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

Faculty Scholarship

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 …

What's It All About? Finding The Appropriate Problem Definition In Mediation, Leonard L. Riskin, Nancy A. Welsh

Faculty Scholarship

In this article, we propose four mechanisms to enable mediation participants to explore problems broadly and then to decide what problem definition is most appropriate for the mediation of their case:

• A three-step systematic method for determining the problem to be addressed;
• Two variations of a rule that could be adopted by courts (and private providers) that would require lawyers or mediators to implement this systematic way of working with problem definition; and
• A new rule under which a court (or private) mediation program would offer to customize any mediation in order to seek the most appropriate problem definition

We …

Online Communication Technology And Relational Development, Anita D. Bhappu, Noam Ebner, Sanda Kaufman, Nancy A. Welsh

Faculty Scholarship

Key to success in negotiation is managing and enhancing relationships. This concept can be difficult to convey in short-term executive training courses where students have little time for relational development. Not to worry: the authors assert that by strategically using online communication before, during, and after such courses, students can effectively both train for, and depend on, good relations at a distance.

Dispute Resolution And The Post-Divorce Family: Implications Of A Paradigm Shift, Jana B. Singer

Faculty Scholarship

Over the past two decades, there has been a paradigm shift in the way the legal system handles most family disputes – particularly disputes involving children. This paradigm shift has replaced the law-oriented and judge-focused model of adjudication with a more collaborative, interdisciplinary and forward-looking family dispute resolution regime. It has also transformed the practice of family law and fundamentally altered the way in which disputing families interact with the legal system. This essay examines the elements of this paradigm shift in family dispute resolution and explores the opportunities and challenges it offers for families, children and the legal system.

Making Peace And Making Money: Economic Analysis Of The Market For Mediators In Private Practice, Urska Velikonja

Faculty Scholarship

Mediation has grown tremendously in the last three decades, yet only a small number of mediators have been able to benefit financially from its growth. The supply of willing mediators by far exceeds the demand for their services. Mediator trainee overoptimism and the lack of formal barriers to entry result in excess entry in the market for mediators. However, the lack of a formal barrier, but the existence of de facto barriers to entry, such as mediator selection practices and specialization, combined with excessive individual optimism, creates inefficiently high levels of entry. This is socially suboptimal: many aspirant mediators spend …

Negotiating Classroom Process: Lessons From Adult Learning, Melissa Lee Nelken

Faculty Scholarship

No abstract provided.

Dispute Systems Design: The United Nations Compensation Commission, Francis Mcgovern

Faculty Scholarship

The Security Council of the United Nations established the United Nations Compensation Commission (“UNCC”) with its Resolution 687 on April 3, 1991.1 It was the first compensation system established under the authority of Chapter VII of the U.N. Charter and was designed to process and pay claims arising from the Iraqi invasion of Kuwait in 1990. The purpose of this paper is to examine the design of the UNCC from a variety of perspectives: its historical setting, the alternative design approaches that have been taken in other compensation contexts, the details of its design, and its role in the design …

Why The Chinese Public Prefer Administrative Petitioning Over Litigation, Taisu Zhang

Faculty Scholarship

In recent years, the Chinese public, when facing disputes with government officials, have preferred a non-legal means of resolution, the Xinfang system, over litigation. Some scholars explain this by claiming that administrative litigation is less effective than Xinfang petitioning. Others argue that the Chinese have historically eschewed litigation and continue to do so habitually. This paper proposes a new explanation: Chinese have traditionally litigated administrative disputes, but only when legal procedure is not too adversarial and allows for the possibility of reconciliation through court-directed settlement. Since this possibility does not formally exist in modern Chinese administrative litigation, people tend to …

Describing The Effect Of Adaptation On Settlement, John Bronsteen, Christopher Buccafusco, Jonathan Masur

Faculty Scholarship

No abstract provided.

Bargaining Power And Background Law, Nancy Kim

Faculty Scholarship

Power in contract law typically refers to the bargaining strength of each contracting party in relation to the other. In assessing the relative bargaining power of each party, courts and commentators often consider factors specific to the parties, such as socio-economic status and education level. In this Essay, I suggest another factor that affects the power of the parties in negotiating or modifying their agreement, one that I refer to as the "background law." The background law is the substantive law that governs the subject matter of the contract. This Essay focuses specifically on the background law of copyrights and …

Winners And Losers In The Panel Stage Of The Wto Dispute Settlement System, Bernard Hoekman, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

Most research on the role of developing countries in the WTO Dispute Settlement (DS) system has focused on their propensity to participate as complainants, respondents, and third parties. Much of this line of research has sought to examine claims that developing countries are underrepresented as complainants and/or overrepresented as respondents in the DS system. This chapter examines whether the outcomes with regard to legal claims differ between developing and developed countries. It employs a dataset describing various aspects of the DS system that have been compiled under a World Bank project to take a first cut at exploring what the …

A Comparative Look At Domestic Enforcement Of International Tribunal Judgments, Lori Fisler Damrosch

Faculty Scholarship

Problems of compliance with international arbitral and judicial decisions have been with us for as long as such tribunals have existed. In general, the consensual foundations for the jurisdiction of international tribunals have ensured that the parties were in principle willing to have their disputes resolved by the tribunal and thus were usually prepared to carry out the resulting award or judgment. Commentators on international arbitration generally characterize the compliance record as favorable.

Occasions when states refuse to carry out arbitral awards are rare, but when they do occur, states have sometimes asserted the nullity of the award on the …

Ascertaining The Parties' Intentions In Arbitral Design, George A. Bermann

Faculty Scholarship

Supreme Court case law teaches us that the federal interest in arbitration does not consist of enforcing agreements to arbitrate according to some sort of abstract or ideal arbitral model, but rather according to the particular arbitral model upon which the parties had agreed. This body of law is driven by the same notions of party autonomy that underlie the law of arbitration generally. That parties may agree to forego access to national courts in favor of arbitration is an initial manifestation of that attitude. By logical extension, the parties also enjoy extraordinary latitude in determining the features that "their" …