Law Commons^™

The Behaviour Of Family Lawyers And The Implications For Legal Education, John H. Wade

John Wade

Legal educators have often developed courses with the purported goal of teaching students to “think like lawyers.” Yet little is known about the ways various classes of lawyers think or behave. This paper offers some insights through anecdotal observations of the behaviour of family lawyers in Sydney. It must be conceded, however, that even beginning to demystify lawyerly behaviour does little to resolve current debates about the goals and methods of legal education.

Negotiating About Power Sharing And How To Make Decisions In The Future, John Wade

John Wade

This chapter will set out a “gradation” of legal decision-making power ranging from total to zero. Such a gradation provides a useful template and a form of “expert power” for any negotiator. Founding fathers and mothers of clubs, churches, organizations and nations are particularly adept at negotiating balances of power in the form of “constitutions”. The founders usually negotiate with passion and persistence as they have experienced absolute power corrupting absolutely. Power sharing deals also commonly include power over budget spending; relocating children; appointing judges; hiring and firing employees; implementing medical research, prisoner release and military invasions1. Negotiations about decision-making …

Negotiation Lessons From The Book (Not The Film) Of Exodus, John Wade

John Wade

Extract: The recent film “Exodus: Gods and Kings” has sparked some renewed interest in the actual written record of those events. It did so for me. I was astounded as a lawyer and mediator to read slowly the detailed accounts of the negotiations in the book of Exodus chapters 1-14. Had I missed these dynamics which have been so much a part of my professional and academic life? So I share some of the themes which have emerged belatedly for me in this case study extraordinaire. One of the indicators from research of an “expert” modern day negotiator is someone …

Judicial Mediation And Competition For Clients And Government Funding Among Dispute Resolution Providers, John Wade

John Wade

Extract: The aim of this paper is to describe “judicial mediation”—what is it?; describe the general competition for clients and government funding between dispute resolution services – including to some extent, judicial mediation; set out the possible advantages and disadvantages of judicial mediation for both disputants and society—either as a diagnostic or competitive guide; and, despite lurking or actual competition, tentatively confirm a role for judicial mediation.

Ethically Ambiguous Negotiation Tactics (Eants): What Are The Rules Behind The Rules?, John Wade

John Wade

This paper will briefly discuss the following: • A catalogue of the EANTs in use in negotiation and litigation. • How common are these behaviours amongst lawyers? • What are the attempted controls (or not) of these EANTs in different cultures?---market isolation, law, and “ethics”? • Focussing on attempted ethical controls, what are the five (often overlapping) historic schools of “ethics”? • Which school of “ethics” do various written codes of law societies predominantly reflect? –answer: pragmatism and self interest. • If the epidemic of EANTs needs to be reduced, should pragmatism and self interest be taught and modelled more …

The Perils Of Prenuptial Financial Agreements In Australia: Effectiveness And Professional Negligence, John Wade

John Wade

Extract:
Legal practitioners in Australia who draft financial agreements before (s 90B; 90UB) or during a marriage or relationship (s 90C; 90UC) have a high risk of being guilty of professional negligence. Vigilance, protocols and expertise only reduce the risk; it is never eliminated. That is why a number of experienced and smart family lawyers in Australia will never draft pre-nuptial (s 90B; 90UB) or “during relationship” agreements. They send their clients to more naïve or risk-taking lawyers. In each case, the professional negligence and ineffective agreements lie dormant and hidden like hand grenades. The agreements will explode over say …

The Edges Of Orthodoxy In Mediation - You Did What?, John Wade

John Wade

Extract:In 2008, the American Bar Association published Final Report – Task Force on Improving Mediation Quality. Interestingly, the task force '[a]fter determining that a national credentialing program was not feasible for the current [US] mediation market place' (compare Australia!), retreated to the less controversial and arguably less difficult topic of 'factors that define high quality mediation practice.' (ABA p2).

Evaluative And Directive Mediation: All Mediators Give Advice, John Wade

John Wade

Extract:This short paper discusses:- A working description of evaluative, advisory, challenge or directive mediation- Degrees of information, opinion and advice- The variety of factors which contribute to the conflicts between “types” of mediation- The advantages of evaluative mediation- The disadvantages of evaluative mediation- Predictive conclusion

Teaching And Learning Workshop For Coaches At Mediation Courses, John Wade

John Wade

Extract:The aim of this workshop is to provide a framework for a short teaching and learning course for people who are coaches in dispute resolution courses, especially mediation courses. The models used in this paper are based on theories and practices used at the former CDR Associates in Boulder Colorado, and at Bond University in Queensland, Australia, for the past 30 years. These, of course, walk in the footsteps of various ancient and modern educational theories and practices. Similar models can be used at any course involving “skills” teaching and learning.

