Law Commons^™

Confidentiality In Victim Offender Mediation: A False Promise, Mary Ellen Reimund

Journal of Dispute Resolution

The intent of the article is to provide the framework by which victim offender programs can delve into the complexities of mediation confidentiality and avert potential disaster. First, a foundation is needed to explain the philosophical goals of restorative justice, the VOM process, and mediation as it relates to restorative justice. With that background, areas that are likely to spark confidentiality concerns will be discussed as will exemplary confidentiality statutes, cases, and the Uniform Mediation Act. By carving a path of awareness through this previously unexplored topic as it relates to VOM, there will be less likelihood of false promises …

Assuring Excellence, Or Merely Reassuring - Policy And Practice In Promoting Mediator Quality, Charles Pou Jr.

Journal of Dispute Resolution

Mediation practice in the United States has grown substantially over the last two decades, as has the number of people offering to serve as mediators. This growth has led some to argue that competency standards are needed to protect consumers and promote the integrity of mediation processes. While professionals and researchers have tried over the past fifteen years or so to define "what mediators do" and better understand "how to do it well," alternative dispute resolution (ADR) programs, roster administrators, and parties seeking neutrals have had to make day-to-day choices.

State Legislative Update, Robert J. Fisher, Katherine M. Massa, Benjamin B. Nelson, Cassandra A. Rogers

Journal of Dispute Resolution

Senate Bill 1970 was introduced in the Florida Senate on March 2, 2004. It was initially referred to the Senate Judiciary Committee where it passed on April 19 with an 8-0 vote. Senate Bill 1970 was read for the first time in the Senate on April 21. The bill passed the full Senate on April 24 with a 39-0 vote. It was then sent to the full House on April 26 where it was substituted for House Bill 1765. Senate Bill 1970 was read and passed in the House on April 27 with a 114-0 vote. The bill was presented …

Client Counseling, Mediation, And Alternative Narratives Of Dispute Resolution, Robert Rubinson

All Faculty Scholarship

This article examines how litigation and mediation have distinct narrative structures and what these narratives say about counseling clients about mediation. In the narrative of litigation, parties struggle against one another in order to convince a decision maker of the truth of "what happened." This struggle is about more than designating liability; it is about enabling the decision-maker to restore social order and vindicate morality. In contrast, the narrative of mediation does not call upon the mediator to designate "truth" or "right" and "wrong." Rather, the mediator acts to enable parties to overcome and transform conflict through collaboration. In the …

Stepping Back Through The Looking Glass: Real Conversations With Real Disputants About Institutionalized Mediation And Its Value, Nancy A. Welsh

Faculty Scholarship

This Article describes what a group of real disputants perceives as most valuable about agency-connected mediation before, soon after, and eighteen months after they participated in the process. The Article is based primarily upon qualitative data from in-depth interviews with parents and school officials who participated in special education mediation sessions. Though the specific context of these interviews is obviously important, these disputants and their disputes share many commonalities with disputants and disputes in other contexts and, as a result, these disputants' views have relevance for the broader field of mediation.

These interviews suggest that both before and after disputants …

Mindfulness: Foundational Training For Dispute Resolution, Leonard L. Riskin

UF Law Faculty Publications

This Article addresses the problem of mindlessness in counseling, negotiating, and mediating, and offers potential solutions and recommendations for developing foundational capacities through training in mindfulness meditation.

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Faculty Scholarship

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as …

The Chameleon Mediator, Nadja Alexander

Research Collection Yong Pung How School Of Law

In the early phases of the Anglo-American mediation movement, certain models were promoted in theory and training and applied in practice. The models differed, depending on the background of the trainers/mediators, the cultural context and the jurisdiction in which the training and practice took place. In the mediation world of shared understandings and collaboration, there was often competition and sometimes even conflict among advocates of the various theories, models, approaches and styles.

Problem-Solving Advocacy In Mediations, Harold I. Abramson

Scholarly Works

No abstract provided.

