Law Commons^™

Hats For Sale: Efficiency, Economics, And Process Integrity, Elayne E. Greenberg

Faculty Publications

(Excerpt)

What are the ethical considerations for a mediator when a neutral is asked to be both the mediator and arbitrator on the same case? Some parties and their lawyers opt to select one neutral to serve as both the mediator and arbitrator on the same case, believing it will be a more efficient and cost-effective way to resolve their dispute. After all, the mediator already knows the facts of the case. Why waste time and money getting another neutral up to speed? This design choice, however, may collide with the mediator ethical mandates of party self-determination, neutral impartiality, confidentiality, …

Zooming In On Neutrals’ Implicit ‘Isms, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Video conferencing, extolled for its economic and efficiency benefits, has now become an accepted option in the “new normal” of dispute resolution practice. Consequently, our professional discussions about video conferencing have advanced from sharing the mechanics of “how to” conduct an arbitration or mediation on Zoom to more nuanced explorations about the appropriate use of video conferencing. This column contributes to this exploration by questioning how dispute resolution processes conducted via video conferencing might trigger the implicit biases of arbitrators and mediators and compromise a neutral’s ethical obligation to be impartial. When a neutral conducts their dispute resolution processes …

The Smith Case: Is The Glass Half Full?, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Many in our ADR community have already chosen to side with one of the choruses of polarized voices that are either supportive of or critical of the recent judicial decision In re Cody W. Smith. In that decision, Chief United States Bankruptcy Judge Jeff Bohm disallowed the trustee’s appointment of a mediator, because, inter alia, the trustee didn’t first secure the approval of the presiding bankruptcy judge. A cursory read of Judge Bohm’s decision mistakenly leads us to believe that the case is just about a bankruptcy trustee’s obligation to follow section 327(a) of the Bankruptcy Code, …

Show Me The Money: Part Two, Monetizing The “Value Added” Of Attorneys Who Serve As Mediators And Arbitrators, Elayne E. Greenberg

Faculty Publications

(Excerpt)

In the oft-told fable “The Emperor’s New Clothes,” the candid, uncensored observations of a young child that the Emperor’s “new clothes” weren’t clothes at all but actually the emperor’s nudity, freed the rest of the townspeople to finally acknowledge the jarring reality that their the emperor was naked. And so, “The Emperor’s New Clothes” has become a metaphor for having the courage to see things as they actually are, not for what we are incorrectly told they are. In Part One of this column, I began the discussion of how settlement-savvy lawyers might realistically use alternative fee paradigms instead …

The Jelly Beaner Challenge: How Attorneys Serving As Neutrals Identify And Coordinate The Ethical Mandates Of The 2009 Rules Of Professional Conduct With The Ethical Mandates Of Dispute Resolution, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Many of us may remember as children trying to master the coordination game Jelly Beaner, a joust in which the player is challenged to pat his or her head up and down with one hand while simultaneously rubbing his or her belly in a circular pattern with the other hand. Competing movements, but with practice even those less coordinated can master how to synchronize their hands and play the game. So, too, those of us who are lawyers serving as neutrals are now engaging in a variant of the Jelly Beaner Challenge when it comes to discerning ethical behavior. …

Truth And Consequences: What Should A Mediator Ethically Disclose About Her Mediation Style? How Might A Mediator’S Style Compromise A Mediator’S Neutrality?, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Transparency is fast becoming the buzzword of mediation. Part of that transparency includes the ethical obligation of mediators to disclose in a meaningful and comprehensible way precisely how that mediator will conduct the mediation. Yes, mediation consumers have an ethical right to such information so that they may then make informed decisions about which mediator to select. Isn’t that what the long-held mediation tenets of consent and self-determination are all about? Legitimizing this ethical entitlement, the revised 2005 Model Standards for Mediators guides:

A mediator shall conduct a mediation based on the principle of self-determination. Self-determination is the act …