Papers by Carrie Menkel-Meadow
This article reviews some of the key issues in transitional justice process and institutional des... more This article reviews some of the key issues in transitional justice process and institutional design, based on my research and experience working and living in several post-conflict societies, and suggests that cultural and political variations in transitional justice design, practices, and processes are necessary to accomplish plural goals. The idea of process pluralism, derived from the more general fields of conflict resolution and ‘alternative dispute resolution’ in legal contexts, is an essential part of transitional justice, where multiple processes may occur simultaneously or in sequence over time (e.g. truth and reconciliation processes, with or without amnesty, prosecutions, lustration and/or more local legal and communitarian processes), depending on both individual and collective preferences and resources. Transitional justice is itself ‘in transition’ as iterative learning has developed from assessment of different processes in different contexts (post-military dictators...
THE LA WYER AS CONSENSUS BUILDER 65 perfonn as counselors,3 lobbyists,4 and government lawyers. s... more THE LA WYER AS CONSENSUS BUILDER 65 perfonn as counselors,3 lobbyists,4 and government lawyers. s Such recognition of alternative roles, however, assumes that lawyers will continue to serve as zealous advocates for their clients. In general, a lawyer's duty is conceived of as a duty to maximize a client's individual, corporate, or entity interest within the bounds of the law. 6 Thus, although there are some limits placed on the "zealous advocate,"7 the lawyer's goal is to seek gains that benefit his client-whether those gains are achieved by "winning" in litigation or by drafting advantageous clauses in contracts. In the last few decades, the American Bar Association ("ABA") has revised the ethical rules for lawyers several times, beginning with the Model Code of Professional Responsibility ("Model Code") in 1969, continuing with the Model Rules of Professional Conduct ("Model Rules") in 1983, 8 and, most recently, with the proposed revisions to the Model Rules by the Ethics 2000 Commission. 9 With each revision, debates emerge regarding the introduction of new duties and responsibilities for lawyers who serve in alternative roles of legal practice. 1O Despite the ABA's efforts, arguments continue regarding whether it is possible to draft an ethical code for a unitary legal profession and whether specialized codes are required to recognize the distinct duties that 3. See, e.g., MODEL RULES OF PROF'L CONDUCT R. 2.1,2.3-2.4 (2002) (stating that a lawyer may advise a client on "moral, economic, social[,] and political" considerations, provide a third party with "an evaluation of a matter affecting a client" if "compatible with ... the lawyer's relationship with the client[,]" and serve as a third-party neutral for "two or more persons who are not" the lawyer's clients). 4. See, e.g., id. R. 3.9 (discussing the procedures a lawyer must follow when "representing a client before a legislative body or administrative agency in a nonajudicative proceeding"). 5. See, e.g., id. R. 3.8 (discussing the particular ethical responsibilities of prosecutors in criminal cases). 6. See WILUAMSIMON, lHEPRACTICEOFJUSTICE: A lHEORY OF LAWYER'S ETHICS 7-8 (1998). 7. Compare MODEL CODE OFPROF'LREsPONSffiIUTY Canon 7 (1980) (including zealous representation in the black letter rule), with MODEL RULES OF PROF'LCONDUCT pmbl., 8 & R. 1.3 cmt. [I] (2002) (discussing zealous advocacy only in the preamble and in comment sections). Despite such textual revisions, most lawyers continue to claim that their duty is to zealously protect and advocate for their clients. Thus, the culture of ethics may not entirely coincide with the letter of the law or the rules. 8. MODEL RULES OF PROF'L CONDUCT preface, at vii-viii (2002). 9. To view the full text of the Model Rules, as approved by the House of Delegates in February 2002, and the Model Rules, as proposed by the Ethics 2000 Commission, see ABA Center for Professional Responsibility, Ethics 2000 Comm'n, at http://www.abanet. orglcpr/e2k-report _ home.html (last visited Oct. 31, 2002). 10. Despite drafting rules that recognize lawyers as third-party neutrals, the Ethics 2000 Commission considered, yet declined, to draft ethical rules for lawyers representing clients in class action lawsuits. See Nancy Moore, Who Should Regulate Class Action Lawyers?, U. IlL L. REv. (forthcoming 2003). Bankruptcy lawyers also unsuccessfully lobbied for special ethical rules for their specialized practice.
Fordham Law Review, 2000
The Foreword to this Symposium issue reviews the law and literature movement in law and suggests ... more 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.
Empirical Studies of ADR: The Baseline Problem of What ADR is and What it is Compared to
This chapter in the forthcoming Oxford Handbook of Empirical Legal Studies reviews key issues in ... more 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 empir...
