Law Commons^™

You've Got Your Mother's Laugh: What Bankruptcy Mediation Can Learn From The Her/History Of Divorce And Child Custody Mediation, Nancy A. Welsh

Nancy Welsh

Due to our current deep economic woes, growing bankruptcy filings, and apparent legislative unwillingness to expand the number of judges, bankruptcy courts are exploring the use of mediation to help resolve adversary proceedings, negotiate elements of reorganizations, and deal with claims that cannot be heard directly in bankruptcy proceedings. In addition, mediation advocates have been consistent in urging greater use of the process to reduce debtors’ and claimants’ costs, bridge the jurisdictional and standing challenges that bankruptcies can pose, and offer claimants the opportunity to be heard and determine their own resolution of claims. At this point, the relatively few …

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

Nancy Welsh

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 …

Stepping Back Through The Looking Glass: Real Conversations With Real Disputants About Institutionalized Mediation And Its Value, Nancy A. Welsh

Nancy Welsh

This Article describes what a group of real disputants perceives as most valuable about agency-connected mediation before, soon after, and eighteen months after they participated in the process. The Article is based primarily upon qualitative data from in-depth interviews with parents and school officials who participated in special education mediation sessions. Though the specific context of these interviews is obviously important, these disputants and their disputes share many commonalities with disputants and disputes in other contexts and, as a result, these disputants' views have relevance for the broader field of mediation.

These interviews suggest that both before and after disputants …

Making Deals In Court-Connected Mediation: What's Justice Got To Do With It?, Nancy A. Welsh

Nancy Welsh

When mediation was first introduced to the courts, the process was hailed as “alternative.” Mediation gave disputants the opportunity to discuss and resolve their dispute themselves; the role of the third party was to facilitate the disputants’ negotiations, not to dictate the outcome; and because the disputants were able to focus on their underlying interests in mediation, the process could result in creative, customized solutions. The picture of mediation is changing, however, as the process settles into its role as a tool for the resolution of personal injury, contract, and other nonfamily cases on the courts’ civil dockets. Attorneys dominate …

Best Practices For Mediation Training And Regulation: Preliminary Findings, Susan S. Raines, Tim Hedeen, Ansley B. Barton

Susan Raines

This article makes recommendations as to “Best Practices” for the training of mediators in court-connected settings. The authors’ findings cover issues including the design of training programs, the importance of experiential learning through role-plays, teaching methods for adult learners, class size and length, training ethical mediators, suggested trainer qualifications, and recommended regulatory practices for administrators. Data comes primarily from an assessment of mediation training and regulation in Florida, but the findings hold insights for court-connected mediation programs throughout the United States. Additionally, the authors highlight the benefits of a collaborative assessment approach involving all stakeholder groups and facilitating smooth implementation …

Decision-Making In Mediation: The New Old Grid And The New New Grid System, Leonard L. Riskin

Leonard L Riskin

This Article reviews the author's previous mediator-orientation models and proposes a new system for understanding the range of mediator orientations based on substantive, procedural, and meta-procedural decision-making grids.

The Represented Client In A Settlement Conference: The Lessons Of G. Heileman Brewing Co. V. Joseph Oat Corp., Leonard L. Riskin

Leonard L Riskin

This Article sets out various perspectives that litigants, lawyers and judges commonly bring to settlement conferences, perspectives on lawyer-client relations, negotiation, and the role of the judicial host. In examining the opinions in the Heileman case, along with other materials, the Article attempts to uncover the underlying assumptions about the settlement conference that informed the behavior of the judges and lawyers in that case, arguing that Heileman's explanation lies in the lawyers' and judges' tendency to embrace one of two radically different visions of the settlement conference. The Article then catalogs the advantages and disadvantages of involving clients in settlement …

Teaching And Learning From The Mediations In Barry Werth's Damages, Leonard L. Riskin

Leonard L Riskin

This essay is based primarily on materials the author developed for courses taught at the University of Missouri-Columbia, School of Law, in the winter 2002 and 2003 semesters, based on Barry Werth's book, "Damages."

Understanding Mediators' Orientations, Strategies, And Techniques: A Grid For The Perplexed, Leonard L. Riskin

Leonard L Riskin

This Article begins with a review of previous efforts to categorize mediation and their shortfalls, including the lack of any widely-shared comprehensive method for describing the various approaches to mediation practice. The Article then offers a new "grid" system for classifying mediator orientations, strategies, and techniques and describes the potential utility of the grid, particularly its effectiveness in selecting mediators.

Mediation Representation: Representing Clients Anywhere, Harold Abramson

Harold I. Abramson

No abstract provided.

Problem-Solving Advocacy In Mediations: A Model Of Client Representation, Harold Abramson

Harold I. Abramson

No abstract provided.

Problem-Solving Advocacy In Mediations: A Model Of Client Representation, Harold Abramson

Harold I. Abramson

No abstract provided.

Teaching The Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, A Defining Features Matrix, Games, And An Exercise Based On Grievances Filed Against Florida Mediators, Paula M. Young Prof.

Paula Marie Young Prof.

Teaching Professional Ethics To Lawyers And Mediators Using Active Learning Techniques, Paula M. Young

Paula Marie Young Prof.

Behind The Neutral: The Critical Role Of Provider Institutions, Thomas J. Stipanowich

Thomas J. Stipanowich

In the last generation the “quiet revolution” in conflict resolution has spawned a vast array of organizations sponsoring or promoting the services of arbitrators and mediators. These “provider institutions” are often in a position, directly or indirectly, to exert significant influence on the lives and fortunes of individuals in all sectors of society. For this reason they have become increasingly visible, the focus of growing scrutiny and, in some cases, regulation. This article explores the roles of providers and the need for greater awareness of their impact.

The Quiet Revolution Comes To Kentucky: A Case Study In Community Mediation, Thomas J. Stipanowich

Thomas J. Stipanowich

This article is part of a symposium entitled “Emerging Alternative Dispute Resolution Systems” and discusses Professor Stipanowich's experience helping to establish a court-connected community mediation program. The article includes extensive discussion of the practical, legal and ethical issues associated with such programs and includes some early case statistics.