Law Commons^™

The Abcs Of Adr: Making Adr Work In Your Court System, Nancy A. Welsh, Barbara Mcadoo

Nancy Welsh

So you are thinking about making Alternative Dispute Resolution (ADR) a part of your existing statewide judicial process-but you don't know how. You want to provide litigants with alternative ways to resolve their disputes, through processes such as mediation, arbitration, and summary jury trials. In fact, you have been experimenting with these processes on an ad hoc basis and have had quite a few successes. You think you could accomplish even more if you made ADR a routine part of the judicial process. But you are cautious about the role that your state court system should take in promoting and …

The Law Of Bargaining, Russell Korobkin, Michael Moffitt, Nancy A. Welsh

Nancy Welsh

This brief essay, written for a symposium on The Emerging Interdisciplinary Cannon of Negotiation, describes three categories of rules which comprise the law of bargaining. First, common law limitations govern virtually all negotiators: the doctrines of fraud and misrepresentation limit the extent to which negotiators may deceive, and the doctrine of duress limits the extent to which bargainers can use superior bargaining power to coerce agreement. Second, context-specific laws sometimes circumscribe negotiating behavior in specific settings when general rules are less restrictive. Third, the conduct of certain negotiators is constrained by professional or organizational regulations inapplicable to the general public. …

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 …

The Current Transitional State Of Court-Connected Adr, Nancy A. Welsh

Nancy Welsh

Article Extract:

Obviously, there is much to commend in court-connected mediation and what it offers to people caught up in disputes. With the help of mediators, parties may find it more feasible to reflect on their legal and extra-legal needs, prioritize among these needs, engage in open and thoughtful conversation, develop integrative solutions, and even consider the mediators' dispassionate feedback regarding positions or expectations. Proponents of court-connected mediation can also point to a multitude of accomplishments. For example, and most strikingly, many cases settle in mediation.' For the vast majority of those cases, litigants express satisfaction with the process and …

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 …

Searching For A Sense Of Control: The Challenge Presented By Community Conflicts Over Concentrated Animal Feeding Operations, Nancy A. Welsh, Barbara Gray

Nancy Welsh

The growth in the number of concentrated animal feeding operations ("CAFOs"), particularly those involved in swine production, has brought with it increased community concern and outright conflict in many communities across the United States.' Most commentators have focused upon anticipated outcomes to explain the contentiousness of CAFO-related disputes.2 Meanwhile, even though the social dynamics that contribute to the development and escalation of conflicts over CAFOs parallel those exhibited in other kinds of community conflicts, little research has systematically examined the social dynamics associated with CAFO conflicts. One exception to this deficiency is recent work conducted by a team of researchers …

Remembering The Role Of Justice In Resolution: Insights From Procedural And Social Justice Theories, Nancy A. Welsh

Nancy Welsh

It is surely a luxury, at this point in the field of dispute resolution, to be invited to identify those concepts that I view as absolutely essential to our canon. Borrowing a bit from Chris Guthrie's wine illustration, I think it is fair to suggest that today's presentations reveal a very impressive wine cellar, with many bottles of fine wine from which to choose. I will spotlight one part of this wine cellar, where concepts regarding procedural and social justice theories can be found. I will focus primarily on procedural justice but will also reference those theories of social justice …

Ross Et Al. V. American Express Et Al.: The Story Behind The Spread Of Class Action-Barring Arbitration Clauses In Credit Card Agreements, Nancy A. Welsh, Stephen J. Ware

Nancy Welsh

Article Extract:

A recent case from the Southern District of New York, Ross et al v. American Express et al, is an antitrust case, but it also is an important case for arbitration. Ross consolidated several class actions in which plaintiffs alleged that major credit card issuing banks, including American Express (Amex), First USA, Bank of America, Citibank, Chase, Discover, and others “violated the Sherman Act by agreeing with their competitors to implement and maintain mandatory class action-barring arbitration clauses as a term or condition for holding their general purpose credit cards.

Musings On Mediation, Kleenex, And (Smudged) White Hats, Nancy A. Welsh

Nancy Welsh

This Essay speculates on the global future of mediation. It anticipates that mediation’s popularity will continue to grow both in the U.S. and abroad particularly as courts continue to encourage and institutionalize the process. Meanwhile, the Essay acknowledges the existence and continuing development of a relatively small cadre of elite lawyers and retired judges who serve as private mediators in large, complex matters.

