathan R. Cohen

UF Law Faculty Publications

Should apologies be admissible into evidence as proof of fault in civil cases? While this question is a simple one, its potential ramifications are great, and legislative and scholarly interest in the admissibility of apologies has exploded. Shortly after the idea of excluding apologies from admissibility into evidence was raised in academic circles three years ago, it rapidly spread to the policy arena. For example, California and Florida enacted laws in 2000 and 2001 respectively excluding from admissibility apologetic expressions of sympathy ("I'm sorry that you are hurt") but not fault-admitting apologies ("I'm sorrythat I injured you") after accidents. Eight …

The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin

UF Law Faculty Publications

This Article proposes that introducing mindfulness meditation into the legal profession may improve practitioners' well-being and performance and weaken the dominance of adversarial mind-sets. By enabling some lawyers to make more room for - and act from - broader and deeper perspectives, mindfulness can help lawyers provide more appropriate service (especially through better listening and negotiation) and gain more personal satisfaction from their work.

Part I of this article describes a number of problems associated with law school and law practice. Part II sets forth a variety of ways in which lawyers, law schools, and professional organizations have tried to …

Book Review: A Guide To Arbitration Practice In Australia, Nadja Alexander

Research Collection Yong Pung How School Of Law

No abstract provided.

Mediating Ethically: The Limits Of Codes Of Conduct And The Potential Of A Reflective Practice Model, Julie Macfarlane

Osgoode Hall Law Journal

Discussions regarding the appropriate ethical behaviours for mediators and the subsequent development of formal codes of conduct have focused on hallmark issues such as third party impartiality and party self-determination. However, in an informal process, ethical choices are inherent in every intervention made by a mediator. In adopting the standard-setting approach of an adjudicative model, mediator codes of conduct are a poor fit with the conceptual and structural characteristics of this fluid, uncertain, and essentially private process. Confining the substantive and conceptual debate over mediation ethics to formal codes dangerously underestimates both the scope and the significance of choices faced …

Should An Arbitration Provision Trump The Class Action? No: Permitting Companies To Skirt Class Actions Through Mandatory Arbitration Would Be Dangerous And Unwise, Jean R. Sternlight

Scholarly Works

Companies are deliberately using mandatory arbitration to prevent consumers and employces from joining together in class actions. As Carroll Neesemann has explained, eliminating the class action is a "strong incentive" of those companies that impose the requirement of arbitration on consumers and employees. Mr. Neesemann defends this phenomenon, and his article offers companies and their attorneys some tips on how to effectively use arbitration to insulate themselves from the threat of class actions. By contrast, this essay argues that it is dangerous and unwise to permit companies to use mandatory arbitration to exempt themselves from class action suits.

Current Issues In International Arbitration, Michael P. Malloy

McGeorge School of Law Scholarly Articles

No abstract provided.

The Duckwater Shoshone Drug Court, 1997-2000: Melding Traditional Dispute Resolution With Due Process, Ronald Eagleye Johnny

American Indian Law Review

No abstract provided.

Disputing Together: Conflict Resolution And The Search For Community, Robert M. Ackerman

Law Faculty Research Publications

No abstract provided.

Dispute Resolution In A World Of Uncertainty: A Symposium Introduction, Robert M. Ackerman

Law Faculty Research Publications

No abstract provided.

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. …

False Dichotomies And Asking The Right Questions, John Wade

John Wade

This is a comment on a recent article entitled Enacting and Reproducing Social and Individual Identity Through Mediation by Ho-Beng Chia, Chee-Leong Chong, Joo-Eng Lee-Partridge, Chantel Chu Shi Hwee, and Sharon Francesca Koh Wei-Fei, in Conflict Resolution Quarterly, 2000, 19(1).

Teoría General De La Prueba Judicial, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

Conflict In Health Care Organizations, Mary Etta C. Mills

Journal of Health Care Law and Policy

No abstract provided.

Managing Conflict In An Urban Health Care Setting: What Do "Experts" Know?, Kenneth Kressel, Cheryl Ann Kennedy, Elise Lev, Louise Taylor

Journal of Health Care Law and Policy

No abstract provided.

Mediation And Medicare Part A Provider Appeals: A Useful Alternative, Kathleen Scully-Hayes

Journal of Health Care Law and Policy

No abstract provided.

Context And Institutional Structure In Attorney Regulation: Constructing An Enforcement Regime For International Arbitration, Catherine A. Rogers

Journal Articles

The question that looms large over the future of international arbitration is: How much should states yield to the international arbitration system? This Article attempts to answer the question as it applies to the specific context of regulating attorney conduct.

Fit And Function In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers

Journal Articles

In this Article, I develop a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, I propose integrated mechanisms for making those norms both binding and enforceable. In making these proposals, I reject the classical conception of legal ethics as a purely deontological product derived from first principles. I argue, instead, that ethics derive from the interrelational functional role of advocates in an adjudicatory system, and that ethical regulation must correlate with the structural operations of the system. The fit between ethics and function, I will demonstrate, not only …

The Ballad Of Transborder Arbitration, Thomas E. Carbonneau

Journal Articles

International commercial arbitration (ICA) is many things positive. Because business transactions cannot take place without a functional system of adjudication,ICA has enabled parties to engage in and pursue international commerce. As a result, it has had an enormous impact upon the international practice of law, the structuring of a de facto international legal system, and the development of a substantive world law of commerce. In a word, ICA has been a vital engine in the creation of a transborder rule of law. Furthering this design, the arbitral "method"has even been applied to the unruly political problems that attend international trade …

Title Page

Journal of Dispute Resolution

No abstract provided.

Procedural Justice Research And The Paucity Of Trials, Chris Guthrie

Journal of Dispute Resolution

Likewise, I do not mean to criticize Hensler's contribution to this volume. Although she is a prominent procedural justice researcher herself, she is certainly not responsible for the inattention given to the questions I have identified, and her measured conclusions about what might be inferred from the existing research are certainly appropriate. Indeed, I take Hensler' s broader point to be that courts should not mandate mediation simply because they believe as a matter of faith that mediation is a "better" process than others." Rather, courts should base their decisions, to the extent possible, on empirical evidence about the relative …

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler

Journal of Dispute Resolution

Across the country, people who file lawsuits are being diverted from adjudication to mediation. Whereas once mediation was seen as the preferred means of resolving family disputes (especially those involving child custody), now it is mandated for a broad range of civil disputes. Whereas once citizens were called upon to volunteer as mediators in community justice centers outside the courts, now mediation is a line of business for lawyers whose customers are sent to them by the courts. Whereas once dispute resolution theorists called on courts to provide a variety of procedural choices for civil disputants, now courts order litigants …

Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, The, Clark Freshman, Adele Hayes, Greg Feldman

Journal of Dispute Resolution

This article explores two related questions: First, does mood7 shape how well lawyers succeed at negotiation?" Second, can lawyers succeed better at negotiation by understanding and managing the role of mood? We begin by exploring what scientific evidence we currently have about how mild changes in mood are associated with significant differences in success at negotiation. Ultimately, we argue that existing scientific evidence shows mood plays a far more complicated role than negotiators and negotiation scholars usually imagine, but that further research needs to address more carefully exactly how mood works and how it affects lawyers and legal negotiation. We …