Law Commons^™

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Peter R. Reilly

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

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 …

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Nancy Welsh

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as …

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 …

Look Before You Leap And Keep On Looking: Lessons From The Institutionalization Of Court-Connected Mediation, Bobbi Mcadoo, Nancy A. Welsh

Nancy Welsh

This article will use the institutionalization of general civil mediation into the courts as a case study, with both hopeful and cautionary lessons for policy makers. This article will (1) examine the goals created for court-connected ADR; (2) assess to what extent court-connected mediation has achieved these goals, from the perspective of judges, lawyers, and parties; and (3) and propose reforms of court-connected mediation to better ensure the achievement of justice.

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 …

Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly

Peter R. Reilly

According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”

However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument …

Incentivizing Corporate America To Eradicate Transnational Bribery Worldwide: Federal Transparency And Voluntary Disclosure Under The Foreign Corrupt Practice Act, Peter Reilly

Peter R. Reilly

In 1977, it was discovered that hundreds of U.S. companies had spent hundreds of millions of dollars in bribes to improve business overseas. In response, Congress passed the Foreign Corrupt Practices Act (FCPA), thereby making it illegal to bribe foreign officials to obtain a business advantage. A major tension has emerged between the federal agencies charged with enforcing the FCPA (i.e., the DOJ and SEC), and the corporate entities trying to stay within the legal and regulatory bounds of the statute. Specifically, while the government appears to be trying to maximize discretion and flexibility in carrying out its enforcement duties, …

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Carol Pauli

If Donald Trump, kicking off his campaign for the White House, was saying “what everyone is thinking,” about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales — some as old as the Flood. This article recommends that the news …

The Role Of National Courts In The Post Arbitral Process: The Possible Issues With The Enforcement Of A Set-Aside Award, Rishabh Jogani

Rishabh Jogani

No abstract provided.

The Evolution And Decline Of The Effective-Vindication Doctrine In U.S. Arbitration Law, Okezie Chukwumerije

OKEZIE CHUKWUMERIJE

This article offers information on the history, significance and role of the effective-vindication doctrine in U.S. arbitration law in promoting access to justice. It analyzes the significance of broad policy implications regarding the interpretation of the Federal Arbitration Act (FAA) by the Court facilitating the arbitration of commercial disputes and protecting the statutory rights of consumers in the context of the U.S. Supreme Court's decision in Green Tree Financial Corp. v. Randolph.

Awareness And Ethics In Dispute Resolution And Law: Why Mindfulness Tends To Foster Ethical Behavior, Leonard Riskin

Leonard L Riskin

This paper is an extended version of a luncheon presentation given at the Symposium, Ethics in the Expanding World of ADR: Considerations, Conundrums, and Conflicts, sponsored by South Texas College of Law in Houston, Texas, on Nov. 2, 2007.

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.

Mindfulness: Foundational Training For Dispute Resolution, Leonard Riskin

Leonard L Riskin

This Article addresses the problem of mindlessness in counseling, negotiating, and mediating, and offers potential solutions and recommendations for developing foundational capacities through training in mindfulness meditation.

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."

Rescuing Arbitration In The Developing World: The Extraordinary Case Of Georgia, Steven Austermiller

Steven Austermiller

The country of Georgia has a long and interesting history with arbitration. From “telephone justice” to the criminal underworld to legitimacy, Georgian arbitration has survived many iterations. Now, as Georgia begins the EU accession process, it has a new arbitration law that incorporates international norms. This article analyzes the law, explores how arbitration has been implemented thus far, and discusses some of the challenges that remain. Drawing on his U.S. practice experience in arbitration and his work managing legal reform programs in Georgia and other countries, the author recommends some important changes to Georgia’s new arbitration regime. A particular area …

Why Adr Programs Aren’T More Appealing: An Empirical Perspective, Michael Heise

Michael Heise

Standard law and economic theory suggests that litigating parties seeking to maximize welfare will participate in alternative dispute resolution (ADR) programs if they generate a surplus. ADR programs claim to generate social surplus partly through promoting settlements and reducing case disposition time. Although most associate ADR programs with trial courts, a relatively recent trend involves appellate court use of ADR programs. The emergence of court-annexed ADR programs raises a question. Specifically, if ADR programs achieve their goals of promoting settlements and reducing disposition time, why do some courts find it necessary to impose ADR participation? Attention to ADR’s ability to …

Adr In Construction – Perú, Jonnathan Bravo

Jonnathan Bravo Venegas

No abstract provided.

