Law Commons^™

Mediating Multi-Party Disputes: Reflections On Leadership In Mediation, Elizabeth "Wendy" Trachte-Huber

Pepperdine Dispute Resolution Law Journal

Leadership in mediating multi-party matters is imperative. In my work as Claims Administrator for one of the largest ever personal injury/bankruptcy settlements ($2.3 billion, net present value), I am charged with four primary areas of responsibility: (1) the efficient and fair evaluation of claims consistent with provisions of the Joint Plan of Reorganization; (2) the efficient delivery of payments to all approved claimants pursuant to the provisions of the Joint Plan; (3) the management and custody of the assets paid to the Settlement Facility; and finally (4) the faithful execution of the provisions of the Joint Plan in all respects. …

Alternative Dispute Resolution And Court-Appointed Experts , Joseph R. Slights Iii, Mark G. Haug

Pepperdine Dispute Resolution Law Journal

This article shamelessly borrows its subtitles-the Court's Tale and the Expert's Tale-from Chaucer's tale-telling. The two tales examine the life cycle of a case utilizing a court-appointed expert. The Court's Tale begins with a presumption against the court-appointed expert. Certain characteristics of a dispute, however, may be sufficient to rebut this presumption. The Court's Tale tells of one such case. The case involved complex damage calculations and irreconcilable positions that invite an objective analysis. The article then turns toward the Expert's Tale which describes how an expert helped resolve the problem. Following the Expert's Tale, the court assesses the outcome …

Immunizing Arbitrators From Claims For Equitable Relief, Michael D. Moberly

Pepperdine Dispute Resolution Law Journal

The article begins with a summary of the historical origins of the judicial and arbitral immunity doctrines. Next, the article discusses the courts' refusal to extend judicial immunity to claims for declaratory, injunctive, or other equitable relief, except perhaps in the case of federal judges. The article then explores the propriety of recognizing a similar limitation in cases construing the arbitral immunity doctrine. The article ultimately concludes that (1) arbitrators should be immune from claims for equitable relief as a matter of policy, and (2) in jurisdictions where that result is currently precluded by existing precedent, a comparable result can …

The Relational Contingency Of Rights, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by …

Show Me The Money: Part One, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Until now, the discussion of how to ethically monetize “the value added” that settlement savvy attorneys bring to the client has been one of the few remaining taboos that is rarely, candidly discussed among lawyers. How should settlement-proficient lawyers calculate the value of efficient, quality outcomes? How does a lawyer who bills by the hour ethically deal with the inherent conflict of interest between his desire to make as much money as he can and the economic disincentive to be settlement proficient? What are some creative billing incentives to more closely align the clients’ desire for contained legal costs …

The Machinery Of Criminal Justice, Stephanos Bibas

All Faculty Scholarship

Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased …

The Role Of Judicial Discretion In Dispute Settlement, James Andreoni, Ray D. Madoff

Ray D. Madoff

We consider two common modes of judicial resolution: judicial discretion, where the judge or jury has broad discretion in fashioning a remedy, and winner take all where the remedy is pre-determined by the governing substantive law. We analyze these systems in light of the fact that pre-trial bargainers have been shown to have excessive confidence in their own positions. We find theoretically that winner-take-all rules magnify the effects of over-confidence and diminish the likelihood of settling relative to judicial discretion. We confirm our model with a laboratory experiment showing significantly fewer pre-trial agreements under winner-take-all. These results imply that increasing …

Timing Settlement, Curtis E.A. Karnow

Curtis E.A. Karnow

A review of empirical and theoretical research pertaining to the effective timing of settlement conferences, and the factors affecting success at settlement.

Learning From Cooperative Negotiators In Wisconsin, John M. Lande

Faculty Publications

To negotiate constructively from the outset of a matter, some lawyers use a "Cooperative" process, giving parties an additional process option, especially if parties believe that mediation or Collaborative practice is not suitable. Cooperative practice offers parties the opportunity to have lawyers represent them in an interest-based process governed by a negotiation agreement-while retaining ready access to litigation if needed, without losing their lawyers as in Collaborative practice. Cooperative practice can increase interest-based negotiation in direct negotiation between lawyers, increase efficiency and satisfaction with negotiation, and influence the general legal culture to incorporate problem-solving in everyday practice more often.