Negotiating against a script
Dispute resolution mechanisms
This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It ha... more This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu.
Vanderbilt Law Review, 2007
I. INTRODUCTION: THREE THOUGHT EXPERIMENTS ABOUT LAW AND LEGAL EDUCATION A. What Is "Law&quo... more I. INTRODUCTION: THREE THOUGHT EXPERIMENTS ABOUT LAW AND LEGAL EDUCATION A. What Is "Law" as a Field? Any consideration of what legal education should consist of must begin with the question of what "law," as a field of study, is. Whether a study of "the law" is science, philosophy, political science, or a field unto itself, or is more like a social science study of the norms and behaviors that human beings create and enforce for their self-governance, what the field is should have something to do with how it is studied. So, one can ask, what is the object of study when one studies "the law"? Court decisions and interpretations (doctrine) and statutes and regulations (the rules) are "the substantive law" one could study. Or, one could study law's processes ("adjectival" law): procedure; constitutionalism (as in separation of powers, limited and specified authority, and federalism); institutional competence; law-making (...
Thinking or Acting Like A Lawyer? What We Don’t Know About Legal Education and are Afraid to Ask
This essay (the keynote address at International Conference on Research on Legal Education at the... more This essay (the keynote address at International Conference on Research on Legal Education at the University of New South Wales, December 3-5 2017) reviews the “Big Bangs�? in American legal education from “thinking like a lawyer�? (classical Socratic education), developing legal theory, critical thinking, jurisprudence, critical legal studies, critical race and feminist theory, “acting like a lawyer�? (clinical and experiential educaton), “being a lawyer,�? (legal ethics and professional responsibility education, socio-legal and law economics study (“law and…….�?), and comparative, internationalization and globalization studies. The essay then queries whether “law and technology or artificial intelligence�? suggests a new era of legal education or “the end of lawyers and legal educaton�? as we know it. (Answer: No). The essay identifies some things we know about these different contributions to legal education, but also suggests important questions that require further empirical study to ...
The Case for Mediation: The Things that Mediators Should Be Learning and Doing
This essay is based on the Keynote Address delivered to the 8th Symposium on Mediation at the Cha... more This essay is based on the Keynote Address delivered to the 8th Symposium on Mediation at the Chartered Institute of Arbitrators in London, UK. The article uses two memes of intellectual development -- changing ideas of physical space, through new forms of architecture, and legal evolution, to review how mediation has contributed to both conceptual and behavioral changes in legal and human disputing. The essay reviews key conceptual shifts from uses of "battles" and "trials" and different conceptions of "truth" in dispute resolution to more complex notions of game theoretic and human notions of problem definition and solution seeking, contributed by a variety of constituent disciplines both in and out of law. The article reviews some of the successes of modern dispute handling, not necessarily "resolution," for socially productive uses of conflict, based on conflict theory. It then discusses modern challenges in the forms of resistances to med...
Scripts: what to do when big bad companies won't negotiate
The authors reprise and update their earlier work “Last Plane Out�? to examine the state of the ar... more The authors reprise and update their earlier work “Last Plane Out�? to examine the state of the art of negotiation with large companies who are repeat players in negotiation (airlines, Amazon, government agencies, retailers and others), analyzing past practices of “customer is always right�? to current efforts to routinize and “electronocize�? negotiations with customers, who are sometimes “one-off�? negotiators. The authors analyze how both problem solving and more routinized negotiations must be adapted to new conditions. The authors analyze some Online dispute resolution strategies and offer some suggestions, from empirical study and personal experiences, for more effective ways to successfully negotiate when repeat players use inflexible “scripts and playbooks�? for their negotiation processes. Issues of social justice, publicity, transparency and modern “aggregation�? of claims are briefly reviewed.
This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the histor... more This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, access to courts, discovery practices, evaluations of the effects of particular rules, such as Rule 11 verification requirements, class actions, and practices such as court use of ADR, case management, and pre-trial conferences. The authors argue that empirical research on procedures and policies in courts have mostly been conducted in service of pa...
This essay asks questions about whether there can be a jurisprudence or legal theory of peace and... more This essay asks questions about whether there can be a jurisprudence or legal theory of peace and non-violence. Based on a talk at a symposium at Harvard, hosted by the Unbound journal, the article suggests that law should promote peace, non-violence and human flourishing, as much as it currently acts in "violent" (Robert Cover) and prohibitory ways. Suggesting some avenues for further theoretical development in "positive" rights and jurisprudence with an enabling and creative set of legal rules and processes, the essay builds on personal encounters with legal struggles that have proven inadequate to meet basic human needs and suggests we could refocus, or at least "add" to more conventional ideas about the purposes of law and legal institutions to service human needs. The difficulty of building a theory of peace, non-violence and process pluralism in a world that remains violent, focuses on past injustices, and remains state-based, is lamented, even wh...
