Michael T. Colatrella, Jr., @Court-Performed@ Mediation in the People@s Republic of China: A Proposed Model to Improve the United States Federal District Court@s Mediation Programs, 15 Ohio St. J. On Disp. Resol. 391 (2000).
The author begins by discussing the enormous litigation overload present in the Federal District Court Systems. This overload has lead to the implementation of court-annexed mediation programs that have not gained wide acceptance. The author suggests that the Federal Court System look to the @court-performed@ mediation that occurs in the People@s Republic of China, which accounts for 60% of settlements that were originally filed in the Chinese court system. Mediation, as practiced in China, has developed due to the Confucian philosophy, an inadequate court system, and Maoist thought. The author points out that the main difference between mediation in the US Federal Courts and the Chinese courts is that mediation occurs in the court and out of the court, respectively. The author argues that the US courts will bring credibility to the mediation process if it follows China@s lead by creating a @court-performed@ mediation.
John W. Cooley, Shifting Paradigms: The Unauthorized Practice Of Law Or The Authorized Practice Of ADR, 55 Oct Disp. Resol. J. 72
The author warns of the challenges that currently face the ADR profession. He is concerned about the misconception of ADR as practiced by mediators versus ADR as practiced by lawyers. The author states that his concerns emanate from a lawyer@s rigid view of what what is encompassed by the notion of @practicing law@. The author continues by remarking that simply because mediators often apply legal concepts to the facts of a particular case, this does not and should not constitute the practice of law. He points out that two states have already implemented guidelines defining certain mediator activities as the practice of law. He concludes by stating that lawyers should be framing the problem in terms of the practice of ADR, rather than in terms of the practice of law, or the unauthorized practice of law. In addition, the author states that stringent guidelines that might be implemented will reduce the mediation process to a mechanical, word-precise, content void exercise. The author offers solutions to avoid this dilemma.
Bridget Genteman Hoy, The Draft Uniform Mediation Act in Context: Can it Clear up the Clutter, 44 St. Louis U. L. J. 1121 (2000).
By 1993, the increase in the use of mediation nationwide resulted in 2,000 individual state statutes relating to the practice of mediation. Subsequently, regulation in this area has become unorganized, overlapping, incomplete, and incoherent. In 1999, the Draft Uniform Mediation Act (Draft) was proposed by the American Bar Association and the National Conference of Commissioners on Uniform State Laws to provide for quality mediation by replacing conflicting state statutes with a uniform code. At the heart of the Draft are its provisions requiring disclosure and representation, as well as its failure to address the issue of mediator immunity. The right to disclosure and representation are positive steps in ensuring that the best interests of the parties to a mediation areprotected. However, mediators are only required to disclose potential conflicts of interest; if the parties want disclosure of a mediator@s qualifications, they must request it. By placing the burden of qualification disclosure on the parties, the Draft exposes the mediation process to the risk of delays and increased costs caused by unqualified mediators. Additionally, by not addressing the issue of mediator immunity, the Draft contradicts its unifying purpose, as the question will be left to contradicting state laws. In achieving the goal of an effective and unified mediation process, the Draft would be better served by placing the burden of qualification disclosure on the mediators and by addressing the issue of mediator immunity in recognition of the existing state laws.
Rosetta E. Ellis, Mandatory Arbitration Provisions in Collective Bargaining Agreements: The Case Against Barring Statutory Discrimination Claims From Federal Court Jurisdiction, 86 Va. l. Rev. 307 (2000).
When Title VII of the Civil Rights Act of 1964 was enacted, Congress provided victims of employment discrimination the opportunity to redress their injury in federal court. However, with the recent implementation of mandatory arbitration, this avenue of relief may soon no longer be available. The author stresses that this may be unfair since, although the majority of employees may have voted for the union, a lot of the employees covered by the collective bargaining agreement may not have voted for it. The result of this is that many employees are subject to the mandatory bargaining agreement and are estopped from bringing their claims to federal court. The author stresses that these mandatory arbitration provisions may not fairly resolve disputes. He concludes by suggesting that employees be permitted to choose to bring their discrimination claims either to arbitration or federal district court.
Gregory A. Litt, No Confidence: The Problem of Confidentiality by Local Rule in the ADR Act of 1998, 78 Tex. L. Rev. 1015 (2000).
