Legal Profession Commons^™

Mediation Ethics: A Camp Courthouse Colloquy, United States Court Of Appeals For The Second Circuit, Robert Katzmann, Kathleen M. Scanlon, John Feerick

Cardozo Journal of Conflict Resolution

On January 18, 2017, the United States Court of Appeals for the Second Circuit held its first Court Appeals Mediation Program "Courthouse Colloquy." The subject of the colloquy was mediation and ethics. What follows is a transcript of the discussions.

Sharing Risk In The Sharing Economy: Insurance Regulation In The Age Of Uber, Alexander B. Traum

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

The Function Of The International Court Of Justice In The World Community, Ernest A. Gross

Georgia Journal of International & Comparative Law

No abstract provided.

Nela Touro Conference 1999 Selected Second Circuit Cases Of Interest, Lawrence Solotoff

Touro Law Review

No abstract provided.

Cognition And Common Sense In Contract Law, Beverly Horsburgh, Andrew Cappel

Touro Law Review

No abstract provided.

Of Contract, Culture, And The Code: Judge Easterbrook And The Cheyenne Indians, John M. Conley

Touro Law Review

No abstract provided.

Mediation, Legal Clinic Program

Course Descriptions and Information

Students will learn and develop skills crucial to the role of mediators and legal professionals. By focusing and implementing mediation methodologies, students will learn skills of active listening and communications; conflict, issue and interests spotting, information gathering and negotiations techniques; problem-solving strategies and approaches; and effective mediation settlement agreement drafting.

The Scrivener's Dilemma In Divorce Mediation: Promulgating Progressive Professional Parameters, Robert K. Collins

Cardozo Journal of Conflict Resolution

This Article starts with an examination of one state's relatively recent contribution to the controversy over divorce mediator drafting, and then tours the nation to illuminate the confusing array of approaches to this issue that have been adopted in different jurisdictions. It then steps back to examine the role that lawyers have traditionally played in assisting or impeding access to justice for divorcing couples, and explores why divorce mediation can now offer a more appropriate approach than classic lawyering to marital reorganization. It concludes with an endorsement of attorneymediators acting as scriveners for their clients, and explores an approach that, …

The Role Of Language Interpretation In Providing A Quality Mediation Process, Alexandra Carter, Shawn Watts

Faculty Scholarship

This paper focuses on the role of language in mediation and the challenges multiple language fluencies bring to the practice. Beginning with a discussion of the process and ethics of mediation as a form of alternative dispute resolution, as distinct from other forms of dispute resolution including arbitration, the paper shifts to consider the importance of language. Language, and more specifically interpretation, plays a central role in the integrity of the mediation process and the quality of its outcomes. Each stage of mediation requires the participants and the mediator understand one another to ensure effective communication and a quality process. …

A Genesis Of Conflict: The Zero-Sum Mindset, Jonathan R. Cohen

Cardozo Journal of Conflict Resolution

Parties in conflict often operate under the assumption that for one party to win, the other party must lose. This concept, known as the "zero-sum mindset, " can lead to undesirable results, both because it can make disputes harder to resolve and because people holding such beliefs are more likely to get into conflicts to begin with. Over the past several decades, legal educators specializing in dispute resolution have worked hard to challenge that mindset. This task is not simple, for framing conflict in zero-sum terms has very deep cultural roots tracing back at least to the Biblical stories in …

A Special Approach To Mediation For Moslem Clients, Nadia Shahram

Cardozo Journal of Conflict Resolution

The general saying "one size fits all" does not apply in the mediation setting. No mediation model advocates one strict approach for all mediations. In fact, each model offers a variety of styles to employ when working with clients, each with strengths applicable to specific situations. Mediators know how to adapt to the different circumstances of each client. They know that one size does not fit all.

Of Grids And Gatekeepers: The Socioeconomics Of Mediation, Robert Rubinson

Cardozo Journal of Conflict Resolution

Mediation scholars have long debated which mediator "style" or "model" is correct. The origin of the debate arises from a foundational piece of scholarship by Leonard Riskin. Riskin proposed a "grid" of mediator orientations comprised of what came to be known as "facilitative mediation" and "evaluative mediation." A more recent addition to the grid-and one that is almost universally recognized as a distinct model-is "transformative mediation." These three models are so embedded in the literature of mediation that they have been called "the big three."

