Dispute Resolution and Arbitration Commons^™

Prohibiting Good Faith Reports Under The Uniform Mediation Act: Keeping The Adjudication Camel Out Of The Mediation Tent, Carol L. Izumi, Homer C. La Rue

Journal of Dispute Resolution

This symposium article examines a narrow slice of the Uniform Mediation Act - the prohibition on mediator communication to judges about a party's good faith participation or "problem" behavior in mediation.

Centuries Of Contract Common Law Can't Be All Wrong: Why The Uma's Exception To Mediation Confidentiality In Enforcement Proceedings Should Be Embraced And Broadened, Peter Robinson

Journal of Dispute Resolution

The National Conference of Commissioners on Uniform State Laws and House of Delegates of the American Bar Association recently approved the Uniform Mediation Act ("UMA") with an eye toward unifying the law of mediation confidentiality in the United States. Soon, numerous states and other organizations will consider modifying statutes, court rules, or professional standards to conform to the UMA. One of the important aspects of mediation confidentiality is how it applies when enforcing a mediated agreement.' In some jurisdictions, mediation confidentiality interferes with the application of contract law when enforcing a mediated agreement to produce absurd results. This article will …

Dancing With The One That Brung Us - Why The Texas Adr Community Has Declined To Embrace The Uma, Brian D. Shannon

Journal of Dispute Resolution

I readily acknowledge that the UMA is a bold and noble project, and it is certainly the result of substantial effort and compromise. Indeed, I largely concur with the sentiment of Philip Harter that "[tihe UMA is the product of heroic effort that brought together many interests and perspectives to thrash out a workable framework for mediation." That being said, however, much of the Texas mediation community, of which I am a part, has largely opposed enactment of the UMA's framework for our state. As I have written previously, the Alternative Dispute Resolution Section of the State Bar of Texas …

Uma: Some Roads Not Taken, The, Joseph B. Stulberg

Journal of Dispute Resolution

I do not want to overstate my claim. There is nothing in the UMA that precludes conducting a mediated conversation in a manner consistent with what I frame below as a "robust vision" of the mediator's role. The Act, however, does not provide sustained support for it and, more seriously, appears to license the type of intervener that I believe is inconsistent with basic process goals. Hence, I am conjecturing - though I do not believe it is "idle conjecturing" - as to how parties, representative, and the mediator shall conduct their mediation conference under the vision of mediation embedded …

Institutionalization: What Do Empirical Studies Tell Us About Court Mediation?, Bobbi Mcadoo, Nancy A. Welsh, Roselle L. Wissler

Faculty Scholarship

In the 25 years since the Pound Conference, federal and state courts throughout the country have adopted mediation programs to resolve civil disputes. This increased use of mediation has been accompanied by a small but growing body of research examining the effects of certain choices in designing and implementing court-connected mediation programs.

This article focuses on the lessons that seem to be emerging from the available empirical data regarding best practices for programs that mediate non-family civil matters. Throughout the article, we consider the answers provided by research to three questions: (1) How does program design affect the success of …

Adr Without Borders, Theodore J. St. Antoine

Articles

My task is to assess the ways in which alternative dispute resolution procedures may be adapted to deal with international labor disputes. ADR refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without involving the decision-making power of the state or other sanction-imposing body. Both mediation and arbitration are included. In mediation the neutral seeks to get the parties to agree on a mutually acceptable solution. In arbitration the neutral imposes a solution after presentations by the contending parties. A third term, conciliation, is sometimes used and generally connotes a …

David E. Feller: The Happy Warrior, Theodore J. St. Antoine

Articles

Dave Feller and I first became acquainted when we were both union lawyers in Washington, D.C. Dave was the ultimate happy warrior. He went joyous into combat, and years later he could recount, joyously, objectively, and without rancor toward old foes, the exact details of the many triumphs and the few defeats. A favorite story came from his Supreme Court clerkship. Dave was already seven years out of Harvard Law School, with experience in university teaching, Army intelligence, and the Justice Department, and he didn't hesitate to tell Chief Justice Vinson he should vote for certiorari in a case close …

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

Articles

The editors have asked us to be quite personal in our ruminations on the future of comparative labor law and policy. For me, over the past several years, the focus has been on China. My first visit to China in 1994, purely as a tourist, was almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October, I was scheduled to begin teaching a oneterm course in American law as a visiting professor at Cambridge University …

Book Review: East Meeting West In The Mediation Marketplace, Nadja Alexander

Research Collection Yong Pung How School Of Law

China is now ‘all the rage’. Everyone is either learning Mandarin or tripping off on a conference to Beijing or a business trip to Shanghai. Commercial concerns are busy establishing trade links with Chinese partners to prepare for the emergence of the biggest marketplace in the world. The business of ADR is no exception.

Global Trends In Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

Mediation is a process both new, in terms of its emergence in the legal arena, and old in terms of its timeless universality. From its birth in the western world, mediation has travelled a winding and often challenging path through common law and then civil law jurisdictions. Suggestions that mediation would be nothing more than a short-lived fad have been short-lived themselves. At the same time many critical questions about mediation process, mediation structures and environment, and mediation outcomes have yet to be explored from a global and comparative perspective.The civil law/ common law dichotomy has always been a fascination …

Sequencing, Acoustic Separation, And 3-D Negotiation Of Complex Barriers: Charlene Barshefsky And Ip Rights In China, Rebecca Green, James K. Sebenius

Faculty Publications

Taking the perspective of the lead U.S. negotiator, Charlene Barshefsky, this article details and analyzes the negotiations that took place in the mid-1990s between the United States and the People's Republic of China over intellectual property rights (IPR). Employing a "negotiation analytic" methodology, Charlene Barshefsky's actions are interpreted to suggest a number of promising approaches to managing the daunting complexities of trade and other negotiations: recognizing the multiparty aspects of apparently bilateral dealings and capturing them in a "deal diagram;" carefully assessing "barriers" to agreement; sequencing to build a winning coalition and overcome potentially blocking ones; "acoustic separation" of issueframes; …

Transactional Mediation: Using Mediators In Deals, Scott Peppet

Publications

This article addresses whether third-party mediators could be helpful in deal-making, just as they are in resolving disputes. It makes a theoretical case for such use of mediators and presents preliminary evidence that transactional mediation already is taking place.

Contractarian Economics And Mediation Ethics: The Case For Customizing Neutrality Through Contingent Fee Mediation, Scott R. Peppet

Publications

No abstract provided.

Policy Recommendations For Dispute Prevention And Dispute Settlement In Transatlantic Relations: Legal Perspectives, George A. Bermann

Faculty Scholarship

The concrete case studies and general policy analyses that were the subject of inquiry in the conferences culminating in the present volume have predictably generated a series of distinctly legal – as well as political – reflections on dispute prevention and dispute settlement in the transatlantic arena. One of the merits of the dual (concrete and abstract) approach that has been adopted for these conferences is its capacity to provide a check against the risks that would result either from divorcing this study from the realities of disputes or from relying exclusively on potentially idiosyncratic dispute scenarios. The recommendations to …