Law Commons^™

Adr And Access To Justice: Current Perspectives, Rory Van Loo, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Ellen Waldman

Faculty Scholarship

Access to justice is a broad topic, and we cannot cover everything. You will notice a few major omissions. Most notably, we are not going to emphasize consumer pre-dispute arbitration agreements. This is not because they are not important, but because much has been written and said on this topic, and it could easily swallow the whole discussion. Also, we are probably not going to say very much about restorative justice, and I am sure you will notice some other holes. We invite you to raise missing issues in your comments.

Let me start with a few opening remarks. We …

Celebrating Mundane Conflict, Deborah J. Cantrell

Publications

This Article interrogates the dominant conception of conflict and challenges the narrative of conflict as hard, difficult and painful to engage. The Article reveals two primary framing errors that cause one to misperceive how ubiquitous and ordinary is conflict. The first error is to misperceive conflict as categorical — something either is a conflict or it is not. People make that error as a way of trying to avoid conflict. People falsely hope that there might be a category of “not conflict,” like disagreements, that will be easier to navigate. The second error is to misperceive the world and individuals …

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney

Faculty Scholarship

Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …

Improving Lawyers’ Judgment: Is Mediation Training De-Biasing?, Douglas N. Frenkel, James H. Stark

All Faculty Scholarship

When people are placed in a partisan role or otherwise have an objective they seek to accomplish, they are prone to pervasive cognitive and motivational biases. These judgmental distortions can affect what people believe and wish to find out, the predictions they make, the strategic decisions they employ, and what they think is fair. A classic example is confirmation bias, which can cause its victims to seek and interpret information in ways that are consistent with their pre-existing views or the goals they aim to achieve. Studies consistently show that experts as well as laypeople are prone to such biases, …

Open-Minded Listening, Jonathan R. Cohen

UF Law Faculty Publications

Parties in conflict do not typically listen to one another well. On a physical level they hear what their counterparts say, but on a deeper level they do not truly absorb or think seriously about their counterparts’ words. If they listen at all, they listen with an ear toward how they can refute rather than toward what they may learn. This article explores how we might change this. In contrast to prior research examining external aspects of listening (e.g., how being listened to influences the speaker), this article probes the internal side of listening, specifically, whether the listener will allow …

Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten

Faculty Publications

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing …

Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

All Faculty Scholarship

This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication.

Developing Better Lawyers And Lawyering Practices: Introduction To The Symposium On Innovative Models Of Lawyering, John M. Lande

Faculty Publications

This article provides an overview of a symposium sponsored by the University of Missouri Center for the Study of Dispute Resolution in 2007 that featured leading practitioners and scholars to analyze innovative models of lawyering, including Collaborative Law and other processes. The authors include David Hoffman, Nancy Welsh, Julie Macfarlane, Richard Shields, Pauline Tesler, Scott Peppet, Forrest ("Woody") Mosten, Jeanne Fahey, Kathy Bryan, Lawrence McLellan, and John Lande. The articles address issues including: teaching law students to "feel" like lawyers and not just "think" like them, using "conflict resolution advocacy" (which is not necessarily oriented to the courts), developing lawyers' …

Judging Judges And Dispute Resolution Processes, John M. Lande

Faculty Publications

This article critiques Professor Chris Guthrie's lead symposium article entitled, "Misjudging." Guthrie's article makes two major arguments. The first is a descriptive, empirical argument that judges are prone to error because of three types of "blinders" and that people underestimate the amount of such judicial error. The second argument is prescriptive, recommending that, because of these judicial blinders, disputants should consider using non-judicial dispute resolution processes generally, and particularly facilitative mediation and arbitration.This article critiques both arguments. It notes that, although Guthrie presents evidence that judges do make the kinds of errors that he describes, his article does not address …

Do Attorneys Do Their Clients Justice? An Empirical Study Of Lawyers' Effects On Tax Court Litigation Outcomes, Leandra Lederman, Warren B. Hrung

Articles by Maurer Faculty

Do attorneys really add value or can unrepresented parties achieve equivalent results? This fundamental question ordinarily is difficult to answer empirically. An equally important question both for attorneys and the justice system is whether attorneys prolong disputes or instead facilitate expeditious resolution of cases.

Fortunately, there is a federal court that provides an excellent laboratory in which to test and answer these questions. In the United States Tax Court (Tax Court), where most federal tax cases are litigated, the government always is represented by Internal Revenue Service attorneys but a large portion of the taxpayer litigants proceed pro se. In …

European Union's New Role In International Private Litigation, Ronald A. Brand

Articles

No abstract provided.

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 …

Disputing Through Agents: Cooperation And Conflict Between Lawyers In Litigation, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

Do lawyers facilitate dispute resolution or do they instead exacerbate conflict and pose a barrier to the efficient resolution of disputes? A distinctive characteristic of our formal mechanisms of conflict resolution is that clients carry on their disputes through lawyers. Yet, at a time when the role of lawyers in dispute resolution has captured not only public but political attention, social scientists have remained largely uninterested in the influence of lawyers on the disputing process. This is not to say that academics have ignored the growth in civil litigation in the United States. Economists have developed an extensive literature that …