This Article will survey these issues in three parts. First, it will offer an overview …

Law Student Mediators Wear A Triple Crown: Skilled, Sellable, & Successful, Laurie A. Lewis

Scholarly Articles

This Article considers several trends that converge to make it a highly favorable time for law students to obtain mediation training and work as mediators prior to graduating. Part I summarizes a brief history of the modern ADR movement, and mediation's emergence as the ADR methodology of choice. Part II discusses the proliferation of live clinics in law schools, with a special emphasis upon mediation clinics and their role in teaching unique practice-ready skills. Part III focuses on the practicalities of community mediation training as well as state requirements for mediators. Finally, Part IV considers the tight legal job market …

Trending@Rwu Law: Professor Bruce Kogan's Post: Why Mediation?, Bruce Kogan

Law School Blogs

No abstract provided.

The Mediation Coma: Purposeful Or Problematic, Kimberlee K. Kovach

Cardozo Journal of Conflict Resolution

While many books, articles and speeches are quick to note (and even applaud) the growth and expansion of mediation, others have more recently questioned whether mediation has fulfilled its promise. An initial issue to consider is its promise of what. Many might say of use-that mediation has not been utilized in the vast majority of disputes, small or large, locally or internationally. This was the primary impetus in bringing us together for this Symposium. Another issue explored throughout this Symposium is exactly what the use of mediation may or should be. And no doubt many different views exist, as the …

Reclaiming Mediation's Future: Re-Focusing On Party Self-Determination, Robert A. Baruch Bush, Joseph P. Folger

Cardozo Journal of Conflict Resolution

The premise of the Symposium that occasioned this Issue was that mediation is presently underutilized almost everywhere, and that the reason for this phenomenon is that the public simply doesn't grasp the great value of the process due to inadequate outreach and education efforts about mediation as an alternative to the legal system. Some suggest that greater use of mandatory mediation policies is called for as a response, rather than continuing the fruitless effort to explain mediation's value to an apparently unreceptive public. We disagree about both the cause and the solution for lack of public interest in mediation. We …

Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong

Faculty Articles

The primary focus of this Article is to analyze various process-oriented and structural issues relating to reasoned awards in international commercial arbitration so as to improve the practical and theoretical understanding of international awards. That discussion, which is found in Section IV, considers various factors from both the common law and civil law perspectives so as to take into account the blended nature of international commercial arbitration.

Of course, to be fully comprehensible, the detailed analysis in Section IV must first be put into context. Therefore, Section II describes the difficulties associated with defining a reasoned award in international commercial …

Sleeping? Comatose? Only Mandatory Consideration Of Mediation Can Awake Sleeping Beauty In The European Union, Giuseppe De Palo, Romina Canessa

Cardozo Journal of Conflict Resolution

A 2014 European Parliament-commissioned study, "Rebooting the Mediation Directive: Assessing the Limited Impact of Its Implementation and Proposing Legislative and Non-Legislative Measures to Increase the Number of Mediations in the EU," ("Rebooting Study") has initiated a much needed review and debate on effective mediation policy. The Rebooting Study, which recommended mandatory mediation for EU litigants with an ability to opt-out and enforcement of the 2008 EU Mediation Directive's Balanced Relationship Target Number ("BRTN") concluded, among other findings, that despite increased awareness of mediation and numerous studies and assessments, which have proved its benefits, mediation still remains largely under-utilized as a …

How To Conduct Effective Telephone And E-Mail Negotiations, Charles B. Craver

Cardozo Journal of Conflict Resolution

In this article, we will explore the ways in which negotiators use telephone and e-mail exchanges to consummate deals. Which factors should they consider when they talk on the telephone? What issues do cell phones raise that are not associated with traditional landlines? How do e-mail interactions differ from in-person and telephonic dealings? What can individuals do to optimize their use of these bargaining channels?

Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

All In The Family: The Influence Of Social Networks On Dispute Processing (A Case Study Of A Developing Economy), Manuel A. Gómez

Georgia Journal of International & Comparative Law

No abstract provided.

How Lawyers Manage Intragroup Dissent, Scott L. Cummings

Chicago-Kent Law Review

This essay, adapted from the keynote speech for the conference, reflects upon how lawyers respond to dissent within social movements—over the goals of social change efforts and the means of pursuing them. Drawing upon case studies from the LGBT rights and labor contexts, it describes specific challenges to managing dissent within “top-down” and “bottom-up” lawyering models. From the top-down, it explores how lawyers in the California marriage equality movement addressed repeated legal challenges over litigation tactics. From the bottom-up, it describes how lawyers for a community-labor coalition dealt with competing conceptions of the public good in a campaign to stop …

