AlternativesTO THE HIGH COST OF LITIGATION

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INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION VOL. 23 NO. 11 DECEMBER 2005

Alternatives

VOL. 23 NO. 11 DECEMBER 2005 ALTERNATIVES 179

the behaviors that we choose.”Another factor, she said, is, “What do we owe to our

clients?”And finally, “What do we owe to others outside of the actual

negotiation?” She explained that the issue of how mediationroom events affect “bystanders, . . . future generations, childrenin divorce, employees in mergers and acquisitions, [and] stockholders,” among others, is “a question of great behavioral andscientific interest.”

Analyzing the four duties, she said, “could lead you to makedifferent decision.”

Menkel-Meadow, who as chairwoman of the CPR-George-town Commission on Ethics and Standards in ADRoversaw the production of the commission’s 2002“Model Rule for the Lawyer as Third Party Neutral,”said that “What’s Fair” was the first part of a three-stepnegotiations ethics project. She and Wheeler continueto research the subject, she said, and asked meeting at-tendees to participate by turning in handouts indicat-ing which path they took in the hypothetical examplesshe presented during the session. She said that theproject’s final step would be to publish advice on what

negotiators should do, after collecting the empirical data.The hypotheticals Menkel-Meadow used showed how peo-

ple react depending on the nature of a transaction. The firstproblem, she said, involved distributional fairness, adding,“One way to think about it is a utilitarian argument. Whatshould we do with respect to people on the other side of thetable to maximize the best thing for them and for us?”

Analyzing roles of the people in the sale produces differentresults. Menkel-Meadow illustrated her point by noting thatpeople proceed differently if they are negotiating the transactionwith an elderly person than with an executive. “Asymmetries inpower or experience,” she said, and “context and culture,” raiseprocess issues too. “[Y]ou could begin to think about what ob-ligations, if any, should we have to equalize the distribution ofinformation. That’s a process concern without even consideringthe distributional equities of the outcome. . . . You might thinkabout whether your behaviors . . . would depend on the context[and] the subject matter of the negotiation, as well as withwhom you’re doing the negotiations.”

Menkel-Meadow said she was skeptical about calibratingethics “to the culture in which we operate.” She asked, “Who’sto determine what the culture is? Who’s to determine what the

Over the past two issues, Alternatives has presented high-lights of continuing legal education seminars presented bythe CPR Institute at its Annual Meeting in New York lastJanuary. Below are two more sessions from that meeting, onnegotiation ethics and breaking impasse.

In September, the 2005 Annual Meeting series beganwith the opening session, on resolving business disputes inChina. See 23 Alternatives 148 (September 2005). Lastmonth, the two excerpts were titled “Hot Topics: The Lateston Patent Mediation and European Business ADR,” 23Alternatives 167 (November 2005).

More will follow next month. Still to come are highlightsof sessions on the mediation strategies of parties,their attorneys, and the mediator, and commercialarbitration’s challenges.

Next month, the CPR Annual Meeting for the firsttime will convene at the Essex House, a hotel onNew York’s Central Park South. For information onthe agenda, see CPR News in this issue at page 178.

For the latest information on the 2006 meet-ing, or to register, go to www.cpradr.org.

IV. ETHICS FOR NEGOTIATORS.

Last January’s CPR Annual Members Meeting included a contin-uing legal education seminar focusing on ethics in negotiation.

Veteran CPR meeting presenter Carrie Menkel-Meadow re-turned to analyze mediation situations and the ethical dilemmasthey produce.

Her exercises, lecture, and audience exchange were based inpart on her book, “What’s Fair: Ethics for Negotiators,” whichhad been published just before the annual meeting by Jossey-Bass, a unit of John Wiley & Sons Inc., which also publishesthis newsletter.

Michael A. Wheeler, a management practice professor atHarvard Business School, coauthored the book, but was unableto attend the session due to transportation problems.

The key consideration for the hour-long session was, “Whatdetermines how we negotiate?” said Menkel-Meadow, A.B.Chettle Jr. Professor of Dispute Resolution and Civil Procedureat Washington’s Georgetown University Law Center.

The factors, she explained, include, “What do we owe toourselves? “ and “What do we owe to others with whom wenegotiate?” Negotiators’ conceptualization of people sittingacross the negotiation table “may very much call on and affect

CPR MEETINGS

More Tips for When Mediation Impasse StrikesAlso: Ethical Dilemmas at the Negotiating Table

PRACTICE TOOLS

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VOL. 23 NO. 11 DECEMBER 2005180 ALTERNATIVES

training—about half students and half practicing lawyers. Shereported that 42% said they gave their word on the deal, sub-stantially lower than both the business group and the CPR meet-ing attendees. About 33% said they would follow the boss’s re-quest, and about 25% said they would try the middle road.

