Law Commons^™

Pedr Is Important For Culture Change In Courts, John Lande

Faculty Blogs

This post highlights a report by the Institute for the Advancement of the American Legal System, Change the System, Change the Culture: Top 10 Cultural Shifts Needed to Create the Courts of Tomorrow. One of the recommended cultural shifts is “Dig Deep, Earlier: Lawyers need to develop a deep understanding of their case early in the process.”

What Makes Lawyers Happy? – And How Can You Help?, John Lande

Faculty Blogs

This post summarizes Lawrence Krieger and Kennon Sheldon’s impressive study, What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success. They write, “[T]he current data show that the psychological factors [related to subjective well-being] seen to erode during law school are the very factors most important for the well-being of lawyers. Conversely, the data reported here also indicate that the factors most emphasized in law schools – grades, honors, and potential career income, have nil to modest bearing on lawyer well-being.”

Tips For Lawyers Who Want To Get Good Results For Clients And Make Money, John M. Lande

Faculty Blogs

This post suggests that lawyers do the following to help clients achieve their goals: Understand your clients’ interests. Pay attention to what’s really important in your cases, not just the law or winning. Recognize the importance of emotions – especially yours. Get to know your counterpart lawyer. Make a habit of preparing to resolve matters at the earliest appropriate time. Be prepared to negotiate more than you might expect. Get help from mediators when needed. Be prepared to advocate hard and smart.

Inetianbor And Green: How Two Payday Loan Disputes Illustrate The Integrality Rule’S Incompatibility With The Faa, Cameron C. Lincoln

Journal of Dispute Resolution

The integrality rule is a rule grounded in the analysis of party intent and allows for an arbitration agreement to be vitiated if the selected forum is unavailable and the forum was integral to the agreement. The integrality rule, conceived in 1990, has a short history, and while it is followed by several federal appellate circuits, it is not consistently named or referenced. The Eleventh Circuit applied the rule in Inetianbor v. CashCall, Inc., where the court precluded arbitration due to the integrality rule. This case raises questions of whether the integrality rule contradicts the Federal Arbitration Act (FAA), whether …

Introducing The 'New Handshake' To Expand Remedies And Revive Responsibility In Ecommerce, Amy J. Schmitz

Faculty Publications

There was a time when individuals would meet in person to make purchases and do deals. They would discuss the terms, assess the trustworthiness and character of their contracting partners, and conclude the deal with a handshake. The handshake helped ensure the enforcement of the deal without need for the rule of law or legal power. That handshake was one’s bond — it was a personal trust mark. With the emergence of eCommerce, however, that handshake has nearly disappeared along with the sense of responsibility it inspired. Accordingly, this article discusses how this has impacted consumers’ access to remedies regarding …

Be Careful What You Do Not Ask For: Contracts With The Federal Government For Which Purely Nonmonetary Relief Exists In The Event Of Breach Must Provide For Monetary Damages To Make Them Available To Non-Breaching Private Parties, Matthew W. Cecil

Journal of Dispute Resolution

By further limiting access to one of the only forums in which private parties may seek monetary damages over $10,000 from the federal government, the United States Federal Circuit Court of Appeals in Higbie v. United States1 has ensured non-breaching private parties will not be wholly compensated for their injuries and has undermined the court’s own interest in bolstering mediation.

Taking Advantage Of Opportunities In Litigotiation, John M. Lande

Faculty Publications

This article is partially based on a study in which I interviewed respected lawyers about their negotiation processes in pretrial litigation. I asked these lawyers about their negotiation procedures generally, and I asked them to describe the last case they settled, starting with the first interaction with their clients in the matter. Although this article focuses on negotiation in the litigation context, some lawyers presumably use analogous procedures in transactional matters.

Masthead

Journal of Dispute Resolution

No abstract provided.

The Special Nature Of International Insurance And Reinsurance Arbitration: A Response To Professor Jerry, S. I. Strong

Journal of Dispute Resolution

No abstract provided.

State Legislative Update, Morgan L. Maples, Timothy Mcaleenan, Julia Neidhardt, Spring E. Taylor

Journal of Dispute Resolution

Effective July 1, 1995, as part of the nursing facility enforcement regulations, the Centers for Medicare & Medicaid Services required states to provide nursing facilities with the opportunity for informal dispute reolution reviews. This dispute resolution system was set up in order to avoid the potentially prolonged resolution process associated with more formal appeals. These regulations do not prevent a nursing facility from pursuing a former appeal of the disputed deficiency, but the regulations do give an expedited alternative to the formal process.

