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Selected Dispute Resolution Bibliography, Shannon Moldaver, Trevor C. W. Farrow

Articles & Book Chapters

Included in this bibliography is a selected set of dispute resolution and related professional responsibility and access to justice readings, primarily (although not exclusively) with a general negotiation and mediation focus. This bibliography is not comprehensive. Rather – given the breadth of dispute resolution, legal process, professional responsibility, and access to justice materials available – this bibliography includes a brief sampling of available readings that may be of interest to those studying, practicing, or thinking about dispute resolution.

Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs

Pepperdine Dispute Resolution Law Journal

The mass incarceration crisis in the United States (US) remains a vexing issue to this day. Although the US incarcerated population has decreased by twenty-five percent amid the COVID-19 pandemic, the US remains a leading country in the number of incarcerated people per capita. Focusing on Islamic law principles governing settlement in criminal cases, the rehabilitative approach of the Icelandic criminal justice model, and the powerful role of prosecutors in serving justice, this research argues that integrating settlement and mediation into the prosecutorial proceedings will significantly reduce mass incarceration in the US.

A Reaction To Systemic Inaction: Breaking The Congressional Logjam Where It Counts, Nicholas W. Archibald

Pepperdine Dispute Resolution Law Journal

William Marshall proposed that congressional inaction threatening “the ability of the government to function” should be “subject to constitutional scrutiny.” This article is a response to Marshall’s proposal and offers a potential solution based on alternative dispute resolution rather than the courts. When faced with seemingly insurmountable differences, Congress must look to alternative dispute resolution to reach a breakthrough on critical issues. This paper proposes the creation of a Mediation Office to assist Congress in coming to these breakthroughs. This mechanism could also possibly intervene when the issue is between Congress and the President. Part II of this article will …

Micro-Mediation: A New First Step On The Mixed-Mode Alternative Dispute Resolution Ladder In Higher Education, Joseph C. Alfe

Pepperdine Dispute Resolution Law Journal

Higher education is fraught with disputes on both a macro and micro level. In a broad sense, institutions of higher education serve as a focal point for many disparate cultures, economic strata, ages, genders, races, ideologies, and other societal influences, and concentrates them within an insular community. Such an amalgamation of humanity is bound to produce conflicts of all kinds. These disputes can range from the elementary to the criminal. Title IX of the Educational Amendments of 1972 governs disputes rising to the level of sexual harassment or discrimination and are updated by periodic agency updates disseminated through “dear colleague” …

Litigation About Mediation: A Case Study In Institutionalization, James Coben

Faculty Scholarship

No abstract provided.

Designing Interdisciplinary, Early Intervention Dispute Resolution Tools To Decrease Evictions And Increase Housing Stability, Christine N. Cimini

Articles

This Article provides a unique glimpse into the development of an early-intervention, pre-court, interdisciplinary dispute resolution project intended to decrease evictions and increase housing stability for recipients of subsidized housing in Seattle. With a grant from the Seattle Housing Authority (SHA), a coalition of non-profit organizations had the rare opportunity to design a dispute resolution system into existence. A dispute system design team was formed and began by examining the interconnected problems of housing instability, eviction, and houselessness. Despite thorough research on dispute system design and extensive meetings with stakeholders, the deign team encountered numerous challenges. This Article identifies the …

Pathways To Preferences For Collaborative Conflict Resolution: Disputants’ Process Goals Drive Preferences, Ashley Votruba, Jared Noetzel, Abigail L. Herzfeld

Faculty Publications, Department of Psychology

Understanding individuals’ preferences for how to resolve conflict—specifically legal disputes—has long interested researchers, particularly those considering procedural justice. This study considers the impact of relational factors that influence individuals’ preferences for dispute resolution processes for civil legal issues. Specifically, it examines the impact of self-construal and the relationship between the parties in conflict on preferences for specific features of dispute resolution processes and considers the role of underlying resolution goals as potential mediators in a parallel mediation model. Using a novel paradigm in which the outcome variables of interest focused on specific dispute resolution process features allowed the researchers to …

Combinations Of Mediation And Arbitration: The Singapore Perspective, Man Yip

Research Collection Yong Pung How School Of Law

In recent years, Singapore has been actively rethinking and reworking ‘access to justice’, with a strong focus on creating new options for dispute resolution and promoting the awareness of these options. This chapter examines the judicial, regulatory and institutional support in Singapore for the twinning of mediation and arbitration as a form of multi-tier dispute resolution mechanism for commercial disputes. It is a hybrid approach that draws upon ‘the strengths of both adversarial and consensual dispute resolution’. In particular, this chapter critically analyses the SIMC-SIAC Arb-Med-Arb Protocol (the ‘AMA Protocol’) and interrogates how it contributes towards improving the arb-med-arb mechanism.

