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Abstract: This article reviews the now extensive literature on the varied arenas in which restorative justice is theorized and practiced - criminal violations, community ruptures and disputes, civil wars, regime change, human rights violations, and international law. It also reviews - by examining empirical studies of the processes in different settings - how restorative justice has been criticized, what its limitations and achievements might be, and how it might be understood. I explore the foundational concepts of reintegrative shaming, acknowledgment and responsibility, restitution, truth and reconciliation, and sentencing or healing circles for their transformative and theoretical potentials and for their actual practices in a variety of locations - family abuse, juvenile delinquency, criminal violations, problem-solving courts, indigenous-colonial-national disputes, ethnic and religious conflicts, civil wars, and liberation struggles. Restorative justice, which began as an alternative model of criminal justice, seeking healing and reconciliation for offenders, victims, and the communities in which they are embedded, has moved into larger national and international arenas of reintegration in political and ethnic conflicts. This review suggests that there are important and serious questions about whether restorative justice should be supplemental or substitutional of more conventional legal processes and about how its innovations suggest potentially transformative and challenging ideas and "moves" for dealing with both individual and group transgressive conduct, seeking peace as well as justice.
reconciliation, criminal law, international law, restorative justice, dispute resolution
Abstract: This essay, based on a talk given at AALS Annual Meeting of Professional Responsibility and Dispute Resolution Sections in 2001 reviews current developments in the ethics of the practice of Alternative (or "appropriate" ) Dispute Resolution. The essay reviews current issues of counseling about ADR, choice of law, conflicts of interest, confidentiality, choice and coercion in the use of mediation and other forms of ADR and in particular, lawyers' roles in this area of practice. The article refers to current developments in the ABA Ethics 2000 Commission's proposals for changes to the Model Rules of Professional Conduct and other new efforts at drafting ethics and standards in ADR, including the new CPR-Georgetown Commission on Ethics and Standards in ADR's report on Provider Principles.
Abstract: This essay analyzes the treatment of legal negotiations in films, literature, TV and various forms of popular culture, focusing on how legal negotiations are conceptualized often as competitive, war-like battles of will and force or cleverness, rather than more modern approaches to negotiation as a site of collaborative human problem solving and joint decision making. The essay begins a filmography of legal negotiation, including both popular films and TV and serious documentary treatments of both domestic and international negotiations. The article concludes by discussing some newer approaches to legal and international conflict negotiations evidenced in a few new films and documentaries and suggests that life is advancing faster than art in this area: to wit, modern negotiations are more complex in execution, performance and agreement-making and are not well depicted in many fictional and formulaic forms.
Negotiation, Law and Popular Culture, Literature, Legal Ethics
Abstract: This article reviews the history of different schools of legal education from Langdellian formalism to legal realism, law and economics, critical legal studies, feminist and critical race theory, clinical education, law and social science, law and literature, law and behaviorism, and pragmatism. It then offers a specific program for interdisciplinary legal education, including a remapping of conventional three year legal education and illustrates with several recent examples of innovations in interdisciplinary legal education.
legal education, law and social science, interdisplinary legal studies
Abstract: This is a review essay on the occasion of the 25th anniversary of the publication of Roger Fisher, William Ury and Bruce Patton's, Getting to Yes, which reviews the interdisciplinary field of Negotiation and how it came to be, as well as where it is heading. The review focuses on constituent questions, constituent disciplines, the legacy of GTY on theory, practice and pedagogy and discusses the issue of why more of the world's actors and institutions have not employed more integrative, problem-solving and peace seeking approaches to conflicts at all levels. It also reports, more optimistically, on the enormous contributions GTY and its progeny have made to how some people approach each other in resolving disputes and negotiating new transactions and relationships. This is a short synthesis and intellectual history of the protean interdisciplinary field of negotiation.