She asked the audience why it thought the law-trained re-spondents more frequently said they would follow the boss’s or-ders than their business counterparts.

“Because lawyers have two conflicting influences here,” saidan audience member. “Because you have your own standards,but you’re also representing a client and you have a duty to theclient, which the businessperson doesn’t have to deal with. Soyour client is really the boss in the negotiation. You’re just therepresentative so you have an obligation to do what he asks.”

Menkel-Meadow called the explanation a “contextual” fac-tor in the negotiation—“the special role of the lawyer.” Legalpractice provides another negotiation context, she said: “It ain’tover till it’s over. Negotiations continue in real estate deals un-til they’re actually signed.”

Another factor for lawyers is hierarchy, she said. Law stu-

dents in particular may “view their lives as following orders,”says said, which can help explain the results.

She emphasized, again, that getting a better deal is a regularpart of life and business. As a result, her hypotheticals were de-signed to show the variation in human behavior, and how thataffects negotiation practices.

Menkel-Meadow explained that the data collected doesn’t re-flect actual transactions and the participants’ conduct, collectionof which will be the next research step. But she said that existingdata “tend to substantiate . . . the wide range of behavior.”

She dealt with an audience member’s hypothetical example,in which a junior lawyer returns from a settlement conferenceand is told that he should not have given away a bottom-line set-tlement number. She responded that under the comment toModel Rule of Professional Responsibility 4.1, lawyers’ estimatesabout settlement amounts in negotiations aren’t fact statements,which means that avoiding revealing a bottom line number in asettlement conference is acceptable under the model rules.

Rule 4.1 prohibits knowingly making a false statementabout a material fact, or failing to disclose a material fact undercertain conditions. She discussed a statement in Comment [2],“Under generally accepted conventions in negotiation, certaintypes of statements ordinarily are not taken as statements of ma-terial fact.” She said she disagreed with the statement in revi-sion processes. The commentary, she noted, “assumes what

calibration is?” When it comes to ethical and behavioral choices,“probably people’s individual predispositions will turn out to bemore significant than their group and cultural ones,” she said,adding quickly, “But that’s open for conversation.”

A second hypothetical example involved the sale of real es-tate where there were rumors of the construction of a new mo-tocross track nearby. This is a situation, Menkel-Meadow said,where the law may provide the ethics answer. She said that spe-cific real estate disclosure forms would require the seller to dis-close the track construction news, against his or her interest. Alaw may not cover a rumor, as opposed to approved imminentconstruction. But, she explained, “much of what lawyers mustdo or can do in negotiation actually is affected by the role oflaw in a particular state or jurisdiction.”

She said that the negotiation ethics on staying silent varygreatly, and that state statutes on fraud must be consulted.Would a rumor invoke an obligation to disclose? “The answeris, in a lot of jurisdictions, yes,” said Menkel-Meadow, adding,“If a direct question is asked, you must answer it honestly.”

She explained that “instrumental ethics”—linking the ac-tions to a rule or potential discipline—is a different motivatorthan “some sense of appropriateness of behavior.”

Instrumental ethics, however, “comports here with goodnegotiation skills,” she said. “The basic tool of a good negotia-tor ought to be asking a lot of questions, not making a lot ofstatements.”

Menkel-Meadow conducted an instrumental analysis of ne-gotiation. “Should I be truthful, in hoping that the other per-son will be truthful too?” she asked. “We need to worry aboutthe law of fraud. . . . Our reputation for honesty, candor andwho we are as negotiators is probably the single most importantenforcement mechanism of good ethics.”

Motivation to tell the truth may come from the way individ-uals are raised, their religious training, or other socialization fac-tors, she said, “but ultimately for most people it has to do withthe reputation that they want to carry into their profession.”

A third hypothetical involved an individual striking a dealfor a boss . . . who tells the individual to go back to try get abetter deal. When asked by Menkel-Meadow, the largest per-centage of meeting attendees said the answer they chose on thehandout was that they would be uncomfortable going back ontheir word to the other party. A smaller, evenly split numberchose either a second option, doing what the boss says, or athird option, which was agreeing to meet with the other sidebut making clear that the requested price sweetening was not adeal breaker.