The Importance Of Ethics In The Practice Of Mediation, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

What is the predominant function of ethics for the mediation profession in Singapore? Do ethical principles assume greater significance in light of increasing institutionalisation of mediation programmes in Singapore? What can mediators, mediation advocates and mediation institutions do to ensure consistent adherence to ethical standards? These and other related issues were discussed in a webinar organised by the Singapore Academy of Law in May 2021 featuring Lim Tat, Chuan Wee Meng and this author as panellists, together with See Chern Yang as moderator. This article highlights the notable discussion points of the webinar, including the significance of mediation ethics, common …

A Strategy Model For Workplace Mediation Success, Brian M. Barry Dr

Articles

The article proposes a three-step model to help workplace mediators decide on the optimum strategy for mediating workplace disputes. The model uses a grid – the Workplace Mediation Strategy Grid – which is based on a modified version of a grid Professor Leonard Riskin developed for categorising mediation orientations (Riskin 1994; Riskin 1996). The model asks the mediator to first consider the nature of the workplace dispute based on three facets of the dispute. This guides the mediator to plot a position on the Grid which represents two fundamental aspects of strategy for mediating that dispute: (1) how broadly the …

Swords Into Plowshares: A Pilgrimage For The Css Alabama, William W. Park

Faculty Scholarship

During the American Civil War, Britain sold ships to the Southern Confederacy in breach of neutrality obligations, triggering a dispute with the United States carrying threats of armed conflict. Some American politicians saw the dispute as an opportunity to annex Canada, then a weak assemblage of British colonies. Ultimately, arbitration in Geneva averted war, opening an era of long Anglo-American cooperation. The historical consequence of this landmark 1872 arbitration remains difficult to overstate. In addition to its diplomatic importance, the case introduced significant procedural precedents for international arbitration, including dissenting options, reasoned awards, party-appointed arbitrators, collegial deliberations, and arbitrators’ declarations …

Legal Lying?, Robert Angyal, Nicholas Saady

Pepperdine Dispute Resolution Law Journal

Mediation has become very common in the USA and Australia—at least partly because of court-mandated mediation initiatives. Lawyers often represent clients at mediations, so the increased use of mediation makes it important to understand how both jurisdictions regulate lawyers’ advocacy on behalf of their clients during mediation. This article comparatively analyzes how professional standards regulate the truthfulness of lawyers’ advocacy during mediation in Australia and the United States. It focuses on uniform regulation in those jurisdictions. Part One will comparatively analyze the relevant regulations in Australia and the United States, and the types of obligations contained in those regulations—for example, …

Federal Rules Of Platform Procedure, Rory Van Loo

Faculty Scholarship

Tech platforms serve as private courthouses for disputes about speech, lodging, commerce, elections, and reputation. After receiving allegations of defamatory content in top search results, Google must decide between protecting one person's public image and another's profits or speech. Amazon adjudicates disputes between consumers and third-party merchants about defective or counterfeit items. For many small businesses, layoffs and bankruptcy hang in the balance. This Article begins to uncover the processes that these platforms use to resolve disputes and proposes reforms. Other important businesses that intermediate, such as credit card companies ruling on a disputed charge between a merchant and consumer, …

Taking A Shot At Mediation Is The Solution To Nba Player-Trade Demands, Jemuel Gascon

Pepperdine Dispute Resolution Law Journal

This article proposes that the upcoming CBA in 2024 should include an initial mediation process for voluntarily resolving trade demands. Part two of this article looks at the background of player-trade demands; it looks at past demands in both the NBA and other sports.37 It also explores the pros and cons about player-trade demands and how they affect the NBA.38 Part three of this article proposes that the use of mediation can tame trade demands’ negative side effects and explores the proposition of including a voluntary mediation clause for trade demands on the next CBA negotiations.39 Part four will raise …

