The Ohio State Journal on Dispute Resolution is pleased to bring you Volume 6, Issue I of the Mayhew-Hite Report on Dispute Resolution and the Courts.
In Collaborative Law and Legal Ethics: Growing Pains for an ADR Movement, Professor Christopher Fairman explores three major developments concerning the ethics of this interest-based, settlement-oriented dispute resolution process. In February, the Colorado Bar Association Ethics Committee issued the first opinion in the country declaring collaborative law per se unethical. Fairman examines Colorado Opinion 115 and the reaction to it and ultimately concludes that it is unlikely to have much direct effect on collaborative law. Nonetheless, he voices concern that Opinion 115's approval of an offshoot of collaborative law called "cooperative law" risks creation of an ADR turf war. Next, Fairman highlights the National Conference of Commissioners on Uniform State Laws (NCCUSL) effort to create a Uniform Collaborative Law Act. A NCCUSL Drafting Committee has already produced a working draft of a model act. Fairman describes the current drafting effort and its core feature — provisions to answer ethical concerns about confidentiality and privilege. The third ethical milestone explored in Fairman's Growing Pains is the latest formal ethics opinion by the ABA Standing Committee on Ethics and Professional Responsibility. Released in October, ABA Opinion 07-447 squarely addresses the compatibility of collaborative law with the Model Rules limitation on the scope of representation and concludes there is no violation. Characterizing these events as "growing pains" for collaborative law, Fairman ultimately concludes that "[w]hile ethical concerns are real and potentially limiting to the growth of the practice, our existing ethics regimes and proposed modifications can respond to these challenges." The full-text of this article can be accessed here.
In Mass Disaster Mediation: Innovative ADR or a Lion's Den?, Elizabeth Baker Murrill explores the use of mediation in resolving mass torts and other mass claims, and evaluates the special risks that exist in this kind of mediation. Murrill argues that the potential imbalance in the parties' experience, education, and individual situations can contribute to a power imbalance which creates the risk of coercion and lack of informed consent. This power balance can be increased by external factors, such as politics, culture, and the economy, as well as internal factors, such as an individual's cognitive functioning, which is affected by experiencing a mass disaster. Murrill concludes that the way to resolve these problems is to think more carefully about the project design so that safeguards are in place that will protect the integrity of the mediation process, decrease the imbalance of power between the parties, and increase mediator awareness of the special risks post by mass disaster situations. A detailed summary of this law review article can be accessed here.
In November of 2007, the Sixth Circuit Court of Appeals announced its decision in Seawright v. Amer. Gen. Fin. Serv., 507 F.3d 967 (6th Cir. 2007). At issue in this case was whether continued employment constituted acceptance of a mandatory arbitration agreement, and whether the arbitration agreement was enforceable. The case grew from a dispute that arose when the plaintiff's employment was terminated and she attempted to file a lawsuit; her employer moved to compel arbitration, arguing that the plaintiff had consented to the mandatory arbitration agreement in effect at the company. The Sixth Circuit held that where there is no evidence that assent to an agreement was procured through unfair means, or that the agreement was substantively unfair, courts should enforce mandatory arbitration agreements. A detailed summary of this case can be accessed here.
In Multi-Step Mediation/Arbitration Clauses in Tribal/Non-Tribal Contracts: Truly a Win-Win Situation, William Aloe explores the recent growth in tribal gaming and the corresponding increase in economic development, including investment of non-tribal parties' money in tribal lands. He notes that this increase in business contact has led to an increase in the creation of contracts, the enforcement of which can be complicated because of tribal sovereign immunity. Aloe argues that multi-step mediation recourse to binding arbitration is a viable and enforceable option for settling these disputes between tribal and non-tribal parties because it allows tribes to maintain their sovereign status while still encouraging investment in tribal lands. William Aloe is a 2008 J.D. candidate at the Ohio State University Moritz College of Law, where he has taken classes in mediation and other methods of alternative dispute resolution. He is currently studying in Oxford, England. The full-text of this paper can be accessed here.
Editors: Abbie Sockloff and Laura Drongowski, in collaboration with members of the Ohio State Journal on Dispute Resolution.
Advisor: Professor Sarah R. Cole
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Ohio State Journal on Dispute Resolution
The Ohio State University, Moritz College of Law
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Phone Number: (614) 292-7170