Menkel-Meadow, who is a longtime Alternatives’ editorialboard member, said that 53% of the Harvard Business Schoolstudents and executives at continuing education programs sur-veyed by Michael Wheeler took the first choice, saying that thedeal had been struck. That percentage, she said, was smallerthan the show-of-hands she had just seen among CPR meetingattendees. Only 18% of the business students and executivessaid they would do what the boss told them to do, and about29% said they would try the middle road.

She said that she previously surveyed individuals with law

(continued from previous page)

The negotiation ‘reciprocitycheck’: Would I want others to

treat me this way?

VOL. 23 NO. 11 DECEMBER 2005 ALTERNATIVES 181

cially important where a continuing relationship is a subject ofthe negotiation. The check deals not with the world at large, butspecifically with the person across the table. “Would I want oth-ers to treat me this way . . .?” she asked.

The third point is a publicity check. Menkel-Meadowstated that negotiators should simply ask themselves, “WouldI be comfortable if I read about what I had just done on thefront page of the Wall Street Journal? She said that a variationon the publicity test is the videotape test: “If someone was sit-ting in a room with me during a negotiation or mediationand . . . they were taking pictures or they were somehow se-cretly taping me,” she said, “Would I be embarrassed to hearsome of what I had said?”

She told the meeting attendees to use the “best friend test.”She said to think about the person in your life that you mostwant to be proud of you. “How would you feel if that personknew what you were doing?”

She ended the session asking negotiators to consider “the legacycheck.” The test, she said, is “[Does] this thing that I’m about to doreflect the kind of person that I want to be known as?” �

V. BREAKING IMPASSE IN NEGOTIATION AND MEDIATION: NEWEST TECHNIQUES AND APPROACHES.

A panel kicked off the second day of the CPR Institute’s 2005Annual Meeting dissecting methods for getting past mediationtrouble spots.

The session, led by Phillip M. Armstrong, principal counselfor alternative dispute resolution and litigation at Georgia-Pa-cific Corp., was a first for CPR: The same panel had been as-sembled to discuss the topic at the previous U.S. CPR meeting,in New Orleans in Spring 2004. The subject sparked broad dis-cussion that allowed the panel and audience to reach only ahandful of areas that often halt ADR efforts. Moreover, the tipsthe panelists provided were well received. So CPR reconvenedthe same group to attack the subject again.

Highlights of the first session can be found at 23 Alternatives3 (January 2005).

The setting for the panel’s ideas, said Armstrong, is when“despite your best efforts, the mediation is on the verge of col-lapse. It’s within an eyelash of cratering. What can mediators,parties, and advocates do to prevent that from occurring, tokeep impasse from taking hold, and destroying all of the effortsup until that point?”

Armstrong provided the first possible solution, from the per-spective of an in-house attorney where, he said, he usually servesas an advocate on behalf of Georgia-Pacific, a large paper prod-ucts and chemicals company based in Atlanta. “If I’m in medi-ation that’s starting to go south and on the verge of collapse,” hesaid, “if the other side has an in-house counsel like myself, then[I] have found that I can salvage the mediation if I . . . isolatethe in-house counsel.”

He explained he asks for the mediation’s brief adjournment,and talks privately with the other corporate counsel, “who I

most of us have assumed—that is the way most lawyers behave.” But, she pointed out, “conventions and customs of negotia-

tion” haven’t been adequately documented. The result, she says,is that negotiation ethics in this instance are “determined instru-mentally from the rules,” as well as by custom passed fromlawyer to lawyer.

Mediators, she said, need to take note of their limits. In re-sponse to an audience hypothetical where one party tells the neu-tral its bottom-line settlement number but asks the mediator notto share it with the other side, Menkel-Meadow said that regard-less of their position on the spectrums of ethical choice, they mustbe clear with mediation parties. The parties and the mediator needto agree to “rules of engagement”—which she said she believesmakes mediation “much easier” than nonfacilitated negotiations.

One “extreme” tactic, she said, is for the mediator to avoidputting himself or herself in that position. “[T]o promote totalcandor,” she said, “you have the possibility of not caucusing atall—not having separate sessions.” She added that when she me-diates, she tries to keep the parties together “most of the time”to ensure candor. “[A]nd if the parties want to engage in thatkind of traditional negotiation they can,” said Menkel-Meadow,“and the mediator is not implicated in carrying messages backand forth that may be read as exaggerated offers. . . .”

After an audience question about negotiation perceptions,Menkel-Meadow said that some studies indicate that almost“everybody thinks that everybody else is going to lie and cheatmore than they are. . . .” People usually believe that they aremore likely to be honest than other people.

