Annotations

Olivia Maria Baratta, Dana L. Hannaman, A Global Update on the Domain Name System and the Law: Alternative Dispute Resolution For Increasing Internet Competition – Oh The Times They Are A-Changin’! 8 Tul. J. Int’l & Comp. L. 325 (2000). 

This article addresses the tensions that arise from the territorial nature of trademark law and the unlimited geographical scope of the Internet. These tensions arise because of the lack of regulation that accompanies the internet combined with the stringent rules and regulations that have always been a part of trademark law. The Uniform Dispute Resolution Policy has been implemented in many domain name disputes as an alternative to litigation in thisfield. Additionally, the Internet Corporation for Assigned Names and Numbers (ICANN) was formed to alleviate unwanted government responsibility for the resolution of intense political and economic conflicts which arose from the demand for top level domain names. ICANN aims to preserve the central functions for the public good. ICANN selects new domain name registrar companies to serve as competitors to the initial registrar company. These policies were implemented since trademark infringement and cybersquatting are two recurring issues that will inevitably continue to surface until clearer lines are drawn as to what constitutes trademark infringement.

Marshall J. Breger, Should an Attorney be Required to Advise a Client of ADR Options?, 13 Geo. J. Legal Ethics 427 (2000). 

This article addresses the role of recommending Alternative Dispute Resolution (ADR) options when attorneys are counseling their clients. ADR procedures may better suit the needs of certain clients, although they may not always be aware of the existence of such options. The author identifies the lack of clarity in ethical codes as a major cause of confusion when determining if clients need to be advised of ADR options. For example, Model Rule 1.4(b) does not even specifically mention ADR. It states only “a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” This broad language suggests that attorneys use reason. As a solution to this problem, the author calls for better drafting of ethical “rules”, which could indicate the requirements of advising of ADR choices. The author concludes that the drafters of ethical rules should either strongly urge attorneys to consider advising of ADR options, or make ADR consultation mandatory.

Jessica R. Dominguez, The Role of Latino Culture in Mediation of Family Disputes, 1 J. Legal Advoc. & Prac. 154 (1999). 

This article illustrates the importance of recognizing the different values Latino participants bring to the mediation process. According to the author, the failure of mediators to understand the [*151] specific cultural needs of Latino participants has led to a break down in communication, a fundamental step of the mediation process. The failure to communicate with participants has often resulted in a mediation that often makes little sense to the parties involved, and is therefore ineffective. The author asserts that mediators must be sensitized to cultural differences in order to become more effective in creating outcomes that are consistent with the participants’ culture and needs. Furthermore, in the interest of increasing the level of comfort for Latino and other cultural groups participating in mediation, the author suggests the creation of (1) orientation films geared toward these various ethnic groups (2) pre-mediation guidelines for mediators (3) and translation of materials in several languages, for those less comfortable with the English language.

Rita Lowery Gitchell & Andrew Plattner, Mediation: A Viable Alternative to Litigation For Medical Malpractice Cases, 2 DePaul J. Health Care L. 421 (1999). 

This article suggests that mediation is a useful alternative to litigation for medical malpractice cases because it allows for a positive resolution of the conflict while retaining the option of litigation. The result is a win-win situation as the parties can attempt to mediate and possibly reach a solution to their conflict. If this goal is not achieved, litigation in the court is still available to the parties at a later date. Claimants frequently prefer an explanation from the health care provider as to what occurred in the course of health care, in addition to collecting a monetary award. The mediation process allows this type of open dialogue that is not available during a traditional litigation proceeding. As such, special considerations for mediating a malpractice case allow for resolution of both monetary and personal issues between the parties.

Christine Lepera & Jeannie Costello, Alternative Dispute Resolution: What the Business Lawyer Needs to Know, 605 PLI/LIT 593 (1999). 

Alternative Dispute Resolution (ADR) techniques are now being used frequently and with substantial success. ADR has been successful in the resolution of (1) disputes involving intellectual property rights; (2) entertainment industry disputes; and (3) employment discrimination disputes. First, intellectual property disputes are expensive to litigate because they are fact-intensive and often technically complex, requiring numerous experts, elaborate surveys, and extensive discovery. Second, entertainment disputes frequently involve emotionally charged issues related to the ownership of creative works, or longstanding contractual or fiduciary relationships, involving parties such as record companies and multi-media companies. Litigation can be destructive to both sides, destroying reputations, careers and long standing relationships. Consequently, entertainment disputes mediated by someone with experience in the particular standards and nuances of the industry can help focus the parties and creatively work toward formulating practical resolutions. Finally, the privacy and confidentiality of mediation [*152] is welcome in the context of employment disputes; most employees want to protect their reputations and continue their careers, while employers are concerned about business repercussions, workplace disruptions, and precedent setting awards. Further, Congress has adopted the Alternative Dispute Resolution Act of 1998 which requires all federal district courts to adopt an official ADR program and to designate a specific person to administer the program. These new ADR provisions leave broad discretion to the district courts to choose which form of ADR they desire for their specific programs. Overall, in both state and federal courts, there has been a continued growth in the use of ADR in resolving a wide array of disputes.

Mary F. Radford, An Introduction to the Uses of Mediation and Other Forms of Dispute Resolution in Probate, Trust, and Guardianship Matters, 34 Real prop. prob. & tr. J 601(2000). 

