Carrie Menkel-Meadow

Too many lawyers? Or should lawyers be doing other things?

This paper from the Symposium/Conference at Onati on Too Many Lawyers? suggests that there are not too many lawyers, nor too much legal education. Instead we should think about what legal education is ‘good’ for (what should those with a legal education do?), including problem solving, dispute resolution and reallocation of legal services for those underserved. The paper looks at how other professions (business consulting and architecture) have reframed themselves for new conditions of work – with varying supply and demand changes in their relevant fields. The paper also discusses implications for legal education of a broader conception of what lawyers learn and do.

Variations in the Uptake of and Resistance to Mediation Outside of the United States

The use of mediation in private and public disputes has increased exponentially in recent decades around the world. This book chapter reviews the variations in the uptake of and resistance to mediation (in both court-annexed and private settings) around the world and suggests that there are a variety of structural reasons for variations in the use, promotion and rejection of mediative processes, in both nation-state and international or cross-border settings, including legal system variation, economic incentives and disincentives, regulatory variations, and most controversially, social and legal cultural factors. The essay suggests a variety of somewhat overlapping cultural “nodes” that influence the forms and acceptability of mediation use, ranging from legal and social cultures that are argumentative, adversarial, face-saving or so-called “harmony” cultures, dialogic, transitional, or conversational cultures, and hybrid or cosmopolitan cultures. The uses of mediation in these settings is contrasted to both litigation and arbitration, which unlike mediation (so far), have formal mechanisms for enforcement of judgments or awards (though legal doctrines and treaties, such as the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards). The use of mediation for a variety of different animating purposes, therefore, varies for both formal legal and structural reasons, as well as for more sociological and illusive cultural patterns in methods of dispute resolution in any given society.

Mandatory Workplace Mediation

Mediation has found an entrance in the agenda of policy makers and dispute system designers for several reasons, including its claim to improve access to justice. Yet, there are still many questions regarding the type of conflicts that is really suited to be mediated, and how to design mediation systems capable of delivering the benefits claimed. In fact, the perfect recipe to design an effective and satisfactory mediation system has not been found yet. The challenge is big: how can mediation deliver fairness and justice? For a comprehensive response, we need insights and perspectives from multiple disciplines. Currently, Dispute System Design arises as a new research area that studies conflict from a variety of perspectives (psychology, sociology, law, economics, etc.).

Is ODR ADR? Reflections of an ADR Founder from 15th ODR Conference, the Hague, the Netherlands, 22-23 May 2016

This essay presents the observations of a founder of the dispute resolution field to new developments in online dispute resolution, expressing both concerns and hopes for greater access to justice.

Law And…..Michael Freeman: The Scholar, the Man the Modern Renaissance Humanist

This essay is the valedictory essay for a festschrift honoring Professor Michael Freeman of the University College of London (UCL) Faculty of Law reviewing his published work of over 85 books and hundreds of articles on “law and society,” transdisciplinary study of law and legal institutions in such subjects as jurisprudence, theories of law, medical law, legal and medical ethics, rights of children, family law, domestic violence, law and literature, popular culture, law and neuroscience, law and anthropology, sociology, health law, dispute resolution, religion, law and personal life, cricket, and law and countless other applications of social realties to the making, interpretation and enforcement of law. The essay provides examples of the career of an exemplary legal scholar whose primary goals in legal scholarship and pedagogy is to query how law can be used to improve the lives of the disempowered and to deliver real, not just imagined, social justice. After more than 20 years of editing the series “Law and……….”, Michael Freeman is now honored with his own “Law and ..Michael Freeman” volume with over 40 contributors who laud his contributions to their thinking and honor him with modern applications of his work to their many fields. This essay comments (by his editorial colleague of 10 years of the International Journal of Law in Context, Cambridge University Press) on Michael’s contributions to “law and humanity” and provides a bibliography of his over 80 edited books.

Mediation, Arbitration, and Alternative Dispute Resolution (ADR)

This entry for the International Encyclopedia of the Social & Behavioral Sciences, 2nd ed. defines and describes modern processes of dispute resolution beyond court adjudication, including negotiation, mediation, arbitration and a variety of new hybrid forms of dispute resolution (e.g. med-arb, summary jury trial, public policy consensus building) that are sued in both public and private disputes. The article reviews the history and theory behind these processes, outlining quantitative and qualitative reasons for their use and then reviews a variety of controversies association with their use, including the privatization of dispute resolution, difficulty in evaluating their effectiveness and power imbalances in their use. The aspirational qualities of process pluralism are contrasted to the realities of their use and cooptation in some contexts, such as when powerful private and public parties dictate the form that dispute resolution takes, without party consent.

Senses of Sen: Reflections on Amartya Sen’s Ideas of Justice

This review essay explores how Amartya Sen’s recent book, The Idea of Justice, is relevant and important for the development and assessment of transnational theories and applications to transnational justice and legal education programs. The essay captures a trans-jural dialogue of multinational scholars and teachers, discussing Sen’s contributions to moral justice theory (criticizing programs for “transcendental institutionalism” (like Rawlsian theory) and instead focusing on “comparative broadening” including empirical, relative, and comparative assessments of programs to ameliorate injustice in the world in its comparative concreteness (as in Indian social justice theory and Adam Smith’s Theory of Moral Sentiments and related work). The authors are professors in the transnational legal education program, the Center for Transnational Legal Studies, sponsored by over 25 different law schools, located in London. They teach courses in a wide variety of subjects, including comparative legal theory, constitutional law, business and legal ethics, moral and legal philosophy, international and comparative law, capital markets and business law, emergency powers, international dispute resolution and a variety of other common and civil law subjects.