She closed the session by shifting the negotiation considera-tions to the mediator’s perspective. “To what extent does themediator bare some ethical responsibility for the outcome thathe or she presides over?”

She said she has withdrawn from cases where she “thoughtsomething unfair was going to happen.” And, Menkel-Meadowadded, “I have done things inside of a mediation to prevent out-comes that I thought distributionally unfair. . . .”

An audience member asked what Menkel-Meadow said tothe mediation session participants when she withdrew. Shereplied, “I said ‘I’m withdrawing.’ In one case I told both par-ties I’m withdrawing because I think if I stayed in . . . we wouldmake an agreement that would have sufficient flaws in it frommy perspective—that it both wouldn’t be fair, and I think wouldultimately be attackable post hoc.”

“Without any more specificity?” the meeting attendee asked.“That’s correct,” Menkel-Meadow replied. “And there’s an-

other situation where I withdrew with more specificity. A partyin [a] bankruptcy, presented false—what turned out to befalse—information to me. And that time I did a ‘noisy with-drawal.’ I just said to the parties, ‘I believe as a mediator I’m get-ting information that I don’t trust, and therefore I can’t askyou . . . to trust.’”

Menkel-Meadow said that she believed that she had onlywithdrawn as mediator in the two examples she had provided.

She listed “checkpoints” for judging one’s actions as a nego-tiator or mediator that she said she had devised with MichaelWheeler. First, a content-focused “universality check” asks“Could I recommend that anyone in my situation act this way?”

Second, she recommended a “reciprocity check” that is espe- (continued on next page)

VOL. 23 NO. 11 DECEMBER 2005182 ALTERNATIVES

weeks. He said he enlisted a former state court official thatworks for his firm—a former Florida Supreme Court justice—who wrote the opinions each side had been citing in the medi-ation. The ex-judge would provide a nonbinding advisory opin-ion after each side makes its respective case.

The expert issued the opinion stating that under the law, thecase was a termination. Watson said that the contractor calledhim the next day “and said ‘Call the city and tell them I’ll ac-cept the last offer they made.’”

Watson said he replied, “What do you mean? You won. Thejudge said you were right.”

“I know,” Watson reported the contractor as saying. “All thatwas important to me is that I have never abandoned a job in mylife and I’m not going to have anyone telling me that I aban-doned this one. Tell them I’ll take their last number. Let’s getthis one done.”

Panelist Robert A. Creo, a Pittsburgh neutral who headshis own practice, said that optimism is a prominent tool hebrings to mediation. “I start with the premise that we’re alwaysgoing to continue the dialog,” he said, echoing Watson’s view

that impasse should be greeted with an adjournment, to cooloff the parties.

Creo said that his retainer agreement sets up measures thatultimately deal with impasse down the road. He said that theagreement is a binding contract to mediate that gives him strongprocess controls that reduce pullouts. The retainer requires par-ties to allow him to speak to any party representative.

“I view mediation and impasse as an asymmetrical process,”Creo explained. “And what I mean by that is that you can’t gointo it and treat each party as the same. You can’t go into it withwhat I would call ‘a neutrality mentality’ and [say that] you’renot acting as an arbitrator or judge. You’re part of the process.You’re part of a dynamic system, and you’ve intervened.”

An impasse is asymmetrical too, he said, because people oneach side of the table haven’t come to the impasse in the same way.

He said he sets up the mediation’s asymmetrical dynamics atthe outset, detailing power imbalances, differing aspirations andagendas, etc. He said that in his opening statement, he uses the set-ting to announce, “I will continue and not declare impasse as longas I find one participant on either side who isn’t done yet.” Creosaid he tells the parties that he may perceive that they aren’t donenegotiating by their words and actions, and his own interpretation.

He says that he tries to provide a mediation setting where henever lets parties “draw a line in the sand.” Said Creo, “I’d neverask anyone, ‘Are you done, is this your final position?’ I just

have a certain kinship with since he stands in the same shoes asI do for his company.” The private conference—which tries “tolook globally at what we’re trying to accomplish”—often getsthe mediation back on track, according to Armstrong.

Panelist Steven J. Comen, a partner in Boston’s GoodwinProcter LLP, said that commercial mediations, with in-houseand outside counsel and business people, involve two dynamics:the interparty mediation, and a second “special” mediation go-ing on among the members of each side.

“That mediation within each side is not always fully under-stood by the mediator,” said Comen. The dynamic is differentin each case, he explained, even where the cases involve the samein-house and outside counsel, “because in the company theremay be different people involved whose bonuses or decisions areon the line. . . .”

