Dispute Resolution and Arbitration | Open Access Articles

Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey

Journal of Dispute Resolution

The Emperor's New Clothes is a very modem tale about carving out market niches, about generating and feeding unreasonable desires, and about the power of conformity within emergent occupations and powerful professions.

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Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler

Journal of Dispute Resolution

Across the country, people who file lawsuits are being diverted from adjudication to mediation. Whereas once mediation was seen as the preferred means of resolving family disputes (especially those involving child custody), now it is mandated for a broad range of civil disputes. Whereas once citizens were called upon to volunteer as mediators in community justice centers outside the courts, now mediation is a line of business for lawyers whose customers are sent to them by the courts. Whereas once dispute resolution theorists called on courts to provide a variety of procedural choices for civil disputants, now courts order litigants …

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Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler

Journal of Dispute Resolution

In this article, we first use existing research evidence to contextualize more clearly the place of civil case mediation in the litigation process. When we understand civil mediation as part of adversarial litigation - rather than as distinct from it - we see the importance of comparing mediation and unassisted negotiation. Next, we discuss research and commentary on the barriers to negotiation and the ways in which mediation might help overcome them. This work provides a more pragmatic and empirically grounded perspective on the potential value of mediation than does "mediation ideology" and suggests a wide range of "hypotheses" to …

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Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips

Journal of Dispute Resolution

This experience stands in stark contrast to the thesis of Professor Deborah Hensler in her article, Suppose It's Not True: Challenging Mediation Ideology. Therein, Professor Hensler attempts to link social psychological research that she interprets as showing dissatisfaction with the use of mediation compared to adjudication, which, in turn, leads her to conclude that clients should prefer counsel who ordinarily can resolve cases successfully without the help of mediation.7 The fallacy of Professor Hensler's argument is evident in several respects. For one, she relies far too heavily on her own intuition and previous empirical research of marginal relevance, and on …

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Procedural Justice Research And The Paucity Of Trials, Chris Guthrie

Vanderbilt Law School Faculty Publications

Professor Deborah Hensler tells an important cautionary tale about mandatory mediation in her thoughtful and provocative contribution to this volume. In Suppose It's Not True: Challenging Mediation Ideology, Hensler observes that courts are now requiring litigants to mediate civil cases "on the grounds that litigants prefer [mediation] to traditional litigation," yet there is "a long line of social psychological research on individuals' evaluations of different dispute resolution procedures" consistent with the "idea that litigants might prefer adversarial litigation and adjudication" to mediation.' Hensler acknowledges that "some experimental research has found that subjects prefer mediation," but she argues that "the empirical …

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Introduction: What Adr Means Today, Theodore J. St. Antoine

Other Publications

The sort of cachet a Hollywood screenplay once ascribed to "plastics" seems today to have adhered to "ADR." ADR stands, of course, for alternative dispute resolution. It refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without invoking the decision-making power of the state. And for many people, ADR has become the byword for a much-needed panacea for an overly litigious society. This book is designed to get behind the mystique of ADR, to show how it really works, and to enhance the skills of anyone interested in exploiting its …

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When Litigation Is Not The Only Way: Consensus Building And Mediation As Public Interest Lawyering, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

British social philosopher Stuart Hampshire recently articulated the fundamental and foundational principles of the modem conflict resolution movement (and I do call it a movement). He asserted that, "there will always be a plurality of different and incompatible conceptions of the good and there cannot be a single comprehensive and consistent theory of human virtue. Correspondingly, "our political enmities in the city or state will never come to an end while we have diverse life stories and diverse imaginations.'' Hampshire, a socially progressive, socialist philosopher hoped to articulate universal conceptions of the good. In his lifetime of reflection on this …

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From Common Law To Civil Law Jurisdictions: Court Adr On The Move In Germany, Nadja Alexander

Research Collection Yong Pung How School Of Law

In Australia today, ADR processes are recognised not only as a distinct system of dispute resolution, but also as a system that interacts interdependently with the legal system. This is most clearly demonstrated in the context of court-related mediation, which is increasingly seen as an effective way to increase access to, participation in, and satisfaction with the way legal disputes are resolved. Cappelletti categorises ADR as the third wave in the worldwide access-to-justice movement. ADR provides a different approach and a different sort of justice for solving disputes — what Cappelletti labels ‘co-existential justice’.

