Dispute Resolution and Arbitration Commons^™

The Unfulfilled Promise Of Self-Determination In Court-Connected Mediation, Peter Reilly

Faculty Scholarship

In the context of mediation, party self-determination refers to the ability of disputants to have power, control, and autonomy in the process. There are numerous process design questions involved in running a mediation, no matter its subject matter. Consider just one example: “Should the mediation be conducted in-person, or virtually?” The answer to this question can have a profound impact on the direction and course of a mediation, including its outcome. Yet, in the context of court-connected mediation, disputing parties are not consistently provided the opportunity to give input on how such process design questions are resolved. In fact, these …

Bargaining Without Bias, Cynthia Alkon

Faculty Scholarship

In this article, to work towards decreasing bias in plea bargaining, I propose a structural fix and an individual fix to these core problems. The structural fix is that prosecutors' offices should adopt policies for blind assessment of cases when the first plea offer is made. All indicia of race or ethnicity (including names and neighborhoods) should be removed when prosecutors review a case and make the initial plea offer. This would help prosecutors focus on the facts and their evidence when making a plea offer and prevent bias in decision making. However, it is not realistic to expect that …

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, …

Arbitrarily Selecting Black Arbitrators, Michael Z. Green

Faculty Scholarship

Calls for increased diversity among arbitrators have surged with the growth of the employer movement, so-called mandatory arbitration, which requires employees to agree to arbitrate employment discrimination matters as a condition of employment. Despite good-faith efforts by neutral service providers, civil rights organizations, bar associations, and employer and employee groups to identify and address the need for more diverse arbitrators in mandatory arbitration, many commentators still lament that this diversity problem reflects negatively on access to justice. With the #MeToo movement’s focus in recent years on the lack of a public and transparent resolution for sexual harassment matters, as well …

When Less Is More: The Limitless Potential Of Limited Scope Representation To Increase Access To Justice For Low- To Moderate-Income Individuals, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

Extract:

I want to give you a roadmap for our program. We will not be delivering individual papers but, rather, hope to have a discussion. We are planning to spend thirty minutes on introductions for the purpose of allowing you to identify the source of each panelist's perspectives. We will then use an hour, more or less, for a discussion among the panel. That will leave fifteen minutes for audience questions and participation. Because we will be publishing an edited transcript, we ask that you hold your questions until the end.

Access to justice is a broad topic, and we …

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

Faculty Scholarship

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 …

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 …

Transforming News: How Mediation Principles Can Depolarize Public Talk, Carol Pauli

Faculty Scholarship

News media interviews bring opposing voices into the public forum where, ideally, audience members can deliberate and reach democratic compromise. But in today’s politically polarized atmosphere, partisans increasingly accuse each other of being a threat to the country, and prospects for compromise have suffered. Journalists have been urged to take a more affirmative role, promoting problem-solving and opposing conflict. They have stopped short, citing professional norms that demand a stance of neutral detachment.

This Article turns to the principles of transformative mediation. Like journalism, it is detached from any goal of settlement. It aims instead at increasing the capacity of …

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

Faculty Scholarship

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 …

Self-Determination In International Mediation: Some Preliminary Reflections , Jacqueline Nolan-Haley

Faculty Scholarship

Few concepts have generated as much discussion in the post-war international legal system as that of “self-determination.” Scholars debate the proper identity of the "selves" endowed with this right, its boundaries, and its normative relevance. When the focus turns to mediation, the discussion becomes murky because the concept of self-determination has both procedural and substantive components, and is noticeably different in the private and public sectors. The generic concept of self-determination relates to ideas of democratic governance and the Enlightenment belief that legitimate government depends upon the consent of the governed. As adapted to private mediation theory, the right of …

Civil Justice Reform Symposium: Introduction, James F. Hogg

Faculty Scholarship

Many people in the United States are not happy about the way in which litigation proceeds. In a country sometimes thought to be overpopulated with lawyers, either one party or both parties in a significant percentage of civil cases apparently cannot afford, or decline to retain, legal counsel. Financing for legal aid seems to be less than adequate, pro bono services are helping to some extent, but the administration of civil justice is in danger of sinking in the swamp of pro se ("do-it-yourself') litigation. The articles in this symposium discuss ideas for reform, such as introductory resources directed at …

The Division Of Legal Labor In Rural Haiti, Pnina Lahav

Faculty Scholarship

This paper explores the institutional facilities available to Haitian peasants for the settlement of their disputes. More specifically, it compares the institution of the Chef de Section - the lowest administrative appointee in the Haitian countryside and the Justice of the Peace - the lowest ranking judicial institution provided by the Haitian legal system. The paper further advances the hypothesis that at the present time there is a shift in the division of labor between the two institutions, in favor of the Justice of the Peace, and that this shift may be attributed to processes of social differentiation currently detectable …