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In Anatomy of a Mediation, Freund offers a very muscular, individualistic, mediator-centric approach to mediation. As a former deal-maker – he repeatedly tells us he was not a trial lawyer – he intimately understands the art of the deal. He acknowledges that his book unashamedly concentrates on his style of mediating. While his style is unique, he offers lessons to all committed mediators.
We hope you take a few hours during your summer to enjoy reading some of the dispute resolution books that are reviewed in this “Reading about Dispute Resolution” issue of Dispute Resolution Magazine. I know that they have motivated me to add to my already-extensive summer reading list. This issue also includes two new features. “Profiles in ADR” will interview an influential (and we hope inspirational) person within the field. “Research Insights” provides brief snapshots of social science research studies that can inform us about dispute resolution practice. I extend great appreciation to our hard-working Magazine editorial board members, who have brought these illuminating features to us.
In Arbitration and the Constitution, Peter B. Rutledge engages in a unique and fascinating analysis of the interrelationship between the US Constitution and arbitration. The topic is a timely one, since in recent years arbitration has increasingly been used in highly complex cases and in cases involving enforcement of individuals’ statutory rights. This increased use has heightened concerns about the need for arbitration to be fair and “get it right,” with the result that constitutional norms have worked their way into arbitration law, albeit in indirect fashion in many cases. Rutledge explains how arbitration, which was traditionally considered a purely private proceeding that operated outside the scope of the Constitution, has become subject to constitutional norms.
Michael McIlwrath is associate general counsel, litigation, of GE Oil & Gas in Florence, Italy, where he has led the company’s global dispute resolution team since 1999. Michael is co-author, with John Savage, of International Arbitration and Mediation: A Practical Guide (Kluwer Law International, 2010), as well as a contributing editor to the Kluwer Arbitration Blog. Michael is a member of the board of directors and past chairman of the International Mediation Institute, a nonprofit based in the Netherlands that promotes quality, transparency and ethics in mediation, and is a member of the board of directors of the National Center for Science Education, in Oakland, California, a nonprofit organization that defends the teaching of science in public schools.
Brazil ambitiously proposes this book for “lawyers, litigants, neutrals, judges, court program administrators and, public policy analysts” and, remarkably, offers real value to each. In 206 pages (with appendices), former magistrate-judge Brazil recounts the history of Early Neutral Evaluation (ENE) in the US District Court for the Northern District of California starting in the 1980s. He explains when and how litigants, lawyers and courts can maximize the opportunities offered by this unique ADR procedure. He offers advice, procedures and forms to evaluators, 15 specific “practice tips” to lawyers and practical advice to clients on how to use ENE to their full advantage. From blunt admonition for evaluators to follow the rules to nuanced observations on how they can win credibility with lawyers and reflect well on the integrity of the courts, no perspective is unaddressed.
As Ellen Waldman notes in the forward of her book, Mediation Ethics, Cases and Commentaries, ethical decision-making is no easy matter. It often requires a difficult choice between competing interests. Unlike the law, which involves more concrete concepts, ethics are somewhat amorphous and often must be determined through the lens of experience and based on the context in which a particular situation arises.
The Dispute Resolution Section celebrates its 20th anniversary this year. Although we are still among the youngest of the 30 ABA sections, divisions and forums, we are among the top third in membership, and the programming, diversity and attendance of our annual spring conference are the envy of many more established sections.
In more modern times, criminal law continued to dominate the law-and-psychology discussion. In her aptly titled 1979 opus, “Eyewitness Identification,” psychologist Elizabeth Loftus showed that cross-racial identifications tended to be particularly unreliable and that eyewitness testimony was subject to the vagaries of human memory. Even more recently, Loftus and other psychologists began to grapple with false, altered or implanted memories in cases involving allegations of sexual abuse.
Marjorie Corman Aaron synthesizes the large body of literature on communication, psychology and emotions, applies those lessons to tasks lawyers tackle to provide information and counseling to clients, and offers specific examples of effective ways to provide that counseling. Much of the book contains commonsense wisdom, but its strength lies in rooting that wisdom in science. By bringing the wisdom to a cognitive level, she helps practitioners apply the science creatively to client relations.
In the past two and a half decades, court-connected mediation has encountered a range of critics. Many of the promises described above were not specific to court-connected mediation; in fact, the advent of court-ordered mediation led many scholars to question whether mediation’s full potential could ever be realized in a court setting, where efficiency interests would likely prevail. Would litigation become more humane, or would mediation become more like adjudication?
Information and communication technologies (ICTs) are evolving at an ever-accelerating rate. Texting, email, web-based conferencing, electronic discussion groups and social networks facilitate instantaneous global communication on a scale never imagined just years ago. These communication tools, together with the rapid online interactions characterizing e-commerce, have created entire new universes for disputing and have inspired development of a plethora of creative technology-assisted dispute resolution processes.
This study explores mediator stylistic variations in a sample of 17 professional and 5 novice mediators. Participants mediated the same simulated conflict between two college roommates and reported on their in-session thinking using a stimulated recall procedure. Mediators described themselves as stylistically eclectic and flexible, but this was not borne out by observational data: Whatever approach mediators began with tended to dominate their performance throughout. The researchers identified two dimensions underlying mediator performance: stylistic orientation (relational versus settlement-oriented) and level of empathic attunement.
Overton had been active in national organizations, including the American Judicature Society and the American Bar Association. Overton’s activities in the ABA, of which he became a member in 1956, spanned decades; in the late 1970s, he chaired the ABA committee that drafted standards for judicial discipline. He worked on numerous other ABA committees and projects, including serving as Chair of the Section of Dispute Resolution from 2000 to 2001. Until just a few weeks before his passing, he had been leading committee projects for the ABA’s Criminal Justice Section.
In American Express Co., v. Italian Colors Restaurant, 570 U.S. ___ (2013), the Supreme Court held that the Federal Arbitration Act does not permit courts to invalidate a class arbitration waiver because the cost of individually arbitrating a claim exceeds the potential recovery. The Court explained that the effective vindication doctrine prevents waiver of a party’s right to pursue a statutory remedy, but the fact that it’s not economical to prove a statutory remedy does not “constitute the elimination of the right to pursue that remedy.”