Negotiation, Problem-Solving
Abstract: This Essay describes the depiction of modern lawyers' professional ethics in literature, films, and television, and distinguishes between personal and professional character and specific acts. Depictions of lawyers in modern popular culture are more complex and nuanced than older treatments and allow law students, lawyers, and legal academics an opportunity to examine both ethical rule violations and "micro" behavioral choices, as well as character and more "macro" professional career choices and philosophies in a variety of contexts and serialized plot treatments. Treatments of professional ethics in more recent popular culture are also contrasted to more literary examinations of both lawyers' and other professionals' moral choices. Whether modern popular depictions of lawyers reveal more villains than heroes remains an interesting, if unanswerable question. Lawyers are more diverse in their demography and work settings, and the complexity of the sociology of ethical choices is now more often depicted than it was in the "golden age" of popular lawyer heroes.
Abstract: This article reviews the history of dispute processes from early English legal history to the present to contest the notion that the vanishing trial is either a new or necessarily problematic development. Anglo-American legal procedure has always been characterized by process pluralism or choices of different fora for different kinds of dispute resolution. The article reviews some of the key developments in movements from trial by ordeal to trial by court and suggests we are in an evolutionary moment or transition away from trial by court to some other process adaptations. The essay then reviews how different processes, including various forms of alternative dispute resolution (not necessarily new, but adaptations of older forms) may require different foundational, orienting and ethical principles and practices and the article suggests what underlying values might be appropriately considered - collaborative human problem solving and recognition of the complexity and multi-party, multi-issue nature of modern legal disputes.
Dispute Resolution, Litigation, Legal History, Legal Ethics, Jurisprudence
Abstract: This essay is a Commentary appearing in a Symposium on the Practice of Law and Spiritual Values and suggests that "secular humanism," including non-conventional religions (like Ethical Culture) and political movements (for civil rights, feminism, social justice) also constitute a form of human "spirituality" that has and can inform practices in conflict and dispute resolution. This personal essay describes how such religious, political and spiritual "movements" have informed Professor Menkel-Meadow's professional mediational theory and practice.
Abstract: This article reviews current issues of the effects of personal behavior (political scandals and other behavior)on professional responsibility from philosophical, ethical, professional responsibility and personal morality perspectives. The essay focus on a few notable examples (the Clinton-Lewinsky matter, JFK, FDR and other "presidential scandals, lawyer dishonesty and some examples from scholars and other professionals) to review how we ought to take account of what people do in their personal lives when making judgments about their professional performance (both in formal discipline and in moral judgments).
Abstract: This text of the inaugural lecture for the A.B. Chettle, Jr. Chair in Dispute Resolution and Civil Procedure at Georgetown University Law Center presents an intellectual outline (theory and practice) for a house of justice built on the foundations of Lon Fuller, the Legal Process school, Jurgen Habermas' and Stuart Hampshire's social philosophy about democratic processes, the floors of comparative processes, drawing on the work of political theorist Jon Elster and empirical work on legal and political processes and the ceilings of new processes, like consensus building fora, truth and reconciliation commissions and other combinations of legal and political processes. A model of different modes of human conflict resolution is outlined with differentiations of different forms of process (open/closed; plenary/committees; expert/naturalistic; constitutive/permanent/ad hoc). The article suggests a broadened view of what should be taught as legal process - beyond conventional civil procedure to many more forms of human legal and political processes. If process is the human bridge between justice and peace then we much teach about both kinds of processes - those seeking justice and those seeking peace; hopefully they can both be accomplished.
Procedure, Dispute Resolution, Legal Pluralism
Abstract: This essay (as a festschrift/melanges en l'honneur de Pierre Tercier, outgoing Chairman of the International Chamber of Commerce International Court of Arbitration and Professor at the University of Fribourg, Switzerland) argues that it is possible and desirable for such bodies as the ICC to promulgate and enforce ethics standards for use in international arbitration. Many international arbitral administrative tribunals (and the non-administrative International Bar Association) have discussed, drafted, and approved ethics standards on such topics as conflicts of interests, disclosures, timely performance, fees, ex parte communication, use of information, competence and jurisdictional issues, truthfulness and candor, due process, impartiality, confidentiality and transparency. This article suggests that the ICC should do so as well if it intends to retain prominence and legitimacy in the field of international commercial justice. Where more or less private processes have significant power in international dispute resolution, they should ensure fairness of process if these processes seek to continue to dominate the field of international dispute resolution (as compared to international litigation which is more or less public). Despite claims that cultural differences in legal systems, judicial and attorney practices, procedural and evidentiary rules, as well as nationally based ethical obligations, might prevent true cross-cultural ethical standards from being agreed to, this essay suggests such standards are possible and desirable. The core issues and contours of some international ethics standards are suggested.