Reasons For The Tensions Between The Cultures Of Law School And Law Office, John Wade

John Wade

This paper identifies a catalogue of reasons for tensions between two cultures, bracketed broadly under the heading of “formal university law school” and “professional legal practice”.1The paper suggests that some of these conflicts are remediable, some are inevitable and some are beneficial.

'Judicial' Decision-Making In Australia: Critique And Redemption, John Wade

John Wade

Extract: In Australia, as in most countries, the landscape of judges is vast. Judicial activity can be categorised in many ways. For example, first there is a tiny minority of judges with ’lifelong’ appointments (ie, to the age of 70 or 72 years); who are appointed by the government in power; who work in offices which look like traditional ’courtrooms’; and whose decision-making processes are usually publicised by observers and the publication of decisions and reasoning; and who, importantly, are constitutionally protected from political interference.

Mediation Workshop: Basic Course Materials, Laurence Boulle, John Wade

John Wade

No abstract provided.

Preparing For Mediation And Negotiation In Succession Disputes, John Wade

John Wade

This paper argues that a major task for lawyers in succession disputes, negotiations and mediations is to assist clients make wise decisions in the face of uncertainty. This requires preparation. A short preparation model of five humble hypotheses is set out. Normally, these should be discussed with any mediator well before a mediation takes place. Example precedent preparation forms are attached.

Matching Disputes And Responses: How To Diagnose Causes Of Conflict, And To Respond With Appropriate Interventions And/Or Referrals, John Wade

John Wade

This short paper will address three broad topics from an Australian perspective. Parts of this paper will be relevant to Canada and to other countries. First, where is the pressure coming from for dispute resolution professionals to improve the diagnosis of causes of conflict; and to improve the choice of intervention and/or referral to other skilled helpers? Secondly, what diagnostic dispute resolution services (problem defining) are currently “available”? What methods are used to make an initial diagnosis of causes of a conflict, and appropriate possible “interventions”? Thirdly, what dispute resolution assistance (problem solving) is “available” in each area of conflict? …

What Do Clients Of Mediators "Want"?, John Wade

John Wade

Extract: This title reflects a familiar marketing and ethical question for all service providers – what do clients of plumbers/doctors/psychologists/builders/lawyers etc want? Predictably, the answers given by anecdote, “theory” and more systematic research are complicated and conflicting. There is a simple answer to every complex question, and it is wrong. There are three elements in the question – what do the (1) clients of (2) mediators (3) want?

The Procedural Evolution Of Conflict Towards Litigation And Implications For Legal Publishers, John Wade

John Wade

This paper will summarise three topics found repetitively in the research of Professor Marc Galanter, namely – • The pyramids of conflict • The decline of “full-blown” trials • The increase of “law” The goal is to promote brainstorming about the consequences of these analyses for legal publishers.

Re-Inventing The Pyramid: A Process For Teaching And Learning In Mediation Courses, John Wade

John Wade

This article describes an orthodox teaching and learning process known as the pyramid. It sets out how this basic process can be used in mediation (and other) training courses. The variations, advantages, and disadvantages of this learning procedure are described. Analogies are drawn between the pyramid method and mediation. Finally, mediators are challenged to add this process and its variations to their repertoires both as trainers and as mediators.

Forever Bargaining In The Shadow Of The Law - Who Sells Solid Shadows? (Who Advises What, How And When?), John Wade

John Wade

Extract: Mediators, lawyers and other skilled helpers normally exhort disputants to obtain “independent legal advice” before or after entering into negotiations. This article attempts to demystify and catalogue the concept of “legal advice” particularly in family disputes. Such a catalogue of in-formation and advice quickly raises a series of questions: • How much of this information and advice is actually made available at present? • How much information is necessary or helpful? • In what manner, form and language should such advice be given? • By whom should such advice be given? • How much of this information is within …

Meet Mirat Legal Reasoning Fragmented Into Learnable Chunks, John H. Wade

John Wade

Extract: Here is one method of describing the analytical aspect of "thinking like a lawyer" which has proved to many law students to be: * easy to remember * able to be used at different levels of sophistication * capable of use in every area of law * useful to define a personal or group educational goal * a reasonably precise method for a student to measure his/her performance in any written/spoken exercise * a helpful method for teachers to model in chunks * a satisfying method for marking written or spoken analytical exercises as strengths and weaknesses of each …

"Judicial" Decision-Making In Australia – Critique And Redemption, John Wade

John Wade

Extract:

This paper has four parts, namely a description of:

A. The Context ▪ Australia (the place) ▪ The vast landscape of “judicial” or quasi-judicial decision makers

B. The Commentary ▪ Repetitive critiques of judicial decision-making ▪ Redemption of judicial decision making

Plus an Appendix on Court Structures with details and diagrams.