The Alternative Dispute Resolution Act of 1998 (“ADR Act”) requires that every U.S. district court implement an ADR program. The Act provides basic guidelines for the ADR programs and leaves certain details for the courts to decide by local rule. For example, the ADR Act leaves the problem of mediation confidentiality in the hands of the courts. The author argues that it was unwise for Congress to leave the issue of mediation to the local rules of different jurisdictions. The author insists that confidentiality is especially critical to the success of the mediation process, since it can compel parties to speak more honestly. This allows a mediator to help parties better evaluate their cases and find more room for settlement. As there is no federal rule on this issue, district courts use mediation rules they have established prior to the Act on confidentiality. The author states that this provision of the ADR Act is likely to aggravate the proliferation of diverse local rules and policies onconfidentiality. As such, the author proposes that the Judicial Conference and the Supreme Court establish a uniform policy on mediation confidentiality or that Congress amend the ADR Act to include a uniform confidentiality standard.
Colleen A. Libbey, Working Together While @Waltzing in a Mine Field@: Successful Government Construction Contract Dispute Resolution With Partnering and Dispute Review Boards, 15 Ohio St. J. on Disp. Resol. 825 (2000).
The Federal Government has implemented dispute prevention and resolution procedures in conflicts involving construction contracts. The U.S. Army Corps of Engineers is one group that has incorporated ADR for the resolution and prevention of disputes. The rising government costs were one reason that the Corps decided to implement dispute resolution procedures. However, the author notes that more specific ADR provisions need to be included in these contracts. The author points out that the typical method used by construction companies is @partnering.@ Partnering focuses on preventing contracting disputes by nurturing the relationship between the contracting parties. The author suggests that there should be a combination of partnering and the use of dispute resolution boards. The synthesis of the two would keep the existing relationship and ensure that all disputes that arise would be resolved with minimal effect on the project at hand.
Michael Palmer, Esq., Problem-Solving Negotiation: What@s In It for You and Your Clients, 26-oct. VT.B.J. 1 (2000).
This article suggests that problem-solving negotiation (@PSN@), as opposed to litigation, is a more advantageous strategy for lawyers to use when dealing with disputes. All too often, litigation, which involves positional bargaining, is not the most adequate tool in addressing clients@ needs. Positional bargaining is faced with many limitations such as: failing to listen to each other, allowing a conflict to escalate into harsh words or even violence, and dismissing innovative ways to produce more value for each party. Problem-solving negotiation is a general strategy for dealing with a variety of conflicts in a manner that leads to a favorable outcome for all parties involved. The key to obtaining a beneficial outcome in PSN is to integrate seven elements, which include: (1) the relationship between the parties; (2) communication between the parties; (3) the parties@ interests; (4) each party@s walk-away alternative; (5) possible options; (6) shared standards of legitimacy for assessing proposals and (7) commitment to one or more courses of action. The attorney incorporates the facts and the law into a larger context and encourages the parties to work towards an agreement that will be more beneficial than a court-imposed result. Some of the benefits the lawyer may experience in using PSN skills include a gratifying sense of fulfillment in the practice of law; helping a client come away from a dispute with a good outcome and an improved relationship with a former adversary; and better assisting clients in mediation and other forms of alternative dispute resolution.
Ellen Waldman, Substituting Needs for Rights in Mediation: Therapeutic or Disabling? 5 Psychol. Pub. pol@y & l. 1103 (1999).
The author begins the article by discussing how mediation differs from litigation as well as other ADR techniques. The author points out that mediation focuses on the needs (subjective) of participants that require satisfaction, rather than the rights (objective), as the hallmark of success. The author insists that this approach is problematic. Particularly, minorities and women who express their needs usually achieve worse outcomes than their white male counterparts. However, the author points out that these non-white male groups do experience more satisfaction from mediation. The author continues by suggesting that this need basis can result in biased settlements due to the influence that prejudice has on the definition of needs. Furthermore, need based settlements are not superior to right based settlements because needs are the product of underlying legal norms and entitlements, which can be distorted by individual understandings of those norms and entitlements. The author argues that, for mediations which involve minorities and women, the mediator should satisfy the participants@ needs and be careful to ensure that equality and equity are not impinged.