Tort Arbitrage, Robert J. Rhee

UF Law Faculty Publications

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the empirical world. This Article models the interaction of settlement dynamics and the theory of negligence. It shows that tort claims are systematically devalued during settlement relative to the legal standard. Central to this thesis is a proper conception and accounting of cost. Cost is typically viewed as the transaction cost of litigation processing. Cost, however, encompasses more than this. Each dispute has a cost of resolution, defined as the discounting effect of risk on legal valuation. A spread between the parties' …

Justice Delayed: A Tribal Attorney’S Perspective On Elwha River Dam Removal And Ecosystem Restoration, Russell W. Busch

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Russell W. Busch, Attorney for the Lower Elwha Klallam Tribe

10 pages.

Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …

Atlantic Pilotage Authority V Cmsg, Innis Christie

Innis Christie Collection

INTRODUCTION. The "RESOLUTION OF CONTRACT RENEWAL DISPUTES AGREEMENT" of April 24, 2003 between the parties, under which I am proceeding here, provides: The purpose of this agreement is to establish a binding dispute resolution process to be utilized in circumstances where the parties have engaged in collective bargaining for the purpose of entering into a collective agreement but have failed to reach a settlement. Under such circumstances the following process shall be used to conclude all outstanding issues for the renewal of the collective agreement:

Conflicts Of Interest And Institutional Litigants, Curtis E.A. Karnow

ExpressO

This paper uses techniques borrowed from the field of game theory to describe rational bargaining among institutional litigants, and explains how the results, while often not leading to the rational outcome in a given case, do rationally serve a more general strategy. The paper then reviews the law on conflicts of interests and concludes that such conflicts—as between attorney and client, and among clients—will often result when institutional litigants bargain. The paper continues with a review on the law of waiver and provides a basis to accommodate the conflicts of interests. That accommodation however will often not be practical, and …

Who Decides?: A Critical Look At Procedural Discretion, Robert G. Bone

ExpressO

Federal civil procedure today relies extensively on trial judge discretion to manage litigation, promote settlements, and otherwise tailor process to individual cases. Even those rules with decisional standards leave trial judges considerable interpretive freedom to make case-specific determinations. This Article criticizes these choices and recommends stricter rules. Many judges and procedure scholars applaud the discretionary approach, and the Advisory Committee seems content to draft vague rules that implement it. The assumption seems to be that trial judges have the expertise and experience to do a good job of tailoring procedures to the needs of particular cases. The assumption is wrong, …

A Price Theory Of Legal Bargaining: An Inquiry Into The Selection Of Settlement And Litigation Under Uncertainty, Robert J. Rhee

UF Law Faculty Publications

Conventional wisdom says that economic surplus is created when the cost of litigation is foregone in favor of settlement, a theory flowing from the Coase Theorem. The cost-benefit analysis weighs settlement against the expected value of litigation net of transaction cost. This calculus yields the normative proposition that settlement is a superior form of dispute resolution and so most trials are considered errors. While simple in concept, the prevailing economic model is flawed. This article is a theoretical inquiry into the selection criteria of settlement and trial. It applies principles of financial economics to construct a pricing theory of legal …

Anchoring, Information, Expertise, And Negotiation: New Insights From Meta-Analysis, Chris Guthrie, Dan Orr

Vanderbilt Law School Faculty Publications

In this article, we conduct a meta-analysis of studies of simulated negotiations to explore the impact of an initial "anchor," typically an opening demand or offer, on negotiation outcomes. We find that anchoring has a significant impact on the deals that negotiators reach. We also explore whether negotiator experience and the information environment mitigate the influence of anchoring. We conclude by offering prescriptive advice, both "offensive" and "defensive," to negotiators.

How Much Justice Can We Afford: Defining The Courts' Roles And Deciding The Appropriate Number Of Trials, Settlement Signals, And Other Elements Needed To Administer Justice, John Lande

Journal of Dispute Resolution

This article discusses how the court system can function optimally given declining trial rates and the limited resources available. It does not provide a detailed analysis of court financing but rather discusses broad issues relating to the role of trials in the legal system.

Settling The Wilderness, Sarah Krakoff

Publications

No abstract provided.

