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Full-Text Articles in Law

Introduction & Coda, Multi-Party Dispute Resolution, Democracy And Decision Making: Vol. Ii Of Complex Dispute Resolution, Carrie Menkel-Meadow Sep 2012

Introduction & Coda, Multi-Party Dispute Resolution, Democracy And Decision Making: Vol. Ii Of Complex Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international conflict resolution. Each volume contains an original introduction by the editor, which explores the key issues in the field. All three volumes feature essays which span an interdisciplinary range of fields, law, political science, game theory, decision science, economics, social and cognitive psychology, sociology and anthropology and consider issues in the uses of informal and …


Lo Que Usted Debe Saber Al Invertir En Una Franquicia En México, Rodolfo C. Rivas Rea Esq., Marco A. Vargas Iñiguez Esq. Aug 2012

Lo Que Usted Debe Saber Al Invertir En Una Franquicia En México, Rodolfo C. Rivas Rea Esq., Marco A. Vargas Iñiguez Esq.

Rodolfo C. Rivas

The authors provide a brief account of the increasing importance of franchises in the current economic environment. Furthermore, in this walkthrough the authors discuss the existing legal regime for franchises in Mexico and provide an analysis of the negotiating positions involved in successfully developing a franchise.//////////////////////////////////////////////////////////////////////Los autores proporcionan un breve estudio sobre la creciente importancia de las franquicias en el entorno económico actual. Además, los autores analizan el régimen jurídico vigente para las franquicias en México y ofrecen un análisis sobre las negociaciones necesarias para el desarrollo exitoso de una franquicia.


The Wizard And Dorothy, Patton And Rommel: Negotiation Parables In Fiction And Fact, H. Lee Hetherington Jul 2012

The Wizard And Dorothy, Patton And Rommel: Negotiation Parables In Fiction And Fact, H. Lee Hetherington

Pepperdine Law Review

No abstract provided.


Let's Put Ourselves Out Of Business: On Respect, Responsibility, And Dialogue In Dispute Resolution, Jonathan R. Cohen May 2012

Let's Put Ourselves Out Of Business: On Respect, Responsibility, And Dialogue In Dispute Resolution, Jonathan R. Cohen

Jonathan R. Cohen

This Essay works in two steps. I want to daydream with you about the future, or what I hope will someday be the future, of our dispute resolution movement. I want to then use these imaginings to reflect upon where we are today. I want to suggest something that may at first seem odd: Our ultimate goal should be to put ourselves, or virtually put ourselves, out of business. Eventually, I hope the time will come when we live in a society where the expert services of dispute resolution professionals, including not only lawyers and judges but also mediators and …


The Culture Of Legal Denial, Jonathan R. Cohen May 2012

The Culture Of Legal Denial, Jonathan R. Cohen

Jonathan R. Cohen

The goals of this essay are twofold. The first is to examine critically the practice of lawyers assisting clients in denying harms they commit and suggest some ways of changing that practice. Lawyers commonly presume that their clients' interests are best served by denial. Yet such a presumption is not warranted. Given the moral, psychological, relational, and sometimes even economic risks of denial to the injurer, lawyers should consider discussing responsibility taking more often with clients. The second is to explore several structural or systemic factors that may reinforce the practice of denial seen day in and day out within …


When People Are The Means: Negotiating With Respect, Jonathan R. Cohen May 2012

When People Are The Means: Negotiating With Respect, Jonathan R. Cohen

Jonathan R. Cohen

Most scholarship on negotiation ethics has focused on the topics of deception and disclosure. In this Article, I argue for considering a related, but distinct, ethical domain within negotiation ethics. That domain is the ethics of orientation. In contrast to most forms of human interaction, a clear purpose of negotiation is to get the other party to take an action on one's behalf, or at least to explore that possibility. This gives rise to a core ethical tension in negotiation that I call the object-subject tension: how does one reconcile the fact that the other party is a potential means …


Legislating Apology: The Pros And Cons, Jonathan R. Cohen May 2012

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

Jonathan R. Cohen

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 …


Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen May 2012

Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen

Jonathan R. Cohen

In this Article, I focus on injuries committed by members of organizations, such as corporations, and examine distinct issues raised by apology in the organizational setting. In particular, I consider: (i) the process of learning to prevent future errors; (ii) the divergent interests stemming from principal-agent tensions in employment, risk preferences and sources of insurance; (iii) the non-pecuniary benefits to corporate morale, productivity and reputation; (iv) the standing and scope of apologies; and (v) the articulation of policies toward injuries to others.


