Law Commons^™

When People Are The Means: Negotiating With Respect, Jonathan R. Cohen

Jonathan R. Cohen

Most scholarship on negotiation ethics has focused on the topics of deception and disclosure. In this Article, I argue for considering a related, but distinct, ethical domain within negotiation ethics. That domain is the ethics of orientation. In contrast to most forms of human interaction, a clear purpose of negotiation is to get the other party to take an action on one's behalf, or at least to explore that possibility. This gives rise to a core ethical tension in negotiation that I call the object-subject tension: how does one reconcile the fact that the other party is a potential means …

Legislating Apology: The Pros And Cons, Jonathan R. Cohen

Jonathan R. Cohen

Should apologies be admissible into evidence as proof of fault in civil cases? While this question is a simple one, its potential ramifications are great, and legislative and scholarly interest in the admissibility of apologies has exploded. Shortly after the idea of excluding apologies from admissibility into evidence was raised in academic circles three years ago, it rapidly spread to the policy arena. For example, California and Florida enacted laws in 2000 and 2001 respectively excluding from admissibility apologetic expressions of sympathy ("I'm sorry that you are hurt") but not fault-admitting apologies ("I'm sorrythat I injured you") after accidents. Eight …

Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen

Jonathan R. Cohen

In this Article, I focus on injuries committed by members of organizations, such as corporations, and examine distinct issues raised by apology in the organizational setting. In particular, I consider: (i) the process of learning to prevent future errors; (ii) the divergent interests stemming from principal-agent tensions in employment, risk preferences and sources of insurance; (iii) the non-pecuniary benefits to corporate morale, productivity and reputation; (iv) the standing and scope of apologies; and (v) the articulation of policies toward injuries to others.

The Immorality Of Denial, Jonathan R. Cohen

Jonathan R. Cohen

This article is the first of a two-part series critically examining the role of lawyers in assisting clients in denying responsibility for harms they have caused. If a person injures another, the moral response is for the injurer actively to take responsibility for what he has done. In contrast, the common practice within our legal culture is for injurers to deny responsibility for harms they commit. The immoral, in other words, has become the legally normal. In this Article, Professor Cohen analyzes the moral foundations of responsibility-taking. He also explores the moral, psychological, and spiritual risks to injurers who knowingly …

Collaborative Lawyering: A Closer Look At An Emerging Practice, William H. Schwab

Pepperdine Dispute Resolution Law Journal

A critical analysis of collaborative law (CL) is only now beginning, and should be based on actual, not hypothetical information about the practice and its impact on clients as courts, the bar, and the public begin to digest the idea of CL. This Article intends to present a more comprehensive picture of collaborative practice than is currently available, to better inform the ongoing conversation about what role CL will play in the legal system. Toward that end, the following sketches some basic questions about CL, and provides some preliminary answers. Part I recounts the origin of CL and introduces the …

Mediation By Judges: A New Phenomenon In The Transformation Of Justice , Louise Otis, Eric H. Reiter

Pepperdine Dispute Resolution Law Journal

This article has three principal parts. In the first, we present an overview of judicial mediation and how it responds to some of the perceived problems with the classical model of adjudication. In this analysis, we draw especially on the experience with judicial mediation at the appellate level at the Quebec Court of Appeal. In the second part, we examine the unfolding of the mediation process itself, using an annotated guide to judicial mediation to address broader issues of both practical and theoretical concern. In the third part, we consider the crucial question of ethics in mediation, signaling some of …

Illusory Ethics: Legal Barriers To An Ombudsman's Compliance With Accepted Ethical Standards, Scott C. Van Soye

Pepperdine Dispute Resolution Law Journal

There are five general types of ombudsmen: classical, executive, corporate, educational, and newspaper. The first two types are appointed by governmental entities, while the last three are associated with private organizations. The American Bar Association has identified a sixth type of ombudsman, the advocate, whose responsibility it is to protect a vulnerable population, such as children or residents of long-term care facilities. But because the advocate ombudsman is appointed by the government, he or she is either a legislative or an executive ombudsman, and there is no reason to create a separate category. As the ombudsman concept has spread, professional …

