Dispute Resolution and Arbitration Commons^™

Switching Hats In Med-Arb: The Ethical Choices Required To Protect Process Integrity, Nancy A. Welsh

Faculty Scholarship

Increasingly, there is interest in the use of mixed-mode dispute resolution, including med-arb. Med-arb provides the opportunity for parties to reach their own agreements, while also guaranteeing a binding decision. However, because med-arb combines mediation and arbitration, it presents a variety of ethical challenges – to party self-determination, impartiality, confidentiality, and even fairness and process integrity. Relying primarily on the Model Standards of Conduct for Mediators and the Code of Ethics for Arbitrators in Commercial Disputes, it becomes clear that some of these ethical challenges can be met through process choices – e.g., the use of two neutrals rather than …

Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh

Faculty Scholarship

In 2016, the Consumer Financial Protection Bureau (CFPB) issued proposed rules that would have brought substantial transparency to mandatory pre-dispute consumer arbitration. In particular, the CFPB proposed to require regulated providers of financial products and services to report to the CFPB regarding their use and the outcomes of arbitrations conducted pursuant to arbitration clauses, and further, the CFPB proposed to make such information public (with appropriate redactions). Although Congress and the President ultimately annulled the CFPB’s proposed rule, its introduction revealed the need for dispute resolution neutrals to support bringing “measured transparency” to private dispute resolution. To place the CFPB’s …

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, 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 …

Reshaping Third-Party Funding, Victoria Sahani

Faculty Scholarship

Third-party funding is a controversial business arrangement whereby an outside entity—called a third-party funder—finances the legal representation of a party involved in litigation or arbitration or finances a law firm’s portfolio of cases in return for a profit. Attorney ethics regulations and other laws permit nonlawyers to become partial owners of law firms in the District of Columbia, England and Wales, Scotland, Australia, two provinces in Canada, Germany, the Netherlands, New Zealand, and other jurisdictions around the world. Recently, a U.S.-based third-party funder that is publicly traded in England started its own law firm in England. In addition, some U.S. …

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 …

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

Faculty Scholarship

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 …

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 …

Conflicts Of Interest And Disclosures: Are We Making A Mountain Out Of A Molehill, David Allen Larson

Faculty Scholarship

The ethical standards governing conflicts of interest disclosure requirements for arbitrators and mediators are numerous and varied. In spite of the considerable attention that conflict of interest questions attract, both the extent to which an arbitrator must disclose past, present, and potential conflicts of interest and the consequences of a failure to make an appropriate disclosure remain unclear. This article examines disclosure requirements themselves, as well as the sanctions and penalties that may result from a failure to disclose information concerning a neutral's impartiality. Particular attention is paid to what generally is regarded as the most extreme consequence of failure; …

Learning From Practice: What Adr Needs From A Theory Of Justice, Kate Kruse

Faculty Scholarship

Adding to the impressive body of work that has made her a leading voice in the fields of both alternative dispute resolution and professional responsibility, Carrie Menkel-Meadow's Saltman Lecture connects the theoretical exploration currently occurring on two parallel tracks: (1) theories of justice that investigate the ideal of a deliberative democracy; and (2) theories of alternative dispute resolution arising from its reflective practice. As she notes, theorists on both tracks are grappling with similar questions about the processes or conditions that will best bring together parties with widely divergent viewpoints to consensus-building dialogue around contested issues.

While Menkel-Meadow focuses on …

Informed Consent In Mediation: A Guiding Principle For Truly Educated Decisionmaking , Jacqueline Nolan-Haley

Faculty Scholarship

Informed consent has a central role to play in mediation. Without it, mediation's promises of autonomy and self-determination are empty. This Article has given the theoretical and policy justifications for a reform of mediation practice that honors the principle of informed consent. I have argued for a contextualized approach that takes into account mediation's location, the voluntariness of the parties' consent, and their representational status. This kind of analysis will lead to a more informed practice of mediation decisionmaking than exists currently and provide a perspective that can more prudently guide a mediator's conduct. The proposed approach promotes greater fairness …

Lawyers, Clients, And Mediation , Jacqueline Nolan-Haley

Faculty Scholarship

That the growth of mediation practice is changing the practice of law is obvious. The inability of many lawyers to understand the conceptual differences between adversarial lawyering and mediation practice strongly suggests the need to develop a theory of "good" representational mediation practice that takes into account competing client interests. On the one hand, lawyers must encourage client voice and participation. At the same time, however, the demands of professionalism require that lawyers guide their clients toward responsible decisionmaking. Representational lawyering in mediation may involve a number of distinct and traditional lawyering functions-- client counseling, negotiation, evaluation and advocacy. In …