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Full-Text Articles in Law
The Revolution You Won’T See On Tv, Jeff Rasley
The Revolution You Won’T See On Tv, Jeff Rasley
Scholarship and Professional Work - LAS
Article for Newsweek about the author’s experiences in mediation and jury trials as a civil litigator.
Getting A Head Start: More Intake Questions And Tips For Mediators, Marjorie Corman Aaron
Getting A Head Start: More Intake Questions And Tips For Mediators, Marjorie Corman Aaron
Faculty Articles and Other Publications
A party's initial inquiry to a mediator about potentially participating in a case provides many opportunities for the neutral to initiate the steps necessary for a successful resolution. This article focuses on a list of intake questions for the mediator to direct to the parties.
At First Glance: Maximizing The Mediator‘S Initial Contact, Marjorie Corman Aaron
At First Glance: Maximizing The Mediator‘S Initial Contact, Marjorie Corman Aaron
Faculty Articles and Other Publications
First moves matter. A mediator’s strategic choices during the initial contact can encourage the next steps that will produce a successful mediation, or render mediation less likely or less productive.
Dr Ethics Book Brings It All Together, Jonathan R. Cohen
Dr Ethics Book Brings It All Together, Jonathan R. Cohen
UF Law Faculty Publications
Dispute resolution practice has changed dramatically over the past several decades. The traditional litigation model has increasingly given way to a “multi-door” vision of varied dispute resolution practices. With that functional change in how we process disputes has come a pressing need to address the varied ethical challenges of these varied practices. Dispute Resolution Ethics is a marvelous contribution toward that effort.
Culture Change - A Tale Of Two Cities And Mandatory Court-Connected Mediation, Julie Macfarlane
Culture Change - A Tale Of Two Cities And Mandatory Court-Connected Mediation, Julie Macfarlane
Journal of Dispute Resolution
This is the first study to ask Canadian lawyers to describe in depth what they really think about mediation and the impact it has had on their litigation practices.'3 Their responses are rich, reflective and diverse. Many different understandings of mediation goals within litigation are present in the legal profession itself, and this lack of consensus is reflected in the results of this study. Before explaining the methodology of the study, it is useful to first set out its theoretical premises and to relate these to previous research on the legal profession which offer important insights relevant to the development …
Oh, Ye Of Little (Good) Faith: Questions, Concerns And Commentary On Efforts To Regulate Participant Conduct In Mediations, Roger L. Carter
Oh, Ye Of Little (Good) Faith: Questions, Concerns And Commentary On Efforts To Regulate Participant Conduct In Mediations, Roger L. Carter
Journal of Dispute Resolution
There are many types of mediation. This article focuses exclusively on mediations within Professor Lande's "liti-mediation culture" - those dealing with disputes that are or may become the subject of litigation. I address both court-connected and private mediations as I believe that the potential for bad faith exists in both. Following this Introduction, in Part II, I examine definitions of "good faith" in mediation, I then review commentary and case law on good faith requirements. In Part III, I argue that certain objectively determinable behavior ought to be proscribed. By contrast, some good faith standards adopted by courts or advocated …
Mediation In The Modern Millennium, Nadja Alexander
Mediation In The Modern Millennium, Nadja Alexander
Research Collection Yong Pung How School Of Law
In Australia we call it "Mediation", the French say "la mediation", and the Germans "die Mediation". The term is global, stemming from the Latin, mediatio'; the process universal, its inherent flexibility transcending historical and national legal norms and systemic differences. Indeed, forms of mediation can be traced back to sources in ancient Greece, the Bible, traditional communities in Asia and Africa, and to the fourteenth Century English 'Mediators of Questions'. Mediation, however, does not exist in a vacuum. It operates against a backdrop of national dispute management culture and institutional rules and regulations. Accordingly, it is nothing less than misleading …
The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin
The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin
UF Law Faculty Publications
This Article proposes that introducing mindfulness meditation into the legal profession may improve practitioners' well-being and performance and weaken the dominance of adversarial mind-sets. By enabling some lawyers to make more room for - and act from - broader and deeper perspectives, mindfulness can help lawyers provide more appropriate service (especially through better listening and negotiation) and gain more personal satisfaction from their work.