This article contains a brief overview of various methods of Alternative Dispute Resolution (ADR) and their interrelation with probate, trust, and guardianship matters. The author focuses her analysis on the use of mediation and it’s effect on five distinct situations that arise in this field of law. Those five situations are: (1) the informality of the probate court proceedings, (2) the family settlement doctrine, (3) mediation in estate planning, (4) tax issues that accompany mediation, and (5)special problems encountered by fiduciaries. Further, the author determines that the use of ADR in this field of law is developing slowly because practice in these areas are heavily focused on planning and family counseling, along with the pre-existing formality of Probate Court proceedings. However, lawyers who practice probate trust and guardianship law can no longer ignore the uses ADR has within this field of law.

Andrea Kupfer Schneider, Building a Pedagogy of Problem-Solving: Learning to Choose Among ADR Processes, 5Harv. Negotiation L. Rev. 113 (Spring 2000). 

In this article, the author abandons the traditional adversarial role of lawyers and outlines a new model under theories of “therapeutic justice” and “preventative law” by which lawyers serve as counselors, problem solvers, and negotiators, as opposed to the traditional adversarial agent. The goal of this new model is to help a client achieve a more emotionally satisfactory solution, and not simply economic resolutions, through the proper selection and use of Alternative Dispute Resolution (ADR). ADR differs from the traditional adversarial system in that ADR seeks a mutually satisfactory process by which to resolve disputes. “Therapeutic justice” is an interdisciplinary perspective originally developed in the field of mental health law in which legal procedures of civil commitment and treatment made excellent case studies for the psychological impact of law on patients. “Preventative law” is a perspective on law practice that seeks to minimize and avoid legal disputes thereby increasing life opportunities through legal planning. The author contends that negotiation works best for a client who does not [*153] want to be involved in the process since it usually involves discussions between the lawyers. However, when a client implements mediation, a problem solving approach to negotiation, it is more likely that a client’s needs will be better met. In addition to being more economically efficient, mediation can have excellent therapeutic effects for the client because the two parties meet and communicate face-to-face. Arbitration potentially has the same benefits as mediation, except that often times in arbitration the lawyers do most of the talking, thereby shutting the client out achieving a less therapeutic effect. The author contends that the benefits of ADR cannot be fully realized until lawyers have a better understanding of the ADR process and are better able to counsel a client in the proper selection among ADR methods.

Jeffrey C. Sun, University Official as Administrators & Mediators: The Dual Role Conflict & Confidentiality Problems, BYU Educ. & L.J.19 (1999). 

The article suggests that use of mediation in institutes of higher education can be a very valuable tool inresolving disputes. However, the dual role of the mediator, as an impartial neutral and as a staff member employed by the university, may cause students to become concerned about impartiality issues. This article confronts these concerns, and more specifically it addresses ways in which mediation programs can best foster confidentiality between the mediator and the student-disputant. One of the proposed confidentiality mechanisms is the Chinese wall, a procedure meant to insulate the mediator by means of implementing various measures, such as prohibiting neutrals from participating in disciplinary proceedings with students seeking mediation. A second mechanism proposes that the university establish an agreement which indicates that matters addressed in mediation will remain confidential unless prohibited by law. Another proposition is for the university to institute a code of professional standards. This is beneficial because it would create a clear, uniform system as well as a general understanding among students. Without a code of conduct for administrator-mediators, it is questionable whether or not a university alternative dispute resolution program is feasible.

Brett A. Williams, Comment, Consensual Approaches to Resolving Public Policy Disputes, 2000 J. Disp. Resol. 135, (2000). 

This article suggests that litigation is not the ideal method to resolve public policy disputes since these disputes concern the distribution of facilities and funds. In addition, unlike private disputes, public policy disputes are not solely win-lose situations. The author contends that assisted or unassisted negotiation may help to resolve public disputes faster and cheaper than conventional litigation. The author further states that, regardless of whether you utilize a process of unassisted negotiation or a form of assisted negotiation, such as facilitation and mediation, the process should be consensual between the parties involved. The parties should include all those that [*154] have a stake in the outcome of the dispute i.e., interested citizens, business interests, and public officials. The author then uses an example of the resolution of environmental disputes to illustrate these techniques. In these cases mediation is becoming recognized as a viable alternative in the litigation of substantive and procedural issues. The author concludes by stating that the states should follow the lead of the federal government, which has enacted the Negotiated Rulemaking Act that establishes a framework for federal agencies to utilize negotiation.

Frances E. Zollers, Alternative Dispute Resolution and Product Liability Reform, 26 Am. Bus. L.J. 479 (1988). 

The author summarizes different forms of Alternative Dispute Resolution (ADR) processes in reference to certain bills proposed by Congress on product liability reform. Earlier bills had a claim procedure form of ADR while later bills had a settlement procedure form. The claims procedure mirrors negotiation where the court does not intervene and the parties attempt to reach a settlement. This process attempts a balancing equation where the burden of proof for the plaintiff is low in return for limited damages, i.e., only economic damages. However the author critiques this approach because it gives a defendant an unfair advantage over a plaintiff. The plaintiff is capped at a certain amount of damages and if the plaintiff is of a low economic status, the defendant has control of the bargaining process. The author urges that the settlement process is more efficient. It mirrors court-annexed arbitration. Here, the plaintiff does bring an action to court and the court, sua sponte, initiates arbitration. The damages are capped as well but allow for dignitary losses (those other than economic). The parties have the option of allowing the court to give expedited rulings on damages or they can enter into any ADR procedure recognized by the state where the action was brought. The author concludes that the current bills are a good attempt to reconcile ADR with product liability reform, but more needs to be done. Her major critique is that the current ADR mechanisms in those bills treat all product liability claims alike. This oversimplification can have adverse effects on claimants and defendants. She recommends the use of an arbitrator instead of a mediator at all times. The author concludes that if ADR is to work in product liability claims, it must not only save time and money, but also be fair and effective for all parties.