Discussions in Dispute Resolution

"As a law professor who teaches civil procedure and mediation, "Pursuing Settlement" reads like a history. Menkel-Meadow's uncanny accuracy in predicting the future, her prescient fears for where institutionalization of ADR might take us, and the remarkable continued relevance of her suggested reforms and accompanying experimentation combine to make an easy case for declaring her work foundational. She challenged us to consider "whether new forms of dispute resolution will transform the courts or whether, in a more likely scenario, the power of our adversarial system will co-opt and transform the innovations designed to redress some, if not all, of our legal ills." (p. 5) And she offered a qualified "no" to the query whether the growth and expansion of ADR within institutions has changed the consciousness of those who solve legal problems. What we now know With the benefit of 27 years of pursuing settlement in the shadow of litigation, what do we now know? Turns out, very little beynlight -- Employment arbitration : the repeat player effect (1997) / Lisa B. Bingham [Lisa Blomgren Amsler] -- Why the "haves" come out ahead : speculations on the limits of legal change (1974) / Marc Galanter -- Varieties of dispute processing (1976) / Frank E.A. Sander -- Against settlement (1984) / Owen M. Fiss -- Pursuing settlement in an adversary culture : a tale of innovation co-opted or "the law of ADR" (1991) / Carrie Menkel-Meadow. ond what Menkel-Meadow presaged for us. Without question, I could now teach my entire procedure course using only case law decisions about disputed mediation issues (Coben, 2015). Exactly as Menkel-Meadow predicted, lawyers now routinely "use" mediation as the all-purpose excuse for all sorts of failures and omissions ranging from incomplete discovery and failing to designate trial experts to late-filed motions and untimely requests to amend pleadings (Cole et al., 2019, ch. 5). Lawyers (and clients) fail to realize the numerous ways mediation participation (or non-participation) influences litigation decisions quite distinct from the mediation itself. Courts have, among other things, treated the failure to participate in mediation as a factor in justifying: the pre-judgment attachment of property in aid of security, awards of prejudgment interest, and denials of continuance requests. Mediation behavior also is commonly invoked to support or deny awards of attorney's fees. Moreover, "t- Employment arbitration : the repeat player effect (1997

Year

2021

Language

English

Publisher

Oxford University Press

Editions

3

Pages

416

ISBN

9780197513248

Data source: Wikidata