The Immorality Of Denial, Jonathan R. Cohen May 2012

The Immorality Of Denial, Jonathan R. Cohen

Jonathan R. Cohen

This article is the first of a two-part series critically examining the role of lawyers in assisting clients in denying responsibility for harms they have caused. If a person injures another, the moral response is for the injurer actively to take responsibility for what he has done. In contrast, the common practice within our legal culture is for injurers to deny responsibility for harms they commit. The immoral, in other words, has become the legally normal. In this Article, Professor Cohen analyzes the moral foundations of responsibility-taking. He also explores the moral, psychological, and spiritual risks to injurers who knowingly …


Construction Partnering: Can These Protocols Build A Stronger Labor-Management Community?, Jim Stott, Juan Carlos Gonzalez Apr 2012

Construction Partnering: Can These Protocols Build A Stronger Labor-Management Community?, Jim Stott, Juan Carlos Gonzalez

Pepperdine Dispute Resolution Law Journal

In an expansive marketplace where large organizations in the construction, manufacturing, service and union industries are facing increased global competition, collaborative labor relations are essential to maximizing efficiency and productivity. It is for this reason that developing collaboration between labor and management is highly researched and consulted by academics and professionals throughout the world. Although various models of collaboration have been developed, none have been found to clearly overcome that insidious conflict and paradigm of "Labor vs. Management." The purpose of this paper is to provide academics and consultants (mediators/facilitators) an additional perspective for designing, developing and implementing the best …


Cooperative Bargaining Styles At Fmcs: A Movement Toward Choices , Carolyn Brommer, George Buckingham, Steven Loeffler Apr 2012

Cooperative Bargaining Styles At Fmcs: A Movement Toward Choices , Carolyn Brommer, George Buckingham, Steven Loeffler

Pepperdine Dispute Resolution Law Journal

The Federal Mediation and Conciliation Service ("FMCS") was created in 1947. While an array of subsequent statutory enactments have expanded the FMCS charter, the core mission of FMCS has been, and remains, to assist labor and management to settle their disputes through mediation as well as to promote the development of sound and stable labor management relationships. The vision of how that mission will be realized has changed significantly in response to changes in our society, to expanded knowledge of conflict resolution and labor relations, and to lessons gathered by the nation's mediators over a half-century of work with collective …


Part Ii - What Would You Do - With A Taniwha At The Table?, Ian Macduff Apr 2012

Part Ii - What Would You Do - With A Taniwha At The Table?, Ian Macduff

Ian Macduff

In the last issues of Negotiation Journal, the author explored the complicating factor of having a taniwha or spirit at the negotiating table in a New Zeland case. He challenged his readers to give him suggestions about how negotiators might grapple with often preplexing problems posed by the spiritual valus of their counterparts.


Using Blogs As A Teaching Tool In Negotiation, Ian Macduff Apr 2012

Using Blogs As A Teaching Tool In Negotiation, Ian Macduff

Ian Macduff

This article reports on the experimental use of blogs as a teaching tool in a course on negotiation and mediation. The blogs were of two kinds: individual journal blogs accessible only by the student author and the course instructor, and a class or collective blog, accessible by all members of the course. The use of blogs builds on the familiar use of journals as a tool for reflection and personal review and adopts the technology of online communication with which the student body is increasingly familiar and comfortable. The article reports on the student response to this development and the …


Renegotiating Third World Debt , Arash S. Arabi Apr 2012

Renegotiating Third World Debt , Arash S. Arabi

Pepperdine Dispute Resolution Law Journal

The debt crisis facing the Third World is one so severe that it threatens to shatter the economy of countless nations and leaves the future of their lenders in doubt. The only viable solution is to come up with an "alternative" method of dispute resolution to deal with the debt crisis - one that is a cross between arbitration and mediation. A disinterested body should be created to recover some, or if possible, all of the outstanding loans owed to financial institutions, while alleviating the extreme hardships the debt and current debt repayment methods have inflicted. It should be noted, …


Strategy At The Negotiation Table: From Stereotypes To Subtleties, Marjorie Corman Aaron Apr 2012

Strategy At The Negotiation Table: From Stereotypes To Subtleties, Marjorie Corman Aaron

Faculty Articles and Other Publications

In mediation, we all know that attorneys negotiate for their clients with the other side and with the mediator, and the mediator negotiates with attorneys and clients on all sides. What role, if any, does gender play?


