Mediating Multiculturally: Culture and the Ethical Mediator

This commentary on mediating multiculturally in a chapter of Mediation Ethics (edited by Ellen Waldman) suggests there are times when mediators should not mediate, because of their own ethical commitments. Commenting on a hypothetical divorce scenario (of Ziba, a 17 year old from her 44 year old husband, with two children aged 3 and 2, where the parties claim to want Shari’a principles to apply), the author (Carrie Menkel-Meadow) suggests that she would not mediate a case which might violate formal laws (American marriage and divorce laws) or infringe on rights that one of the parties might not be fully aware of. A variety of sources of ethics, including formal law, legal and mediation ethical rules, and personal ethical commitments may structure how mediators choose whether to take a case, educate the parties about their rights, make a referral, or how to mediate if complex (and different for each of the parties and/or the mediator) legal, moral, religious and cultural values are at stake. The chapter contains contrasting views expressed by two different mediators, with summary and commentary by the book’s editor

Outward Bound to Other Cultures: Seven Guidelines for U.S. Dispute Resolution Trainers

This article was inspired by the opportunity to observe a two day negotiation training program\u27 put together by Hamline University School of Law in Rome. It was called Developing \u27Second Generation\u27 Global Negotiation Education. The trainers conducted a high level program for around thirty sophisticated professionals. And over forty scholars observed the training and then spent another two days discussing what was observed. Based on that experience as an observer and my own experience teaching and training abroad, along with additional research, I have identified seven guidelines for U.S. trainers. These guidelines should help trainers reduce any cultural mishaps, prepare for the inevitable surprises, and ultimately deliver an effective program in other cultures

Administrative Procedures for Resolving Complex Policy Questions: A Proposal for Proof Dissection

Many commentaries have charged that the use of conventional trial procedures in the administrative process fails to provide an effective means for resolving complex policy questions. In particular, the excessive use of cross-examination has been cited as needlessly impairing the economy and efficiency of administrative proceedings. Excessive and redundant use of such procedures has also been criticized as undermining the accuracy of results by allowing unfettered attack on adversaries’ witnesses. Clearly, current opinion of the adversary system is that it “rates truth too low among values that institutions of justice are meant to serve.” The problems surrounding the use of trial procedures by administrative agencies has lead some critics to conclude that these procedures should be reformed. This Article examines recent criticism and outlines various methods intended to increase the effectiveness of the fact finding process. Section I focuses on several recent administrative trials which suggest the ineffectiveness of conventional procedures where agencies are faced with complex policy questions. In section II, various proposals offered by commentators are examined to determine their usefulness in this area. Finally, Section III processes a procedure for the dissection of proof which modifies existing procedures in order to increase the efficiency and accuracy of agency action