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Articles 91 - 120 of 1304
Full-Text Articles in Dispute Resolution and Arbitration
Why Removing Institutional Discretion And Applying Restorative Justice To Mediation Could Prove Beneficial To Title Ix Dispute Resolution, Clare Hensley
Journal of Dispute Resolution
University students have often voiced concern that their institution did not do enough in addressing sexual assaults on campus. There is a perception among students and potential victims that there is a culture of ignoring and underreacting to sexual violence on campus. As many as one in five female undergraduate students experience sexual violence during college, but few feel confident enough to report it.
Legislative Update, Katherine Albers, Lauren Bean, Dillon Dewey, Hannah Jackson, Victoria Mantel
Legislative Update, Katherine Albers, Lauren Bean, Dillon Dewey, Hannah Jackson, Victoria Mantel
Journal of Dispute Resolution
The Legislative Update is compiled and written annually by the Journal of Dispute Resolution’s Associate Members under the direction of the Associate Editor in Chief. It is designed to provide readers with a listing of pertinent legislation affecting the field of alternative dispute resolution (“ADR”) and a more detailed look at certain bills because of their importance or novelty within the field.
Ending The Epidemic Of Accidental Personality Disorder Discrimination By Well-Meaning Mediators, Dan Berstein, Hannah Diamond, Philip T. Yanos
Ending The Epidemic Of Accidental Personality Disorder Discrimination By Well-Meaning Mediators, Dan Berstein, Hannah Diamond, Philip T. Yanos
Journal of Dispute Resolution
People who have or appear to have mental disorders encounter rampant bias and stigma, including from mediators. This article focuses on some of the most heavily stigmatized mental health problems - personality disorders - and how some mediators discriminate against parties based on their guesses and assumptions that those parties may have these conditions.
Odd One Out: Inconsistency In The Federal Arbitration Act’S Jurisdictional Language, Joshua Long
Odd One Out: Inconsistency In The Federal Arbitration Act’S Jurisdictional Language, Joshua Long
Journal of Dispute Resolution
After almost a century, the Federal Arbitration Act (FAA) continues to guide and change the arbitration landscape. While greater focus has been placed on the FAA’s substantive merits and evolution, the act’s procedural role in outlining the relationship between arbitration and the federal court system plays an equally important role in alternate dispute resolution. Notably, recent concerns regarding inconsistencies in the act’s jurisdictional language may undermine the FAA’s ability to provide a clear, efficient, and fair process for arbitration.
Strategies For Successful Negotiation Of International Disputes: Positional Bargaining Vs. Principled Negotiation In The Indus Water Treaty Negotiations, Sushant Mahajan
Strategies For Successful Negotiation Of International Disputes: Positional Bargaining Vs. Principled Negotiation In The Indus Water Treaty Negotiations, Sushant Mahajan
Journal of Dispute Resolution
Water is the root of all civilization. Great empires of the past arose around lakes and river systems, from the Yangtze to the Nile to the Tiber. While water resources bolstered the power of world leaders, water mismanagement had the potential to lead to their downfall. Even in modern times, water availability is a significant constraint on development – the magnitude of this constraint is particularly felt in arid and semi-arid regions especially as climate change takes effect. This importance has made water supply a great source of conflict. Though it has been a cause of conflict for centuries, transboundary …
Climate Diplomacy: Can Mediating Climate Considerations Into Peace Agreements Create A Sustainable Future?, Kayla Fowler
Climate Diplomacy: Can Mediating Climate Considerations Into Peace Agreements Create A Sustainable Future?, Kayla Fowler
Journal of Dispute Resolution
The Earth’s temperature has risen on average 0.14 degrees Fahrenheit per decade since 1880—a total of 2 degrees. Since 1981, the rate of warming has been over twice as fast at 0.32 degrees Fahrenheit per decade. 2022 was the sixth-warmest year on record, and the 10 warmest years have all occurred since 2010. These long-term shifts in temperature exemplify the changes to our climate due to the increasing accumulation of gases caused by human activity on Earth, more commonly referred to as climate change. While it is abundantly clear that climate change is negatively affecting our environment, it is also …
Zf Automotive V. Luxshare: The Supreme Court’S New Gloss On 28 U.S. Code § 1782 And What It Means For International Commercial Arbitration, Madina Lokova
Journal of Dispute Resolution
The federal statute 28 U.S.C. § 1782 (“Section 1782”) allows litigants in foreign proceedings to obtain discovery in the United States, under the broad US discovery rules, for use in such proceedings. Although Section 1782’s use by parties to foreign proceedings has been expanding, there was a split in authority regarding whether the statute was broad enough to permit United States’ courts to authorize discovery for use in private arbitration proceedings overseas.
A “Rule Making” Class: The Federal Trade Commission’S Expansive Per Se Ban On Noncompete Clauses: Authority, Enforceability, And The Need For Congressional Action, Nolan Johnson
Journal of Dispute Resolution
A non-compete clause is “an agreement or contract not to interfere or compete with a former employer (as by working with a competitor).” The Federal Trade Commission (“FTC”) has proposed a per se ban on non-compete provisions in employment contracts. This would arguably be the FTC’s second substantive rule under the FTC Act. This substantive rule making departs from the traditional common law style rule-making process in which the courts create antitrust jurisprudence standards. In this way, the FTC has challenged the practice by exploring a new avenue of power under Section 5 of the FTC Act.