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What's Law Got To Do With It: Mapping Modern Mediation Movements In Civil And Common Law Jurisdictions, Nadja Alexander

Research Collection Yong Pung How School Of Law

Context defines mediation and has a direct impact on how it is practised. National legal contexts reveal historically embedded systemic differences that can provide insights into the reasons behind the rapid expansion of mediation in common law jurisdictions, and the comparatively hesitant development of mediation in civil law jurisdictions. In this article I consider the legal and political forces behind the modern mediation movements in Australia and Germany: two countries that represent the common law and the civil law traditions respectively.

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Mediation And Domestic Violence: A Practical Screening Method For Mediators And Mediation Program Administrators, Alexandria Zylstra

Journal of Dispute Resolution

Presented with such a dearth of standard practices and literature, family mediators have little guidance in whether and how to address cases involving domestic violence. Thus, this article sets forth a mediation screening framework that mediators and mediation program administrators can use to evaluate whether cases are appropriate for regular mediation (joint session without special safety measures), some modified form of mediation, or should be excluded from mediation. Such a method will better ensure a safe and fair mediation experience. Part II briefly examines the controversy surrounding the mediation of cases involving domestic violence, concluding that the arguments against mediating …

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Be Careful What You Say In Mediation - Indiana Supreme Court Rules That Oral Settlement Agreements Reached In Mediation Must Be In Writing To Be Enforceable - Kirk E. And Martha Vernon V. Adam J. Acton, Garrett S. Taylor

Journal of Dispute Resolution

When parties use mediation as an alternative to litigation, they generally expect the agreement will be binding upon the parties and confidential. However, the parties must ensure that the agreement they reach is reduced to writing or the agreement may not be enforceable. Furthermore, certain things said during the mediation session may be admissible in future litigation proceedings. The Indiana Supreme Court, in Vernon v. Acton, held that until mediation agreements are reduced to writing and signed by the parties, they must be considered compromise settlement negotiations under the applicable evidence rules and are not admissible as evidence of an …

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From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this article I will outline the development of modern mediation in Sri Lanka. I use the term mediation to mean facilitative mediation. Accordingly, for the purposes of this article, mediation does not include processes such as conciliation or evaluative mediation, which are used in Sri Lanka, for example in industrial dispute resolution practice.

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From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this article I will outline the development of modern mediation in Sri Lanka. I use the term mediation to mean facilitative mediation. Accordingly, for the purposes of this article, mediation does not include processes such as conciliation or evaluative mediation, which are used in Sri Lanka, for example in industrial dispute resolution practice.

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The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh

Faculty Scholarship

Ethical codes for mediators describe party self-determination as “the fundamental principle of mediation,” regardless of the context within which the mediation is occurring. The definition of self-determination, however, is a matter of dispute. Based on a review of the debate surrounding the promulgation and revision of ethical codes for court-connected mediators in Florida and Minnesota, this Article demonstrates that a vision of self-determination anchored in party-centered empowerment is yielding to a vision that is more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through …

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Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel

Scholarly Works

One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One …

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Making Deals In Court-Connected Mediation: What's Justice Got To Do With It?, Nancy A. Welsh

Faculty Scholarship

When mediation was first introduced to the courts, the process was hailed as “alternative.” Mediation gave disputants the opportunity to discuss and resolve their dispute themselves; the role of the third party was to facilitate the disputants’ negotiations, not to dictate the outcome; and because the disputants were able to focus on their underlying interests in mediation, the process could result in creative, customized solutions. The picture of mediation is changing, however, as the process settles into its role as a tool for the resolution of personal injury, contract, and other nonfamily cases on the courts’ civil dockets. Attorneys dominate …

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The Institutionalization Of Mediation Developments In The Usa, Australia And Germany (In German), Nadja Alexander

Research Collection Yong Pung How School Of Law

No abstract provided.

