Dispute Resolution and Arbitration Commons^™

Mediation In Employment And Creeping Legalism: Implications For Dispute Systems Design, Lisa Blomgren Bingham, Susan Summers Raines, Timothy Hedeen, Lisa Marie Napoli

Journal of Dispute Resolution

This article will explore the question of creeping legalism in mediation of statutory disputes arising out of employment. First, it will briefly review the issue of creeping legalism in arbitration. Second, it will introduce dispute systems design (DSD). Third, it will review the analogous debate on legalism in mediation in three design contexts: evaluative mediation of employment disputes in the court-connected setting, grievance mediation embedded in the collective bargaining agreement, and transformative mediation of employment disputes in the United States Postal Service's (USPS's) REDRESS program. Most employees do not face a choice among mediation models; instead, they choose among adjudicative …

Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

All Faculty Scholarship

This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication.

Integration Matters: Rethinking The Architecture Of International Dispute Resolution, Anna Spain

Publications

International law promotes global peace and security by providing mechanisms for the pacific settlement of international disputes. This Article examines these mechanisms and their place in the architecture of the international dispute resolution ("IDR") system. The Article identifies three core deficiencies of the IDR system that limit its effectiveness and capacity. First, the international legal system has prioritized the development of adjudication over other forms of dispute resolution; the judicialization of international disputes and the proliferation of courts and tribunals evidence this. However, adjudication is limited in its capacity to resolve disputes that involve non-state parties and extra-legal issues. This …

Mediating Medical Malpractice Lawsuits: The Need For Plaintiff And Physician Participation, Chris Stern Hyman, Carol B. Liebman

Faculty Scholarship

At this moment in history, tort reform and new approaches to resolving medical malpractice claims are part of the national debate about how to improve health care. Federal funding is available for pilot projects to test new approaches to medical malpractice litigation. There is increased pressure from health care regulators to disclose adverse events and communicate better with patients and their families. These all present opportunities to increase the use of mediation, particularly to address medical malpractice lawsuits and to improve patient safety.

For the past seven years, we have been studying ways in which mediation and mediation skills can …

Introducing The Negotiation Navigation Map, Nadja Alexander, Jill Howieson

Research Collection Yong Pung How School Of Law

In this article we reflect upon negotiation strategies and explore the utility of reconciling the dichotomy between interest-based and positional approaches to negotiation. Ultimately, we advocate for a ‘constructive model’ of negotiation and introduce the ‘negotiation navigation map’ that serves the negotiator well in preparing for this approach to negotiation.

You've Got Your Mother's Laugh: What Bankruptcy Mediation Can Learn From The Her/History Of Divorce And Child Custody Mediation, Nancy A. Welsh

Faculty Scholarship

Due to our current deep economic woes, growing bankruptcy filings, and apparent legislative unwillingness to expand the number of judges, bankruptcy courts are exploring the use of mediation to help resolve adversary proceedings, negotiate elements of reorganizations, and deal with claims that cannot be heard directly in bankruptcy proceedings. In addition, mediation advocates have been consistent in urging greater use of the process to reduce debtors’ and claimants’ costs, bridge the jurisdictional and standing challenges that bankruptcies can pose, and offer claimants the opportunity to be heard and determine their own resolution of claims. At this point, the relatively few …

The Next Generation: Creating New Peace Processes In The Middle East, Carrie Menkel-Meadow, Irena Nutenko

Georgetown Law Faculty Publications and Other Works

This essay describes how Israeli students in a course on mediation and consensus building taught in an Israeli university law department by and American law professor and an Israeli instructor analyzed and studied the conflict in the Middle East. It describes the suggestions they made for process design for the next stages of whatever peace process might emerge for the region. In light of the students' suggestions, the authors present some ideas as to how different approaches to reconciliation and peace might be used, managed, and coordinated.

Legislative Hearing On Ma Foreclosure Mediation Program Bills: Written Testimony To The Joint Committee On The Judiciary, Susan Jeghelian, Madhawa Palihapitiya

Massachusetts Office of Public Collaboration Publications

The inability of homeowners to communicate with holders of securitized mortgage obligations has been a significant barrier to completing affordable loan modifications that might prevent foreclosures or minimize losses and keep more homeowners in their homes. Increasingly, legislators and the courts are looking at mediation as a potential solution to the problem.