Mediating A Family: The Use Of Mediation In The Formation And Enforcement Of Post-Adoption Contact Agreements, Sophie Mashburn

Journal of Dispute Resolution

This comment will discuss how and why adoption law has evolved into a preference for open adoption, provide a brief history of post-adoption contact agreements, and discuss the current and best practices for utilizing post-adoption contact agreements. Finally, this comment will explore the use of mediation in various states to assist adoptive parents and birth parents in forming and maintaining an agreement they both accept and that furthers the best interests of the children being adopted. Using mediation to further the interests of children, adoptive couples, and birth parents is a positive trend in adoption law that should be encouraged …

Do Judicially Created Grounds For Vacating Arbitral Awards Still Exist?: Why Manifest Disregard Of The Law And Public Policy Exceptions Should Be Considered Under Vacatur, Ashley K. Sundquist

Journal of Dispute Resolution

The Court’s strong language in Hall Street indicated the Court’s intent for the FAA to provide the exclusive grounds for vacating an arbitral award. Therefore, once the Court addresses the circuit split, it will likely hold that judicially created grounds are not an acceptable form of vacatur. However, doing so would cause individuals injustice, in particular where awards manifestly disregard the law and go against public policy. This Note argues that if the Court abolishes judicially created grounds, it should reinterpret the FAA to include manifest disregard of the law and violations to public policy under the exceeded powers exception …

Get The Best Of Both Worlds: Illusory Arbitration Agreements, Desiree Shay

Journal of Dispute Resolution

This Note addresses the clauses in franchise-franchisee agreements that preserve the right for a franchisor to unilaterally alter the terms of arbitration after the franchise relationship has begun. A majority of courts, applying state contract law, have held that these clauses are unenforceable due to a lack of consideration, making the contract illusory. However, courts still come to different conclusions because each court has to follow state contract law. The United States Supreme Court’s holding on this issue might not be able to have full effect because the Federal Arbitration Act requires that courts rely on state law. The Seventh …

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Dispute Resolution, Insurance, And Points Of Convergence, Robert H. Jerry Ii

Journal of Dispute Resolution

This essay explores the intersection of dispute resolution and insurance. I come to the intersection from the perspective of insurance law, where statutes, administrative rules, and common law regulate the industry and the policyholder-insurer relationship. At its core, the business of insurance offers individuals, businesses, and other kinds of organizations a risk management alternative which enables them to acquire some measure of control over an uncertain future. But when a loss occurs, the business of insurance becomes the business of claims processing and, when disagreements arise, dispute resolution. Surprisingly, the academic study of insurance law has not borrowed heavily from …

My Last Lecture: More Unsolicited Advice For Future And Current Lawyers, John M. Lande

Journal of Dispute Resolution

For quite a while, I have been writing and teaching to prepare students realistically for legal practice. This article distills my thinking into a concise presentation. I wrote this article primarily for law students as they contemplate their careers, but I hope it will be of value to lawyers as well. Hopefully, it will whet your appetite to pursue these ideas more deeply by reading some of the sources cited in the footnotes.

Planning Is Critically Important For Early Dispute Resolution, John Lande

Faculty Blogs

This post pushes back against a complaint by lawyers that early mediation is a waste of time. Attempts to settle cases early in litigation can be wasteful if the lawyers haven’t properly prepared and planned the process. Some people think that “early” means that lawyers should try to resolve the ultimate issues right after all the parties have appeared in litigation. This post uses the term “early” as a shorthand for “earliest appropriate time.” To be ready to settle at the earliest appropriate time, lawyers should promptly learn the parties’ interests and the critical facts, reasonably anticipate the likely decision …

Great Value Of Students Playing Clients In Multi-Stage Simulations, John Lande

Faculty Blogs

This post describes the great results when I used multi-stage simulations in negotiation and family law dispute resolution courses. To simulate real life, I developed several simulations that started from the first client interview. I included other stages, such as (1) negotiating retainer agreements, (2) identifying additional information needed, (3) getting to know counterpart lawyers, (4) researching and negotiating about the law, (5) negotiating dispute resolution clauses, (6) preparing for negotiation with clients and counterpart lawyers, and (7) negotiating the ultimate issues. Students playing lawyers got especially valuable experiences because the students playing clients identified so strongly with their roles.

Everything I Know About Dispute Resolution Is Wrong – Especially What You Say About It, John Lande

Faculty Blogs

This post describes an extremely provocative discussion in a session at the ABA Section of Dispute Resolution conference.

Illusions Of Competence, John Lande

Faculty Blogs

This post riffs on BARBRI’s “State of the Legal Field Survey” reporting that “71 percent of 3L law students believe they possess sufficient practice skills. In contrast, only 23 percent of practicing attorneys who work at companies that hire recent law school graduates believe recent law school graduates possess sufficient practice skills.” Making it personal, I asked readers if they would be confident that a recent law graduate would do a good job in handling a garden-variety legal case of theirs. I wouldn’t.

