The Mediated Settlement: Is It Always Just About The Money? Rarely!,
2012
Pepperdine University
The Mediated Settlement: Is It Always Just About The Money? Rarely!, Steven L. Schwartz
Pepperdine Dispute Resolution Law Journal
Since our legal system of dispute resolution tends to remedy wrongs only by payment of money, most settlements will eventually involve negotiations over the amount to be paid and received. Yet, in both the theory and actual practice of mediation that has lead this writer to conclude that it is never just about the money. Effective lawyer representation of clients in mediation requires a different kind of investigation and preparation than lawyers may be accustomed to conducting. Similarly, an effective mediator must be adept in identifying the clues that reveal the "below the water line" interests at work and which …
The Narrative Approach To Mediation,
2012
Pepperdine University
The Narrative Approach To Mediation, Toran Hansen
Pepperdine Dispute Resolution Law Journal
Narrative Mediation is an approach and methodology that can offer mediators an innovative way to handle conflict intervention. It is important to note that "it is not a model that can be ransacked for techniques without damaging the intent and process it requires.. .because the foundational view is vastly different [from other approaches]." It may, however, particularly appeal to mediators with a postmodernist theoretical bent who prefer to work with the accounts of parties in conflict rather than attempting to get at "the truth" because they recognize that any truth brings with it implicit bias. The explicit role of mediator …
Facillitative Mediation: The Classic Approach Retains Its Appeal,
2012
Pepperdine University
Facillitative Mediation: The Classic Approach Retains Its Appeal, Carole J. Brown
Pepperdine Dispute Resolution Law Journal
In this additional step in the civil litigation process in Ontario, the mediator is assigned a primarily "facilitative" role. This paper advances the position that mandatory mediation in Ontario was not designed as a process where a third party would offer an evaluation of the legal merits of a dispute. Instead, the goals of mandatory mediation are best achieved, and the parties know what to expect, when a mediator takes on the role of a neutral third party who facilitates communication, and takes an interest-based approach to problem-solving. This paper further posits that the mandatory mediation process, which requires the …
Defining The Ethical Limits Of Acceptable Deception In Mediation,
2012
Pepperdine University
Defining The Ethical Limits Of Acceptable Deception In Mediation, John W. Cooley
Pepperdine Dispute Resolution Law Journal
In a recent law review article I authored for the Loyola University of Chicago Law Review, Mediation Magic: Its Use and Abuse, I addressed the perplexing problem of the current lack of ethical guidance available to mediators and mediation advocates on the question of permissible uses of deception in mediation generally and in caucused mediation, in particular. This article is a sequel to that publication, offering the reader a condensation of some of the ideas contained in that article and some additional thoughts on criteria that might be appropriate to consider when designing a truthfulness standard for mediation.
The Neutral As Lie Detector: You Can't Judge Participants By Their Demeanor,
2012
Pepperdine University
The Neutral As Lie Detector: You Can't Judge Participants By Their Demeanor, Bruce Fraser
Pepperdine Dispute Resolution Law Journal
As mediators we are often faced with sharply conflicting stories. One of the advantages of mediation is that we sometimes can solve the underlying problem without determining who did what, to whom, and when. Indeed, experience has shown that mediation is not a good process for finding the truth because it has none of the tools (such as testimony under oath) used for this purpose in the judicial system. Still, mediators often spend a good deal of time and effort trying to determine who is telling the truth.
The Truth About Deception In Mediation,
2012
Pepperdine University
The Truth About Deception In Mediation, Jeffrey Krivis
Pepperdine Dispute Resolution Law Journal
Now that the court system has institutionalized the use of mediation in virtually all civil proceedings, trial lawyers are paying closer attention to their negotiation skills. While those skills involve less structured behavior than presenting a case to a jury, they nonetheless involve one common strategy that even the most skilled practitioners refuse to acknowledge: deception.