In a little over a year, from mid-2008 to mid-2009, more than 25 distinct foreclosure mediation programs were launched in fourteen different states. State legislatures, state supreme courts, and local courts played roles in creating these programs. Mediation is being favored over litigation due to concerns such as …

Review Of Staying With Conflict: A Strategic Approach To Ongoing Disputes, Carl E. Schneider

Reviews

Bernie is at it again! And we can be thankful for that. For the past three decades, he has consistently provided leadership in our field. A central part of his work has been his invitation for us to rethink just what our field is. Through his work, he has offered us an expanded definition of our role. This time, in Staying with Conflict, he wants us to consider how misleading and confining our tag line of “conflict resolution” is. So much of what we deal with cannot be resolved! If that is our self-concept, he argues, we will often …

Good Faith As The Absence Of Bad Faith: The Excluder Theory In Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

Views vary as to the behaviour necessary to constitute good faith — or equivalent concepts such as genuine and reasonable attempts — in mediation and as to behaviour which falls below the standard.

Mediation And The Myth Of Universality, Nadja Alexander

Research Collection Yong Pung How School Of Law

In his essay entitled ‘Mediation: Pfade zum Frieden’, Professor Montada has made an important contribution to the mediation literature. He questions the universality of the standard mediation model that appears to be sweeping the world with enormous zeal and in doing so puts forward theories and principles to substantiate his view. To a large extent I agree with what the author has to say about the scope and potential for mediation. In particular I support his view that professional mediators need to be made aware of the cultural limitations of the model in which they are trained. As I write …

Unexcused Absence: A Review Of The Need, Costs, And (Lack Of) State Support For Peer Mediation Programs In U.S. Schools, Matthew D. Decker

Journal of Dispute Resolution

You might not have heard about peer mediation lately. You might not have heard about it at all. That's a problem. Peer mediation, though grossly underutilized, could be the potent and cost-effective answer to many of the problems facing U.S. schools.

State Legislative Update, Ashley Brittain, Sean Dolan, Alicia Hammond, Meghan Prideaux

Journal of Dispute Resolution

The purpose of this Bill is to provide notice to owners of residential real property owners that mediation with the mortgagee is an option at the onset of foreclosure proceedings. The Bill changes the mechanism by which borrowers are notified of foreclosures; instead of receiving a writ and summons, borrowers receive a notice of mediation, a foreclosure mediation certificate, and a blank appearance form. Borrowers still receive the writ, summons, and complaint, however. The lender must appear at the mediation with the authority to approve a proposed settlement in order to receive a remedy, and no attorney's fees will be …

Sticks, Stones, And School Yard Bullies: Restorative Justice, Mediation And A New Approach To Conflict Resolution In Our Schools, Leah M. Christensen

Nevada Law Journal

No abstract provided.

Making Peace And Making Money: Economic Analysis Of The Market For Mediators In Private Practice, Urska Velikonja

Faculty Scholarship

Mediation has grown tremendously in the last three decades, yet only a small number of mediators have been able to benefit financially from its growth. The supply of willing mediators by far exceeds the demand for their services. Mediator trainee overoptimism and the lack of formal barriers to entry result in excess entry in the market for mediators. However, the lack of a formal barrier, but the existence of de facto barriers to entry, such as mediator selection practices and specialization, combined with excessive individual optimism, creates inefficiently high levels of entry. This is socially suboptimal: many aspirant mediators spend …

Introduction: Adr Meets Bankruptcy, G. Ray Warner

Faculty Publications

(Excerpt)

On October 2, 2009, the American Bankruptcy Institute Law Review, the Hugh L. Carey Center for Dispute Resolution, and the St. John's Institute for Bankruptcy Policy convened respected bankruptcy jurists and dispute resolution scholars to host "ADR Meets Bankruptcy: Cross-Purposes or Cross-Pollination." Bankruptcy is a dispute resolution process unlike other forms of court adjudication, both in the flexibility of the process and in the systemic goals. In many ways, bankruptcy is a form of alternative dispute resolution. Yet there has been little formal engagement between students and practitioners of bankruptcy and students and practitioners of the nominally separate …