arbitration, ethics, dispute resolution, international and comparative law
Abstract: This article explores the possible marriage of recent political theory on deliberative democracy with conflict resolution theory and practice. It reviews the theoretical framework for encouraging more active public participation in both governmental and political decision making (Guttman & Thompson, Bohman, Habermas, Hampshire) and asks how processes can be structured to maximize political participation through several different modes of discourse: reasoned argument/principle; trading of preferences/bargaining and appeals to passion, emotion, and deeply held beliefs. The article suggests a variety of different modes of conflict resolution sorted by the need for constitutive, permanent or ad hoc decision-making, plenary vs. committee or task oriented organizational principles and whether deliberations are to be private and confidential or transparent and public, with predictions about how different outcomes will be produced by different process structures. In addition, the article suggests that lawyers might be particularly well suited (with additional disciplinary training) to performing Tocquevillian facilitative roles between and among deliberators in processes that seek to increase participative democracy and improve the quality of decision making.
Abstract: This chapter in a book edited by Michael Asimow, "Lawyers in Your Living Room: Lawyers on TV" (ABA Press, 2009) explores the treatment of lawyers' ethics (dilemmas, choices and ethics violations) on modern television programs about the law, including classics like Perry Mason and The Defenders and the more modern period of legal ethics on TV -- LA Law, Law and Order, Boston Legal and Eli Stone. Why lawyers' ethics are depicted on television and themes of generational learning, collegial support and socialization, and the "long-term" character development permitted by television are explored.
Abstract: This chapter in the forthcoming Oxford Handbook of Empirical Legal Studies reviews key issues in the empirical study of "alternative" dispute resolution processes, including both descriptive and comparative empirical studies and evaluations of negotiation, mediation, arbitration, consensus building, facilitative and other hybridized processes, such as regulatory negotiation and rule-making, and some instances of deliberative democracy. Problems of definition, dynamism of the processes studied, shifting boundaries of public and private processes, and the inability to compare "like" cases in different processes are explored. Because some processes are conducted in private it is difficult to rigorously study them, either descriptively or comparatively. The issue of what a "baseline" measure is for evaluating comparative processes is explored and problematized. As both civil and criminal justice systems explore a variety of reforms and the pressure to empirically evaluate different processes becomes important for scholars, practitioners and policy makers, it remains difficult to have confidence in studies which lack boundary clarity. There are advantages and disadvantages in both aggregate data studies and more in-depth limited case studies of different processes. In an era of increased "process pluralism" in both domestic and international law, the problem of measurement and evaluation of different processes remains important, if difficult, to master.
Abstract: This essay discusses the factors which are encouraging or disabling collaborative decision making and legal processes in environmental disputes. As a commentary on Brad Karkkainen's article on the use of collaborative processes in situations of both "natural and legal destabilization" events, the article reports on several successful environmental collaborative processes, highlighting the new process expertise and new knowledge of consensus-based, multi-jurisdictional decision making. It also suggests some countervailing factors and impediments to the effective use of collaborative dispute resolution in both environmental and other complex multi-party disputes. The essay concludes by outlining some challenges to the field of collaborative decision making and legal and social change and offers some suggestions for meeting those challenges, such as linking levels of governments and solutions to a variety of governance problems, using more flexible and contingent outcomes and "resolutions," developing a wider scope of "triggering events" and creative solutions, and considering rigorously the relationship of formal legal endowments to less formal processes for legal and political decision making.