The Legal Foundation–Defining The Legislative Format, William W. Huss, Sharon Press, J. Michael Mcwilliams

Faculty Scholarship

Current and pending mediation legislative programs in the United States, Canada, and other countries were examined by speakers and panelists who are living under these new systems or were authors of their design. Topics included court annexed programs, mandatory programs, voluntary programs, private institutional programs, the Uniform Mediation Act, state and federal initiatives, and the impact each has, or will have, on the mediation practice.

Gollum, Meet Smeagol: A Schizophrenic Rumination On Mediator Values Beyond Self Determination And Neutrality, James Coben

Faculty Scholarship

The author asserts that the exclusive reliance on the "Two Towers" of self-determination and neutrality as the foundation for mediation practice has inevitably left us with a process routinely characterized by mediator manipulation and deception. The "tricks" are tolerated by sophisticated repeat players, and absent transparency in practice, disturbingly not known to others. The evolution of mediation, from empowerment/community roots to corporate/court sustenance, is no surprise given the nation's journey through the Reagan revolution, the ideology of free markets, and the Supreme Court's unbridled support for freedom to contract in disputing. In short, mediation is at a crossroads needing to …

Bringing Online Dispute Resolution To Virtual Worlds: Creating Processes Through Code, Ethan Katsh

NYLS Law Review

No abstract provided.

Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Chris Guthrie

Vanderbilt Law School Faculty Publications

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …

Mediation: Ein Meta Modell, Nadja Alexander

Research Collection Yong Pung How School Of Law

The Mediation Meta-Model introduced in this article provides a framework for understanding a range of mediation practice models and their relationship to each other and to other ADR processes. It extends the work of Riskin in two ways: first by revising the dimensions of his original Grid to form a Mediation Meta-Model and second, by identifying and labeling a range of practice models within this Meta-Model. The practice models draw from Boulle\u27s work and extend Boulle\u27s four primary models to five. This Meta-Model is developmental insofar as it has the ability to accommodate emerging and changing practice models of mediation. …

Beyond Rights: Legal Process And Ethnic Conflicts, Elena Baylis

Articles

Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. Ethnically divided states have struggled to build safeguards against such disputes into their political and legal systems by establishing federal political structures, designing elections to encourage participation, and entering complex power-sharing arrangements, but such measures cannot be expected to prevent all conflict. Human rights and minority rights guarantees likewise have proven unable to accommodate all relevant groups and interests. Accordingly, multi-ethnic states facing persistent ethnic conflicts need to develop effective dispute resolution systems for resolving those conflicts as they arise. This presents an important question: what kinds …

Adr Ethics, Scott R. Peppet

Publications

No abstract provided.

Contract Formation In Imperfect Markets: Should We Use Mediators In Deals?, Scott R. Peppet

Publications

This Article asks a simple question: Could third-party mediators be helpful in deals, just as they are in disputes? This Article makes a theoretical argument for such interventions, but also presents preliminary empirical evidence suggesting that transactional mediation may already be taking place.

Assessing Mediator Performance: The Usefulness Of Participant Questionnaires, Roselle L. Wissler, Robert W. Rack Jr.

Journal of Dispute Resolution

As part of their obligation to provide quality services, courts that offer mediation need to periodically assess the performance of mediators to whom they refer cases. One of several methods that have been proposed for monitoring mediator quality is participant assessments of mediator performance. The present article reports an empirical study that examined attorneys' assessments of the skillfulness of mediators in a federal appellate civil medations program. The attorneys rated some of the mediators as being more skillful than others, and these differences generally remained whether or not favorable outcomes were achieved in mediation. In addition, the attorneys rated individual …

Merger Of Law And Mediation: Lessons From Equity Jurisprudence And Roscoe Pound, The , Jacqueline Nolan-Haley

