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Mediation

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Full-Text Articles in Dispute Resolution and Arbitration

Negotiating The "Labor Of Love": How Resources, Time, And Gender Shape Parenting Agreements, Marlena Studer Mar 2012

Negotiating The "Labor Of Love": How Resources, Time, And Gender Shape Parenting Agreements, Marlena Studer

Pepperdine Law Review

No abstract provided.

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Cutting The Cord: Ho'oponopono And Hawaiian Restorative Justice In The Criminal Law Context , Andrew J. Hosmanek Mar 2012

Cutting The Cord: Ho'oponopono And Hawaiian Restorative Justice In The Criminal Law Context , Andrew J. Hosmanek

Pepperdine Dispute Resolution Law Journal

Ho'oponopono is a traditional Hawaiian dispute resolution system that has recently experienced a resurgence of interest. The word ho'oponopono literally means to make right. In this system, both the offender and victim participate in a type of guided mediation along with other stakeholders in the offense. Ho'oponopono is different from typical mediations because after the session is successfully completed, the participants figuratively cut the cord of legal and psychological entanglement which binds them - in other words, the dispute is put to rest forever. When victim and offender come to a true resolution of the problem, and jointly make the …

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California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon Mar 2012

California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon

Pepperdine Dispute Resolution Law Journal

Confidentiality serves as a cornerstone of mediation. The public policy underlying confidentiality is the promotion of candid communications between disputing parties. As explained in this article, mediation confidentiality affects more than just communication. It affects other important mediation values, such as party self-determination and mediator impartiality. Mediation confidentiality affects parties' ability to enforce their mediated agreements. Finally, confidentiality affects multiple dispute resolution processes, as seen by the interrelated nature of mediation and arbitration in the seminal case of Fair v. Bakhtiari.

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Mediation Outcomes: Lawyers' Experience With Commercial And Construction Mediation In The United Kingdom , Penny Brooker, Anthony Lavers Mar 2012

Mediation Outcomes: Lawyers' Experience With Commercial And Construction Mediation In The United Kingdom , Penny Brooker, Anthony Lavers

Pepperdine Dispute Resolution Law Journal

This paper reports on the final phase of a three-year study into the role of lawyers in the development of Alternative Dispute Resolution (ADR) following the implementation of the Civil Procedure Rules in 1999 and draws comparisons between US and Canadian studies. The paper centres on the use of mediation, which is recognised as the pre-eminent ADR process in the UK. Data are analysed from 30 interviews with specialist commercial and construction-related lawyers who have utilised mediation in the dispute resolution process. Interviewees were selected from respondents to a national survey of lawyers specializing in commercial and construction-related practice. Whereas …

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New Amendments To Resolving Special Education Disputes: Any Good Ideas?, Demetra Edwards Mar 2012

New Amendments To Resolving Special Education Disputes: Any Good Ideas?, Demetra Edwards

Pepperdine Dispute Resolution Law Journal

This article first analyzes the state of affairs under the Individuals with Disabilities Education Act (IDEA), prior to the passage of the Individuals with Disabilities Education Improvement Act of 2004, and the affects that the 1997 reauthorization alternative dispute resolution amendments had on special education law. Next, this article will address the appropriateness of the newly enacted negotiation and settlement methods, specifically the resolution session provision, and the benefits and detriments for resolving special education issues using these processes. This article will further discuss the amendments regarding attorneys' fees, and finally the House's failed proposal for voluntary binding arbitration and …

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Team Mediation: An Interdisciplinary Model Balancing Mediation In The "Matrix" , David C. Hesser, Elizabeth Jarrell Craig Mar 2012

Team Mediation: An Interdisciplinary Model Balancing Mediation In The "Matrix" , David C. Hesser, Elizabeth Jarrell Craig

Pepperdine Dispute Resolution Law Journal

The Team Mediation model proposed in this article lays a foundation for the resolution of civil disputes utilizing an interdisciplinary team, which will attempt to balance mediation styles in a team dynamic in such a way as to provide the parties with a greater chance of success. Such a model will likely be met with skepticism and, as with any new idea, its benefits will need to be demonstrated to overtake the skeptics.