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The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie

Vanderbilt Law School Faculty Publications

Riskin's categorization of mediation has engendered much debate among academics and practitioners. Although most in the mediation community accept Riskin's positive assertion that mediation as currently practiced includes both facilitation and evaluation, a vocal group of purist critics rejects Riskin's pluralist view of mediation on normative grounds. These purist critics -- including such prominent mediator-scholars as Professors Kim Kovach, Lela Love," and Josh Stulberg -- argue that mediation is in fact, and should be, solely a facilitative process "designed to capture the parties' insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes." For …

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A Well-Founded Fear Of Prosecution: Mediation And The Unauthorized Practice Of Law, David A. Hoffman, Natasha Affolder

All Faculty Publications

To many mediators, "UPL" is an acronym with an increasingly ominous ring. This growing concern about the unauthorized practice of law (UPL) arises from reports around the country of charges filed against mediators who are not lawyers. These prosecutions - or in some cases warnings - are primarily directed at divorce mediators as a result of their drafting of detailed marital settlement agreements. However, all mediators have a reason to be concerned, because of uncertainties about what constitutes UPL in the context of mediation. This article surveys the legal terrain of UPL, and argues that it's time for new, clear …

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Mediation In Practice: Common Law And Civil Law Perspectives Compared, Nadja Alexander

Research Collection Yong Pung How School Of Law

Australian mediation practice is thriving. Effective forms of mediation are practised in court-connected schemes, in the public sector, in the community justice sector and in the private business sector. Indeed, no industry is excluded from the application of mediation. In contrast, Hoffmann-Riem laments that despite many years of discussions about ADR (alternative dispute resolution) in Germany, mediation plays a marginal role only. Further, Labes states that 'ADR mechanisms are relatively obscure methods in Germany.' The comparison between Australia and Germany is particularly interesting because it considers both a common law and a civil law tradition. This essay will discuss the …

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Toward More Sophisticated Mediation Theory, John Lande

Journal of Dispute Resolution

Some of these benefits are due to the particular arguments of facilitation proponents, while others involve a general development of the field resulting from the debate. The first benefit is that facilitation proponents have highlighted how mediation can promote many important values such as party self-determination, and they have cautioned about risks of unfairness created by mediator evaluation as described in Part III. Second, the facilitation-evaluation debate has stimulated a better appreciation of the appropriateness of these techniques in different types of cases, as described in Part IV. Third, the debate has contributed to reducing ill-considered evaluation practice, as discussed …

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Mediating Citizen Complaints Against The Police: An Exploratory Study , Samuel Walker, Carol Archbold

Journal of Dispute Resolution

This article examines the subject of mediating citizen complaints against the police. It reviews the history of citizen complaints, presents data on existing police complaint mediation programs, and discusses the potential contributions of mediation to police accountability.

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Evaluation And Facilitation: Moving Past Either/Or, Richard Birke

Journal of Dispute Resolution

In this essay, I argue that there is no such thing as a purely facilitative mediation of a legal dispute. Neither is there such a thing as a purely evaluative mediation of a legal dispute. Mediation of legal disputes is, by its nature, always facilitative and evaluative. The evaluative-facilitative divide is an artificial artifact of history. Following this introduction, I offer a brief description of the development of the field of legal mediation, and I attempt to place the Riskin grid in historical context. I then hope to push the debate toward a new moment, one in which all mediation …

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Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stemple

Journal of Dispute Resolution

Preparation for the University of Missouri's lecture on dispute resolution and consideration of commentary prompted additional thoughts on the issue and a more refined perspective on the issue of facilitation-versus-evaluation and its role in the continued development of modem ADR. Rather than attempt to fine-tune a completed article, this reply will address the additional perspectives as well as note points of distinct conflict or quibble with commentators. First, this reply provides some additional assessment framing the facilitative-evaluative debate as well as a modified brief in support of the legitimacy of some elements of evaluation in the eclectic mediation that is …

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Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande

Faculty Publications

Do you believe in mediation? That may seem like an odd question. Normally one thinks of ‘believing in‘ (or having faith in) things like magic, God, or the market. These are typically things that are beyond verifiable human knowledge (such as magic and God) and/or deeply held values (such as whether the market is a better mechanism than government for managing the flow of goods and services). At first blush, one might not think that mediation would fall into either category. There have been numerous empirical studies about many different aspects of mediation, so one can confidently say, for example, …

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German Law Paves The Way For Mandatory Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

Effective as of 1 January 2000, the Federal Government of Germany has introduced legislation permitting all German states (Laender) to introduce mandatory court-connected mediation with respect to certain kinds of civil disputes.

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Preserving The Integrity Of Mediation Through The Adoption Of Ethical Rules For Lawyer-Mediators, Maureen Laflin

Articles

No abstract provided.