Duelling Experts In Mediation And Negotiation: How To Respond When Eager Expensive Entrenched Expert Egos Escalate Enmity, John Wade

John Wade

Having dueling experts is a predictable problem for negotiators and mediators. A routine process in response is set out: normalizing, reframing, and turning the barrier into a standard problem-solving question. Twelve standard responses (each with inevitable advantages and disadvantages) are systematized for mediators and negotiators to learn and possibly add value to any negotiation.

Liability Of Mediators For Pressure, Drafting And Advice, John Wade

John Wade

Complex tensions that can occur during negotiations and decision-making are illustrated in the Supreme Court of Victoria decision in the case of Taphoohi v Lewenberg. Cases such as this place judges in the position of making decisions about 'proper mediator behaviour' and of making major policy decisions about professional diversity and standards.

False Dichotomies And Asking The Right Questions, John Wade

John Wade

This is a comment on a recent article entitled Enacting and Reproducing Social and Individual Identity Through Mediation by Ho-Beng Chia, Chee-Leong Chong, Joo-Eng Lee-Partridge, Chantel Chu Shi Hwee, and Sharon Francesca Koh Wei-Fei, in Conflict Resolution Quarterly, 2000, 19(1).

Mediation – Seven Fundamental Questions, John Wade

John Wade

In parts of many countries, mediation is a commonly used process for managing and resolving conflict. In many other places, mediation is virtually unknown in both practice and theory. People confuse mediation with meditation or medication. Why do these interesting anthropological variations exist? Why are the various forms of mediation relatively uncommon in Sweden?

A vast and growing literature is available on conflict management and mediation. This short comment will outline seven fundamental and recurring questions about mediation. Similar questions can be asked helpfully about every profession, including lawyering, plumbing and judging. Every lawyer should be able to answer these …

“Don’T Waste My Time On Negotiation And Mediation, This Dispute Needs A Judge.” Which Conflicts Need Judges? Which Conflicts Need Filing?, John Wade

John Wade

This article contains two parts. First, there is a framework aimed at encouraging lawyers and other conflict managers to be overtly analytical when deciding which interventions may or may not be helpful in a particular conflict. Second, to illustrate this analytical framework, there are two lists of factors or diagnostic indicators that suggest that certain conflicts probably need the decision of an umpire or judge and that certain other conflicts probably need written claims to be filed in a court or tribunal. This article does not attempt to create lists of factors that indicate the suitability of many other processes, …

Current Trends And Models In Dispute Resolution, Part 2, John Wade

John Wade

This article provides a helicopter view of some trends in dispute resolution in Australia, with random references to other jurisdictions. Thereby policy planners and practitioners who are dealing with conflict in the area of residential tenancies (or anywhere else) may be able to: locate their organisation and personal lives on the global map; feel normal; discover colleagues and fellow travellers who are attempting to manage conflict, proactively or reactively; anticipate future challenges; and develop options for responding to those future challenges. Part 1 of this article, published in Volume 9, Issue 1, highlights the pressures on managers and practitioners to …

Current Trends And Models In Dispute Resolution, Part 1, John Wade

John Wade

This article provides a helicopter view of some trends in dispute resolution in Australia, with random references to other jurisdictions. Thereby policy planners and practitioners who are dealing with conflict in the area of residential tenancies (or anywhere else) may be able to: locate their organisation and personal lives on the global map; feel normal; discover colleagues and fellow travellers who are attempting to manage conflict, proactively or reactively; anticipate future challenges; and develop options for responding to those future challenges. Part 1 of this article highlights the pressures on managers and practitioners to deliver effective services. It examines the …

The Last Gap In Negotiations - Why Is It Important? How Can It Be Crossed?, John Wade

John Wade

This paper discusses some basic principles concerning negotiation, including preparation for negotiation, negotiation styles, opening offers, the stages of negotiation and strategies and ethics. The last gap in negotiation is the step necessary to reach an agreement between the negotiating parties. This paper also addresses the importance of the last gap, whether the last gap be avoided, how to cross the last gap in negotiations, and available options for crossing the last gap in negotiations.

Lawyers And Mediators: What Each Needs To Learn From And About The Other, John Wade

John Wade

The mediation movement has been given publicity, funds of taxpayers, and support by propagating simplistic notions of the “adversary” system and of what lawyers do on a daily basis. Conversely, lawyers have often attempted to neutralise this rival profession by (as major doorkeepers to serious family disputes) wilful ignorance of their own behaviour, ignorant criticism of mediator behaviour, anecdotal warfare and attempts to co-opt mediation under their own monopolistic umbrella.

This paper reflects upon the behaviour of both family lawyers and family mediators with the aim of assisting each group understand the other. Both groups have much to learn from …