Law Commons^™

Awareness And Ethics In Dispute Resolution And Law: Why Mindfulness Tends To Foster Ethical Behavior, Leonard Riskin

Leonard L Riskin

This paper is an extended version of a luncheon presentation given at the Symposium, Ethics in the Expanding World of ADR: Considerations, Conundrums, and Conflicts, sponsored by South Texas College of Law in Houston, Texas, on Nov. 2, 2007.

Mindfulness: Foundational Training For Dispute Resolution, Leonard Riskin

Leonard L Riskin

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.

Between Law And Religion: Procedural Challenges To Religious Arbitration Awards, Michael Helfand

Michael A Helfand

This Essay presented at the Sharia and Halakha in America Conference explores the unique status of religious law as a hybrid concept that simultaneously retains the characteristics of both law and religion. To do so, the Article considers as a case study how courts should evaluate procedural challenges to religious arbitration awards. To respond to such challenges, courts must treat religious law as law when defining the contractually adopted religious procedural rules and treat religious law as religion when reviewing precisely what the religious procedural rules require. On this account, constitutional and arbitration doctrine combine to insulate religious arbitration awards …

Arbitration's Counter-Narrative: The Religious Arbitration Paradigm, Michael Helfand

Michael A Helfand

Arbitration theory and doctrine is dominated by an overarching narrative that conceptualizes arbitration as an alternative to litigation. Litigation, one the one hand, is more procedurally rigorous, but takes longer and costs more; arbitration, on the other hand, is faster and cheaper, but provides fewer procedural safeguards. But notwithstanding these differences, both arbitration and litigation ultimately serve the same purpose: resolving disputes. Indeed, this narrative has been pervasive, becoming entrenched not only in recent Supreme Court decisions, but also garnering support from both arbitration critics and supporters alike.

This Article, however, contends that this exclusive focus on arbitration’s standard narrative …

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

Leonard L Riskin

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 …

Between Law And Religion: Procedural Challenges To Religious Arbitration Awards, Michael Helfand

Michael A Helfand

This Essay presented at the Sharia and Halakha in America Conference explores the unique status of religious law as a hybrid concept that simultaneously retains the characteristics of both law and religion. To do so, the Article considers as a case study how courts should evaluate procedural challenges to religious arbitration awards. To respond to such challenges, courts must treat religious law as law when defining the contractually adopted religious procedural rules and treat religious law as religion when reviewing precisely what the religious procedural rules require. On this account, constitutional and arbitration doctrine combine to insulate religious arbitration awards …

Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich

Thomas J. Stipanowich

A wide-ranging new Straus Institute for Dispute Resolution Survey of experienced arbitrators, conducted with the cooperation of the College of Commercial Arbitrators, reflects the growing professionalization of commercial arbitration, increasing competition for cases, and many other trends in arbitration practice. It also shows that a grower percentage of arbitrated cases are being settled prior to award or to the start of hearings, and offers a strong rationale for greater emphasis on the role of arbitrators in setting the stage for or facilitating settlement. Early settlement of a dispute can be a uniquely effective way of minimizing cost and cycle time …

Managing Construction Conflict: Unfinished Revolution, Continuing Evolution, Thomas Stipanowich

Thomas J. Stipanowich

Two decades ago many believed we were experiencing a “Quiet Revolution” in the way conflict was managed, and nowhere was this more true than in the construction sector. Frustration with the costs, delays, risks and limitations of lawyer-driven adjudication prompted growing attention to informal methods aimed at early resolution of disputes, with those who “owned” the dispute back in the driver’s seat. A smorgasbord of options for preventing, managing and resolving conflict was suddenly on the table. There were strategies aimed at the very roots of conflict, including contractual terms aimed at promoting collaboration and reducing the chance of serious …

Living With Adr: Evolving Perceptions And Use Of Mediation, Arbitration And Conflict Management In Fortune 1,000 Corporations, Thomas Stipanowich, Ryan Lamare

Thomas J. Stipanowich

As attorneys for the world’s most visible clients, corporate counsel played a key role in the transformation of American conflict resolution in the late Twentieth Century. In 1997 a survey of Fortune 1,000 corporate counsel provided the first broad-based picture of conflict resolution processes within large companies. In 2011, a second landmark survey of corporate counsel in Fortune 1,000 companies captured a variety of critical changes in the ways large companies handle conflict. Comparing their responses to those of the mid-1990s, clear and significant evolutionary trends are observable, including a further shift in corporate orientation away from litigation and toward …

Soft Law In The Organization And General Conduct Of Commercial Arbitration Proceedings, Thomas Stipanowich

Thomas J. Stipanowich

This commentary examines the growing use of Soft Law - non-binding guidelines that currently play an important role in organizing and conducting commercial arbitration proceedings. Standards such as the UNCITRAL Notes on Organizing Arbitral Proceedings, the ICC Techniques for Controlling Time and Costs in Arbitration, and the Protocols for Expeditious, Cost-Effective Commercial Arbitration have evolved from professional discourse regarding process management and more particular concerns about cost, delay and inefficiency in arbitration. Collectively, these guidelines reflect a growing recognition that deliberate and proactive effort by business users, counsel, arbitrators and provider institutions is critical to making the most of arbitration …

Mirror As Prism, Kenneth Fox

Kenneth H Fox

As cooperative private international dispute resolution practices become increasingly common, it is tempting for conflict practitioners to assume that the human relations insights, skills, and practices that worked well for them at home will be equally effective (and appropriate) in an international, cross-cultural environment. Attending to the human dimension of conflict and interaction should be a central part of global negotiation and dispute resolution practice.