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Available Dispute Resolution Processes Within The Reauthorized Individuals With Disabilities Education Improvement Act (Ideia) Of 2004: Where Do Mediation Principles Fit In? , Andrea F. Blau Mar 2012

Available Dispute Resolution Processes Within The Reauthorized Individuals With Disabilities Education Improvement Act (Ideia) Of 2004: Where Do Mediation Principles Fit In? , Andrea F. Blau

Pepperdine Dispute Resolution Law Journal

The Individual Disabilities Education Act of 1997 first offered mediation processes to parents and school systems as an available dispute resolution process. Congress mandated that mediation be made available whenever a due process hearing was filed. The intent was to assist parents and school systems in resolving their differences regarding the educational needs for children with disabilities through increased discussions and collaborative efforts; this would reduce the need for costly and adversarial litigation. Alternative dispute resolution processes have taken an increasingly dominant role within the newly reauthorized IDEIA of 2004, reflecting Congressional promotion of parent and district collaboration for achieving …

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Negotiation And Settlement In Nagorno-Karabak: Maintaining Territorial Integrity Or Promoting Self-Determination? , Argam Derhartunian Mar 2012

Negotiation And Settlement In Nagorno-Karabak: Maintaining Territorial Integrity Or Promoting Self-Determination? , Argam Derhartunian

Pepperdine Dispute Resolution Law Journal

The little-known region of Nagorno-Karabakh, known to Armenians as Artsakh, has been no stranger to conflict. This land, nestled in the historic "Armenian Plateau," has been ruled by many different dynasties and seen the faces of many different ethnicities and cultures. Today, both Armenians and Azeris claim an absolute historic right to Nagorno-Karabakh, periodically fighting over the region. Although the intense fighting ended in 1994, negotiation efforts regarding the territory of Nagorno-Karabakh remain stalemated. This has caused the leaders of Karabakh to declare the region an independent republic, although no state, including Armenia, has recognized this status. This article will …

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Mediating Child Custody Disputes For High Conflict Couples: Structuring Mediation To Accommodate The Needs & Desires Of Litigious Parents , Jessica J. Sauer Mar 2012

Mediating Child Custody Disputes For High Conflict Couples: Structuring Mediation To Accommodate The Needs & Desires Of Litigious Parents , Jessica J. Sauer

Pepperdine Dispute Resolution Law Journal

While alternative dispute resolution has become widely accepted in recent years, several types of legal disagreements continue to be regarded as unsuitable for mediation. Child custody disputes between "high conflict" couples are one such category. Unfortunately, the process of litigating custody disputes between high conflict couples can be more damaging to children than the parents' actual divorce. Instead of dismissing mediation out of hand because of the difficulties in helping these parents see eye-to-eye, scholars might be wise to reevaluate the potential for mediating these disputes. This article will attempt to advance this idea in several ways. To begin, it …

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Mass Disaster Mediation: Innovative, Adr, Or A Lion's Den?, Elizabeth Baker Murrill Mar 2012

Mass Disaster Mediation: Innovative, Adr, Or A Lion's Den?, Elizabeth Baker Murrill

Pepperdine Dispute Resolution Law Journal

Mass torts and other mass claims are becoming an ever more popular forum for the use of alternative dispute resolution to resolve parties' claims in the wake of events that produce thousands of conflicts overnight. Mediation, in particular, has been used in several high-profile mass disaster events in an effort to resolve individual claims efficiently and quickly. This paper evaluates special risks posed in this kind of mediation that can go to the heart and the integrity of the mediation process. The thesis of this paper is that the potential imbalance in the parties' experience, education, and individual situation can …

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Style Vs. Model: Why Quibble? , Susan Oberman Mar 2012