Principles For Designing Negotiation Instruction, John M. Lande, Ximena Bustamante, Jay Folberg, Joel Lee Apr 2012

Principles For Designing Negotiation Instruction, John M. Lande, Ximena Bustamante, Jay Folberg, Joel Lee

Faculty Publications

This article analyzes recommendations in the Rethinking Negotiation Teaching (RNT) series. Instructors teaching negotiation and other dispute resolution subjects have long had a hard time trying to cover everything they would like in their courses. The RNT project has documented (and, to some extent, stimulated) a growing profusion of ideas and techniques for teaching negotiation, which has multiplied instructors’ dilemmas in designing their courses. Since instructors cannot teach everything they would like, this article suggests some general principles for making decisions about what to include and how to conduct these courses. Clearly, there is no single right or best way …


Dancing To The Rhythm Of The Role-Play: Applying Dance Intelligence To Conflict Resolution, Nadja Alexander, Michelle Lebaron Apr 2012

Dancing To The Rhythm Of The Role-Play: Applying Dance Intelligence To Conflict Resolution, Nadja Alexander, Michelle Lebaron

Research Collection Yong Pung How School Of Law

The article presents information on effectiveness of dance and movement in negotiation teaching and training programs regarding conflict resolution particularly in multiple repeat mediations. Death of the Role-play, a publication, fosters enhanced creativity and methodological diversity in conflict management and mediation training. It depicts dance intelligence as useful and requisite components of conflict resolution education.


Negotiating On Un-Holy Land: The Road From Israel To Palestine , Randolph "Michael" Nacol Ii Mar 2012

Negotiating On Un-Holy Land: The Road From Israel To Palestine , Randolph "Michael" Nacol Ii

Pepperdine Dispute Resolution Law Journal

The Middle East is no stranger to conflict. In particular, the land currently called "Israel" has been through the hands of many dynasties and has long been the center of religious development and identity. Despite turmoil and failed attempts at achieving peace, there is no excuse for complacency in resolving this intolerable Israeli-Palestinian divide. The conflict is arguably the longest, most complicated, deep-seated, and vicious battle in modern history. This article explores various fundamentals of negotiation and settlement with the hopes of spurring ideas, and furthering an interest in how this great conflict might finally be resolved. Recognizing most topics …


The Alternative Forms Of Dispute Settlement And The Essential Difference Between These And Arbitration, Michael Diathesopoulos Mar 2012

The Alternative Forms Of Dispute Settlement And The Essential Difference Between These And Arbitration, Michael Diathesopoulos

Michael Diathesopoulos

The paper examines the characteristics of some common alternative forms of dispute settlement and their key differences from arbitration regarding their nature and scope. Its purpose is to explore each mechanism's suitability for specific types of disputes.


Don't Get Bit: Addressing Icsid's Inconsistent Application Of Most-Favored-Nation Clauses To Dispute Resolution Provisions, Gabriel Egli Mar 2012

Don't Get Bit: Addressing Icsid's Inconsistent Application Of Most-Favored-Nation Clauses To Dispute Resolution Provisions, Gabriel Egli

Pepperdine Law Review

No abstract provided.


Defining The Ethical Limits Of Acceptable Deception In Mediation, John W. Cooley Mar 2012

Defining The Ethical Limits Of Acceptable Deception In Mediation, John W. Cooley

Pepperdine Dispute Resolution Law Journal

In a recent law review article I authored for the Loyola University of Chicago Law Review, Mediation Magic: Its Use and Abuse, I addressed the perplexing problem of the current lack of ethical guidance available to mediators and mediation advocates on the question of permissible uses of deception in mediation generally and in caucused mediation, in particular. This article is a sequel to that publication, offering the reader a condensation of some of the ideas contained in that article and some additional thoughts on criteria that might be appropriate to consider when designing a truthfulness standard for mediation.


The Neutral As Lie Detector: You Can't Judge Participants By Their Demeanor, Bruce Fraser Mar 2012

The Neutral As Lie Detector: You Can't Judge Participants By Their Demeanor, Bruce Fraser

Pepperdine Dispute Resolution Law Journal

As mediators we are often faced with sharply conflicting stories. One of the advantages of mediation is that we sometimes can solve the underlying problem without determining who did what, to whom, and when. Indeed, experience has shown that mediation is not a good process for finding the truth because it has none of the tools (such as testimony under oath) used for this purpose in the judicial system. Still, mediators often spend a good deal of time and effort trying to determine who is telling the truth.


The Truth About Deception In Mediation, Jeffrey Krivis Mar 2012

The Truth About Deception In Mediation, Jeffrey Krivis

Pepperdine Dispute Resolution Law Journal

Now that the court system has institutionalized the use of mediation in virtually all civil proceedings, trial lawyers are paying closer attention to their negotiation skills. While those skills involve less structured behavior than presenting a case to a jury, they nonetheless involve one common strategy that even the most skilled practitioners refuse to acknowledge: deception.