This Essay focuses on two dimensions of reflective and reflexive practice. It first discusses the nature of reflection-on-action and reflection-in-action from a modernist (“reflective”) and postmodern (“reflexive”) perspective. It then examines how engaging with practice …

Between Law And Religion: Procedural Challenges To Religious Arbitration Awards (Video), Michael Helfand

Michael A Helfand

No abstract provided.

Living With Adr: Evolving Perceptions And Use Of Mediation, Arbitration And Conflict Management In Fortune 1,000 Corporations, Thomas J. Stipanowich

Thomas J. Stipanowich

For the second time in fifteen years, leading counsel at many of the world’s largest corporations participated in a landmark survey of perceptions and experiences with “alternative dispute resolution (ADR)”—mediation, arbitration and other third party intervention strategies intended to produce more satisfactory paths to managing and resolving conflict, including approaches that may be more economical, less formal and more private than court litigation, with more satisfactory and more durable results. Comparing their responses to those of the mid-1990s, significant evolutionary trends are observable. As a group, corporate attorneys have moderated their expectations for ADR. At the same time, more corporations …

Law And Negotiation: Necessary Partners Or Strange Bedfellows?, Nancy Schultz

Nancy Schultz

How important is legal authority to the negotiation process? Scholars have discussed this issue and law students argue about it in negotiations classes. A survey of practicing lawyers reveals that law is very important to preparation for negotiation, but less so as a determinant of negotiated outcomes. Factors such as financial constraints, bargaining power, and negotiating skill seem to drive negotiated results in practice more than legal authority.

In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program, Thomas Stipanowich

Thomas J. Stipanowich

The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …

Religion's Footnote Four: Church Autonomy As Arbitration, Michael A. Helfand

Michael A Helfand

While the Supreme Court’s decision in Hosanna-Tabor v. EEOC has been hailed as an unequivocal victory for religious liberty, the Court’s holding in footnote four – that the ministerial exception is an affirmative defense and not a jurisdictional bar – undermines decades of conventional thinking about the relationship between church and state. For some time, a wide range of scholars had conceptualized the relationship between religious institutions and civil courts as “jurisdictional” – that is, scholars converged on the view that the religion clauses deprived courts of subject-matter jurisdiction over religious claims. In turn, courts could not adjudicate religious disputes …

Litigating Religion, Michael A. Helfand

Michael A Helfand

This article considers how parties should resolve disputes that turn on religious doctrine and practice – that is, how people should litigate religion. Under current constitutional doctrine, litigating religion is generally the task of two types of religious institutions: first, religious arbitration tribunals, whose decisions are protected by arbitration doctrine, and religious courts, whose decision are protected by the religion clauses. Such institutions have been thrust into playing this role largely because the religion clauses are currently understood to prohibit courts from resolving religious questions – that is, the “religious question” doctrine is currently understood to prohibit courts from litigating …

Purpose, Precedent, And Politics: Why Concepcion Covers Less Than You Think (Video), Michael Helfand

Michael A Helfand

No abstract provided.

Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders, Michael A. Helfand

Michael A Helfand

This Article considers a trend towards what I have termed the "new multiculturalism," where conflicts between law and religion are less about recognition and symbolism and more about conflicting legal orders. Nothing typifies this trend more than the increased visibility of religious arbitration, whereby religious groups use current arbitration doctrine to have their disputes adjudicated not in U.S. courts and under U.S. law, but before religious courts and under religious law. This dynamic has pushed the following question to the forefront of the multicultural agenda: under what circumstances should U.S. courts enforce arbitration awards issued by religious courts in accordance …

Fighting For The Debtor's Soul: Regulating Religious Commercial Conduct, Michael A. Helfand

Michael A Helfand

Although courts often think of religion in terms of faith, prayer, and conscience, many religious groups are increasingly looking to religion as a source of law, commerce, and contract. As a result, courts are being called upon to regulate conduct that is simultaneously religious and commercial. In addressing such cases, some courts minimize the religious features of the case and simply focus on its secular elements while others over-exaggerate the religious features of the case and thereby refuse to adjudicate the dispute on Establishment Clause grounds. As an example of this dynamic, I explore the constitutionality of imposing sanctions for …

Confirming Piskei Din In Secular Court, Michael Helfand

Michael A Helfand

No abstract provided.

Mediating Probate Disputes: A Study Of Court Sponsored Programs, Ray Madoff

Ray D. Madoff

This Article examines six court-sponsored programs designed to encourage the use of mediation to resolve probate disputes in five jurisdictions: Texas, Florida, Georgia, California (Los Angeles and San Francisco), and Hawaii. Some of the programs are part of larger state-run programs designed to encourage the mediation of a variety of disputes, but all were studied in terms of their specific application to probate disputes. In discussing each of the programs, this article focuses on the extent to which courts and practitioners either have addressed or proven false the suggested impediments to the use of mediation in resolving probate disputes.

Part …

Lurking In The Shadow: The Unseen Hand Of Doctrine In Dispute Resolution, Ray Madoff

Ray D. Madoff

Mediation - with its promise of less contentious, less expensive and more satisfying resolution of disputes - has been widely recommended for disputes in all areas of the law. Yet its successes have been far from uniform. While it has flourished in some areas - most notably divorce and child custody - it has met with much greater resistance in others. This is particularly puzzling for areas of the law such as will disputes, for which mediation would seem to provide so many benefits.

In this essay I argue that the answer to this conundrum can be found in doctrine …