Style Vs. Model: Why Quibble? , Susan Oberman

Pepperdine Dispute Resolution Law Journal

This article raises some of the questions necessary to address criticisms about quality and ethics of mediation practices: (Part I) Is there a "mandate" to provide informal justice through mediation? (Part II) Why challenge the generic mediation mythology? (Part III) Does naming differences as 'styles' result in greater clarity? (Part IV) Is mediation fulfilling its "mandate" to serve the court? (Part V) What are the obstacles to changing the dominant discourse on mediation? (Part VI) In answering these questions, an alternative framework is proposed to shift the current discourse about generic mediation based on artistry or style, to a discourse …

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When Mediation Confidentiality And Substantive Law Clash: An Inquiry Into The Impact Of In Re Marriage Of Kieturakis On California's Confidentiality Law, Annalisa L. H. Peterson Feb 2012

When Mediation Confidentiality And Substantive Law Clash: An Inquiry Into The Impact Of In Re Marriage Of Kieturakis On California's Confidentiality Law, Annalisa L. H. Peterson

Pepperdine Dispute Resolution Law Journal

Mediation confidentiality laws play a critical role in allowing mediation to remain a viable process for parties to discuss the issues involved in their dispute, exchange information, and potentially reach a settlement before trial. Without certain guarantees as to the confidential nature of such a meeting, no savvy party or attorney would agree to provide information that could later be turned against him at trial, and many valuable opportunities (as measured in time, cost, reputation, relationship, etc.) for resolution would be lost. However, some parties to mediated disputes either do not reach resolution, or later contest a mediated agreement in …

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The Increased Use Of "Reconciliation" In Criminal Cases In Central Asia: A Sign Of Restorative Justice, Reform Or Cause For Concern?, Cynthia Alkon Feb 2012

The Increased Use Of "Reconciliation" In Criminal Cases In Central Asia: A Sign Of Restorative Justice, Reform Or Cause For Concern?, Cynthia Alkon

Pepperdine Dispute Resolution Law Journal

Reconciliation, defined in Section VI below, provides the most common alternative to criminal prosecutions in Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan. This article attempts to define and describe the different forms of reconciliation processes in these Central Asian countries. Section IV briefly examines the history, economies, governments, and legal systems including an outline of the criminal procedure of each country. For comparative purposes, Section V briefly examines the development of alternatives to criminal prosecution (generally known as restorative justice) in western nations, by considering the proponents for change, the underlying core values and ethical guidelines, and the types of cases that …

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East Meets West: An International Dialogue On Mediation And Med-Arb In The United States And China, Thomas J. Stipanowich, Jung Yang, Jay Welsh, Chen Qiming, Peter Robinson, Tan Jinghui, Chen Guang, Jeff Kichaven, Denise Madigan, Wang Hongsong, Zhang Jianhua Feb 2012

East Meets West: An International Dialogue On Mediation And Med-Arb In The United States And China, Thomas J. Stipanowich, Jung Yang, Jay Welsh, Chen Qiming, Peter Robinson, Tan Jinghui, Chen Guang, Jeff Kichaven, Denise Madigan, Wang Hongsong, Zhang Jianhua

Pepperdine Dispute Resolution Law Journal

This Second Beijing Arbitration Commission (BAC)/Straus Institute for Dispute Resolution International Videoconference, following up on last year's successful inaugural program, will provide different perspectives on the current BAC initiative and evolving attitudes toward mediation and med-arb. Topics include: (1) the development and current state of business mediation in the U.S.; (2) the challenges and opportunities confronting China in developing stand-alone business mediation; (3) reflections on the skills necessary for mediators; (4) common pitfalls in mediation; (5) perspectives on med-arb (as opposed to stand-alone mediation); and (6) how to most effectively use mediation in conjunction with arbitration procedures.

