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"ADR Prof Blog" - 5 new articles

  1. Love: Is Mediation A Sleeping Beauty?
  2. Peace Be With You…And With You?
  3. Industry Response to Consumer Arbitration Study
  4. Another new ADR Dean – Bo Rutledge
  5. From the Onion
  6. More Recent Articles
  7. Search ADR Prof Blog
  8. Prior Mailing Archive

Love: Is Mediation A Sleeping Beauty?

From FOI Lela Love (Cardozo) – dispatches from the Melnick Symposium at Cardozo – Is Mediation a Sleeping Beauty?

On November 2, 2014, at the Cardozo Journal of Conflict Resolution fall symposium, speaker after speaker asked Is Mediation a Sleeping Beauty?It was a taking stock event with luminaries from the field seeing this as a turning point in reviving core elements of mediation or succumbing to the devolution of mediation in the direction of an adversarial litigation-lite process or, at best, a settlement conference. Most thought that mediation was indeed sleeping and not all together beautiful and that action was needed to revive her.

Here are highlights from the speakers:

  • Professor Giuseppe De Palo (ADR Center in Rome, Italy) proposed mandatory mitigated mediation (mandatory mediation with an easy opt-out) as a response to the underuse of mediation throughout the European Union.  Thanks to this process, Italy leads countries in the EU in the use of mediation.
  • Kim Kovach suggested that mediation is in a coma due to its marriage with litigation in court settings, and the resulting mutant child (liti-mediation) is indeed unattractive.
  • Professor Jacqueline Nolan-Haley (Fordham Law School) described these times as a season of light with mediation’s popularity at a high point and also a season of darkness from abuse of process and confusion of the mediator’s role.
  • Professor Robert A. Baruch Bush (Hofstra University School of Law) concluded that mediation had been drawn into an intoxicating problem-solving culture—resulting in many mediators being too focused upon the “drug-like high” of settlement.
  • Professor James Coben didn’t mince words when he said that he believed mediation has turned ugly – another tool for litigators to delay and abuse the judicial system. He also described our current system for selecting mediators as an “aristocracy,” not based on mediator skill but instead on inflated reputations.
  • Professor Josh Stulberg explored whether interest-based bargaining theory, often the mediator’s privileged approach for fostering negotiation, operates to reinforce party inequalities and undermine party self-determination, contrary to the presumptively salient values of the mediation process.
  • Eric Galton blamed commercial mediators for caving in to lawyer demands to eliminate joint sessions, limit party participation, and provide evaluations.
  • Professor Nancy Welsh shifted to the fairy tale of Cinderella, arguing that as courts prioritize case closure and lawyers’ preferences over process quality or the protection of parties’ self-determination, they too often behave like the self-interested and vain stepmother. Maybe the courts can be the Fairy Godmother, though, by granting mediation the markers of legitimacy and thus enabling others to appreciate the process’ inherent beauty.
  • Professor Erez-Navot pointed to “wicked witch” elements in child permanency mediation, including reduced party participation and representatives who are more concerned with their professional relationships with judges and adversaries than the welfare of the parties they represent.
  • Professor Carol Liebman suggested candidates for Prince Charming might be: mandatory mediation (for certain cases), pay for mediators (in situations where other professionals are being paid), and adherence to core mediation values.
  • Tracy Frisch discussed several efforts of the AAA to respond crises, such as Hurricane Sandy and the bankruptcy crisis in Florida.
  • Brad Heckman shared his experience using social media to promote mediation and described the unparalleled access and exposure he found in using outlets such as Twitter and participating in TEDx.
  • Laurel Kaufer struck a positive note, finding beauty in mediation as she described the success of Prison of Peace, a nonprofit organization she co-founded that trains long-term inmates in mediation, life, and peacemaking skills.

The Journal of Conflict Resolution will be publishing a symposium edition in Spring 2015.  Many of the presenters at the symposium will be publishing articles in line with the themes discussed at the symposium.

    


Peace Be With You…And With You?

Under the heading of hard bargaining tactics gone bad (and bad lawyer advice), we can now add this story.  When a group of eight faculty members at the General Theological Seminary in Manhattan decided to stop working in order to protest their newly hired dean and president, Rev. Kurt H. Dunkle, all purgatory broke loose. Under advice of their counsel, the faculty wrote a rather strongly worded letter outlining their demands regarding the dean.  (See the nasty details of the dean’s behavior here).

Unimpressed with the tone of the letter, the Board of Trustees for the Seminary considered the letter, instead of the opening bid that the faculty intended, as a mass resignation.  They dismissed the eight faculty members (leaving the students at the Seminary with only two instructors.) In this case, the eight faculty members’ hard bargaining tactic to have their foul-mouthed, micromanaging (in their descriptions) dean dismissed ended up focusing attention on their perceived “bad” behavior rather than that of their dean.

Earlier this month, seven of the faculty members were reinstated (one of them accepted a severance package and moved on).  And only now, (finally) the faculty and board of trustees are using mediation to see if their interests can be met.

When we talk about expanding the pie, we should also be talking about shrinking the pie.  This is a great example of just that–and woe for the unlucky students. (Hat tip to my colleague Bruce Boyden for this awesome storyline)

    

Industry Response to Consumer Arbitration Study

Alan Kaplinsky and Mark Levin, Ballard Spahr attorneys writing on their CFPB Monitor blog, have offered their initial thoughts on the study of consumer understanding of arbitration agreements that my St. John’s colleagues and I recently posted.

My colleague Jeff Sovern has posted a full response at the Consumer Law & Policy Blog. I’ll just add that, in my view, Levin and Kaplinsky don’t actually address the core problem we address in our article–that citizens are being unwittingly and unwillingly forced to give up important (and constitutionally guaranteed) procedural rights. Their point–and it is the point arbitration advocates almost invariably make–is that arbitration can be better for consumers than litigation. That may very well be true, at least some of the time. (See my post on the benefits of limited consumer arbitration here.) But it doesn’t answer the right question.

The constitution guarantees a right to a jury trial in civil disputes. More broadly, the rule of law depends on access to public adjudication to enforce private rights. Citizens cannot be forced into alternative processes simply because someone has made a determination that they would in fact be better served by the alternatives. It is certainly true that citizens can choose to give up their adjudicative rights, but those choices have legitimacy only if they are knowing and voluntary. Our research suggests that consent to arbitration is seldom knowing and voluntary.

    


Another new ADR Dean – Bo Rutledge

Peter B. “Bo” Rutledge has been named Dean at the University of Georgia School of Law.  Press release here.  Congrats Bo !!

By my count, here are the ADR Deans off the top of my head: Brown (Quinnipiac),  Guthrie (Vandy), Kloppenberg (Santa Clara), and our very own Moffit (Oregon).  Now we add Paul (Montana) and Bo to the mix.  I presume I’ve left someone out, did I?

    

From the Onion


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