Part I of this article describes a number of problems associated with law school and law practice. Part II sets forth a variety of ways in which lawyers, law schools, and professional organizations have tried to …
Using Dispute System Design Methods To Promote Good-Faith Participation In Court-Connected Mediation Programs, John Lande
John Lande
This Article discusses what can be done to promote productive behavior in mediation and reduce bad conduct. Although most participants do not abuse the mediation process, some people use mediation to drag out litigation, gain leverage for later negotiations, and generally wear down the opposition. Rules requiring good-faith participation are likely to be ineffective and possibly counterproductive. This Article proposes using dispute system design principles to develop policies satisfying the interests of stakeholders in court-connected mediation programs. After outlining interests of key stakeholder groups including litigants, attorneys, courts, and mediators, the Article describes specific policies that could satisfy their interests. …
False Dichotomies And Asking The Right Questions, John Wade
False Dichotomies And Asking The Right Questions, John Wade
John Wade
This is a comment on a recent article entitled Enacting and Reproducing Social and Individual Identity Through Mediation by Ho-Beng Chia, Chee-Leong Chong, Joo-Eng Lee-Partridge, Chantel Chu Shi Hwee, and Sharon Francesca Koh Wei-Fei, in Conflict Resolution Quarterly, 2000, 19(1).
Managing Conflict In An Urban Health Care Setting: What Do "Experts" Know?, Kenneth Kressel, Cheryl Ann Kennedy, Elise Lev, Louise Taylor
Managing Conflict In An Urban Health Care Setting: What Do "Experts" Know?, Kenneth Kressel, Cheryl Ann Kennedy, Elise Lev, Louise Taylor
Journal of Health Care Law and Policy
No abstract provided.
Mediation And Medicare Part A Provider Appeals: A Useful Alternative, Kathleen Scully-Hayes
Mediation And Medicare Part A Provider Appeals: A Useful Alternative, Kathleen Scully-Hayes
Journal of Health Care Law and Policy
No abstract provided.
Confidential From General Counsel To Ceo:"I'M Fed Up, And We're Not Going To Take This Anymore!", Karl A. Slaikeu, Diane W. Slaikeu
Confidential From General Counsel To Ceo:"I'M Fed Up, And We're Not Going To Take This Anymore!", Karl A. Slaikeu, Diane W. Slaikeu
Journal of Health Care Law and Policy
No abstract provided.
A Culture Of Conflict: Lessons From Renegotiating Health Care, Leonard J. Marcus
A Culture Of Conflict: Lessons From Renegotiating Health Care, Leonard J. Marcus
Journal of Health Care Law and Policy
No abstract provided.
Mediating Disputes In Managed Care: Resolving Conflicts Over Covered Services, Nancy Neveloff Dubler
Mediating Disputes In Managed Care: Resolving Conflicts Over Covered Services, Nancy Neveloff Dubler
Journal of Health Care Law and Policy
No abstract provided.
Foreword, Edward R. Becker
Appellate Mediation In The Third Circuit - Program Operations: Nuts, Bolts, And Practice Tips, Joseph A. Torregrossa
Appellate Mediation In The Third Circuit - Program Operations: Nuts, Bolts, And Practice Tips, Joseph A. Torregrossa
Villanova Law Review
No abstract provided.
Procedural Justice Research And The Paucity Of Trials, Chris Guthrie
Procedural Justice Research And The Paucity Of Trials, Chris Guthrie
Vanderbilt Law School Faculty Publications
Professor Deborah Hensler tells an important cautionary tale about mandatory mediation in her thoughtful and provocative contribution to this volume. In Suppose It's Not True: Challenging Mediation Ideology, Hensler observes that courts are now requiring litigants to mediate civil cases "on the grounds that litigants prefer [mediation] to traditional litigation," yet there is "a long line of social psychological research on individuals' evaluations of different dispute resolution procedures" consistent with the "idea that litigants might prefer adversarial litigation and adjudication" to mediation.' Hensler acknowledges that "some experimental research has found that subjects prefer mediation," but she argues that "the empirical …
Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler
Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler
Journal of Dispute Resolution
In this article, we first use existing research evidence to contextualize more clearly the place of civil case mediation in the litigation process. When we understand civil mediation as part of adversarial litigation - rather than as distinct from it - we see the importance of comparing mediation and unassisted negotiation. Next, we discuss research and commentary on the barriers to negotiation and the ways in which mediation might help overcome them. This work provides a more pragmatic and empirically grounded perspective on the potential value of mediation than does "mediation ideology" and suggests a wide range of "hypotheses" to …
Ending A Mud Bowl: Defining Arbitration’S Finality Through Functional Analysis, Amy J. Schmitz
Ending A Mud Bowl: Defining Arbitration’S Finality Through Functional Analysis, Amy J. Schmitz
Faculty Publications