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Revisiting The Promise Of Mediation For Employment Discrimination Claims , Susan K. Hippensteele Feb 2012

Revisiting The Promise Of Mediation For Employment Discrimination Claims , Susan K. Hippensteele

Pepperdine Dispute Resolution Law Journal

This paper generally examines the theory and practice of alternative dispute resolution (ADR) and specifically examines the role mediation has played in propelling rights discourse away from the center of efforts to achieve equal employment opportunity in the United States. It further addresses assumptions regarding individual employee goals in the context of a legal environment in which litigating to achieve rights-based remedies is increasingly difficult for grievants.

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Culture In International Parental Kidnapping Mediations, Melissa A. Kucinski Feb 2012

Culture In International Parental Kidnapping Mediations, Melissa A. Kucinski

Pepperdine Dispute Resolution Law Journal

Mediating an international parental kidnapping case involves much more than knowing some family law-it involves complex emotions, strict time constraints, multiple nations' laws and policies, intricate international treaties, juggling interpreters, attorneys, government officials, judges, and parents who may be physically located thousands of miles apart, and the blunt reality that you may have no understanding of either parent's cultural customs or the way each will communicate with the other parent or with you. While the "culture" part of the mediation may appear to be the least significant element, it could be key to the success of the mediation. Nonetheless, "culture" …

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The Defense Attorney As Mediator In Plea Bargains, Gabriel Hallevy Feb 2012

The Defense Attorney As Mediator In Plea Bargains, Gabriel Hallevy

Pepperdine Dispute Resolution Law Journal

In this article, it will be argued that defense counsel's function in negotiating plea bargains is identical to that of a mediator, seeking to reconcile the positions of the defendant and the prosecution. Within this framework, the plea bargain should be seen as part of the broad conception of Alternative Dispute Resolution (ADR) which first made its appearance at the end of the 1970s. An analysis of plea bargains in the Western world as part of the broader concept of ADR actually shows that it is the defense attorney, rather than the court or the other parties to the issue, …

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The Missing Link: Enhancing Mediation Success Using Neuro-Linguistic Programming, Mariam Zadeh Feb 2012

The Missing Link: Enhancing Mediation Success Using Neuro-Linguistic Programming, Mariam Zadeh

Pepperdine Dispute Resolution Law Journal

What is it that separates the best from the rest? Generally speaking, the highly coveted litigators and mediators draw people to them over and over again because of that something extra they possess. In Neuro-Linguistic Programming (NLP), that something extra is often referred to as "the difference that makes the difference." Outstanding performers in any field instinctively know the "difference that makes the difference." Successful trial lawyers, for example, have a keen knack for connecting with the jury and persuading them to follow their lead in support of the client's case. Similarly, parties prefer some mediators over others in large …

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Negotiating And Mediating Peace In Africa , Nancy Erbe, Chinedu Bob Ezeh, Daniel Karanja, Neba Monifor, George Mubanga, Ndi Richard Tanto Feb 2012

Negotiating And Mediating Peace In Africa , Nancy Erbe, Chinedu Bob Ezeh, Daniel Karanja, Neba Monifor, George Mubanga, Ndi Richard Tanto

Pepperdine Dispute Resolution Law Journal

Last year, a law review solicited my thoughts about, in their words, pushing the envelope with social justice and negotiating peace in a world dominated by power and violence. Taking their language literally, one must ask how to effectively address contemporary obstacles to ensure that the message and, most importantly, the means of justice are truly delivered to those in need. One answer-which may seem obvious to readers but is actually much too rare in practice-is to work with, empower, and support the conflict work of the community members themselves. This article introduces the plans of five African professionals, demonstrating …

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Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold Abramson Feb 2012

Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold Abramson

Pepperdine Dispute Resolution Law Journal

"Would you like to go to Delhi to train people in negotiations?" the email message inquires. "Are you kidding?" you think to yourself. "Of course, I would get to do in an exotic location what I enjoy doing at home – helping others to resolve conflicts. And I also would meet fascinating people and tour an intriguing city and country with a local host." "YES," you reply after working out the logistical details. Now as you begin to pack your off-the-shelf training materials, you start to wonder how you should adapt your training for this foreign location. You do not …