The Center Of The Center For Alternative Dispute Resolution, Wayne D. Brazil Mar 2012

The Center Of The Center For Alternative Dispute Resolution, Wayne D. Brazil

Pepperdine Dispute Resolution Law Journal

Hawaii was one of the first states to establish within its judiciary a Center for Alternative Dispute Resolution. The Center's mission is: to mediate major public policy disputes and to facilitate policy formulation dialogues, to design and help implement mediation and other ADR programs for state and local governmental agencies, to provide education about and training in mediation for the public and for employees of state and local government, and to oversee the extensive network of community mediation centers that provide grass-roots mediation services throughout the Islands. In November of 2005 the Center celebrated its 20th anniversary by sponsoring various …


Negotiating Part-Time Work: An Examination Of How Attorneys Negotiate Part-Time Arrangements At Elite Law Firms , Audrey J. Lee Mar 2012

Negotiating Part-Time Work: An Examination Of How Attorneys Negotiate Part-Time Arrangements At Elite Law Firms , Audrey J. Lee

Pepperdine Dispute Resolution Law Journal

This article first provides background information pertaining to recent research on gender in negotiation and prior studies on part-time work at law firms. The author then discusses the methodology and sample of the current study of part-time work arrangements of attorneys at elite law firms in one major metropolitan legal market. Next the article describes the current study's results with respect to whether attorneys viewed this situation as an opportunity to negotiate, measured by their preparation, and whether attorneys' approaches were impacted by the existence of objective criteria, viewed here as the firm's part-time policy. The author then provides prescriptive …


Negotiating The "Labor Of Love": How Resources, Time, And Gender Shape Parenting Agreements, Marlena Studer Mar 2012

Negotiating The "Labor Of Love": How Resources, Time, And Gender Shape Parenting Agreements, Marlena Studer

Pepperdine Law Review

No abstract provided.


Negotiation And Settlement In Nagorno-Karabak: Maintaining Territorial Integrity Or Promoting Self-Determination? , Argam Derhartunian Mar 2012

Negotiation And Settlement In Nagorno-Karabak: Maintaining Territorial Integrity Or Promoting Self-Determination? , Argam Derhartunian

Pepperdine Dispute Resolution Law Journal

The little-known region of Nagorno-Karabakh, known to Armenians as Artsakh, has been no stranger to conflict. This land, nestled in the historic "Armenian Plateau," has been ruled by many different dynasties and seen the faces of many different ethnicities and cultures. Today, both Armenians and Azeris claim an absolute historic right to Nagorno-Karabakh, periodically fighting over the region. Although the intense fighting ended in 1994, negotiation efforts regarding the territory of Nagorno-Karabakh remain stalemated. This has caused the leaders of Karabakh to declare the region an independent republic, although no state, including Armenia, has recognized this status. This article will …


Who Killed The Friendly Settlement? The Decline Of Negotiated Resolutions At The European Court Of Human Rights , Gregory S. Weber Mar 2012

Who Killed The Friendly Settlement? The Decline Of Negotiated Resolutions At The European Court Of Human Rights , Gregory S. Weber

Pepperdine Dispute Resolution Law Journal

The "Friendly Settlement"--the negotiated settlement of cases at the European Court of Human Rights--is on the decline. The Friendly Settlement's decline will likely provoke mixed sentiments in the international human rights camp. Some may applaud the development, including those who believe that only judgments by the Court are likely to chastise member states sufficiently and to announce standards of conduct for other states to follow. But others may shed more than a few mournful tears. An active settlement program can help reduce the Court's huge case backlog and give complaining parties a faster, and often more generous, measure of resolution …


Lawyers, Faith, And Peacemaking: Jewish Perspectives Of Peace, Rabbi Yitzchok Adlerstein Mar 2012

Lawyers, Faith, And Peacemaking: Jewish Perspectives Of Peace, Rabbi Yitzchok Adlerstein

Pepperdine Dispute Resolution Law Journal

We can only consider the role of peacemaking in Jewish law after examining the meaning and place of peace. Accuracy prevents me from opening with some platitude about how peace occupies a central, pivotal position in Jewish thought. It doesn't. Peace and peacemaking have a curious habit of not turning up in the middle of things, but all the way at the end. There are too many instances of this to be coincidental. There are nineteen blessings in the Amidah, the central (indeed!) prayer that Jews recite three times a day, every weekday of their lives. The very last …


Case Studies: The Ways To Achieve More Effective Negotiations, Renee A. Pistone Mar 2012

Case Studies: The Ways To Achieve More Effective Negotiations, Renee A. Pistone

Pepperdine Dispute Resolution Law Journal

For many lawyers, deciding which negotiation strategy to employ depends on the specific context of a negotiation. In fact, the attorney faces a complex choice in their selection from among the different negotiation strategies and must frequently negotiate any particular matter using a combination of more than one negotiation strategy. Most lawyers use the art of negotiation as a tool in their daily practice. The trend is that many attorneys and clients decide to negotiate their disputes themselves rather than have a Judge make the decision, due to the cost and delay. Hence, there is increased pressure to negotiate and/or …