This essay is an introduction to a symposium on Alternative Dispute Resolution. The essay reviews... more 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.
Mediation: Practice, Policy, and Ethics
The book takes a distinctive new approach to the skills, processes, and applications of mediation... more The book takes a distinctive new approach to the skills, processes, and applications of mediation: - comprehensive, current coverage of the world of mediation includes law and policy, case examples, practice guidelines for both mediators and attorney representatives in mediation, an exploration of mediation in the transactional and international arenas, and an examination of ethical guidelines and dilemmas - the authors present critiques of mediation, as well as its promise and potential - the distinguished author team, all leaders in dispute resolution, are recognized for their scholarship, teaching, practice, policy making, and standards drafting - practical problem-solving approach includes both analytical and behavioral approaches in varying gender, race, and cultural contexts - carefully selected cases are supported by key readings in various formats -- from critical articles and empirical studies to statutes and regulations To streamline preparation for class, an extensive Tea...
Washington Law Review, 1994
This Symposium is brought to you for free and open access by the Law Reviews and Journals at UW L... more This Symposium is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact
Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads Bayreuth, 14-16 September 2012
European Business Organization Law Review, 2012
The aim to develop transnational principles for the regulation of Alternative Dispute Resolution ... more The aim to develop transnational principles for the regulation of Alternative Dispute Resolution (ADR), which deal, inter alia , with whether and how the use of ADR should be promoted by the state and how ADR should be regulated, brought leading experts from different European countries, the USA and Japan to the University of Bayreuth from 14-16 September 2012. ADR refers to dispute resolution mechanisms outside the state court system. It includes procedures such as negotiation, mediation, conciliation, (binding) expert opinion, arbitration and ombudsman proceedings. In suitable cases, ADR offers solutions which are faster and cheaper than court procedures, especially for cross-border conflicts. The parties have greater control over the conflict resolution procedure. They can arrive at a sustainable compromise adapted to their interests. The procedures are conducted in private; the parties can agree to keep the result confidential.
Foundations of Dispute Resolution
Contents: Introduction Part I Foundations of Negotiation Theory and Practice: Toward another view... more Contents: Introduction Part I Foundations of Negotiation Theory and Practice: Toward another view of legal negotiation: the structure of problem solving, Carrie Menkel-Meadow Chronicling the complexification of negotiation theory and practice, Carrie Menkel-Meadow Why negotiations fail: an exploration of barriers to the resolution of conflict, Robert H. Mnookin Shattering negotiation myths: empirical evidence on the effectiveness of negotiation style, Andrea Kupfer Schneider When not to negotiate: a negotiation imperialist reflects on appropriate limits, Robert H. Mnookin Machiavelli and the Bar: ethical limitations on lying in negotiation, James J. White Negotiating with lawyers, men and things: the contextual approach still matters, Carrie Menkel-Meadow Let's not make a deal: an empirical study of decision making in unsuccessful settlement negotiations, Randall L. Kiser, Martin A. Asher and Blakeley B. McShane. Part II Foundations of Mediation Theory and Practice: Mediation - its form and functions, Lon L. Fuller Post-settlement settlements, Howard Raiffa The many ways of mediation: the transformation of traditions, ideologies, paradigms, and practices, Carrie Menkel-Meadow Mediation as parallel seminars: lessons from the student takeover of Columbia University's Hamilton Hall, Carol B. Liebman Lawyers' representation of clients in mediation: using economics and psychology to structure advocacy in nonadversarial settings, Jean R. Sternlight Mediator orientations, strategies and techniques, Leonard L. Riskin Family mediation: the development of the regulatory framework in the United Kingdom, Marian Roberts Nature preserve: the loop of understanding, Gary Friedman and Jack Himmelstein Lawyer negotiations: theories and realities - what we learn from mediation, Carrie Menkel-Meadow Environmental mediation and the accountability problem, Lawrence Susskind. Part III Foundations and Issues in Arbitration and Hybrid Processes: Is the US out on a limb? Comparing the US approach to mandatory consumer and employment arbitration to that of the rest of the world, Jean R. Sternlight Pursuing settlement in an adversary culture: a tale of innovation co-opted or 'the law of ADR', Carrie Menkel-Meadow Part IV Coda: Coda Name index.
Is ODR ADR?
International Journal on Online Dispute Resolution, 2016
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Papers by Carrie Menkel-Meadow