Capital Defenders As Outsider Lawyers, Kathryn A. Sabbeth

Chicago-Kent Law Review

What role can lawyers play in the internal disputes of a community to which they are outsiders? This essay highlights two core rationales for outsider intervention in support of internal dissent. It examines these rationales in the case of capital defenders from the U.S. North in the U.S. South. The position as an outsider can provide the will and freedom to launch direct attacks on injustice. Frequently, outsiders also bring superior resources for the fight. When outsiders engage in direct social critique, however, they can be accused of cultural imperialism. As an alternative, outsider lawyers can marshal indirect challenges, using …

The Case For Forgiveness In Legal Disputes, Eileen Barker

Pepperdine Dispute Resolution Law Journal

The article offers information on the education and understanding of forgiveness, which assists lawyers and mediators in supporting their clients in the area of forgiveness. It discusses two types of forgiveness relevant to legal disputes including bilateral forgiveness and unilateral forgiveness, and briefs common misconceptions about forgiveness. It analyzes that the essence of forgiveness is the giving up of resentment, anger, and hatred.

Apology, Forgiveness, Reconciliation & Therapeutic Jurisprudence, Susan Daicoff

Pepperdine Dispute Resolution Law Journal

The article offers information on the definition of the apology, forgiveness, and reconciliation processes. It discusses the relationship between these concepts and explains the benefits of practical use of apology, forgiveness, and reconciliation in the law. It informs that these concepts provide an effective healing to dispute or conflicts between individuals, groups, or institutions.

The Conventional Wisdom Of Discharge Arbitration Outcomes And Remedies: Fact Or Fiction, Mario F. Bognanno, Jonathan E. Booth, Thomas J. Norman, Laura J. Cooper, Stephen F. Befort

Cardozo Journal of Conflict Resolution

This study examines some of the arbitration community's commonly accepted beliefs about arbitration outcomes and remedies in employee discharge cases, with the findings revealing that some beliefs are likely fact, while others, perhaps, are fiction. With data from 1432 Minnesota discharge awards and 74 arbitrators who decided them, eight truisms are examined pertaining to the following: the frequency that arbitrators use Daugherty's Seven Tests rubric to analyze case evidence and whether its use affects award outcomes; the distribution of varying quanta of required proof by arbitrators and how different quanta affects award outcomes; and the effect of employee job tenure …

Escaping From Lawyers' Prison Of Fear, John Lande

Faculty Publications

Lawyers regularly experience numerous fears endemic to their work. This is not surprising considering that lawyers generally operate in environments that frequently stimulate many fears. Lawyers’ fears can lead them to enhance their performance due to increased preparation and effective “thinking on their feet.” Fear is problematic when it is out of proportion to actual threats, is expressed inappropriately, or is chronically unaddressed effectively. It can lead to sub-optimal and counterproductive performance through paralysis, ritualized behavior, or inappropriate aggression. Some lawyers’ fears unnecessarily prevent them from performing well, producing good results for clients, earning more income, and experiencing greater satisfaction …

Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John Lande

Cardozo Journal of Conflict Resolution

This Article summarizes the views of respected lawyers about how they negotiate, which were collected as described in Part II. Part III recommends that lawyers develop a strategic approach to negotiation, including general negotiation goals and plans to negotiate at the earliest appropriate time. Part IV outlines recommendations for lawyers to take charge of their cases from the outset, including getting a clear understanding of clients' interests, developing good relationships with counterpart lawyers, carefully investigating the cases, making strategic decisions about timing, and enlisting mediators and courts when needed. Part V provides two general suggestions for improving the quality of …

A Framework For Advancing Negotiation Theory: Implications From A Study Of How Lawyers Reach Agreement In Pretrial Litigation, John Lande

Cardozo Journal of Conflict Resolution

The prevailing negotiation theory tries to fit lots of square pegs into just two round holes-adversarial or cooperative bargaining. In the real world, negotiation comes in many different shapes, not just circles and squares. This Article demonstrates that the two "round holes" in current negotiation theory are poorly defined and do not reflect the reality of much pretrial negotiation. It argues that it is time to replace the system of theoretical models with a flexible framework that can accommodate virtually all legal negotiations, including those that do not fit into any pre-defined model.

Open-Minded Listening, Jonathan R. Cohen

UF Law Faculty Publications

Parties in conflict do not typically listen to one another well. On a physical level they hear what their counterparts say, but on a deeper level they do not truly absorb or think seriously about their counterparts’ words. If they listen at all, they listen with an ear toward how they can refute rather than toward what they may learn. This article explores how we might change this. In contrast to prior research examining external aspects of listening (e.g., how being listened to influences the speaker), this article probes the internal side of listening, specifically, whether the listener will allow …