Understanding Settlement In Damages (And Beyond), Chris Guthrie

Journal of Dispute Resolution

The purpose of this article is to introduce these academic accounts of settlement and to consider whether they provide insight into the settlement of the Sabias' litigation against Humes and Norwalk. I believe these accounts are largely complementary rather than competing, so my own view is that each sheds some light on litigation and settlement behavior in most civil cases (including the Sabia case).

Forgetfulness, Fuzziness, Functionality, Fairness And Freedom, In Dispute Resolution, Jeffrey W. Stempel

Scholarly Works

Professor Subrin is a self-professed traditionalist who has been one of the most forceful defenders of what I might term neo-traditional “Clarkian” litigation. By that, I mean the model of civil disputing in which litigation is a primary vehicle. More important, the litigation is based on notice pleading, broad discovery, and a preference for adjudication on the merits.

Key Subrin works over the years have focused on the historical path of the Clarkian model, which served to fuel much of the law revolution of the mid-Twentieth Century, to the “new era” of civil procedure and dispute resolution that dominated the …

Judicial Mediation And Signaling, Edward J. Brunet

Nevada Law Journal

No abstract provided.

Mediating Preferences: Litigant Preferences For Process And Judicial Preferences For Settlement, Judith Resnik

Journal of Dispute Resolution

In the 1980s, as a consultant to RAND's Institute for Civil Justice, I joined Deborah Hensler, Allan Lind, Robert MacCoun, William Felstiner, Tom Tyler, and Patricia Ebener in seeking to learn how litigants viewed their experiences with courtbased processes. We surveyed litigants whose cases had been resolved through trials, court-annexed arbitrations, judge-run settlement conferences, and bi-lateral negotiations between lawyers.' We found that litigants cared about process: they reported less satisfaction with processes in which they took no part and more satisfaction with processes in which they could participate. Contrary to some lore that litigants were alienated by trial-like procedures, the …

The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh

Faculty Scholarship

Ethical codes for mediators describe party self-determination as “the fundamental principle of mediation,” regardless of the context within which the mediation is occurring. The definition of self-determination, however, is a matter of dispute. Based on a review of the debate surrounding the promulgation and revision of ethical codes for court-connected mediators in Florida and Minnesota, this Article demonstrates that a vision of self-determination anchored in party-centered empowerment is yielding to a vision that is more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through …

Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel

Scholarly Works

One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One …

Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen

UF Law Faculty Publications

In this Article, I focus on injuries committed by members of organizations, such as corporations, and examine distinct issues raised by apology in the organizational setting. In particular, I consider: (i) the process of learning to prevent future errors; (ii) the divergent interests stemming from principal-agent tensions in employment, risk preferences and sources of insurance; (iii) the non-pecuniary benefits to corporate morale, productivity and reputation; (iv) the standing and scope of apologies; and (v) the articulation of policies toward injuries to others.

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel

Scholarly Works

Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …

Advising Clients To Apologize, Jonathan R. Cohen

UF Law Faculty Publications

The article argues that lawyers should consider the possibility of advising clients to apologize for harms they commit, as in some cases apology may best serve their client's interests. The articles discusses some of the pros and cons to apology in the legal setting, as well as barriers that may inhibit apologies.

Protocols For International Arbitrators Who Dare To Settle Cases, Harold Abramson

Scholarly Works

The best time to settle an international business dispute can be after the international arbitration proceeding has been commenced. Just like in court litigation, parties may be ready to settle only after the adjudicatory process has begun and even has progressed. In court, judges commonly open the door to settlement; they hold settlement conferences and even actively participate in settlement negotiations. But arbitrators rarely open the door to settlement; when they do, they risk losing their jobs. So, what can international arbitrators safely do? What dare they do?

In this article, the author explores the dilemma presented when one neutral …

A Model For Arbitration: Autonomy, Cooperation And Curtailment Of State Power, Kenneth

Fordham Urban Law Journal

As compared with the formal pleadings, massive discovery, aggressive motion practice, and endless appeals of litigation, arbitration is undoubtedly more efficient as a dispute resolution mechanism. However, efficiency is only one of many advantages of arbitration. Arbitration empowers disputing parties, promotes individual autonomy and cooperation, and curtails the power of government in the process. Still, the state should not wholly limit its involvement in arbitral processes; the courts do and should have a substantial role in determining the enforceability of arbitration agreements and awards in a few select contexts. Overall, courts should enforce arbitration agreements and only limit enforceability that …