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Making A Deal With The Devil: A Mediation Approach To Mitigating The Negative Effects Of Church Conflict , Amanda L. Marutzky Feb 2012

Making A Deal With The Devil: A Mediation Approach To Mitigating The Negative Effects Of Church Conflict , Amanda L. Marutzky

Pepperdine Dispute Resolution Law Journal

This article aims to be a resource for both congregational and denominational churches in any stage of internal conflict. Whether members fight over theological questions, or factions split over who owns the church building, church conflicts are best resolved via the mediation process. Mediation has the greatest potential for reaching resolution in these disputes because it uses an outside third-party, addresses parties' underlying needs and interests, and is more aligned with Christian principles. The selection of a mediator is also an integral part of the mediation process. Churches should choose a mediator who maintains the balance between impartiality and substantive …

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The Psychology Of Mediation: Issues Of Self And Identity And The Idr Cycle, Elizabeth E. Bader Feb 2012

The Psychology Of Mediation: Issues Of Self And Identity And The Idr Cycle, Elizabeth E. Bader

Pepperdine Dispute Resolution Law Journal

Issues of self and identity raise profound and often painful questions about who we are. Psychoanalytic developmental theory considers these questions by analyzing the way the sense of self develops in childhood. On the other hand, many spiritual traditions insist that however it develops, the In recent years, there have been some important attempts to bridge the gap between these two positions. Yet, the nature of the self and its identity still remains a fundamental mystery. This article considers the self from these perspectives, and others, including neuroscience and social psychology, within the context of mediation. On a psychological level, …

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Why We Still Litigate, Phillip M. Armstrong Feb 2012

Why We Still Litigate, Phillip M. Armstrong

Pepperdine Dispute Resolution Law Journal

The benefits of Alternative Dispute Resolution ("ADR"), particularly mediation, are well documented and often touted. Some of these benefits are: cost savings, confidentiality, preservation of business relationships, finality, better outcomes, and more control. The list goes on, and rightfully so. The Comell/PERC study and the more recent BTI study, among others, have made it clear that corporate America has embraced ADR, particularly mediation, as a preferred means of resolving many disputes. As a long-time member of an in-house law department, I have watched our own management of commercial litigation and claims evolve from a typical "winner takes all" approach to …

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To Certify, Or Not To Certify: A Comparison Of Australia And The U.S. In Achieving National Mediator Certification, Mandy Zhang Feb 2012

To Certify, Or Not To Certify: A Comparison Of Australia And The U.S. In Achieving National Mediator Certification, Mandy Zhang

Pepperdine Dispute Resolution Law Journal

This article aims to trace the progress of establishing mediation accreditation in Australia and the United States. Part II briefly describes how each country came to the decision of exploring the necessity of national mediator certification, and also illustrates the proposed designs for the Australian certification program and U.S. certification program recommended by the ACR. Part III suggests possible reasons for why the U.S. has failed to implement the mediator certification program proposed by the ACR while Australia is moving forward to establish their system. Part IV concludes with why the U.S. should continue to push for national mediator accreditation …

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Joining Forces In Search For Answers: The Use Of Therapeutic Jurisprudence In The Realm Of Mediation Ethics , Omer Shapira Feb 2012

Joining Forces In Search For Answers: The Use Of Therapeutic Jurisprudence In The Realm Of Mediation Ethics , Omer Shapira

Pepperdine Dispute Resolution Law Journal

The Mediation process is part of the Alternative Dispute Resolution movement (ADR) whose modern history begins at the end of the 1970s. Therapeutic Jurisprudence (TJ) is a younger movement which has started to gain recognition in the 1990s. The two schools of thought share similarities, a fact which makes their study beneficial for both. This article explores some of those similarities in order to evaluate the possible contribution of TJ to mediation ethics. What is sought is a normative reading of the mediation process with the aid of the therapeutic lens. Such reading suggests, so it is argued, behavioral guidelines …