Eleven Big Ideas About Conflict: A Superficial Guide For The Thoughtful Journalist, Leonard L. Riskin

Leonard L Riskin

When Professor Richard Reuben asked me to speak about the most basic ideas in conflict resolution to a group that included renowned journalists and journalism scholars, I balked. Surely these notions would seem too obvious, mundane, or superficial. But Richard - a practicing journalist for many years as well as an expert on conflict - assured me that the audience would find most of them surprising and useful. I hope he is correct.I plan to present eleven ideas from the dispute resolution literature that I find particularly helpful in my work and life and which I think any journalist would …

The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin

Leonard L Riskin

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 …

Foreword To The Symposium: Therapeutic Approaches To Conflict Resolution In Health Care Settings, Charity Scott

Charity Scott

No abstract provided.

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

Harold I. Abramson

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 …

Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich

Thomas J. Stipanowich

A wide-ranging new Straus Institute for Dispute Resolution Survey of experienced arbitrators, conducted with the cooperation of the College of Commercial Arbitrators, reflects the growing professionalization of commercial arbitration, increasing competition for cases, and many other trends in arbitration practice. It also shows that a grower percentage of arbitrated cases are being settled prior to award or to the start of hearings, and offers a strong rationale for greater emphasis on the role of arbitrators in setting the stage for or facilitating settlement. Early settlement of a dispute can be a uniquely effective way of minimizing cost and cycle time …

Mirror As Prism, Kenneth Fox

Kenneth H Fox

As cooperative private international dispute resolution practices become increasingly common, it is tempting for conflict practitioners to assume that the human relations insights, skills, and practices that worked well for them at home will be equally effective (and appropriate) in an international, cross-cultural environment. Attending to the human dimension of conflict and interaction should be a central part of global negotiation and dispute resolution practice.

This Essay focuses on two dimensions of reflective and reflexive practice. It first discusses the nature of reflection-on-action and reflection-in-action from a modernist (“reflective”) and postmodern (“reflexive”) perspective. It then examines how engaging with practice …

Alternative Dispute Resolution And Public Confidence In The Judiciary: Chief Judge Bell's "Culture Of Conflict Resolution", Deborah Thompson Eisenberg, Rachel Wohl, Toby Treem Guerin

Deborah Thompson Eisenberg

Chief Judge Robert M. Bell has been a visionary leader in the development of alternative dispute resolution (“ADR”). His innovations have made Maryland a model state for conflict resolution programs in the courts and, uniquely, beyond the courthouse doors in a broad range of arenas. This article provides an overview of the “culture of conflict resolution” he ignited in the judiciary and in communities.

„Zuerst Schlichten, Dann Richten“: O Modelo Suíço De Solução De Litígios Pré-Processual É Adequado Para O Brasil?, Nelson Rodrigues Netto

Nelson Rodrigues Netto

Dieser Aufsatz analysiert die Schlichtung und die Mediation in der Schweizerische Zivilprozessordnung.

American Workplace Dispute Resolution In The Individual Rights Era, Alexander Colvin

Alexander Colvin

This article presents a theoretical conceptualization of the rise of alternative dispute resolution and its impact on American employment relations in the individual rights era. The idea of an industrial relations system advanced by Dunlop is no longer a plausible general approach for understanding American employment relations given the decline of organized labor. This article examines the question of whether a new individual employment rights-based system of employment relations has replaced it. The old New Deal industrial relations system was based on three pillars: labor contracts that provided a web of rules governing the workplace; economic strikes, actual or threatened, …

At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson

Lisa Tripp

The Supreme Court’s 2011 decision in AT&T v. Concepcion is the first case where the Supreme Court explores the interplay between state law unconscionability doctrine and the vast preemptive power of the Federal Arbitration Act (FAA). Although it is considered by many to be a landmark decision which has the potential for greatly expanding the already impressive preemptive power of the FAA, something is amiss with Concepcion.

AT&T v. Concepcion is ostensibly a 5-4 majority decision with a concurring opinion. However, the differences in the majority and concurring opinions are so profound that it appears that Justice Thomas actually …

Resolving Workplace Disputes In The United States: The Growth Of Alternative Dispute Resolution In Employment Relations, David B. Lipsky, Ronald L. Seeber

David B Lipsky

[Excerpt] For more than a decade a "quiet revolution" has been occurring m the American system of justice. There has been a dramatic growth in the use of alternative dispute resolution (ADR) to resolve disputes that might otherwise be handled through litigation. We define ADR as the use of any form of mediation or arbitration as a substitute for the public judicial or administrative process available to resolve a dispute (Lipsky and Seeber, 1998A}. In the United States mediation, arbitration, and their variants ordinarily are private processes in which the disputants themselves select, hire, and pay the third-party neutral who …