Faculty Scholarship

This article examines Roscoe Pound's concerns with the decline of equity jurisprudence in the American legal system, suggesting that they resonate with those of modern ADR scholars who worry about the effects of blending settlement with adjudication and mediation with the law. It examines court-connected mediation with particular emphasis on the historic parallels between equity and mediation. Both equity and mediation offer a form of "individualized justice" unavailable in the official legal system, and each allow room for mercy in an otherwise rigid, rule-bound justice system. Yet, scholars question whether equity today is still equitable and whether institutionalized mediation offers …

Creating And Certifying The Professional Mediator -- Education And Credentialing, Joseph B. Stulberg, Donald C. Peters, Tracy L. Allen, Judith P. Meyer

UF Law Faculty Publications

Existing and pending law school mediation programs, post-graduate mediator training programs, mentorship programs, credentialing movements, and continuing mediation education were examined by a panel and speakers directly involved in those fields. Are we effectively training new mediators in law schools and post-graduate programs? Should we, and how can we, "credential" mediators? Do good mediators need to be re-trained? How would continuing mediation educational requirements be implemented?

Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Leonard L. Riskin

UF Law Faculty Publications

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on …

Damages: Using A Case Study To Teach Law, Dispute Resolution, And Lawyering , Melody Richardson Daily, Chris Guthrie, Leonard L. Riskin

Faculty Publications

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …

Remembrance Of Things Past? The Relationship Of Past To Future In Pursuing Justice In Mediation, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this Article I seek to explore, not resolve, some of the issues and tensions in the role of temporality in achieving justice through mediative processes and to suggest some correctives at the practice level, as well as encourage some deeper thinking at the theoretical level. I focus here on issues of expression of temporality ("the past") in the "justice and mediation" question, not on issues of how the past should be judged - by the rule of law, culture, or universal human rights principles, or even how it can be "managed" when understandings of the past conflict or cannot …

Teaching And Learning From The Mediations In Barry Werth's Damages, Leonard L. Riskin

Journal of Dispute Resolution

The two mediations in the book Damages, illuminate much about mediation in today's litigation environment - even though they took place in 1993 and each was, in its own way, quite unusual. for that reason - and because we have few good detailed descriptions of real mediations - I have used these two mediations to teach in a variety of settings. First, they served as one of several focuses in the course based on this book, called Damages: A Case Study, that we taught at the University of Missouri-Columbia, School of Law in the winter 2002 and 2003 semesters. In …

Teaching And Learning From The Mediations In Barry Werth's Damages, Leonard L. Riskin

UF Law Faculty Publications

This essay is based primarily on materials the author developed for courses taught at the University of Missouri-Columbia, School of Law, in the winter 2002 and 2003 semesters, based on Barry Werth's book, "Damages."

Mining Mediation Rules For Representation Opportunities And Obstacles, Harold I. Abramson

Scholarly Works

No abstract provided.

Rebellious Lawyering, Settlement, And Reconciliation: Soko Bukai V. Ywca, Bill Ong Hing

Bill Ong Hing

This article is part of a civil rights symposium issue.

Who was the rightful owner of the 1830 Sutter Street building in San Francisco: the San Francisco Young Women's Christian Association (SF YWCA) or the Japanese American community that had raised funds for its purchase in the 1920s and approached the SF YWCA to hold the property in trust for the community because Japanese immigrants were barred from owning property? When the legal dispute over the ownership of a building in the heart of San Francisco's Japantown ended with Japanese American community groups agreeing to purchase the building for $733,000 …

Duelling Experts In Mediation And Negotiation: How To Respond When Eager Expensive Entrenched Expert Egos Escalate Enmity, John Wade

John Wade

Having dueling experts is a predictable problem for negotiators and mediators. A routine process in response is set out: normalizing, reframing, and turning the barrier into a standard problem-solving question. Twelve standard responses (each with inevitable advantages and disadvantages) are systematized for mediators and negotiators to learn and possibly add value to any negotiation.