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Full-Text Articles in Law
Alternative Dispute Resolution, Will Pryor
Alternative Dispute Resolution, Will Pryor
SMU Annual Texas Survey
No abstract provided.
Dispute System Design And Bias In Dispute Resolution, Lisa Blomgren Amsler, Alexander B. Avtgis, Michael Scott Jackman
Dispute System Design And Bias In Dispute Resolution, Lisa Blomgren Amsler, Alexander B. Avtgis, Michael Scott Jackman
SMU Law Review
This article examines the role of mediator race and gender in perceptions of procedural justice as measure of accountability and representative bureaucracy in a national mediation program for complaints of employment discrimination at a large federal organization, the United States Postal Service. Mediation represents a forum of accountability in which employees may hold an employer accountable for violating federal law prohibiting forms of employment discrimination, in this case, race discrimination, sex discrimination, and sexual harassment. Representative bureaucracy theory suggests passive or symbolic representation when the demographics of public officials should mirror those of the public they serve. Some research suggests …
Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green
Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green
SMU Law Review
In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the power differentials exacerbated by informal dispute resolution, and the article contributed immediately to a surge of robust critiques of the increasing use of alternative dispute resolution for those most vulnerable in our society.
More than thirty years after the Delgado article, a community of respected and prominent ADR and discrimination …
Alternative Dispute Resolution: A Critical Reconsideration, Richard Delgado
Alternative Dispute Resolution: A Critical Reconsideration, Richard Delgado
SMU Law Review
No abstract provided.
Implicit Bias And Prejudice In Mediation, Carol Izumi
Implicit Bias And Prejudice In Mediation, Carol Izumi
SMU Law Review
Mediators aspire and endeavor to meet their ethical duty of “neutrality” in mediation. Yet their ability to actually conduct mediations without bias, prejudice, or favoritism toward any party is extraordinarily difficult, if not impossible. Research shows that unconscious mental processes involving stereotypes and attitudes affect our judgments, perceptions, and behavior toward others. Implicit bias, the automatic association of stereotypes and attitudes with social groups, may produce discriminatory responses toward parties despite a mediator’s best efforts at creating an outwardly even-handed process. Even the most well-intentioned and egalitarian mediators must actively engage in bias reduction strategies to mitigate prejudice in mediation.
Negotiating While Female, Andrea Kupfer Schneider
Negotiating While Female, Andrea Kupfer Schneider
SMU Law Review
Why are women paid less than men? Prevailing ethos conveniently blames the woman and her alleged inability to negotiate. This article argues that blaming women for any lack of negotiation skills or efforts is inaccurate and that prevailing perceptions about women and negotiation are in-deed myths. The first myth is that women do not negotiate. While this is true in some lab studies and among younger women, more recent workplace data calls this platitude into question. The second myth is that women should avoid negotiations because of potential backlash. Although women in leadership do face an ongoing challenge to be …
Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy Welsh
Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy Welsh
SMU Law Review
Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their proposals have gained widespread adoption in the courts.
Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the opportunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and …
Critical Procedure: Adr And The Justices’ “Second Wave” Constriction Of Court Access And Claim Development, Eric K. Yamamoto
Critical Procedure: Adr And The Justices’ “Second Wave” Constriction Of Court Access And Claim Development, Eric K. Yamamoto
SMU Law Review
Expansive alternative dispute resolution (ADR) was the centerpiece of efficiency-based procedural reforms in the 1980s and early 1990s. ADR and other reforms collectively altered the litigation landscape, at times for the better. Yet some scholars raised early questions about ADR’s effect on systemic litigation fairness and the ability of the disenfranchised to assert and maintain claims in court. Amid second wave procedural changes, commencing around the mid-2000s, a Justice Scalia-led majority significantly expanded the grasp of compelled, private, and individualized arbitration. Under the shroud of efficiency, that Court majority imposed those second wave changes by judicial fiat, bypassing formal rulemaking. …
Does Alternative Dispute Resolution Facilitate Prejudice And Bias? We Still Don’T Know, Gilat J. Bachar, Deborah R. Hensler
Does Alternative Dispute Resolution Facilitate Prejudice And Bias? We Still Don’T Know, Gilat J. Bachar, Deborah R. Hensler
SMU Law Review
By the time Professor Richard Delgado and his colleagues wrote their seminal article on the risk of alternative dispute resolution (ADR) facilitating prejudice, ADR programs were well-established in the United States, supported by legislative and court mandates, private contracts, and U.S. Supreme Court decisions. Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution and Delgado’s subsequent review article, ADR and the Dispossessed: Recent Books About the Deformalization Movement, were cited hundreds of times by scholars and practitioners but did little to stop the movement to substitute mediation, arbitration, and other dispute resolution procedures for public adjudication. …
Contextual Analysis In Arbitration, Pat K. Chew
Contextual Analysis In Arbitration, Pat K. Chew
SMU Law Review
The arbitration process is embedded in a much larger context than the four walls in which the arbitration occurs. Exploring and studying that context—including the arbitral institution, the arbitrators, each party, the arbitration process, and the broader cultural and political environment—inform what actually occurs and to what extent one party may have inherent advantages over the other. This article illustrates this contextual analysis in two diverse settings: domestic employment arbitrations and international trade arbitrations. These analyses reveal one party’s advantages over the other, which are explained in part by market and cultural forces in which these arbitrations are embedded. Interdisciplinary, …
The Lost Promise Of Arbitration, Sarah Rudolph Cole
The Lost Promise Of Arbitration, Sarah Rudolph Cole
SMU Law Review
This article disputes the notion that arbitration, a historically informal process, tends to disadvantage minority disputants or provide them with quick decisions tainted by prejudice. Responding to Richard Delgado’s seminal work, Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, this article attempts to shed greater light on the benefits of modern arbitration for minority disputants. Although still capable of improvement, arbitration may well provide greater protections to minority disputants than does litigation. Since Delgado first wrote his article, the use of arbitration as a primary dispute resolution mechanism has increased dramatically, particularly among businesses and …
Do Alternative Dispute Resolution Procedures Disadvantage Women And Minorities?, Charles Craver
Do Alternative Dispute Resolution Procedures Disadvantage Women And Minorities?, Charles Craver
SMU Law Review
When different legal controversies arise, parties frequently employ alternative dispute resolution procedures to resolve them. Yet some members of ethnic minority groups and women may seek judicial proceedings out of a concern that their ethnicity or gender may undermine their ability to achieve beneficial bargaining outcomes through ADR. This article addresses the real and perceived challenges of ethnic minorities and women in ADR. It draws upon decades of research into dispute resolution bargaining processes to illustrate that most traits associated with ethnicity and gender are irrelevant today with respect to ADR. When persons are taught even minimally about the bargaining …
Influence Of The Arbitral Seat In The Outcome Of An International Commercial Arbitration, Gonzalo Vial
Influence Of The Arbitral Seat In The Outcome Of An International Commercial Arbitration, Gonzalo Vial
The International Lawyer
No abstract provided.