By Stephen Ware, a law professor at KU, in Lawrence, Kansas.

Principles of Alternative Dispute Resolution

Principles of Alternative Dispute Resolution
Principles of Alternative Dispute Resolution, in its second edition, is a Concise Hornbook, published by Thomson-West. More information is available by clicking on the photo.

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Monday, July 28, 2014

Negotiating With Someone From Another Country or Culture

Good post from Harvard Negotiation Blog summarizing an article in the May issue of the journal Negotiation and Conflict Management Research, “Starting Out on the Right Foot: Negotiation Schemas When Cultures Collide,” by professors Wendi L. Adair of the University of Waterloo, Canada; Masako S. Taylor of Osaka Gakuin University in Japan; and Catherine H. Tinsley of Georgetown University.

The basic lesson: don't overdo trying to negotiate the way you think is customary in your counterpart's culture.

Tuesday, July 22, 2014

Settlement Negotiation

Settlement and Trial: Selected Analyses of the Bargaining Environment 
by Vanderbilt Professors Andrew F. Daughety & Jennifer F. Reinganum.

The abstract:This Handbook chapter provides a brief review of selected settlement bargaining models in some areas where new work is developing and where additional work is likely to yield yet further important results. This work has focused on what might be thought of as the environment of the settlement negotiation process, where bargaining failure generally results in trial, and our survey will use that perspective to organize the work discussed.

Monday, July 14, 2014

Online Mediation and Online Arbitration

Teaching online dispute resolution through a simulation exercise by Noam Ebner of Creighton University School of Law's Werner Institute for Negotiation and Dispute Resolution. His abstract:

BeatleMania! is a simulation for studying and experiencing online dispute resolution. Two parties to an eBay transaction gone awry, regarding the sale of Beatles memorabilia, set out to resolve their differences with the assistance of a third party mediator.
This simulation is structured to allow communication to be conducted though any online medium selected jointly by the parties and mediators. In other words, the storyline supports this mediation being conducted via email, videoconferencing or other media. teachers can instruct students regarding use of specific media, if they prefer to focus on a particular medium.

Also, I recently learned about equibbly which advertises:

Avoid the Nightmare of Going to Court 

Have a former Court Judge decide your case online in under two weeks 

Save time and money. Using eQuibbly is quicker, cheaper and more convenient than going to small claims court to settle your dispute.

Saturday, July 12, 2014

"Mediation" and other ADR on Reality TV

A tv show on Bravo, Untying the Knot,  as reported by Art Hinshaw on ADR Prof Blog:

"Obviously having the mediator “determine a fair division of assets” doesn’t sound like mediation; Ms. Ziegler is engaging in early neutral evaluation (ENE).  But ENE has gone the way of Betamax and is so confused with mediation that it’s not worth the time to fight it.  In fact, I’ve seen and heard of many well respected mediators engage in such behavior.  So, let’s hope that this practice does not become what the public expects from divorce mediation, as this clearly limits the good that mediation can do in divorce.  Nevertheless, clips of the show are going to be great for class this fall when we discuss facilitative and evaluative mediation styles."

Thursday, July 3, 2014

Candor in Negotiation, Mediation, and Arbitration

Michael Dallaire's article begins: "Alternative Dispute Resolution (ADR) is here to stay.  The Model Rules of Professional Conduct (Model Rules) must acknowledge that fact.  Several scholars have posited the lofty goal of creating an entirely separate code of ethics for ADR or at least individual processes.  But the process of ADR-specific rules must begin within the framework of the existing Model Rules.  One of the first steps in that direction should be to clearly define the level of candor required of an attorney-advocate in each major ADR forum.  An attorney’s duty to tell the truth, or his ability to deceive, should not be governed by a static standard when operating across a range of informal, nonbinding, participant-controlled settings like unassisted negotiation and mediation.  The Model Rules of Professional Conduct should include separate and distinct duties of candor for each major ADR forum, formulating each based on the unique characteristics of an individual forum.  The reformulated rules should focus on two primary factors in setting the requisite level of candor for a particular forum: (1) the stage in the dispute resolution process in which the particular forum is normally used, and (2) the degree to which a third-party neutral affects settlement."

Thursday, June 26, 2014

Informed Consent in Mediation

McGeorge Law Professor Michael Colatrella has an interesting article entitled Informed Consent in Mediation: Promoting Pro Se Parties’ Informed Settlement Choice While Honoring the Mediator's Ethical Duties.

