Dispute Resolution and Arbitration Commons^™

Anna Howard’S New Book Examines Why Businesses Don’T Use Mediation – And Other Issues, John Lande

Faculty Blogs

Anna Howard‘s book, EU Cross-Border Commercial Mediation: Listening to Disputants – Changing the Frame; Framing the Changes, provides valuable insights about business disputing. Her study is based on 21 semi-structured interviews of senior in-house counsel in multi-national companies operating in Europe. It shows that lawyers think about disputes from the outset of problems, not simply at the later stages of cases. The study pays particular attention to why businesses don’t use mediation, highlighting the impact of internal organizational dynamics.

New Edition Of Psychology For Lawyers, John Lande

Faculty Blogs

This post describes the second edition of Jennifer Robbennolt and Jean Sternlight’s book, Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making. Based on the latest research, it provides insights about perception, memory, judgment, decision making, emotion, persuasion and influence, communication, and the psychology of justice. It applies these insights tasks to daily tasks of lawyering, including interviewing, negotiating, counseling, and conducting discovery.

Student Paper Topics, John Lande

Faculty Blogs

Students often have problems deciding what to write about for their course papers. This post collects blog posts with provocative ideas that students might elaborate or critique in their papers.

Maintaining The Attractiveness Of Arbitration In A Changing World: The Acica Arbitration Rules And The Siac Arbitration Rules, Gabriel Moens, Camilla Andersen, Tracy Albin

UAEU Law Journal

Australian Centre for International Commercial Arbitration – Singapore International Arbitration Centre – Arbitration – Emergency Arbitrator – Interim Measures of Protection – Consolidation – Joinder – Confidentiality – Experts – Mediation – Judicialization of Arbitration – Popularity of Arbitration This article reviews the revised arbitration rules adopted by the Australian Centre for International Commercial Arbitration and the Singapore International Arbitration Centre. The rules of these prominent arbitration institutions are described, analysed and compared with each other. The authors concentrate on the most important revisions, including those relating to emergency arbitrators, interim measures of protection, and consolidation and joinder, among others. …

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, …

Mediation: Embedded Assumptions Of Whiteness?, Sharon Press, Ellen E. Deason

Faculty Scholarship

This article attempts to uncover some of the systemic ways in which white supremacy is expressed in the practice of mediation in the United States with the goal of inspiring additional conversations and deeper attention to these issues by scholars and practitioners in the field of dispute resolution. Our methodology is to apply the themes in Layla F. Saad’s book, Me and White Supremacy: Combat Racism, Change the World, and Become a Good Ancestor (2020). We use the lenses of tone policing, color-blindness, racial stereotyping, anti-blackness, white silence, and white supremacy to reflect on the following aspects of mediation: communication …

Alternative Dispute Revolutions: Technology And Adr In The Middle East Following The Covid-19 Pandemic, Zachary R. Calo, Barry Solaiman

Scholarly Works

This article seeks to close a gap in the literature on the use of alternative dispute resolution (ADR) in the Middle East. In particular, it examines unprecedented developments in countries situated in the Persian Gulf where a range of innovative institutions outside the domestic court system provide ADR services. Qatar, Saudi Arabia, and the United Arab Emirates host a number of sophisticated international courts as well as specialized dispute resolution centers backed by the English common law and recognised international arbitration and mediation rules. The COVID-19 pandemic has necessitated remote hearings around the world as courts seek to dispense justice …

International Commercial Courts In The United States And Australia: Possible, Probable, Preferable?, S. I. Strong

Faculty Articles

As worldwide interest in international commercial courts grows, questions arise as to whether individual nations can or should seek to compete in the “litigation market” by developing their own cross-border business courts. This essay compares the prospects of the United States and Australia in this regard, focusing on whether it is possible (Section II), probable (Section III), and preferable (Section IV) for one or both of these two federalized, common law nations to develop an international commercial court as part of their national judicial systems. The inquiry is particularly intriguing given that one country (the United States) has had a …

The Reconstruction Of Mediation: A Shift Toward Cultural Competency And Social Sophistication, Wynne Reece

Mitchell Hamline Law Review

No abstract provided.

Ethical Compass: Three Different Judicial Treatments For Settlement Fever, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This is the first of a three-part series that examines different aspects of the settlement fever that has stricken our justice system. What can we learn from judicial decisions about how individual judges assess the settlement means that lawyers, in consultation with their clients, have chosen to resolve their case?

