Evaluating the Singapore Convention Through a U.S.-Centric Litigation Lens: Lessons Learned from Nearly Two Decades of Mediation Disuputes in American Federal and State Courts

This article compares a recent five-year dataset (2013-2017) on mediation litigation trends with an earlier dataset (1999-2003) to make some general observations about mediation litigation trends over the last nineteen years, with a specific focus on enforcement of mediated settlements, the topic addressed by the Singapore Convention. Part II of this article provides a general overview of U.S. mediation litigation trends, including a detailed description of how the databases were created and caveats about their use, a summary of raw numbers, and a review of the common mediation issues litigated in U.S. Courts. Principal conclusions include the fact that litigation about mediation has steadily increased between 1999 and 2017, a time period when new civil filings in state and federal courts have been more or less constant, or in some years declined. Disputes about enforcement of mediated settlements remain the most commonly litigated topic; however, disputing about enforcement has significantly declined overall in proportion to all litigated mediation disputes. Part III offers a detailed examination of mediated settlement enforcement litigation, including types of enforcement disputes, defenses to enforcement, the enforcement-confidentiality connection, and significance of the subject matter of the underlying dispute. Principal conclusions include the fact that mediated settlements continue to be enforced at a very high rate—68% on average for the 2013–2017 time period. The frequency with which parties raise “traditional” contract defenses such as whether there was a meeting of the minds or mistake, as well as challenges to fundamental fairness of the process through fraud or duress, have declined. In their place are a panoply of procedural and jurisdictional defenses which have increased in number as mediation gets institutionalized in statutes and court rules. As was true in the original 1999–2003 dataset, cases involving mediator malfeasance are exceedingly rare, and with a 95% settlement enforcement rate, virtually always a loser for the challenging party. Surprisingly, cases raising both enforcement defenses and confidentiality issues were far less common in 2013–2017 compared to 1999–2003, and settlement enforcement far more likely in such cases in the recent time period. Part IV applies lessons gleaned from the litigation data to evaluate the choices made by the drafters of the Singapore Convention. From my perspective as a chronicler of “mediations gone bad,” there is much to praise in the drafters’ efforts

It’s in the “Telling” (by Asking): A Passover Analogy to Explain the Enduring Foundational Nature of Carrie Menkel-Meadow’s Dispute Resolution Scholarship

One true measure of whether ideas are “foundational” is whether they will resonate with future generations. One of the world’s oldest religions, Judaism, offers an annual ritual – the Passover Seder – that is a case study for successfully passing down foundational ideas. That ritual, among other things, posits that to tell an enduring story, it must be told in ways that inspire many different kinds of people – with widely disparate motivations, perspectives, and abilities – to engage with, relate to, and understand the story. This essay asserts that Carrie Menkel-Meadow’s dispute resolution scholarship is very much a successful “telling” with many characteristics remarkably similar to the Passover Seder. And that, in turn explains why Menkel-Meadow’s work has been so important to the first generation of dispute resolution scholars and practitioners and why it will endure as foundational for generations to come

Gollum, Meet Smeagol: A Schizophrenic Rumination on Mediator Values Beyond Self Determination and Neutrality

The author asserts that the exclusive reliance on the Two Towers of self-determination and neutrality as the foundation for mediation practice has inevitably left us with a process routinely characterized by mediator manipulation and deception. The tricks are tolerated by sophisticated repeat players, and absent transparency in practice, disturbingly not known to others. The evolution of mediation, from empowerment/community roots to corporate/court sustenance, is no surprise given the nation\u27s journey through the Reagan revolution, the ideology of free markets, and the Supreme Court\u27s unbridled support for freedom to contract in disputing. In short, mediation is at a crossroads needing to confront its mythology and find commitment to values beyond self-determination and neutrality

Barnacles, Aristocracy and Truth Denial: Three Not So Beautiful Aspects of Contemporary Mediation