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The Disempowering Relationship Between Mediator Neutrality And Judicial Impartiality: Toward A New Mediation Ethic, Ronit Zamir Feb 2012

The Disempowering Relationship Between Mediator Neutrality And Judicial Impartiality: Toward A New Mediation Ethic, Ronit Zamir

Pepperdine Dispute Resolution Law Journal

The issue I shall discuss in this article is whether the concept of mediator neutrality advances the empowering and effective participation of parties from disadvantaged groups. Section II will deal with the relationship between the concept of neutrality in the adversarial legal process, in the mediation process, and the concept of procedural justice. I shall then present the meanings ascribed to the concept of mediator neutrality in the two prevailing models of mediation: the problem-solving model and the transformative model. The affinity between these meanings and the concept of judicial impartiality will be discussed and critiqued. Finally, I shall suggest …

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For Heaven's Sake, Give The Child A Voice: An Adr Approach To Interfaith Child Custody Disputes , Charlee Lane Feb 2012

For Heaven's Sake, Give The Child A Voice: An Adr Approach To Interfaith Child Custody Disputes , Charlee Lane

Pepperdine Dispute Resolution Law Journal

There has been ample study devoted to the problems that arise when courts are faced with custody disputes intertwined with issues of religion. Unfortunately, many of those studies conclude without proposing an effective solution or by suggesting an alternative without defining what that alternative might be. A solution must be employed that allows religious consideration in a forum more suitable to facilitating a resolution in the complete best interest of the child and parents. Mediation provides this forum by facilitating a negotiation in which parents are allowed to develop their own collaborative solutions to interfaith child custody disputes. Through techniques …

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Employees Losing Power, Losing Jobs: Making The Case For Mediating Power In The Era Of Buy-Ins And Bailouts, Lovalerie Mullins Feb 2012

Employees Losing Power, Losing Jobs: Making The Case For Mediating Power In The Era Of Buy-Ins And Bailouts, Lovalerie Mullins

Pepperdine Dispute Resolution Law Journal

This article proposes that dispute in the workplace is the best illustration of the loss of equanimity boundaryless employees experience in their work environment, and further, that dispute systems design necessitates a power neutralizing approach for mediating struggles caused by power disparity present in today's private employment relationships. To that end, my goal is to provide an employee-centered perspective of self-regulated employment policy in America, and to demonstrate the degree of conflict (and eventual disputation) such policy creates for boundaryless workforces. Ultimately, I make the case for an evolved dispute resolution process more able to manage power disparity in modem …

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Resolving Conflicts Over Climate Change Solutions: Making The Case For Mediation , Alana Knaster Feb 2012

Resolving Conflicts Over Climate Change Solutions: Making The Case For Mediation , Alana Knaster

Pepperdine Dispute Resolution Law Journal

This article explores the role that mediation can play in resolving the conflicts that are emerging in the climate change arena. Case studies describing mediation of disputes over air quality standards, timber harvesting, species protection, and ecosystems restoration, which resulted in consensus agreements among multiple, diverse stakeholder groups, demonstrate its applicability to the climate change arena. Mediation is not suited to every dispute or set of disputants. However, an analysis of the opportunities and constraints for addressing climate change disputes at the state, regional, and local levels suggests that mediated negotiations is well suited for resolving a number of the …

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At&T Mobility And Faa Over-Preemption, Jill I. Gross Jan 2012

At&T Mobility And Faa Over-Preemption, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The Supreme Court's recent arbitration law decisions reflect the Court's strong support for arbitration agreements, but also severely limit the states’ powers to police the fairness of arbitration. In particular, the Court’s decision in AT&T Mobility v. Concepcion, LLC expands the FAA preemption doctrine beyond its prior boundaries, signaling how far the Court is willing to go to support arbitration clauses at the expense of states’ rights and the values of federalism. This article explores the impact of AT&T Mobility on the preemption of state arbitration law, and the concomitant impact on the balance between state and federal power in …

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