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In 1997, convened a conference around the question, “What will we do when adjudication ends?” In response to that provocative query, I advised, “We’ll settle in bunches.” I was wrong, but I was also right. Notwithstanding the Supreme Court’s then recent decision in Amchem Products, Inc. v. Windsor,
When did we forget how to talk to each other? Civility in public discourse has been on everyone’s mind since the shootings in Arizona. The lack of civility in the recent debt crisis debate cries out for the legal profession to take a leadership role in framing discussions constructively. ABA President Stephen Zack said it best in his ABA President’s message in the August 2011 ABA Journal. He noted that the legal profession has a rich history of vigorous debate and advocacy. We must, however, disagree and advocate appropriately.
This article (the first in a two-part series) is about the use of persuasion by mediators to help disputants achieve resolutions they seek but that might otherwise elude them. If this resonates with your concept of the mediator’s proper function, what follows should be useful. But if you are one for whom the words “mediator persuasion” trigger discomfort, these articles may be especially important to read.
The oil spill caused by the explosion of the Deepwater Horizon rig in 2010, and the ensuing environmental disaster in the Gulf of Mexico, is the latest accident in the that has led to injury, death and property loss claims on a grand scale. This loss, and many similar large losses before it, have led to claims that are too numerous for ad hoc determination. These types of losses typically include claimants, those subject to the claims, or a governmental organization demanding a "process" for the resolution of the claims.
The recent Supreme Court decision in AT&T v Concepcion[i] intensified earlier concerns about the fairness of pre-dispute arbitration agreements in consumer contracts. In the AT&T case, the court held that California contract law, which deems class-action waivers in arbitration and other agreements unenforceable when certain criteria are met, is preempted by the Federal Arbitration Act. Thus, California must enforce arbitration agreements even if the agreement requires that consumer complaints be arbitrated individually instead of on a class-action basis.
Direct party participation in the resolution of disputes is a key distinguishing feature of mediation. Party participation in mediation is thought to facilitate the discussion of underlying interests, which in turn can increase parties' understanding and the likelihood that their concerns will be addressed. Party participation is also thought to enhance "voice," parties' sense that they have had an opportunity to express their views. Voice, in turn, is associated with parties feeling that the mediation process and outcome are fair and legitimate.
A leading mediator tells the following story about his first case: After I left my law firm I sought out training in a community-based mediation program. The strong orientation of the seminar was on interest-based bargaining, and I left determined to make win-win solutions a key aspect of my practice.
This year the legal profession, the American Bar Association and the Section of Dispute Resolution lost a dear friend and colleague with the passing of Judge Resa Harris who served as the second Section of Dispute Resolution Chair in 1995-96. When Resa arrived the ABA Section of Dispute Resolution was not off to the most auspicious of starts in making the transition from an ABA Standing Committee to a Section. Into a breach of financial and personnel issues stepped a woman of remarkable courage and fortitude, Judge Resa Harris of , N. C.