Maintaining The Attractiveness Of Arbitration In A Changing World: The Acica Arbitration Rules And The Siac Arbitration Rules, Gabriel Moens, Camilla Andersen, Tracy Albin

UAEU Law Journal

Australian Centre for International Commercial Arbitration – Singapore International Arbitration Centre – Arbitration – Emergency Arbitrator – Interim Measures of Protection – Consolidation – Joinder – Confidentiality – Experts – Mediation – Judicialization of Arbitration – Popularity of Arbitration This article reviews the revised arbitration rules adopted by the Australian Centre for International Commercial Arbitration and the Singapore International Arbitration Centre. The rules of these prominent arbitration institutions are described, analysed and compared with each other. The authors concentrate on the most important revisions, including those relating to emergency arbitrators, interim measures of protection, and consolidation and joinder, among others. …

Introduction To Symposium On "Adr's Place In Navigating A Polarized Era", Nancy A. Welsh

Faculty Scholarship

Ours is a nation built for conflict, for friction. Such conflict, while painful, can be good. It can signal newfound agency, and it can be a catalyst for dialogue, customized and creative solutions, and ultimately progress. This is what many dispute resolution academics teach their students. But we are caught in such an extraordinarily polarized time, and many wonder what role ADR can and should play in navigating a polarized era. That was the question addressed by Texas A&M School of Law's March 2020 symposium, with the resulting articles - by Baruch Bush & Peter Miller, Jonathan Cohen, Jill DeTemple, …

Effects Of Mediation On Employee Efficiency In Human Services Centers And In Other Organizations That Serve Vulnerable Populations, Mariya Mironova

Department of Conflict Resolution Studies Theses and Dissertations

Social workers and other professionals who offer caring services to vulnerable populations are oftentimes exposed to stressful environments. Employee burnout, vicarious traumas, and other stressors jeopardize worker’s efficiency. According to previously conducted research studies, organizational and interpersonal conflicts may be effectively addressed through mediation. However, the studies do not address the use of mediation for the resolution of workplace disputes in centers of human services. This study explores effects of mediation on worker’s efficiency in such centers, and this study proposes that mediation positively affects worker’s efficiency. The proposed methodology for testing this proposition involves a single case study with …

The Reconstruction Of Mediation: A Shift Toward Cultural Competency And Social Sophistication, Wynne Reece

Mitchell Hamline Law Review

No abstract provided.

Ethical Compass: Three Different Judicial Treatments For Settlement Fever, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This is the first of a three-part series that examines different aspects of the settlement fever that has stricken our justice system. What can we learn from judicial decisions about how individual judges assess the settlement means that lawyers, in consultation with their clients, have chosen to resolve their case?

Mediation: Embedded Assumptions Of Whiteness?, Sharon Press, Ellen E. Deason

Faculty Scholarship

This article attempts to uncover some of the systemic ways in which white supremacy is expressed in the practice of mediation in the United States with the goal of inspiring additional conversations and deeper attention to these issues by scholars and practitioners in the field of dispute resolution. Our methodology is to apply the themes in Layla F. Saad’s book, Me and White Supremacy: Combat Racism, Change the World, and Become a Good Ancestor (2020). We use the lenses of tone policing, color-blindness, racial stereotyping, anti-blackness, white silence, and white supremacy to reflect on the following aspects of mediation: communication …

Evolution Of A Field: Personal Histories In Conflict Resolution, Howard Gadlin, Nancy A. Welsh

DRI Press

This book features 23 chapters written by founders, thinkers, inventors, reformers, disrupters and transformers in the field of conflict resolution, thus allowing readers to explore the field’s real, on-the-ground reasons for being and evolving. The contributors include mediators, facilitators, arbitrators, ombuds, academics, system designers, entrepreneurs, leaders of conflict resolution organizations, researchers, advocates for conflict resolution, and critics of conflict resolution. They share their personal and professional stories as well as the values, aspirations and characteristics of the field that inspired them to become involved in conflict resolution, develop their careers, and both influence and wrestle with the field’s evolution.

