Law Commons^™

Moving Toward A Competency Based Model For Fostering Law Students’ Relational Skills, Susan L. Brooks, Marjorie A. Silver, Sarah Fishel, Kellie Wiltsie

Scholarly Works

Legal education has long been criticized for failing to provide adequate professional training to prepare graduates for legal practice realities. Many sources have lamented the lack of sufficient attention to the range of competencies necessary for law graduates to be effective practitioners and develop a positive professional identity, including those that are intra-personal, such as self-awareness, critical self-reflection, and self-directedness; those that are interpersonal, such as deep and reflective listening, empathy, compassion, cross-cultural communication, and dialogue; and those that engage with the social/systemic dimension of lawyering, such as appreciating the role of multiple identities, implicit bias, privilege and power, and …

Combinations Of Mediation And Arbitration: The Singapore Perspective, Man Yip

Research Collection Yong Pung How School Of Law

In recent years, Singapore has been actively rethinking and reworking ‘access to justice’, with a strong focus on creating new options for dispute resolution and promoting the awareness of these options. This chapter examines the judicial, regulatory and institutional support in Singapore for the twinning of mediation and arbitration as a form of multi-tier dispute resolution mechanism for commercial disputes. It is a hybrid approach that draws upon ‘the strengths of both adversarial and consensual dispute resolution’. In particular, this chapter critically analyses the SIMC-SIAC Arb-Med-Arb Protocol (the ‘AMA Protocol’) and interrogates how it contributes towards improving the arb-med-arb mechanism.

A Pioneer Of The Law & Society Movement: One Eyewitness’S Reflections, Jayanth K. Krishnan

Articles by Maurer Faculty

There is arguably no more seminal a figure in the field of law and society than Professor Marc Galanter. That a Special Issue featuring dedications to several leading academic lights would be hosted by the University of Chicago Law Review is especially significant in terms of Marc’s inclusion because Chicago is where Marc came of age as a student.

Professor Richard Abel, some years back, chronicled Marc’s educational journey in Hyde Park. As Abel tells it—and as Marc has told me over the years—after finishing his B.A. and while continuing to work on his master’s degree from Chicago, Marc enrolled …

Introduction To Symposium On "Adr's Place In Navigating A Polarized Era", Nancy A. Welsh

Faculty Scholarship

Ours is a nation built for conflict, for friction. Such conflict, while painful, can be good. It can signal newfound agency, and it can be a catalyst for dialogue, customized and creative solutions, and ultimately progress. This is what many dispute resolution academics teach their students. But we are caught in such an extraordinarily polarized time, and many wonder what role ADR can and should play in navigating a polarized era. That was the question addressed by Texas A&M School of Law's March 2020 symposium, with the resulting articles - by Baruch Bush & Peter Miller, Jonathan Cohen, Jill DeTemple, …

Adr Empirical Research Studies (Summer 2013-Fall 2022), James Coben, Donna Stienstra

ADR Empirical Research Studies

No abstract provided.

The Social Cost Of Contract, David A. Hoffman, Cathy Hwang

All Faculty Scholarship

When private parties perform contracts, the public bears some of the costs. But what happens when society confronts unexpected contractual risks? During the COVID-19 pandemic, completing particular contracts—such as following through with weddings, conferences, and other large gatherings—will greatly increase the risk of rapidly spreading disease. A close reading of past cases illustrates that when social hazards sharply increase after formation, courts have sometimes rejected, reformed, and reinterpreted contracts so that parties who breach to reduce external harms are not left holding the bag.

This Essay builds on that observation in making two contributions. Theoretically, it characterizes contracts as bargains …

Religious Alternative Dispute Resolution In Israel And Other Nations With State-Sponsored Religious Courts: Crafting A More Efficient And Better Relationship Between Rabbinical Courts And Arbitration Law In Israel, Michael J. Broyde, Ezra Ives

Faculty Articles

This paper proposes the expansion of both private and public options regarding religious arbitration in Israel, broadening both the choice of law and the choice of forum available to Israeli citizens in cases of either commercial law or issues of status (such as divorce, marriage, and conversion). The current law in Israel prohibits citizens from adjudicating their monetary disputes in state religious courts and treats private religious courts as no different from any other arbitration tribunal, precluding these private religious courts from marriage, divorce and conversion matters. We propose that both of these restrictions be lifted, while the role of …

Confessions And Redemption—And Politics—For An Un-Neutral Person Who Mediates, Marjorie Corman Aaron

Faculty Articles and Other Publications

Within ADR’s house, and now in our arbitration and mediation rooms, we mediators, court ADR administrators, process designers,and arbitrators can construct and conduct processes that reflect moral values our law makers seem to have abandoned.