The Strategic Relationship Between Ethics And Dispute Resolution: What Every Ceo Should Know, Mary L. Walker, R. Philip Deavel

Pepperdine Dispute Resolution Law Journal

This article advocates that there is a dynamic relationship between a values-based ethics program and a commitment to dispute resolution that can revolutionize the way we think about both. The United States Air Force is a global organization with many relationships, including those with other governments, other federal agencies, corporate contractors and its members and employees. Hence, these concepts are not academic to us-they are the lifeblood that allows us to successfully accomplish our mission. But they also have implications for our corporate partners. Why would we have an interest in how private corporations approach the subjects of ethics and …

Joining Forces In Search For Answers: The Use Of Therapeutic Jurisprudence In The Realm Of Mediation Ethics , Omer Shapira

Pepperdine Dispute Resolution Law Journal

The Mediation process is part of the Alternative Dispute Resolution movement (ADR) whose modern history begins at the end of the 1970s. Therapeutic Jurisprudence (TJ) is a younger movement which has started to gain recognition in the 1990s. The two schools of thought share similarities, a fact which makes their study beneficial for both. This article explores some of those similarities in order to evaluate the possible contribution of TJ to mediation ethics. What is sought is a normative reading of the mediation process with the aid of the therapeutic lens. Such reading suggests, so it is argued, behavioral guidelines …

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

Faculty Scholarship

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 …

Ethical Problems In Class Arbitration, Andrew Powell, Richard A. Bales

Journal of Dispute Resolution

This article examines two significant conflicts of interest that arise in class arbitration in six parts. Part II provides background on the recent evolution of class arbitration, explaining how the Supreme Court had decided several cases involving class arbitration but has not explicitly ruled that class actions are either permitted or forbidden. Part III discusses the conflicts of interest that could arise at the beginning of class arbitration. Part IV discusses conflicts of interest that arise at the end of class arbitration. Part V of this article argues that if and when Congress amends the Federal Arbitration Act to statutorily …

A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn

Faculty Working Papers

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties' reciprocal contractual obligations, and (4) moral means …

Crossing Borders Into New Ethical Territory: Ethical Challenges When Mediating Cross-Culturally, Harold Abramson

Harold I. Abramson

No abstract provided.

Collaborative Lawyers’ Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients’ Informed Consent To Use Collaborative Law, John Lande, Forrest S. Mosten

John Lande

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. In CL, the lawyers and clients sign a “participation agreement” promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the “disqualification agreement,” which provides that both CL lawyers would be disqualified from representing the clients if the case is litigated. CL is designed to encourage parties to stay in the process which can be good, though sometimes parties feel stuck there, having invested thousands of dollars and at risk of …

Mindfulness, Emotions, And Ethics: The Right Stuff?, Ellen Waldman

Nevada Law Journal

This essay celebrates Leonard Riskin's call to arms while suggesting some limits to what mindfulness can achieve in the ethical realm. I discuss recent developments in neuroethics that imply a prominent role for emotions in establishing ethical restraint. The Article also surveys a growing body of evidence that suggests the directive power of our emotions remains largely hidden from and impervious to the control of our “reasoning” selves. Lastly, the author examines what Riskin has, in an earlier work, described as the ethical hard case in light of recent explorations into the emotional wellsprings of deontological versus consequentialist thinking. Although …

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

UF Law Faculty Publications

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.

Multi-Institutional Healthcare Ethics Committees: The Procedurally Fair Internal Dispute Resolution Mechanism, Thaddeus Mason Pope

Campbell Law Review

No abstract provided.