Abstract: On the occasion of the 30th Anniversary of the Center for Public Resources-International Institute for Conflict Prevention & Resolution, Professor Menkel-Meadow considers the issues in maintaining high quality and integrity in the use of ADR methods, including mediation, negotiation and arbitration. The initial goals of the ADR movement are contrasted to some recent developments and challenges to these goals, with a focus on some key issues to watch in the future -- "sham" processes, misuse of processes for adversarial gain, unethical uses, incompetent parties, lawyers and neutrals and dilution of the original goals of quality and "tailored" dispute resolution.
Abstract: This paper reviews ethical issues that occur when systems of dispute resolution are designed for organizations, institutions and situations of iterated disputing and grievances. It explores the state of the art of the field and suggests that ethics codes can be both inductively and deductively derived. After reviewing some ethics issues in both domestic (US) and international contexts, some key ethics issues are described but it is also suggested that the field is too new and under "professionalized" for the formal development of an ethics codes at this point, though some general principles of good practices can be identified.
ethics, dispute system design, process
Abstract: This essay describes how Israeli students in a course on mediation and consensus building taught in an Israeli university law department by an American law professor and an Israeli instructor analyzed and studied the conflict in the Middle East. It describes the suggestions they made for process design for the next stages of whatever peace process might emerge for the region. In light of the students’ suggestions, the authors present some ideas as to how different approaches to reconciliation and peace might be used, managed, and coordinated.
Conflict resolution, peace, Israel, Middle East, teaching, consensus building, mediation
Abstract: The essay reviews the content of twenty-five years of the Harvard Program on Negotiation's Negotiation Journal, identifying themes and issues explored on its pages in the past, the current issues challenging the field’s scholars and practitioners, and the issues likely to confront us in the future. It argues that while we in the field hoped for simple, elegant, and universal theories of negotiation and conflict resolution, the last twenty-five years have demonstrated the increasing complexification of negotiation theory and practice, from increased numbers of parties and issues, and dilemmas of intertemporal commitments, ethics, accountability, and relationships of private action to public responsibility
Negotiation, dispute resolution, theory, practice, teaching
Abstract: This article suggests that recent work in the social and cognitive psychology of creativity may suggest some useful ways of structuring legal problem solving, in both negotiation and litigation contexts. Building on Professor Menkel-Meadow's earlier work on problem solving negotiation, she suggests that good negotiated results require creative, innovative and new substantive solutions to both common and unusual legal problems and issues. The article reviews social science studies and literature on creativity, applies this work to the analysis of "legal creativity" and substantive legal problem solving and then applies this work to problem solving in legal negotiation and concludes by making some suggestions for teaching creative problem solving in legal education.
Abstract: This essay presents the elements of a problem solving approach to legal practice, taken from Professor Menkel-Meadow's work on legal negotiation. The article reviews different orientations and approaches to legal problem solving, suggests some different questions to be asking about legal and social problems and briefly explores the role of creativity in legal problem solving.
Abstract: The Foreword to this Symposium issue reviews the law and literature movement in law and suggests ways of using cases, stories and narratives (real, simulated and imagined) to teach about legal ethics, lawyering and decision-making. The essay reviews some of the "classics" in legal ethics fiction and introduces the articles in the issue which discuss real cases, simulations, fictionalized real cases and literary treatments of lawyering ethics issues and moral dilemmas.
Abstract: This article revisits Marc Galanter's important thesis expounded twenty five years ago, that the "haves", or better resourced litigants, and repeat players in the system have structural advantages over "one-shotters" and less resourced litigants. This article reviews the applicability of that thesis to recent developments in ADR, especially in the context of contractual arbitration. The article reviews recent cases and developments in employment arbitration, health, education, securities and consumer disputes in which contractual arbitration is mandated by "repeat player" and institutionally strong disputants. The existing empirical research is reviewed to suggest that, as in litigation, the "haves" often "come out ahead" in ADR, too. This has implications for when and how third party neutrals, as well as litigants, are repeat players in these processes and why and how particular parties try to control the kinds of processes that are used to resolve certain kinds of disputes. If ADR is no more effective at justice "redistribution" than litigation, we must examine other justifications for ADR. Mediation may operate differently than arbitration in this context, and, as usual, more research is needed to assess these issues.
