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Full-Text Articles in Law
Culture Change - A Tale Of Two Cities And Mandatory Court-Connected Mediation, Julie Macfarlane
Culture Change - A Tale Of Two Cities And Mandatory Court-Connected Mediation, Julie Macfarlane
Journal of Dispute Resolution
This is the first study to ask Canadian lawyers to describe in depth what they really think about mediation and the impact it has had on their litigation practices.'3 Their responses are rich, reflective and diverse. Many different understandings of mediation goals within litigation are present in the legal profession itself, and this lack of consensus is reflected in the results of this study. Before explaining the methodology of the study, it is useful to first set out its theoretical premises and to relate these to previous research on the legal profession which offer important insights relevant to the development …
Oh, Ye Of Little (Good) Faith: Questions, Concerns And Commentary On Efforts To Regulate Participant Conduct In Mediations, Roger L. Carter
Oh, Ye Of Little (Good) Faith: Questions, Concerns And Commentary On Efforts To Regulate Participant Conduct In Mediations, Roger L. Carter
Journal of Dispute Resolution
There are many types of mediation. This article focuses exclusively on mediations within Professor Lande's "liti-mediation culture" - those dealing with disputes that are or may become the subject of litigation. I address both court-connected and private mediations as I believe that the potential for bad faith exists in both. Following this Introduction, in Part II, I examine definitions of "good faith" in mediation, I then review commentary and case law on good faith requirements. In Part III, I argue that certain objectively determinable behavior ought to be proscribed. By contrast, some good faith standards adopted by courts or advocated …
Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler
Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler
Journal of Dispute Resolution
In this article, we first use existing research evidence to contextualize more clearly the place of civil case mediation in the litigation process. When we understand civil mediation as part of adversarial litigation - rather than as distinct from it - we see the importance of comparing mediation and unassisted negotiation. Next, we discuss research and commentary on the barriers to negotiation and the ways in which mediation might help overcome them. This work provides a more pragmatic and empirically grounded perspective on the potential value of mediation than does "mediation ideology" and suggests a wide range of "hypotheses" to …
Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey
Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey
Journal of Dispute Resolution
The Emperor's New Clothes is a very modem tale about carving out market niches, about generating and feeding unreasonable desires, and about the power of conformity within emergent occupations and powerful professions.
Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler
Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler
Journal of Dispute Resolution
Across the country, people who file lawsuits are being diverted from adjudication to mediation. Whereas once mediation was seen as the preferred means of resolving family disputes (especially those involving child custody), now it is mandated for a broad range of civil disputes. Whereas once citizens were called upon to volunteer as mediators in community justice centers outside the courts, now mediation is a line of business for lawyers whose customers are sent to them by the courts. Whereas once dispute resolution theorists called on courts to provide a variety of procedural choices for civil disputants, now courts order litigants …
Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips
Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips
Journal of Dispute Resolution
This experience stands in stark contrast to the thesis of Professor Deborah Hensler in her article, Suppose It's Not True: Challenging Mediation Ideology. Therein, Professor Hensler attempts to link social psychological research that she interprets as showing dissatisfaction with the use of mediation compared to adjudication, which, in turn, leads her to conclude that clients should prefer counsel who ordinarily can resolve cases successfully without the help of mediation.7 The fallacy of Professor Hensler's argument is evident in several respects. For one, she relies far too heavily on her own intuition and previous empirical research of marginal relevance, and on …