Mandatory Arbitration And Lgbtq+ Hostile Workplace Protections: A Review Of The Ending Forced Arbitration Act, Its Impact, And Implications, Jared E. Munster
Mandatory Arbitration And Lgbtq+ Hostile Workplace Protections: A Review Of The Ending Forced Arbitration Act, Its Impact, And Implications, Jared E. Munster
Journal of Dispute Resolution
In 2022, the 117th Congress amended the Federal Arbitration Act (FAA) in response to widespread public pressure to change the culture of American employment. After years of pervasive sexual harassment across industries, supported by the growth of mandatory, adhesive arbitral agreements in employment contracts, Congress adopted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Ending Forced Arbitration Act”) which rendered unenforceable pre-dispute arbitral agreements for claims of sexual harassment or sexual assault. 1
Law Students Can Use Portfolios To Plan Their Practice Systems, John Lande
Law Students Can Use Portfolios To Plan Their Practice Systems, John Lande
Faculty Blogs
This post describes how law schools can help students plan for successful careers by using Real Practice System self-assessments to guide them in developing individualized portfolios. Portfolios identify students’ learning objectives and experiences designed to achieve them. Portfolios may include a variety of elements such as writing samples, video recordings, grades, faculty evaluations, clinical course journals, and extracurricular experiences.
Helping Law Students Define And Pursue Success, John Lande
Helping Law Students Define And Pursue Success, John Lande
Faculty Blogs
This post collects prior posts about how to help law students define and pursue professional success.
Real Lawyering Practice Systems, John Lande
Real Lawyering Practice Systems, John Lande
Faculty Blogs
Most of the pieces in the RPS Project have focused on mediation. The theory is not limited to mediation, and this post applies it to lawyering.
Technology In Real Practice Systems, John Lande
Technology In Real Practice Systems, John Lande
Faculty Blogs
This post uses the RPS mediation checklists to illustrate practitioners’ great reliance on technology.
Helping You Do The Best Mediation You Can, John Lande
Helping You Do The Best Mediation You Can, John Lande
Faculty Publications
This article is Part 2 of a two-part series presenting action research about factors affecting mediators’ individual practice systems and how they can improve their systems. Mediators’ systems grow out of their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and subjects in their cases. From their mediation experiences, they develop categories of cases, parties, and behavior patterns, and they design routine procedures and strategies for dealing with recurring challenges before, during, and after their mediation sessions.
Part 1 describes a study of mediators at educational programs to help them learn why they developed their …
Incorporating Real-World Legal Practice Into Law School Curricula, John Lande
Incorporating Real-World Legal Practice Into Law School Curricula, John Lande
Faculty Publications
This annotated bibliography was prepared for the program, “Pracademically Speaking: Incorporating Real-World Legal Practice Into the Curriculum,” at the 2024 Annual Conference of the ABA Section of Dispute Resolution. It includes relevant entries from the Real Practice Systems Project Annotated Bibliography.
This includes three sections, identifying: (1) problems with legal education and licensing, (2) resources for law schools and faculty, and (3) resources for law students. It particularly focuses on teaching skills for helping clients, which is critically important because practitioners often fail to recognize and respect clients’ perspectives and interests. Teaching students to work well with clients – and …
Why Do Mediators Mediate The Way They Do?, John Lande
Why Do Mediators Mediate The Way They Do?, John Lande
Faculty Publications
This article is Part 1 of a two-part series presenting action research about factors affecting mediators’ individual practice systems and how they can improve their systems. It reports the results of a study of mediators who attended two educational programs.
This study supports the fundamental premises of real practice systems theory. Mediators have unique practice systems based on numerous variables including their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and subjects in their cases. While mediators consciously use some techniques, much of their behavior is based on unconscious routines. Through reflection, individually and in …
Practitioners Tell Why Real Practice System Checklists Are So Useful, John Lande
Practitioners Tell Why Real Practice System Checklists Are So Useful, John Lande
Faculty Publications
Following the rave reviews for the Real Practice System Menu of Mediation Checklists, I asked practitioners to describe how they might use them. Peter Benner, Graham Boyack, Gary Doernhoefer, Brian Farkas, Clare Fowler, Laura Kaster, Randy Kiser, Jim McGuire, Paul Monicatti, John Sturrock, Jeff Trueman, Tom Valenti, and two court mediators provided extremely thoughtful responses.
This article summarizes their ideas using excerpts from their responses. It illustrates how the checklists can help mediators carefully design their unique practice systems, starting from providing general information about their practices to engaging in self-assessments after cases – and everything in between. The checklists …
Top Ten Ways To Improve Your Mediation Skills, John Lande
Top Ten Ways To Improve Your Mediation Skills, John Lande
Faculty Publications
This article uses Real Practice Systems (RPS) theory to identify things that mediators can do to improve their mediation skills. This begins by mediators recognizing that they have a complex mediation practice system if they mediate regularly. The article includes links to a short video and articles to help mediators understand their unique systems. Using these insights, mediators can complete a self-assessment questionnaire and take advantage of the RPS Menu of Mediation Checklists to tailor their own checklists to fit their practices. Mediators can continuously improve by participating in ongoing educational practice groups.