Journeys Into The Heart Of Conflict,
2012
Pepperdine University
Journeys Into The Heart Of Conflict, Kenneth Cloke
Pepperdine Dispute Resolution Law Journal
This is an excerpt from a forthcoming book by Mr. Cloke. Sweet, indeed, are the uses of adversity, yet this sweetness is often concealed in the ugly, venomous aspects of conflict. The "precious jewels" our conflicts contain are the deeper truths they are able to teach us. What prevents us from recognizing these deeper truths and learning from our conflicts? What drives us along ugly, venomous paths of aggression and self-destruction rather than dialogue and constructive engagement? What keeps us locked in impasse? And how can a deeper understanding of the origin of our conflicts help us locate these precious …
Getting To The Heart Of The Matter - Taking Risks That Honor Yourself And Your Work,
2012
Pepperdine University
Getting To The Heart Of The Matter - Taking Risks That Honor Yourself And Your Work, Linda E. Meyer
Pepperdine Dispute Resolution Law Journal
I am here to talk to you about what got you into this profession in the first place. And that was a feeling. A feeling that is very hard to articulate, except maybe to yourself. It was a sense that there was something here for you that was new, that was different, that was amazing, and that you could actually be part of a process where things happened and changed. You could be respected. You could be honored. You could feel that you had actually done something that made a difference. I want to tell you that is why I …
Mediating Multi-Party Disputes: Reflections On Leadership In Mediation,
2012
Pepperdine University
Mediating Multi-Party Disputes: Reflections On Leadership In Mediation, Elizabeth "Wendy" Trachte-Huber
Pepperdine Dispute Resolution Law Journal
Leadership in mediating multi-party matters is imperative. In my work as Claims Administrator for one of the largest ever personal injury/bankruptcy settlements ($2.3 billion, net present value), I am charged with four primary areas of responsibility: (1) the efficient and fair evaluation of claims consistent with provisions of the Joint Plan of Reorganization; (2) the efficient delivery of payments to all approved claimants pursuant to the provisions of the Joint Plan; (3) the management and custody of the assets paid to the Settlement Facility; and finally (4) the faithful execution of the provisions of the Joint Plan in all respects. …
"Adr" Comes Of Age: What Can We Expect In The Future?,
2012
Pepperdine University
"Adr" Comes Of Age: What Can We Expect In The Future?, Richard Chernick
Pepperdine Dispute Resolution Law Journal
Important developments in dispute resolution are reported in the legal and popular press every day. We have recently seen, for example, major developments in arbitration ethics, mediator confidentiality, standards for mandatory consumer predispute processes and expansion of court-annexed ADR programs. This is an opportune time to think about the future of ADR, because dispute resolution has survived its infancy and its sometimes awkward adolescence without any obvious body piercings, tattoos or felony convictions and is now thriving, energetic and poised for its most productive period.
First The Context, Later The Challenge: Commercial Mediators Interface With The Volatile International Sector,
2012
Pepperdine University
First The Context, Later The Challenge: Commercial Mediators Interface With The Volatile International Sector, William F. Lincoln
Pepperdine Dispute Resolution Law Journal
Unless we talk of international commerce, the two respective sectors in which you and I each work appear to be very separate arenas that lack any commonality. But, if we permit, a common bond indeed yearns to be acknowledged and cultivated: You and I have willingly accepted the honorable mantle as stewards of integrity, competency, and credibility of the mediation process and the profession itself. Mediation - a process which is neither pure nor scientific; a process complete with bastardizations such as mandatory mediation provisions as well as creative variations including partnering and med-arb models; a process which we regard …
The Center Of The Center For Alternative Dispute Resolution,
2012
Pepperdine University
The Center Of The Center For Alternative Dispute Resolution, Wayne D. Brazil
Pepperdine Dispute Resolution Law Journal
Hawaii was one of the first states to establish within its judiciary a Center for Alternative Dispute Resolution. The Center's mission is: to mediate major public policy disputes and to facilitate policy formulation dialogues, to design and help implement mediation and other ADR programs for state and local governmental agencies, to provide education about and training in mediation for the public and for employees of state and local government, and to oversee the extensive network of community mediation centers that provide grass-roots mediation services throughout the Islands. In November of 2005 the Center celebrated its 20th anniversary by sponsoring various …
Moving Forward Together: The Lgbt Community And The Family Mediation Field ,
2012
Pepperdine University
Moving Forward Together: The Lgbt Community And The Family Mediation Field , Mark J. Hanson
Pepperdine Dispute Resolution Law Journal
This is a time of great change for the Lesbian, Gay, Bisexual and Transgender ("LGBT") community. Members of the LGBT community have gained increased awareness and rights. The United States Supreme Court found state sodomy laws that ban same-sex sexual activity unconstitutional. Thirty-three states have enacted hate crime legislation that protects members of the LGBT community. Recently from the streets of San Francisco, to New Platz, New York and to Sandoval County, New Mexico, LGBT couples have received marriage licenses despite being prohibited by state law. Other states, such as Connecticut, Massachusetts and Vermont have enacted legislation giving LGBT couples …
A Civil Matter For A Common Expert: How Should Parties And Tribunals Use Experts In International Commercial Arbitration?,
2012
Pepperdine University
A Civil Matter For A Common Expert: How Should Parties And Tribunals Use Experts In International Commercial Arbitration?, Ruth Fenton
Pepperdine Dispute Resolution Law Journal