Effects Of Mediation On Employee Efficiency In Human Services Centers And In Other Organizations That Serve Vulnerable Populations, Mariya Mironova

Department of Conflict Resolution Studies Theses and Dissertations

Social workers and other professionals who offer caring services to vulnerable populations are oftentimes exposed to stressful environments. Employee burnout, vicarious traumas, and other stressors jeopardize worker’s efficiency. According to previously conducted research studies, organizational and interpersonal conflicts may be effectively addressed through mediation. However, the studies do not address the use of mediation for the resolution of workplace disputes in centers of human services. This study explores effects of mediation on worker’s efficiency in such centers, and this study proposes that mediation positively affects worker’s efficiency. The proposed methodology for testing this proposition involves a single case study with …

Merging Mediation Models – And Other Lessons, John Lande

Faculty Blogs

This post offers suggestions for teaching about mediation practice without focusing primarily on the problematic traditional mediation theories described in Section 3.C. It suggests that faculty (1) help students understand dynamics related to assessments of court outcomes, (2) teach students to strategically combine elements from the traditional models, (3) teach them how to manage the counteroffer process, (4) include lawyer-client relationships in simulations, and (5) use longer simulations including preparation for mediation sessions.

Lira In Criminal Cases, John Lande

Faculty Blogs

This post describes how the LIRA framework can be adapted in criminal cases and used in plea bargaining. It suggests how to calculate and use bottom lines in these cases.

Concepts That Can Help Practitioners Help Parties Make Decisions In Disputes, John Lande

Faculty Blogs

A fundamental purpose of dispute resolution practitioners is to help people make decisions about processes, procedures, and issues in managing their conflicts. This post lists concepts to help people make decisions about the choice of dispute resolution process, specific procedures in a given process, and resolving issues in dispute. In resolving disputes, people should consider the value of plausible options and the future tangible costs and intangible costs and interests of continuing the dispute. The post lists specific cognitions, possible actions, and practitioner interventions promoting good decision-making.

Evolution Of A Field: Personal Histories In Conflict Resolution, Howard Gadlin, Nancy A. Welsh

DRI Press

This book features 23 chapters written by founders, thinkers, inventors, reformers, disrupters and transformers in the field of conflict resolution, thus allowing readers to explore the field’s real, on-the-ground reasons for being and evolving. The contributors include mediators, facilitators, arbitrators, ombuds, academics, system designers, entrepreneurs, leaders of conflict resolution organizations, researchers, advocates for conflict resolution, and critics of conflict resolution. They share their personal and professional stories as well as the values, aspirations and characteristics of the field that inspired them to become involved in conflict resolution, develop their careers, and both influence and wrestle with the field’s evolution.

Contributors …

Mediating Consumer Financial Disputes: Financial Industry Disputes Resolution Centre's Unique House Style, Eunice Chua, Beverly Wee

Research Collection Yong Pung How School Of Law

The Financial Industry Disputes Resolution Centre (“FIDReC”) was established in August 2005 with the purpose of providing a low-cost avenue for consumers to resolve their disputes with financial institutions. This article seeks to outline the role of FIDReC and its processes and, at the same time, seeks to define the house style of mediation that has served FIDReC well over the years. This article also highlights some of the different techniques adopted by FIDReC mediators in the course of facilitating the mediation.

Problems With Teaching “Integrative” Negotiation, John Lande

Faculty Blogs

This post responds to Debra Berman’s piece, Is Our Over-Emphasis on Integrative Negotiation Pedagogy Falling Short of Reality? My answer is “yes.” Much – perhaps most – negotiation and mediation of civil cases these days in the US involves a counteroffer process where lawyers focus almost exclusively on allocating money based on a zero-sum assumption. So if our courses focus too much on interests-and-options processes, students get a misimpression about the frequency of what happens in the real world. If we don’t prepare them to operate effectively in practice, they will be in for a rude surprise after they graduate. …

A Message For Law Students To Prepare Themselves For Legal Practice, John Lande

Faculty Blogs

This post includes suggestions to help plan self-directed learning to supplement what students learn in law school. It recommends that students (1) appreciate the values and limitations of the law, (2) recognize the “hidden curriculum” in law school, (3) understand that “thinking like a lawyer” really is about helping clients achieve their goals, (4) develop a strategic plan for their education, (5) compile a portfolio, (6) take clinical, externship, and practice courses, (7) interview practitioners, and (8) join the ABA and other bar and professional associations.

You Really Should Know About Kris Franklin, John Lande

Faculty Blogs

This post profiles New York Law School Professor Kris Franklin. She teaches a negotiating, counseling, and interviewing course, which she says really should be called “Client Representation and Case Handling.” Her course on family law practice teaches all the family law doctrine covered in traditional family law courses but she does it exclusively using simulations. In contrast to my suggestion for renaming law school as “negotiation school,” she suggests calling it “legal problem-solving school,” which I think is even better.