Abstract: This essay is an introduction to a symposium on Alternative Dispute Resolution. The essay reviews the development of scholarship, theory development, teaching and policy analysis in the law schools and through related disciplines, first in negotiation and then more broadly in alternative dispute resolution. The essay summarizes some of the key "propositions" of learning derived from conflict resolution theory and practice at the present time. The essay also pays tribute to scholars in the field who have recently died and reviews, briefly, their contributions to the field.
Abstract: This article reviews a series of "second generation" issues in the theory and practice of "appropriate dispute resolution," paying special attention to those areas where dispute resolution professionals disagree among themselves about the resolution of some key issues. Reviewed are such issues as the definitional boundaries of ADR processes, in their primary and hybrid forms, such as facilitative and evaluative mediation, med-arb, the uses of ADR in court and private settings, the differences between decisional and settlement seeking processes, voluntary and mandatory processes (in both public and private settings). Explored are questions of who should be providing ADR services, ranging from "wise elders" or their modern equivalents in substantive expertise, whether lawyers are governed by different rules than non-lawyers (Is ADR the practice of law?) and what ethical or other regulatory limits there should be on the uses and practice of ADR, broadly conceived. The difficulty of distinguishing between forms of legal "advice" and legal "information" is examined in the context of ethical regulation of ADR. In addition, the article explores other "hot button" ethical issues such as conflicts of interests, "screening" and fees in ADR. The article reviews the recent empirical studies of the uses of ADR in the federal courts, including both the RAND and FJC studies and concludes that there is much we still do not know about the purposes and functioning of ADR in the courts and in the private sector. Continued use and experimentation with both "presumptively" mandatory and court-annexed programs, as well as private ADR is recommended to explore quality control issues in a multiplicity of settings for more rigorous empirical and policy analysis.
Abstract: This article reviews a variety of ethical dilemmas and issues presented by the new forms of practice in "appropriate" dispute resolution and argues that the conventional lawyers' rules, the Model Rules of Professional Conduct, cannot answer questions about such quandaries because of its different organizing paradigm of adversariness in the lawyer's role. The article reviews, briefly, the intellectual history of ADR and professional ethics regulation to demonstrate that ADR, as a variant on legal process conceptions of institutional or role settlement, requires its own set of rules, based on different organizing purposes and functions of the lawyer's role. The article explores new and current case law on such issues as conflicts of interest, third party neutral liability and immunity and discusses possible topics of ethical regulation, including fees, confidentiality, transdisciplinary practice, accountability for ADR outcomes and explores the differences between "macro" justice issues and "micro" behavioral choices.
Abstract: The subject of this article is the absence of any significant treatment or "regulation" of new lawyering practices (as third party neutrals, mediators, arbitrators)in the American Law Institute's Restatement of the Law Governing Lawyers. The article reviews a host of ethics and regulatory issues that would be relevant to a complete treatment of "ethical" and professional responsibilility issues facing the legal profession of the 21st century. Among those issues, which have analogues, but not answers, in more conventional adversary practice ethics rules are, conflicts of interests from mixed roles, successive representation and third party neutraliing, confidentiality, duties to disclose information, fees, fairness, pro bono obligations, consent, etc. After considering the issues and the failure of the current Restatement to deal with these issues, the article provides a draft of proposed sections for adoption on ethics and regulation of these issues. To the extent that lawyers are now playing roles different from and in addition to more conventional adversary representation and counseling functions, the Restatement should provide some guidance for these newer "peace-making" and "creative" roles of lawyers. The author is Chair of the CPR-Georgetown Commission on Ethics and Standards in ADR which is drafting proposed ethics rules, standards and "best practices" white papers for a number of different bodies to consider.
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