Minimizing Unnecessary Violence In Litigation And Other Dispute Resolution Processes, John Lande

Faculty Blogs

This post responds to a response to my post, Litigation as Violence. My fellow-blogger Jen Reynolds argued, “We in ADR should not undervalue, when analyzing the dispute resolution landscape, the regulatory function of litigation in the United States.” I agreed with Jen’s statement, noting that we sometimes too-glibly criticize the legal system without acknowledging the benefits it produces, which we often take for granted. This post provides a balanced assessment of litigation from Professor Cardi as well as my writing.

Litigation As Violence, John Lande

Faculty Blogs

The article describes the “litigation response syndrome” – adverse consequences merely from being engaged in litigation. Sometimes lawyers and law professors treat litigation as if was just a game, insensitive to the pain it causes to litigants and others swept up in it, possibly including the lawyers themselves. Cardi argues that before proceeding in litigation, lawyers and litigants should be prepared for the toll it may take.

We Need A Better Consensus About Negotiation Theory, John M. Lande

Faculty Blogs

This post advocates redefining the scope of negotiation to include the interactions leading up to the final negotiation. Legal matters often involve a stream of negotiations, not merely a single event at the end of a process. It also recommends focusing on the process of reaching agreement, not only the process of resolving disputes, including processes of reaching agreement where there is little or no dispute. It also suggests disaggregating traditional models and analyzing key variables separately instead of thinking in terms of two discrete, coherent models.

Problems With The System Of Negotiation Models, Part 2, John M. Lande

Faculty Blogs

This part describes two actual negotiations to illustrate problems with the traditional system of two negotiation models. These cases don’t fit neatly into either model.

Problems With The System Of Negotiation Models, Part 1, John M. Lande

Faculty Blogs

The current framework relies primarily on two models – positional and interest-based negotiation. This is not only a foundation of negotiation theory, but it is key to theory of lawyering, mediation, collaborative law, dispute system design and other areas of dispute resolution, other disciplines, as well as popular culture.

What Is (A)Dr About?, John M. Lande

Faculty Blogs

Description of the prompt what is ADR about? Part of the definitional problem is that we usually focus on small slices of a case, typically at the end, rather than looking at cases holistically. But that’s not how parties and lawyers typically experience them. Lawyers live with cases from their first contact with their clients about the problems. Parties start to deal with their conflicts even earlier than that.

Judicial Bias: The Ongoing Challenge, Kathleen Mahoney

Journal of Dispute Resolution

This article calls for a renewed commitment to judicial education on the roles that gender, race, class and other biases can have on judicial decisions and impartiality. This article also calls for the appointment of a more representative and diverse judiciary. An explosion of activity occurred for about a decade between the late 1980s until the late 1990s to promote and implement social context education for judges to help judges understand the realities of people most unlike themselves, and to appoint judges to be more representative of the population of Canada. But this trend has diminished to the point that …

Family Lawyering With Planned Early Negotiation, John M. Lande

Faculty Publications

Whether you know it or not, you may already be using planned early negotiation (PEN). As the term suggests, this process involves planning to negotiate your cases at the earliest appropriate time. Normally you can be ready to negotiate long before you are ready for trial.

This article summarizes PEN procedures based on interviews with excellent lawyers about how they handle their cases. For example, one lawyer said that he “prepares for settlement from day one of the lawsuit” and that he engages in a “constant process of evaluating the claim” throughout the litigation. Planning to negotiate from the outset …

International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers

Journal of Dispute Resolution

This essay sketches an account of how investment arbitration affects development of local legal institutions, in particular domestic courts. When investment arbitration is introduced into a local legal environment, it becomes integrated with international commercial arbitration, and often domestic arbitration. This integration occurs because the local economic elites, private law firms, and local businesses that deal with (or compete with) foreign investors and investment arbitration disputes also deal with international commercial matters, international commercial disputes, and domestic arbitration.

Arbitration Whack-A-Mole: The Federal Policy Favoring Arbitration Hammers The Rights Of Individual Employees, Spring E. Taylor

Journal of Dispute Resolution

In a country that protects the plaintiff's right to a day in court, it only seems natural that Sally should have the opportunity to take her cause to the courthouse. But the strong fedral presumption that supports the enforcement of arbitration provisions is like a hammber that pushes plaintiffs like Sally and those if Huffman into the arbitration arena. In Huffman, the Sixth Circuit rescued an employwer from an ambiguous arbitration provision contained in the employer-drafted employment agreement and enforced the arbitration provision as one of the provisions to survive expiration of the contract, even though it was not listed …