Future Of Mediation: A Sociological Perspective, The, Brian Jarrett

Journal of Dispute Resolution

Arguably, these sociological pressures are central to the future direction of the mediation field and, in the aggregate, provide a useful building block in the development of an emerging sociology of mediation-a development that could fill the theory-to-practice gap which currently bedevils the mediation field. Understanding sociological forces reminds us of the constraints within which mediators, as social actors, must work. More importantly, an awareness of these pressures is, conceivably, essential to the development of an autonomous and discernible profession that remains capable of welcoming a diversity of practitioners and their respective approaches. I summarize each of these pressures below …

Promise Of Confidentiality In Mediation: Practitioners' Perceptions, The, T. Noble Foster, Selden Prentice

Journal of Dispute Resolution

In response to these articles, we sought to determine the perceptions of mediation practitioners in our own region, the Seattle/King County area, regarding mediation confidentiality and privilege. This paper presents our finding and addresses the following: (1) the scope of confidentiality and privilege under Washington law; (2) recent Washington case law addressing evidence of mediation communications; (3) a review of Florida's recent legislation - significantly different from Washington law, and unique among state mediation statutes - which provides for sanctions in the event confidentiality is breached; and (4) the perceptions of mediators, attorneys, and judges from the greater Seattle area …

Mediating Commitments, Ian Macduff

Research Collection Yong Pung How School Of Law

This paper explores the implications of one aspect of intercultural theory –the dimension of power distance– in order to comment on the nature of commitments in the mediation process. The familiar model of Western ediation assumes that parties can identify core interests and negotiate around those, through prioritising, trading and balancing. At the heart of our thinking about commitments are our ideas about agency, autonomy, and accountability. However, a core implication of empirical work on power distance suggests that expectations of deference may lead some participants to avoid direct decision-making responsibility and, rather than work towards commitments, to act on …

The Mediation Metamodel: Understanding Practice, Nadja Alexander

Research Collection Yong Pung How School Of Law

The mediation metamodel provides a systematic framework for understanding mediation as it is practiced in a variety of professional and cultural contexts. Six mediation practices are introduced within the framework of the metamodel: settlement mediation, facilitative mediation, transformative mediation, expert advisory mediation, wise counsel mediation, and tradition-based mediation. The relationships of these different practices to one another are explored and the assumptions underlying them are examined with reference to the literature. The metamodel provides orientation in the dispute resolution field not only for mediators, parties, and their lawyers, but also for regulators, referring bodies, researchers, and students of mediation.

Confronting Adr Agreements' Contract/No-Contract Conundrum With Good Faith, Amy J. Schmitz

Faculty Publications

This Article explores the intricate problem, or conundrum, of enforcing "Alternative Dispute Resolution ('ADR') agreements" that require mediation or other non-binding dispute resolution procedures. Although public policy supports ADR, courts' inadequate analysis of ADR agreements is threatening their vitality. Instead of properly considering the flexible nature of these agreements, courts assume formalist contract or no-contract conclusions similar to those they impose on what Professor Charles Knapp has termed "contracts to bargain." ADR agreements and other contracts to bargain pose enforcement problems because they require parties' cooperation without specifying what cooperation means or how to enforce such flexible duties. This Article …

The Mediator As Fugu Chef: Preserving Protections Without Poisoning The Process, Maureen Laflin

Articles

No abstract provided.

Thoughts About Spiritual Fatigue: Sustaining Our Energy By Staying Centered, Wayne D. Brazil

Journal of Dispute Resolution

Spiritual fatigue can afflict seasoned mediators and judges who have hosted many settlement conferences.' It can sap the energy we need to do our work well. It can reduce our patience, shorten our anger fuses, and impair our ability to listen to and to connect with the people we are trying to help. Worse, it can lead us into procedural or ethical temptation-inviting us to cut comers and compromise values we hold dear. If it persists too long, it can drive us away from this field. Thus, for those of us who experience it, spiritual fatigue can pose a serious …

Philippine Community Mediation, Katarungang Pambarangay, Gill Marvel P. Tabucanon, James A. Wall Jr., Wan Yan