The Essay also raises concerns, though, regarding the current lack of clarity in the goals and procedural characteristics that define mediation. The Essay asserts that such lack of clarity invites abuse of the mediation privilege and exclusionary …

Perceptions Of Fairness In Negotiation, Nancy A. Welsh

Nancy Welsh

In all of negotiation, there is no bigger trap than "fairness." This chapter from the Negotiator's Fieldbook explains why among multiple models of fairness, people tend to believe that the one that applies here is the one that happens to favor them. This often creates a bitter element in negotiation, as each party proceeds from the unexamined assumption that its standpoint is the truly fair one. For a negotiation to end well, it is imperative for both parties to assess the fairness of their own proposals from multiple points of view, not just their instinctive one – and to consider …

Negotiation As One Among Many Tools, Jennifer Gerarda Brown, Marcia Caton Campbell, Jayne Seminare Docherty, Nancy A. Welsh

Nancy Welsh

Article Extract

Even as this symposium examines the "canon" of negotiation, we think it is also important to consider negotiation's context. In many cases, negotiation cannot be the first or the only activity that takes place. To make significant progress in the resolution or management of some conflicts, other activities will have to precede or supplement negotiation. This can be particularly true in large-scale, multi-party public disputes.

Consider the following situation, one that might be unfolding even as you read this in any number of places in the United States. The setting is the state of Grace, a relatively small …

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

Nancy Welsh

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.

Mandatory Predispute Consumer Arbitration, Structural Bias, And Incentivizing Procedural Safeguards, Nancy A. Welsh

Nancy Welsh

Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory claims and give up their rights to pursue class relief. This Article begins by arguing that the Supreme Court’s enthusiastic embrace of mandatory predispute arbitration should be understood primarily …

Mandatory Mediation And Its Variations, Nancy A. Welsh

Nancy Welsh

The use of arbitration to resolve international investment disputes clearly represents an improvement over “gunboat diplomacy” and its implicit threat of violent confrontation. Nonetheless, investors, States and other stakeholders have begun to express dissatisfaction with some elements of arbitration in the international investment treaty context. First, arbitration proceedings can be quite lengthy, and their transaction costs seem to be increasing. Second, parties’ compliance is not guaranteed. Some States suggest they may refuse to abide by arbitral awards. Third, the process focuses parties on their legal rights when non-legal issues may be equally important and useful to achieve resolution. Fourth, arbitration …

Making Reputation Salient: Using The Reputation Index With Law Students, Nancy A. Welsh

Nancy Welsh

Would negotiation students act the way they do in simulations, if they knew this might come back to haunt them? Analyzing the consequences of basing part of students’ final grades on objective results they achieve in negotiation simulations, Welsh found a need for something to counterbalance the expected incentives to engage in distributive tactics and “sharp practice.” She settled on an explicit focus on reputation. While the “reputation index” compiled for each student is only a small fraction of the student’s grade, it is based on recent thinking about the value of negotiators’ reputations even in the short term, and …

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 …

Introduction To Volume 5 Of The Yearbook On Arbitration And Mediation, Nancy A. Welsh

Nancy Welsh

Professor Welsh introduces Volume 5 of the Yearbook on Arbitration and Mediation.

Looking Down The Road Less Traveled: Challenges To Persuading The Legal Profession To Define Problems More Humanistically, Nancy A. Welsh

Nancy Welsh

This essay will focus on three factors that may help to explain why it seems to be so difficult for many lawyers to escape the confines of a narrow, legalistic framing of issues-or more poetically, why they may be predisposed against looking down "the road less traveled by." These factors should be taken into account as challenges to the widespread adoption of innovative, more humanistic approaches to lawyering. First, the essay will turn to research regarding the psyches and psychological needs of the people who choose to attend law school and become lawyers. Second, the essay will consider what is …

Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh

Nancy Welsh

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …

Magistrate Judges, Settlement, And Procedural Justice, Nancy A. Welsh

Nancy Welsh

This Article begins, in Part I, with an overview of magistrate judges’ history and role generally, including a discussion of the mechanism of “blind consent” that must be undertaken before a magistrate judge may conduct a trial. Part I then turns to magistrate judges’ role in settlement and ADR, outlines the procedural and ethical rules governing judges’ role in settlement, and highlights research revealing lawyers’ concerns regarding judges’ role in settlement. In Part II, the Article provides a brief overview of mediation in the federal courts and considers the relationship between judge-hosted settlement sessions and mediation. With this background regarding …

Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh

Nancy Welsh

Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a …

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Nancy Welsh

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Grappling The Monster Case: The Next Frontier In Adr, Nancy A. Welsh, Ann Montgomery

Nancy Welsh

Not so long ago, "ADR" was just one more term in a legal jargon already filled with too many acronyms. While we concede that "ADR" might not rival "CPR" as a vital necessity, its use is extremely important to the practice of law today. Since the promulgation of Rule 114 of the Minnesota General Rules of Practice, nearly 80 percent of Minnesota attorneys report that they are using ADR to help resolve their civil cases filed in state trial courts.' Their reasons? ADR processes can cut litigation costs, reduce clients' expenses, save attorneys' and clients' time, and generate earlier settlements. …

Eyes On The Prize: The Struggle For Professionalism, Nancy A. Welsh, Bobbi Mcadoo

Nancy Welsh

Article Extract:

A mere fifteen years ago, the term mediation was confused regularly with meditation. Much has changed. The courts, frequently derided as overcrowded and expensive for individual litigants and the public, now rely on mediation to resolve cases and reduce dockets. Attorneys and judges are advocates; many have become mediators themselves.

Disputants generally express satisfaction with the process. It is not surprising that mediation-along with other ADR processes-has achieved institutionalization in the courts, public agencies and the private and nonprofit sectors.

We are now embarking on the next stage: professionalization. There are increasing references to "dispute professionals" or "professional …

Institutionalization: What Do Empirical Studies Tell Us About Court Mediation?, Bobbi Mcadoo, Nancy A. Welsh, Roselle L. Wissler

Nancy Welsh

In the 25 years since the Pound Conference, federal and state courts throughout the country have adopted mediation programs to resolve civil disputes. This increased use of mediation has been accompanied by a small but growing body of research examining the effects of certain choices in designing and implementing court-connected mediation programs.

This article focuses on the lessons that seem to be emerging from the available empirical data regarding best practices for programs that mediate non-family civil matters. Throughout the article, we consider the answers provided by research to three questions: (1) How does program design affect the success of …

Enforcement Of Foreign Arbitration Agreements And Awards: Application Of The New York Convention In The United States, Louis Del Duca, Nancy A. Welsh

Nancy Welsh

Internationalc ommercial arbitrationp rovides customized and efficient resolution for disputes arising out of transnational commerce. When arbitration occurs in states that have ratified the New York Convention, the process also offers enforceable outcomes even in states other than the one where the arbitration occurred. The United States ratified the New York Convention in 1970, and its courts overwhelmingly enforce both arbitration agreements and arbitral awards. There are exceptions, however, and American courts require the use of certain procedures.

This Article provides a brief survey of American courts' recognition and enforcement of foreign arbitration agreements and arbitral awards. It begins by …

Does Adr Really Have A Place On The Lawyer's Philosophical Map?, Barbara Mcadoo, Nancy A. Welsh

Nancy Welsh

For nearly two decades, proponents of alternative dispute resolution (ADR) have touted the advantages of institutionalizing ADR within the courts. The anticipated benefits have included: quicker settlements, better settlements, resolution which is less expensive for the courts and litigants, and greater litigant satisfaction with both the procedure and the outcome. Many state and federal courts have listened. Indeed, in nearly every state, at least one local state and/or federal court has incorporated ADR in some manner. In Minnesota, with the promulgation of Rule 114 of the Minnesota General Rules of Practice, the Minnesota Supreme Court has chosen to institutionalize ADR …

Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh

Nancy Welsh

Professor Deborah Hensler suggests in the lead article of this Symposium issue that the courts' embrace of facilitative, interest-based mediation may have been ill-conceived. She argues that there is insufficient evidence to conclude that litigants are more satisfied with mediation than with adjudicative alternatives such as arbitration and trial. She also urges that there is sufficient evidence to show that litigants prefer processes that vest decision control in third parties. Both of these assertions are subject to challenge,' but this Comment will focus upon the significance of giving decision control to the disputants in consensual processes.

Using available research, this …

Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy A. Welsh

Nancy Welsh

Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their proposals have gained widespread adoption in the courts.

Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the opportunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and …