Reflections On Untethered Philosophy, Settlements, And Nondisclosure Agreements, Marjorie Corman Aaron

Faculty Articles and Other Publications

The potentially harmful consequences of nondisclosure agreements in private settlements are troubling. They are a legal system problem, however, for which ADR is not to blame. Unless NDAs were prohibited for all legal claims, prohibiting them in mediated settlements would create greater incentives for pre-litigation direct settlements. The result would be less, not more, public awareness of (alleged) misdeeds.

Adr: Disputing With A Modern Face, Or Bargaining For The Bargain Impaired?, Robert J. Condlin

Faculty Scholarship

The Alternative Dispute Resolution (ADR) movement might turn out to be one of the most important chapters in the history of the American judicial system. Or, it might not. In its most grandiose form, ADR turns disputing on its head, transferring control over outcome from third-party decision-makers to the disputants themselves, and defining disputing procedure in ad hoc, party-constructed guidelines tailored to the circumstances rather than fixed, generic, and categorical rules applicable uniformly in all situations. In its less grandiose form, ADR simply institutionalizes a system of multi-party bargaining in which third-party neutrals help disputants identify individual interests and find …

Expanding The Scope Of Dispute Resolution And Access To Justice, Masood Ahmed, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

This note considers recent civil justice reforms in England and Singapore in enhancing the role of ADR, in particular mediation, as a means of increasing access to justice. The English and Singaporean civil justice reforms reflect the continual efforts to encourage the greater utilisation of ADR for appropriate cases. The current range of mechanisms may be charted along a “continuum of madatoriness”, ranging from compulsory attendance at mediation orientation sessions; the utilisation of costs sanctions; having an opt-out system; and mandating mediation with no exemptions. However, the English and Singaporean experiences illustrate some of the drawbacks in penalising parties for …

Designing And Implementing A State Court Odr System: From Disappointment To Celebration, David Larson

Faculty Scholarship

For the past two and one-third years I have had the pleasure of working with the New York State Unified Court System to design and implement an online dispute resolution (ODR) platform. It truly has been an interesting, educational, at times character-building, and ultimately tremendously valuable experience. This article will share specific design components from the ODR platforms we proposed as well as some of the critical lessons I learned. The hope is that it will be helpful to those either contemplating, or in the process of implementing, a court integrated ODR system.

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

Faculty Scholarship

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 …

Delegating Procedure, Matthew A. Shapiro

Hofstra Law Faculty Scholarship

The rise of arbitration has been one of the most significant developments in civil justice. Many scholars have criticized arbitration for, among other things, "privatizing" or "delegating" the state's dispute resolution powers and allowing private parties to abuse those powers with virtual impunity. An implicit assumption underlying this critique is that civil procedure, in contrast to arbitration, does not delegate significant state power to private parties. This Article challenges that assumption and argues that we can address many of the concerns about arbitration by drawing on civil procedure's solutions to its own delegation problem. From summonses to subpoenas to settlements, …

Adr And Access To Justice: Current Perspectives, Rory Van Loo, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Ellen Waldman

Faculty Scholarship

Access to justice is a broad topic, and we cannot cover everything. You will notice a few major omissions. Most notably, we are not going to emphasize consumer pre-dispute arbitration agreements. This is not because they are not important, but because much has been written and said on this topic, and it could easily swallow the whole discussion. Also, we are probably not going to say very much about restorative justice, and I am sure you will notice some other holes. We invite you to raise missing issues in your comments.

Let me start with a few opening remarks. We …

Enforcement Of Intellectual Property At Trade Shows: A Comparative Perspective, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials via webcast at a Roundtable on Protecting and Enforcing IP in the Trade Show Context hosted by the United States Patent and Trademark Office's Global Intellectual Property Academy in Alexandra, Virginia. Professor Trimble discussed various enforcement routes and their respective challenges. She also introduced mechanisms available in Europe and compared them to current mechanisms in the United States.

Newsroom: Rwu Law Welcomes New Director Of Business Law Programs And The Corporate Counsel Externship Program July 19, 2017, Roger Williams University School Of Law

Life of the Law School (1993- )

New

Report On The 2016 Rent Court Adr Pilot For The District Court Of Maryland In Baltimore City, Center For Dispute Resolution At The University Of Maryland Baltimore

C-DRUM Publications

No abstract provided.