His abstract:

This article explores the question of how mediators can promote informed settlement choices by pro se litigants while still abiding by a mediator’s ethical duties of impartiality and party self-determination. “Informed consent” is the legal term that describes the circumstances under which a person knowingly and voluntarily agrees to a course of action recommended by a professional, like a physician or lawyer. The mediation scholarship distinguishes between two kinds of informed consent: “participation” consent and “outcome” consent. A party’s decision to take part in mediation is participation consent. “Outcome consent” addresses the degree to which a party understands the consequences of the settlement agreement reached during the mediation process. Mediator ethical codes provide minimal guidance on the issue, leaving unacceptable ambiguity as to the role the mediator plays in a participant’s informed participation and outcome consent. Moreover, some mediation scholars imprudently argue that when a pro se participant is ordered by the court to attend mediation, the mediator must obtain informed outcome consent — even if this means acting impartiality, as that duty is presently defined. This article concludes that the law should impose a duty on mediators of informed participation consent, but not informed outcome consent. Requiring informed participation consent is consistent with the mediator’s established role of educating parties about the mediation process and empowering them to fully and knowingly engage in that process. Imposing the duty of informed outcome consent on the mediator, however, would create a significant conflict with the mediator’s ethical obligation of impartiality and undermine the efficacy of mediation.

Tuesday, June 17, 2014

Zero-sum Negotiation vs. "Value Can be Created"

Victorian Pynchon well states fundamental points when she writes "The key is not technique but general negotiation principles (such as, ‘value can be created,’ or ‘it is important to understand how parties’ interests interrelate’)....The first step to a successful mutual-benefit negotiation style is to stop thinking about give and take as a zero-sum game. "

Sunday, June 15, 2014

Private Information in Settlement Bargaining Models

Revelation and Suppression of Private Information in Settlement Bargaining Models, by Vanderbilt Professors Andrew F. Daughety & Jennifer F. Reinganum.

The abstract:
"We discuss the implications of various models of settlement negotiations for the revelation or suppression of private information held by the parties. This information may be relevant to multiple audiences, including those involved in the instant lawsuit; other potential litigants that may subsequently make use of the information in their own suits against one of the parties; and more distant observers and users of the legal process. We also examine how rules of evidence and rules of civil procedure can sometimes result in different degrees of purposeful or (arguably) unintended information suppression."

Tuesday, June 3, 2014

Formation of Settlement Agreement

The Texas Supreme Court decided an interesting case about a settlement agreement being formed even though the offeror may not have wanted that.  As Jeremy Telman explains:

Amedisys threatened that it would not settle below six figures.  Kingwood responded with a settlement offer of $90,000, expecting that Amedisys would reject the offer and trigger Rule 167 of the Texas Civil Practice and Remedies Code, which would allow Kingwood to recover litigation costs if the case went to trial and resulted in a judgment considerably less favorable to Amedisys than the settlement offer.
Amedisys accepted the settlement offer.  This apparently was not what Kingwood wanted or expected, and Kingwood refused to treat Amedisys's response as an acceptance.  

Tuesday, May 27, 2014

Contempt Sanctions due to Settlement Conference

"Settlement conference" means different things in different places but the usual meaning is something like mediation conducted by the judge presiding over the case.  Following judges' orders related to settlement conferences, like following other court orders, is obviously important.  Here is an example of contempt sanctions imposed on a party that failed to comply.

As Mary Novak at Just Court ADR explains: Judge Janet Berry did not believe the insurers had complied in good faith with her rules on authority to settle, she found the company in contempt and sanctioned them $50,000.

Tuesday, May 20, 2014

Lawyers as (Good and Bad) Deal Killers

Karrass at Negotiation Space writes:

Lawyers are great deal killers. If you tried to bargain away every danger the lawyers foresaw, the negotiation would never end. ...
Lawyers, nevertheless, had an important function in reviewing the final contract.  They found areas in which our company vulnerability was too high for comfort. They left us to decide whether we could live with the potential danger or if we needed greater protection. Our decision was made on the basis of the other side’s track record as a reliable seller and their willingness to relieve our vulnerability by granting necessary warranties.
The trouble with these deal-killers is that they are far removed from the real marketplace, while the salesperson is on the front line with buyers every day.

Monday, May 19, 2014

Mediation in New Zealand

Victoria University Law Professor Grant Hamilton Morris
writes that "the modern mediation movement is primarily a result of state-led reform in a variety of legal areas. Much of this reform has been influenced by overseas models emphasising New Zealand’s role as a 'fast-follower' of alternative dispute resolution trends rather than an initiator. The rise of mediation in New Zealand has been ad hoc and pragmatic with a distinct lack of systematic development. This pragmatic change was a response to pressures such as the cost and delay involved in litigation, and major social trends challenging traditional ways, including traditional approaches to resolving disputes. Mediation continues to play a vital role in the New Zealand legal system but the exponential growth of the 1980s and 1990s has slowed as mediation begins to clearly locate and confirm its 'territory' in the New Zealand legal system."