How should parties and tribunals use experts in international commercial arbitration? Are the common and civil law traditions blurred or blended, or should there be specific practices for international arbitration? To answer these questions, it is necessary to look at the common and civil law approaches to the use of experts in international commercial arbitration. This article will look at circumstances that may require an expert and arbitration laws and rules that assist parties and arbitrators in appointing an appropriate expert. The article highlights and discusses differences and similarities between civil and common law traditions and draws a conclusion as …
The Impact On "The Vanishing Trial" If People Of Faith Were Faithful To Religious Principles Of Settling Disputes Without Litigation ,
2012
Pepperdine University
The Impact On "The Vanishing Trial" If People Of Faith Were Faithful To Religious Principles Of Settling Disputes Without Litigation , Anthony R. Benedetto
Pepperdine Dispute Resolution Law Journal
Commentators have expressed concern about "the vanishing trial" with respect to the possible loss of precedent and the loss of opportunities for aggrieved persons to have their concerns resolved in the judicial arena. Ignoring the controversy surrounding whether the number of trials is actually decreasing significantly, this paper asks whether the number of trials would be significantly affected if all people of faith resolved their disputes within their religious communities, or at least outside of the secular court setting. The impact on secular case law of the disappearance of such disputes is then estimated. Finally, recommendations are presented for overcoming …
The Confirmation Of Punitive Awards In Arbitration: Did Due Process Disappear?,
2012
Pepperdine University
The Confirmation Of Punitive Awards In Arbitration: Did Due Process Disappear?, Stuart M. Boyarsky
Pepperdine Dispute Resolution Law Journal
Part I of this article provides a brief overview of the reasoning behind the limited judicial review of an arbitral award. Part II describes the state action doctrine and explains how several courts have used the doctrine in order to apply due process protection to proceedings involving private actors. In particular, this section discusses several significant decisions that involve the issue of whether a court's confirmation of an arbitrator's award of punitive damages creates state action and requires the application of constitutional protections such as due process. This Note concludes that due to a leading decision by the Eleventh Circuit, …
Sailing Around Erie: The Emergence Of A Federal General Common Law Of Arbitration ,
2012
Pepperdine University
Sailing Around Erie: The Emergence Of A Federal General Common Law Of Arbitration , Kenneth F. Dunham
Pepperdine Dispute Resolution Law Journal
This paper traces the history of American arbitration from the common law to the FAA. It discusses the FAA as a procedural act prior to Southland v. Keating and as a substantive law act following Southland. It discusses the Erie doctrine as applicable to federal courts and state law preemption. The article concludes that Southland by-passed Erie using the Commerce Clause and the Supremacy Clause to create a federal common law of arbitration.
Effectiveness Of Citizens Advisory Boards In Addressing Fairness In Environmental Public Disputes ,
2012
Pepperdine University
Effectiveness Of Citizens Advisory Boards In Addressing Fairness In Environmental Public Disputes , Melissa Lor
Pepperdine Dispute Resolution Law Journal
This paper will assess whether or not consensus building and citizens advisory boards adequately address the issues of procedural fairness regarding public participation in environmental disputes. Part II describes the preceding methods leading up to the development of consensus building and citizens advisory boards in dealing with public involvement. In particular, it discusses the review-and-comment and regulatory negotiation models to environmental public disputes. Part III describes the consensus building process, particularly the use of citizens advisory boards, and evaluates the effectiveness of consensus building and citizens advisory boards in addressing fairness of public participation. In addition, it discusses the use …
A Secret In One District Is No Secret In Another: The Cases Of Merrill Lynch And Preliminary Injunctions Under The Faa ,
2012
Pepperdine University
A Secret In One District Is No Secret In Another: The Cases Of Merrill Lynch And Preliminary Injunctions Under The Faa , Anahit Tagvoryan
Pepperdine Dispute Resolution Law Journal
Public policy favors protecting intellectual property in arbitration, and both Congress and the courts support, and in fact encourage, arbitration of intellectual property disputes. This support stems from the history of favoritism toward private arbitration agreements and other alternative dispute resolution in lieu of judicial adjudication. Because intellectual property disputes often involve commercial parties transacting business across state lines, arbitration is governed by the Federal Arbitration Act (FAA). Availability of provisional remedies such as injunctions has also proven effective in the area of intellectual property disputes. However, unlike the option and process of private arbitration where there is little to …
The Aclu And The Propriety Of Dispute Resolution In Civil Rights Controversies,
2012
Pepperdine University
The Aclu And The Propriety Of Dispute Resolution In Civil Rights Controversies, Amber Mckinney
Pepperdine Dispute Resolution Law Journal
Section I examines the history, purpose, and methodology of the American Civil Liberties Union. Section II discusses the historical development and use of Alternative Dispute Resolution. Section III, Part A provides examples of its use in environmental controversies, Americans with Disabilities Act disputes, and employment conflicts. Section III, Part B explains the arguments for and against the use of Alternative Dispute Resolution in Civil Rights Controversies. Section IV, Part A looks at examples of the use of Alternative Dispute Resolution by the American Civil Liberties Union, while Part B provides insight into the interplay of Alternative Dispute Resolution and the …