Ready, Set, Mediate!, John Lande
Ready, Set, Mediate!, John Lande
Faculty Publications
This article summarizes the discussion in a program at the ABA Section of Dispute Resolution’s annual conference about helping parties prepare for mediation sessions. The article describes benefits and goals of preparation, studies finding failures to prepare before mediation sessions, consequences of failing to prepare, and how courts can promote preparation. It lists the audience’s experiences of problems due to inadequate preparation and materials they use or would like to use.
The last part of the article provides resources to help everyone be as ready as possible when their mediation sessions begin. These resources are useful for private mediations as …
Randy Kiser’S New Book On Professional Judgment For Lawyers, John Lande
Randy Kiser’S New Book On Professional Judgment For Lawyers, John Lande
Faculty Blogs
This post describes Randall Kiser’s book, Professional Judgment for Lawyers. He defines professional judgment as “the deliberate synthesis of an attorney’s knowledge, experience, skills, discernment, and character to ethically advance a client’s interest.” The book combines empirical research, cognitive and social psychology, organizational behavior, legal ethics, and neuroscience to improve decision-making by attorneys, clients, judges, arbitrators, mediators, and juries.
Easy As Pi, John Lande
Easy As Pi, John Lande
Faculty Blogs
This post presents some interactions with Pi, an AI system that is more conversational than others. It illustrates that, in the foreseeable future, AI systems almost certainly will become a lot more sophisticated and be incorporated into much of our lives, often in ways we will not notice
Training Your Mediator Bot, John Lande
Training Your Mediator Bot, John Lande
Faculty Blogs
This somewhat tongue-in-cheek post discusses biases in AI systems. Noting that AI bots need to be “trained,” this post suggests that untrained mediator bots may spew out unwanted interventions such as providing undesired evaluations of BATNA values – or failing to provide desired evaluations. So mediators probably will need to co-mediate with their bots for a while to observe and correct its biases. Ironically, bots may produce language that normal humans understand much better than the confusing jargon we habitually use. So the mediator bots may need to train human mediators.
Teaching Students To Focus On Party Decision-Making, John Lande
Teaching Students To Focus On Party Decision-Making, John Lande
Faculty Blogs
This post describes why law schools don’t teach students very much about helping clients make decisions and suggests techniques for doing so. It suggests (1) focusing on parties’ roles throughout relevant courses, (2) including meaningful party roles in simulations and competitions, (3) using simulations focusing solely on preparation, (4) using multi-stage simulations, (5) helping students focus on parties’ intangible interests in simulations and Stone Soup interviews, (6) using the terms “pre-mediation-session” or “before mediation sessions,” (7) taking advantage of the litigation interest and risk assessment framework and materials, and (8) recommending that schools offer a course on strategic case evaluation …
Focus On Party Decision-Making, John M. Lande
Focus On Party Decision-Making, John M. Lande
Faculty Blogs
A major motivation in the modern dispute resolution movement has been to increase and improve parties’ decision-making in their legal disputes. Parties can participate more effectively in negotiation and mediation if they engage in decision-making early in disputes. This suggests the importance of good preparation before negotiation and mediation sessions. When parties are well-prepared in advance, they are as knowledgeable, confident, and assertive as possible in making decisions in their cases
Charlie Irvine's Challenge To Mediators To Describe Your Mediation System, John M. Lande
Charlie Irvine's Challenge To Mediators To Describe Your Mediation System, John M. Lande
Faculty Blogs
Charlie Irvine is the Course Leader on the University of Strathclyde’s (Scotland) MSc/LLM in Mediation and Conflict Resolution and the Director of the Strathclyde Mediation Clinic. The Clinic provides a free mediation service in which experienced practitioners work alongside trainee mediators to help people resolve disputes without going to court or tribunal. The following is Charlie’s Director’s Column published in Mediation Matters!, the Clinic’s quarterly newsletter. Irvine wrote an account of his own mediation system that was one of ten real mediation systems Lande analyzed in Real Mediation Systems to Help Parties and Mediators Achieve Their Goals.
Fault Lines & Fractured Foundations: A Paradigm Shift For Equal Pay For Professional Women Athletes, Emily Tompkins
Fault Lines & Fractured Foundations: A Paradigm Shift For Equal Pay For Professional Women Athletes, Emily Tompkins
Journal of Dispute Resolution
In the face of adversity, professional female athletes have championed the fight for equal pay and brought the issue to the national stage. Testifying in front of the Congressional House Oversight Committee, Megan Rapinoe, a professional soccer player for the United States Women’s National Team, articulates that “one cannot simply outperform inequality or be excellent enough to escape discrimination of any kind.” Megan Rapinoe’s message has touched the hearts of not only Americans but also people all over the world, and her leadership has brought visibility to the realities of gender-based discrimination of female athletes in the United States.