Journal of Dispute Resolution

First, we present a brief overview of the process, followed by a delineation of the history, purpose, operational structure, jurisdiction, venue, procedure, and time frame for this mediation approach. Finally, we report on interviews we conducted with mediators who have served on these panels. Their accounts reveal intriguing details as to how the mediation process unfolds and the benefits of this dispute resolution process. Our goals in this article are threefold: (1) to describe this grassroots mediation approach; (2) to expand our knowledge about mediation; and (3) to reflect on the advantages of this approach so as to improve mediation …

Challenges Facing Investment Disputes: Reconsidering Dispute Resolution In International Investment Agreements, Susan Franck, Karl P. Sauvant, Michael Chiswick-Patterson, Rainer Geiger, José E. Alvarez, M. Sornarajah, Patrick Juillard, Jeswald W. Salacuse, Giorgio Sacerdoti, Anna Joubin-Bret, Hugo Perezcano Díaz, Michael K. Tracton, Christoph Schreuer, Howard Mann, Katia Yannaca-Small, Barton Legum, Jan Paulsson, Asif H. Qureshi, Shandana Gulzar Khan, Christopher Brummer, Brian J. Rapier

Contributions to Books

This volume brings together significant contributions from leading voices in academia, the legal profession and government on the increasingly important topic of international investment and the legal system in which it operates. With the burgeoning size of international capital flows matched only by an explosion in international agreements intending to regulate the field, there is increasing potential for incoherence amongst and between treaties and arbitral decisions.

Appeals Mechanism in International Investment Disputes compiles, compares and contrasts the analysis and arguments of the leading scholars, practitioners and government officials on the future of the international investment law regime. Its special emphasis …

Book Review - The Science Of Settlement: Ideas For Negotiators, Rebekah K. Maxwell

Faculty Publications

No abstract provided.

Thinking About Fairness & Achieving Balance In Mediation, Sarah E. Burns

Fordham Urban Law Journal

This Article identifies five sources of bias present in mediation practice: (1) categorization, (2) attribution, (3) metaphorical expression, (4) norming, and (5) framing. For each of these "cognitive efficiencies," which contribute to bias in mediation, the author provides practice recommendations. Finally, the author suggests that the Article be read as a proposal for further thought and inquiry to improve the fairness of mediators.

Minorities, Mediation, And Method: The View From One Court-Connected Mediation Program, Phyllis E. Bernard

Fordham Urban Law Journal

This Article addresses cross-cultural dynamics in small claims court mediations in Oklahoma City (1 million population). Through the study of about 300 cases, the author concludes that (1) minority status may not matter as much as gender, (2) neither gender nor minority status may matter as much as socio-economic class, and (3) well-constructed and constantly monitored mediator training and supervision may make for fairer small claims cases where mediation is seen as adjunct to judge's role. The author urges reconsideration of critical race theory critiques of mediation and ultimately concludes that just mediation proceedings require addressing individuals' lack of knowledge.

Crossing Borders Into New Ethical Territory: Ethical Challenges When Mediating Cross-Culturally, Harold Abramson

Scholarly Works

No mediator wants to be charged with cultural imperialism when mediating private international disputes. And yet, mediators run this risk whenever the mediator resists doing what the parties want done. This cultural challenge is different than what mediators customarily encounter. Instead of the gap arising between the parties, the gap is between the mediator and the parties. In this article, I will consider how a mediator might ethically bridge mediator-parties gaps while generally avoiding the harsh charge of cultural imperialism. Through a hypothetical in which a mediator's values clash with the values of the parties, I will develop a four …

Challenges Facing Investment Disputes: Reconsidering Dispute Resolution In International Investment Agreements, Susan Franck

Contributions to Books

International investment and international investment agreements have experienced a particular level of growth in the past few decades. With that growth and the granting of affirmative dispute resolution rights to foreign investors, international investment conflict has become increasingly highlighted; and one particular methodology - namely investment treaty arbitration - has become particularly visible. Reliance on this single option for resolving conflict has a unique set of systemic implications. This chapter therefore takes a more systemic look at investment treaty conflict and, in an effort to provide an appropriate historical and doctrinal framework, approaches to dispute resolution broadly. It asks for …