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Religious Dimensions Of Mediation, F. Matthews-Giba

Fordham Urban Law Journal

This article takes an in-depth look at the religious roots of mediation, particularly emphasizing the influence of the Franciscan movement. It also discusses the religious roots of mediation in the United States, various strategies and styles of mediation, the religious motivation for settlement agreements, and multi-cultured mediation.

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Toward More Sophisticated Mediation Theory, John M. Lande

Faculty Publications

In the lead article in this symposium, Professor Jeffrey Stempel provides a very thoughtful analysis of the mediation field. He focuses on the debate over facilitative and evaluative mediation and he is critical of many of the arguments made by proponents of facilitative mediation. I have expressed some similar concerns, and I generally agree with his analysis (with a quibble here and there). I do think that the facilitation-evaluation debate has been productive (though admittedly wearisome), and that proponents of facilitative mediation deserve more credit than he gives them in his article.

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Religious Dimensions Of Mediation, F. Matthews-Giba

Fordham Urban Law Journal

This article takes an in-depth look at the religious roots of mediation, particularly emphasizing the influence of the Franciscan movement. It also discusses the religious roots of mediation in the United States, various strategies and styles of mediation, the religious motivation for settlement agreements, and multi-cultured mediation.

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Full-Text Articles in Dispute Resolution and Arbitration

Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey

Journal of Dispute Resolution

Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler

Journal of Dispute Resolution

Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler

Journal of Dispute Resolution

Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips

Journal of Dispute Resolution

Procedural Justice Research And The Paucity Of Trials, Chris Guthrie

Vanderbilt Law School Faculty Publications

Introduction: What Adr Means Today, Theodore J. St. Antoine

Other Publications

When Litigation Is Not The Only Way: Consensus Building And Mediation As Public Interest Lawyering, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

From Common Law To Civil Law Jurisdictions: Court Adr On The Move In Germany, Nadja Alexander

Research Collection Yong Pung How School Of Law

What's Law Got To Do With It: Mapping Modern Mediation Movements In Civil And Common Law Jurisdictions, Nadja Alexander

Research Collection Yong Pung How School Of Law

Mediation And Domestic Violence: A Practical Screening Method For Mediators And Mediation Program Administrators, Alexandria Zylstra

Journal of Dispute Resolution

Be Careful What You Say In Mediation - Indiana Supreme Court Rules That Oral Settlement Agreements Reached In Mediation Must Be In Writing To Be Enforceable - Kirk E. And Martha Vernon V. Adam J. Acton, Garrett S. Taylor

Journal of Dispute Resolution

From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander

Research Collection Yong Pung How School Of Law

From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander

Research Collection Yong Pung How School Of Law

The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh

Faculty Scholarship

Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel

Scholarly Works

Making Deals In Court-Connected Mediation: What's Justice Got To Do With It?, Nancy A. Welsh

Faculty Scholarship

The Institutionalization Of Mediation Developments In The Usa, Australia And Germany (In German), Nadja Alexander

Research Collection Yong Pung How School Of Law

The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie

Vanderbilt Law School Faculty Publications

A Well-Founded Fear Of Prosecution: Mediation And The Unauthorized Practice Of Law, David A. Hoffman, Natasha Affolder

All Faculty Publications

Mediation In Practice: Common Law And Civil Law Perspectives Compared, Nadja Alexander

Research Collection Yong Pung How School Of Law

Toward More Sophisticated Mediation Theory, John Lande

Journal of Dispute Resolution

Mediating Citizen Complaints Against The Police: An Exploratory Study , Samuel Walker, Carol Archbold

Journal of Dispute Resolution

Evaluation And Facilitation: Moving Past Either/Or, Richard Birke

Journal of Dispute Resolution

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stemple

Journal of Dispute Resolution

Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande

Faculty Publications

German Law Paves The Way For Mandatory Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

Preserving The Integrity Of Mediation Through The Adoption Of Ethical Rules For Lawyer-Mediators, Maureen Laflin

Articles

Religious Dimensions Of Mediation, F. Matthews-Giba

Fordham Urban Law Journal

Toward More Sophisticated Mediation Theory, John M. Lande

Faculty Publications

Religious Dimensions Of Mediation, F. Matthews-Giba

Fordham Urban Law Journal