What Difference Does Adr Make? Comparison Of Adr And Trial Outcomes In Small Claims Court, Lorig Charkoudian, Deborah Thompson Eisenberg, Jamie Walter

Faculty Scholarship

This study compares the experience of small claims litigants who use alternative dispute resolution (“ADR”) to those who proceeded to trial without ADR. ADR had significant immediate and long-term benefits, including improved party attitudes toward and relationship with each other, greater sense of empowerment and voice, increases in parties taking responsibility for the dispute, and increases in party satisfaction with the judiciary. Cases that settled in ADR also were less likely to return to court for an enforcement action within the next year.

C-Drum News, Fall 2016

The C-DRUM News

No abstract provided.

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

Faculty Scholarship

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 …

Book Review: Challenges And Recusals Of Judges And Arbitrators In International Courts And Tribunals, S. I. Strong

Faculty Publications

The proliferation of international courts and tribunals over the last few decades has made it increasingly important to ensure that such proceedings are entirely above reproach. In particular, questions have arisen about what should be done in cases where a judge’s or arbitrator’s continued presence threatens the legitimacy of the proceedings. As fundamental as this question is, very little has been written about the standards for challenge and removal of such officials. Fortunately, Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals, a new collection of essays edited by Chiara Giorgetti, Associate Professor of Law at the …

Of Grids And Gatekeepers: The Socioeconomics Of Mediation, Robert Rubinson

All Faculty Scholarship

Mediation scholars have long debated which mediator “style” or “model” is correct. The origin of the debate arises from a foundational piece of scholarship by Leonard Riskin. Riskin proposed a “grid” of mediator orientations comprised of what came to be known as “facilitative mediation” and “evaluative mediation.” A more recent addition to the grid—and one that is almost universally recognized as a distinct model—is “transformative mediation.” These three models are so embedded in the literature of mediation that they have been called “the big three.” The influence of Riskin’s work cannot be overstated. It has resonated within the community of …

Judging Third-Party Funding, Victoria Shannon Sahani

Scholarly Articles

Third-party funding is an arrangement whereby an outside entity finances the legal representation of a party involved in litigation or arbitration. The outside entity – called a “third-party funder” – could be a bank, hedge fund, insurance company, or some other entity or individual that finances the party's legal representation in return for a profit. Third-party funding is a controversial, dynamic, and evolving phenomenon. The practice has attracted both national headlines and the recent attention of the Advisory Committee on the Federal Rules of Civil Procedure. The Advisory Committee recently declared that “judges currently have the power to obtain information …

Finra Dispute Resolution Task Force Releases Its Final Report, With Support For Mediation And Live Hearings, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This article briefly describes the task force’s formation; highlights its key recommendations (such as requiring mediation before arbitration of all claims—subject to party opt-out, and introducing a more affordable, live hearing option for small claims); analyzes in more detail a few more controversial suggestions (such as expressly banning class action waivers in customer agreements and increasing the use of explained awards), and critiques the task force’s inability to reach consensus on other hot-button issues, such as mandatory arbitration.

Medical Malpractice Arbitration: Not Business As Usual, David Larson, David Dahl

Faculty Scholarship

There is an interesting exception to businesses’, employers’, and service providers’ seemingly universal embrace of arbitration processes, particularly mandatory pre-dispute arbitration. Although it may be difficult to believe given arbitration’s current popularity, not everyone requires his or her clients to sign mandatory pre-dispute arbitration agreements. In fact, some service providers prefer to avoid arbitration regardless of whether it is arranged pre- or post-dispute. So which merchants or service providers are choosing to forgo arbitration and, more importantly, why do they dislike arbitration? And do politics have anything to with their choices? Physicians are not, shall we say, the world’s greatest …

C-Drum News, Fall 2015

The C-DRUM News

No abstract provided.

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

Faculty Scholarship

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, …

Taking Advantage Of Opportunities In Litigotiation, John M. Lande

Faculty Publications

This article is partially based on a study in which I interviewed respected lawyers about their negotiation processes in pretrial litigation. I asked these lawyers about their negotiation procedures generally, and I asked them to describe the last case they settled, starting with the first interaction with their clients in the matter. Although this article focuses on negotiation in the litigation context, some lawyers presumably use analogous procedures in transactional matters.

Introducing The 'New Handshake' To Expand Remedies And Revive Responsibility In Ecommerce, Amy J. Schmitz

Faculty Publications

There was a time when individuals would meet in person to make purchases and do deals. They would discuss the terms, assess the trustworthiness and character of their contracting partners, and conclude the deal with a handshake. The handshake helped ensure the enforcement of the deal without need for the rule of law or legal power. That handshake was one’s bond — it was a personal trust mark. With the emergence of eCommerce, however, that handshake has nearly disappeared along with the sense of responsibility it inspired. Accordingly, this article discusses how this has impacted consumers’ access to remedies regarding …