Study Finds That Law Schools Fail To Prepare Students To Work With Clients And Negotiate, John Lande

Faculty Blogs

This post provides excerpts from the Building a Better Bar study about new law school graduates’ unmet instructional needs. The study found that new lawyers were “woefully unprepared” to work with clients. They had difficulty (1) communicating with clients, (2) managing expectations, (3) breaking bad news, (4) coping with difficult clients, (5) negotiating with counterparts and clients, and (5) understanding the “big picture” of client matters.

Need For Clear Language Initiative To Un-Babel Our Models, John M. Lande

Faculty Blogs

Professional jargon is helpful in some fields because it promotes communication between professionals like brain surgeons and rocket scientists.

But jargon is extremely problematic for dispute resolution because it confuses and excludes laypeople and other stakeholders.

The Singapore Convention On Mediation And The New York Convention On Arbitration: Comparing Enforcement Mechanisms And Drawing Lessons For Asia, Eunice Chua

Research Collection Yong Pung How School Of Law

This article considers the enforcement mechanism for international mediated settlement agreements proposed by the Singapore Convention on Mediation and critically examines this mode of enforcement as against enforcement as an arbitral award in Asia, including through a hybrid process like Arb-Med-Arb. Similarities and differences between the New York Convention and the Singapore Convention on Mediation will be discussed and used to consider how Asian jurisdictions may respond to the Singapore Convention on Mediation and what lessons may be learnt from the arbitration context.

Jeff Trueman’S Study On Nightmares Of “Positional” Tactics In Mediation, John M. Lande

Faculty Blogs

This post reports on an excellent study about the challenges of lawyers, mediators, and insurance claims professionals in mediation. His findings are consistent with my observations about the emotional pains of positional negotiation. Many of the cases in his study involve insurance, which are supposedly “money-only cases” because the parties generally haven’t had a prior relationship and have no interest in a future relationship. But Jeff found that emotions and relationships actually can be very important in these cases – the professionals’ emotions and relationships with each other.

Donna Shestowsky’S Presentation On Litigants’ Views Of Court Adr Options, John M. Lande

Faculty Blogs

This post hightlights findings from Donna Shestowsky’s research finding that litigants seem to be unaware of ADR options, and that knowing about some of these options improves their opinions of the court itself. Surprisingly, having a lawyer did not make litigants more aware of ADR options, even when those options were offered by the court system.

They Should Call It Negotiation School, Not Law School, John Lande

Faculty Blogs

Considering that lawyers spend much more time negotiating than going to trial, I offered suggestions for fundamentally reorganizing law school curricula and policies. This somewhat mischievous thought experiment includes ideas that are too radical for any law school to consider given the deeply entrenched institutionalization of legal education. But it is useful to ponder how law schools generally do a poor job of preparing students for the reality of practice and how schools might reform their curricula to do a better job.

Confessions And Redemption—And Politics—For An Un-Neutral Person Who Mediates, Marjorie Corman Aaron

Faculty Articles and Other Publications

Within ADR’s house, and now in our arbitration and mediation rooms, we mediators, court ADR administrators, process designers,and arbitrators can construct and conduct processes that reflect moral values our law makers seem to have abandoned.

Mediation: The New Normal?, Nadja Alexander

Research Collection Yong Pung How School Of Law

Imagine a tightrope walker, walking along a tightrope, holding a long, light rod. To help her balance, the performing artist continually moves the rod, changing the angle of the rod to maintain a constant – her balance in space. If she were to hold the rod in a fixed position, what would happen? She would fall off. In other words, the variation of the rod has the function of maintaining the deeper continuity which enables the artist to make it to the other end, alive. In this essay, the tightrope walker offers a metaphor for dispute resolution systems. In order …

Mediation, The Rule Of Law, And Dialogue, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this paper the author urges discussion on the legitimacy of mediation processes, a discussion that is not prevalent in legal scholarship. The author argues that mediation outcomes can be inconsistent with the rule of law given that the same case can have a different outcome depending on whether it is litigated or mediated. On the other hand, crucial and valuable aspects of mediation can result in a presumption of legitimacy. With the rule of law critique in mind, the author discusses how dialogue theory can be used to improve upon the mediation process.

The author begins by exploring the …

Transactional Interest And Risk Assessment, John Lande

Faculty Blogs

This post describes how the LIRA can be adapted for transactional negotiations.

Reflections On Untethered Philosophy, Settlements, And Nondisclosure Agreements, Marjorie Corman Aaron

Faculty Articles and Other Publications

The potentially harmful consequences of nondisclosure agreements in private settlements are troubling. They are a legal system problem, however, for which ADR is not to blame. Unless NDAs were prohibited for all legal claims, prohibiting them in mediated settlements would create greater incentives for pre-litigation direct settlements. The result would be less, not more, public awareness of (alleged) misdeeds.