The Federal Arbitration Act (FAA) and Uniform Arbitration Act (UAA), on the state level, prescribe a nearly identical procedural and remedial scheme for promoting independent, self-contained arbitration. To that end, both acts curtail courts' review of arbitration awards, by limiting the grounds for vacating awards to those aimed at ensuring only basic procedural fairness. Nonetheless, seemingly "pro-arbitration" impulses have driven some courts' eager application, or misapplication, of the FAA/UAA statutory scheme to enforce dispute resolution agreements that reject the acts' limited review prescriptions. This Article tackles this arguable abuse of the FAA/UAA scheme, by proposing a functional analysis for defining …
When Litigation Is Not The Only Way: Consensus Building And Mediation As Public Interest Lawyering, Carrie Menkel-Meadow
When Litigation Is Not The Only Way: Consensus Building And Mediation As Public Interest Lawyering, Carrie Menkel-Meadow
Georgetown Law Faculty Publications and Other Works
British social philosopher Stuart Hampshire recently articulated the fundamental and foundational principles of the modem conflict resolution movement (and I do call it a movement). He asserted that, "there will always be a plurality of different and incompatible conceptions of the good and there cannot be a single comprehensive and consistent theory of human virtue. Correspondingly, "our political enmities in the city or state will never come to an end while we have diverse life stories and diverse imaginations.'' Hampshire, a socially progressive, socialist philosopher hoped to articulate universal conceptions of the good. In his lifetime of reflection on this …
The Lawyer As Consensus Builder: Ethics For A New Practice, Carrie Menkel-Meadow
The Lawyer As Consensus Builder: Ethics For A New Practice, Carrie Menkel-Meadow
Georgetown Law Faculty Publications and Other Works
In this Article, I explore the roles of lawyers in alternative dispute resolution ("ADR"), including traditional roles in arbitration and "new" roles in mediation and facilitation. I also discuss how conventional ethics rules for lawyers fail to provide guidance and "best practices" for lawyers who serve in these new roles. State legislatures and professional associations, such as the American Arbitration Association ("AAA"), the Center for Public Resources Institute for Dispute Resolution ("CPR"), and the Association of Conflict Resolution, have adopted ethical codes for mediators and arbitrators. Select professional associations are also developing "best practice" guides for the provision of ADR …
Introduction: What Adr Means Today, Theodore J. St. Antoine
Introduction: What Adr Means Today, Theodore J. St. Antoine
Other Publications
The sort of cachet a Hollywood screenplay once ascribed to "plastics" seems today to have adhered to "ADR." ADR stands, of course, for alternative dispute resolution. It refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without invoking the decision-making power of the state. And for many people, ADR has become the byword for a much-needed panacea for an overly litigious society. This book is designed to get behind the mystique of ADR, to show how it really works, and to enhance the skills of anyone interested in exploiting its …
Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey
Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey
Journal of Dispute Resolution
The Emperor's New Clothes is a very modem tale about carving out market niches, about generating and feeding unreasonable desires, and about the power of conformity within emergent occupations and powerful professions.
Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler
Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler
Journal of Dispute Resolution
Across the country, people who file lawsuits are being diverted from adjudication to mediation. Whereas once mediation was seen as the preferred means of resolving family disputes (especially those involving child custody), now it is mandated for a broad range of civil disputes. Whereas once citizens were called upon to volunteer as mediators in community justice centers outside the courts, now mediation is a line of business for lawyers whose customers are sent to them by the courts. Whereas once dispute resolution theorists called on courts to provide a variety of procedural choices for civil disputants, now courts order litigants …
Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips
Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips
Journal of Dispute Resolution
This experience stands in stark contrast to the thesis of Professor Deborah Hensler in her article, Suppose It's Not True: Challenging Mediation Ideology. Therein, Professor Hensler attempts to link social psychological research that she interprets as showing dissatisfaction with the use of mediation compared to adjudication, which, in turn, leads her to conclude that clients should prefer counsel who ordinarily can resolve cases successfully without the help of mediation.7 The fallacy of Professor Hensler's argument is evident in several respects. For one, she relies far too heavily on her own intuition and previous empirical research of marginal relevance, and on …