In this article, I examine the themes of self-determination, mediator neutrality, and party empowerment by exploring three separate topics: barnacles, aristocracy and truth denial. The first topic, barnacles, refers to the surprising and myriad number of ways that mediation has fully integrated (insinuated) itself into the U.S. litigation system. Institutionalization, some might argue, is beautiful; indeed, widespread, systematic use of mediation is often offered evidence of success. But I want to explore a different perspective on the same development-how institutionalization leads to rule exploitation and spawns its own unique litigation ironies. The second topic, aristocracy, refers to the documentation and arguments I have made elsewhere in much greater detail regarding the considerable evidence of unjustified judicial deference to the opinions of class action mediators on settlement process and settlement quality. And, finally, truth denial. Even the most summary review of mediation texts reveals a stunningly consistent message about the nature of truth: there ain\u27t any

Assessing Our Students, Assessing Ourselves: Volume 3 in the Rethinking Negotiation Teaching Series

In 2011 more than 60 of the world’s leading negotiation scholars gathered in Beijing for the Rethinking Negotiation Teaching project’s third and final international conference. The event, like the preceding conferences in Rome and Istanbul, was designed to inspire a diverse and energetic group of scholars to push forward their thinking on what is taught and how it is taught in contemporary negotiation courses. The resulting productivity required two volumes. This one is devoted to the challenge of assessment. The choice and application of assessment methods can have a tangible effect on student learning, and this is translated here into an operational principle: that intentional use of adroitly chosen assessment methods can lead to more precise, more practical and even “deeper” learning. This volume’s chapters suggest how, in a variety of ways. The collection is presented not as a closed list of evaluation methods, but as a half-filled toolbox. Teachers are invited to consider and try out a mixture of these methods - and to view the creativity they involve as an invitation to create (and share) their own new, and we hope, increasingly sophisticated tools.https://open.mitchellhamline.edu/dri_press/1002/thumbnail.jp

Assessing Our Students, Assessing Ourselves: Volume 3 in the Rethinking Negotiation Teaching Series

In 2011 more than 60 of the world’s leading negotiation scholars gathered in Beijing for the Rethinking Negotiation Teaching project’s third and final international conference. The event, like the preceding conferences in Rome and Istanbul, was designed to inspire a diverse and energetic group of scholars to push forward their thinking on what is taught and how it is taught in contemporary negotiation courses. The resulting productivity required two volumes. This one is devoted to the challenge of assessment. The choice and application of assessment methods can have a tangible effect on student learning, and this is translated here into an operational principle: that intentional use of adroitly chosen assessment methods can lead to more precise, more practical and even “deeper” learning. This volume’s chapters suggest how, in a variety of ways. The collection is presented not as a closed list of evaluation methods, but as a half-filled toolbox. Teachers are invited to consider and try out a mixture of these methods - and to view the creativity they involve as an invitation to create (and share) their own new, and we hope, increasingly sophisticated tools.https://open.mitchellhamline.edu/dri_press/1002/thumbnail.jp

Assessing Our Students, Assessing Ourselves: Volume 3 in the Rethinking Negotiation Teaching Series

In May 2010, more than 50 of the world\u27s leading negotiation scholars gathered in Beijing, China for the Rethinking Negotiation Teaching project’s third international conference designed to critically examine what is taught in contemporary negotiation courses and how we teach them, with special emphasis on how best to translate teaching methodology to succeed with diverse, global audiences. We chose China is the ideal venue to conclude our project’s inquiry, not only because of its own long history with negotiation, internal and external to the country, but because it is a nation with which, tensions or no tensions, every other nation must negotiate in the future. Yet, China has been almost unrepresented in the modern literature – at least, in the literature that is expressly about “negotiation.” Chinese scholars and practitioners also have yet to assert much influence in the global negotiation training market. Our hope was that the conference would serve as a springboard for the entry into this field, at a sophisticated level, of Chinese and other Asian scholars whose deep experience in many related subjects has yet to be fully felt in their implications for the field of negotiation. The contents of this volume, as well as the fourth and final volume in this teaching series – Educating Negotiators for a Connected World (Honeyman, Coben, and Lee 2012), suggest we may have succeeded in that particular goal