Articles

Law Student Outlook: Thoughts on mediation, negotiation and other forms of ADR

Despite our continued interest in litigation, we are here to report that we certainly like what we have found in and are open to future possibilities in alternative dispute resolution. We have also come to recognize that just because our interests lean toward litigation does not mean that we will not encounter and utilize skills such as negotiating that maybe are not seen as being traditionally within a litigator’s area of expertise.

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Taking a seat at the table: Women neutrals underrepresented in some fields

In the field of alternative dispute resolution, diversity appears to be making fewer gains than in the legal profession as a whole. A 2018 article in the ABA Journal reported that, generally, studies show women comprising around 20% of the national ADR field. Similarly, American Bar Association Resolution 105 calls dispute resolution “arguably the least diverse corner of the profession.”

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French: Predicting mediator’s agenda key to success

Mediation results in a settlement more than 85% of the time. However, getting to “yes” is hard work — especially for the mediator. While we lawyers do a great job of advocating in mediation, we could do more to make the process more productive, and perhaps improve the likelihood of settlement, by focusing on developing the mediator’s agenda in advance of mediation.

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Lewinski: Challenged to “Locke” into a property rights resolution

In the curriculum for business ethics that I teach to students at Butler University’s Lacy School of Business, we cover John Locke and his notion of private property rights – natural rights that existed for each individual in the state of nature. Locke contended that men left that state of nature, in part, because the challenge of enforcing those rights led to a state of war. In more than 30 years of real estate litigation practice, I have seen what often looks like that state of war play out between litigants.

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Neutral Corner: Why did trials ‘vanish,’ and what is the lesson for mediation?

In his article, “The Disappearance of Civil Trial in the United States,” Yale Law School professor John H. Langbein explored the factors leading to civil trials having all but “vanished.” He concluded that the largest single cause of the decline in the number of jury trials was the robust and extensive fact discovery promoted, if not mandated, by the adoption of the Federal Rules of Civil Procedure.

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Justices expand online CLE, CME credit hours

Lawyers and judges can now take twice as many hours of continued legal education through online programming per three-year period after the Indiana Supreme Court amended an existing rule to education requirements. Similarly, mediators will not be denied credit for digital programs under an amendment to continuing mediation education requirements.

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COA: Arbitration agreements in investment case enforceable

After a married couple that filed a complaint against their retirement investors for significant decreases in investment funds appealed a trial court order to compel arbitration, the Indiana Court of Appeals concluded arbitration agreements between the parties were enforceable and subject to the Federal Arbitration Act.

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