Lawyers Without Borders, Catherine A. Rogers

Journal Articles

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Lawyers Without Borders, Catherine A. Rogers

Journal Articles

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Judges Judging Judicial Candidates: Should Currently Serving Judges Participate In Commissions To Screen And Recommend Article Iii Candidates Below The Supreme Court Level?, Mary Clark

Articles in Law Reviews & Other Academic Journals

In the lead-up to the 2008 presidential election, the American Bar Association (ABA), among others, called upon the next president to reform the federal judicial selection process by using bipartisan commissions to screen and recommend Article III candidates for presidential nomination and Senate confirmation below the Supreme Court level. This proposal may well find support in the Obama administration, given the new president’s emphasis on bipartisan consensus-building and transparency of government operations. This Article addresses one question that the ABA and others have not: Should currently serving judges participate in bi-partisan commissions to screen and recommend Article III candidates below …

Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly

Faculty Scholarship

The majority of law review articles addressing lying and deception in negotiation have argued, in one form or another, that liars and deceivers could be successfully reined in and controlled if only the applicable ethics rules were strengthened, and if corresponding enforcement powers were sufficiently beefed up and effectively executed. This article takes a different approach, arguing that the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation. The article concludes that lawyers, businesspeople, and everyone else …

Ethical Considerations In Drafting And Enforcing Consumer Arbitration Clauses, Amy J. Schmitz

Faculty Publications

Attorneys face mixed messages regarding consumer arbitration: Mixed professional responsibility rules; mixed legal enforcement; mixed messages from commentators and policymakers; mixed evidence regarding efficiency, cost-savings and fairness. It is therefore doubtful that attorneys would face discipline for drafting or enforcing onerous consumer arbitration provisions they believe in good faith to be lawful. Professional discipline rules, however, merely set the floor for ethical conduct and can only go so far in dictating morals or teaching values. Indeed, an attorney's commitment to ethics and public service "must begin at home." Moreover, the bottom line is: "If you have the wrong values, your …

The Ethics Of Collaborative Law, Scott R. Peppet

Publications

The practice of Collaborative Law - in which both parties agree that should their case fail to settle, both lawyers will be disqualified from proceeding to court - has grown rapidly in the family bar over the last decade. At the same time, the ethics of this practice have been called into question. Competing ethics opinions in 2007 - from the Colorado Bar Association and the American Bar Association - alternately ban and permit the practice. This Article tries to clarify the underlying ethical issues in Collaborative Law, arguing that much confusion has resulted from imprecise understandings of what the …

The (New) Ethics Of Collaborative Law, Scott R. Peppet

Publications

No abstract provided.

Ethics Of Collaborative Law, The, Scott R. Peppet

Journal of Dispute Resolution

This article argues that Collaborative Law can be permissible under the current rules of legal ethics. At the same time, it contends that this is not a foregone conclusion, and that certain Collaborative Law contracts or arrangements are more suspect than others. In short, it argues that collaborative lawyers need to be extremely careful in how they go about their practice if they wish to withstand ethical scrutiny.

Slides: Meaningful Engagement: The Public's Role In Resource Decisions, Mark Squillace

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School

22 slides

Private Rights And Collective Governance: A Functional Approach To Natural Resources Law, Eric T. Freyfogle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"Eric T. Freyfogle, Max L. Rowe Professor of Law, University of Illinois College of Law"

Colorado Ethics Opinion 115: Next Steps For Colorado's Collaborative Lawyers, Scott R. Peppet

Publications

No abstract provided.

How Can A Mediator Be Both Impartial And Fair: Why Ethical Standards Of Conduct Create Chaos For Mediators, Susan Nauss Exon

Journal of Dispute Resolution

This article focuses on newly developing Standards designed to regulate the mediation industry with respect to civil disputes. The particular focus is on the mediator's requirements of neutrality and impartiality and whether these requirements are impacted by assurances of a fair result and other fairness concepts such as a balanced process and informed decision making. The basic problem is that mediators are guided by Standards and stand-alone definitions of mediation, yet many Standards contain contradictory or vague provisions. Furthermore, the mediator's actual role may be dictated by her own personal style, values, and commercial needs in conjunction with the parties' …

California’S New Ethics Standards: A Hot Bed Of Controversy, Rebecca Callahan

ExpressO

The article examines California’s new ethics rules and examines the cases which have been decided to date challenging and applying those rules. The stated goals of the New Ethics Rules are “to inform and protect participants in arbitration, and to promote public confidence in the arbitration process.” This is a laudable goal since arbitration is a private process that is dependent on public acceptance. The heart of the controversy concerning the New Ethics Rules revolves around the practical inconvenience and cost burden associated with compliance. The enclosed article concludes that such a burden goes hand-in-hand with the privilege of being …