Contributors …

Through The Looking Glass: Exploring The Regulatory-Ethical Eco-System For Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

How can we conceptualize a robust regulatory system for mediation without compromising the hallmark qualities of mediation that make it so attractive to users - qualities such as procedural flexibility, maximization of party autonomy and interests, and high standards of confidentiality? In addressing this central question, the chapter begins by recognizing the limitations of conventional positivist approaches to regulating mediation practice. It invites readers to view mediation regulation through a contextual lens that highlights connections amongst law, ethics, policy, professions, organisations, civil society and governments in a relational and dynamic regulatory eco-system. Illustrations of the contextual qualities of mediation regulation …

Mediating Consumer Financial Disputes: Financial Industry Disputes Resolution Centre's Unique House Style, Eunice Chua, Beverly Wee

Research Collection Yong Pung How School Of Law

The Financial Industry Disputes Resolution Centre (“FIDReC”) was established in August 2005 with the purpose of providing a low-cost avenue for consumers to resolve their disputes with financial institutions. This article seeks to outline the role of FIDReC and its processes and, at the same time, seeks to define the house style of mediation that has served FIDReC well over the years. This article also highlights some of the different techniques adopted by FIDReC mediators in the course of facilitating the mediation.

Confessions And Redemption—And Politics—For An Un-Neutral Person Who Mediates, Marjorie Corman Aaron

Faculty Articles and Other Publications

Within ADR’s house, and now in our arbitration and mediation rooms, we mediators, court ADR administrators, process designers,and arbitrators can construct and conduct processes that reflect moral values our law makers seem to have abandoned.

Mediation, The Rule Of Law, And Dialogue, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this paper the author urges discussion on the legitimacy of mediation processes, a discussion that is not prevalent in legal scholarship. The author argues that mediation outcomes can be inconsistent with the rule of law given that the same case can have a different outcome depending on whether it is litigated or mediated. On the other hand, crucial and valuable aspects of mediation can result in a presumption of legitimacy. With the rule of law critique in mind, the author discusses how dialogue theory can be used to improve upon the mediation process.

The author begins by exploring the …

Mediation: The New Normal?, Nadja Alexander

Research Collection Yong Pung How School Of Law

Imagine a tightrope walker, walking along a tightrope, holding a long, light rod. To help her balance, the performing artist continually moves the rod, changing the angle of the rod to maintain a constant – her balance in space. If she were to hold the rod in a fixed position, what would happen? She would fall off. In other words, the variation of the rod has the function of maintaining the deeper continuity which enables the artist to make it to the other end, alive. In this essay, the tightrope walker offers a metaphor for dispute resolution systems. In order …

Reflections On Untethered Philosophy, Settlements, And Nondisclosure Agreements, Marjorie Corman Aaron

Faculty Articles and Other Publications

The potentially harmful consequences of nondisclosure agreements in private settlements are troubling. They are a legal system problem, however, for which ADR is not to blame. Unless NDAs were prohibited for all legal claims, prohibiting them in mediated settlements would create greater incentives for pre-litigation direct settlements. The result would be less, not more, public awareness of (alleged) misdeeds.

What Users Say About Technology In Mediation: 2020 Sidra Survey, Part 3, Nadja Alexander, Allison Goh

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the use and appreciation of technology in mediation among client users is analysed.

What Users Say About International Mediators And Mediation Institutions: Part 2, Nadja Alexander, Allison Goh

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the key factors that influence users' choice of mediation institution and choice of the mediator are explored.

The Singapore Convention On Mediation: Supplying The Missing Piece Of The Puzzle For Dispute Resolution, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

In late 2018, the United Nations General Assembly passed a resolution to adopt the UN Convention on International Settlement Agreements Resulting from Mediation and to make corresponding amendments to the Model Law on International Commercial Conciliation. The convention was named the Singapore Convention on Mediation (“Singapore Convention”) when it was signed by 46 countries on 7 August 2019, and will come into force on 12 September 2020. The Singapore Convention is meant to achieve for mediation what the New York Convention has done for international arbitration. Its future success is highly dependent on the sound application of its provisions by …