Reacting to Armstrong’s example, Comen said that the me-diator should respect the private discussion between the in-house counsel “if that’s the right dynamic.” But Comen addedthat the opponent’s in-house counsel may not have the samelevel of respect within his or her company. “In those cases,” ex-plained Comen, “isolating that in-house counsel won’t makemuch difference because the real person that needs to make thedecision . . . may not even be in the room.”

Comen said that neutral experts, when used well by media-tors, can make nonbinding decisions that are effective in help-ing the intraparty mediations reach bargaining positions for the“public” mediation.

Another impasse-breaker, Comen explained, is a mediator’sproposal, where the neutral provides a settlement range and hisor her reasons for establishing the range. The proposal can workwell in the internal, intraparty mediations, he said. The timingfor presenting the proposal often is a difficult call, he said.

“In the best of mediations,” he concluded, “it’s the outsidecounsel and the inside counsel who together will work in advis-ing the mediator about when it will be best, if at all, to isolatetheir CEO or decision maker” in order to break an impasse.

Moderator Armstrong said that the meeting panel had metbefore the session, and agreed that it couldn’t provide a “tem-plate or trick of the trade” to avoid impasse. “The truth,” hesaid, “is that it’s the very flexibility of the ADR process and ofthe mediation process that comes into play, and . . . each medi-ation has to be addressed differently.”

Panelist Lawrence Watson, of the Maitland, Fla., office ofADR provider Upchurch Watson White & Max, said he callsone of his favorite tricks of the trade “streaming the mediation.”The technique involves changing the mediation dynamics to getmore information out of the parties, which eventually laysbroader settlement ground.

In Watson’s real-life example, a Florida city had filed suitagainst a contractor, and the dispute centered on whether thecontractor had abandoned his work, or if he had been termi-nated by the city. The contractor’s fee depended upon whetherthe work ended because of abandonment or termination. Bothsides thought they would win, Watson said, so he offered a pro-cedure to get an information stream from both sides.

First, he said, at impasse, he adjourned the matter for two

‘I will continue and not declareimpasse as long as I find oneparticipant on either side who

isn’t done yet.’

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VOL. 23 NO. 11 DECEMBER 2005 ALTERNATIVES 183

ment issue is much easier to discuss. “[W]hen we start to eval-uate the data necessary to evaluate the settlement option, weonly need one thing,” he said. “Their number. . . . I want thatout. I want that on the table. At that point in time, we haveprevailed in this process. We have won, because we’re in a po-sition to make a valid decision about whether to settle or tonot settle.”

The audience member said that getting the settlement dol-lar figures out of the parties gets the negotiations going, “and

pretty soon all the interests and concerns come out. [Wemove] away from this concept that the agreement must mirrorthe judgment.”

Three other audience members shared at length their neu-traling procedures, and how they interact with impasse.

“[T]here are no black and white rules in this process ofmediation,” said Goodwin Procter’s Steven Comen. He saidhe urges clients, every corporate lawyer, and contract draftersat his law firm to put in every contract—”unless there is someextraordinary circumstance”—a requirement making media-tion mandatory as a condition precedent to binding arbitra-tion or court. �

DOI 10.1002/alt.20105

(For bulk reprints of this article, please call (201) 748-8789.)

never talk that way, so I just eliminate that from the dia-logue. . . . And if people tell me they’re at their final position Ijust say that I don’t believe them.”

He said that mediation decision-making happens for reasonsbeyond reason and emotion, noting that some decisions—likethe contractor in Lawrence Watson’s example—are made basedon the party’s societal or social role.

Personal values also play a big part, he said. When they getto mediation, “you’re talking to them on multiple levels.”Creo continued: “You’re hearing them as citizens. You’re hear-ing them as emotional people. You’re hearing them as reason-able people, and you’re hearing them as their values interplaywith that.”

All the factors are stirred together at the mediation, he ex-plained, and it is weighed against the parties’ perceptions andrisk tolerance. “You want to take the sure thing today and con-trol your outcome, or go into the uncertainty?”

Moderator Phillip Armstrong asked audience members todiscuss their techniques to ward off mediation impasse. One at-tendee said that the cause of an impasse often arises at the start,when he finds that parties are about to mediate with “a com-pletely erroneous idea of what the process is for.” He said theygo into mediation expecting victory in the form of “a piece ofpaper with our number on it.”

The problem, continued the audience member, is that theparticipants have “predefined the outcome of a mediation interms that are more closely analogies to an adjudication, and thesuccess or failure of the endeavor is a function of how much theagreement’s going to look like the judgment.”

The audience member said that to combat the effect whenhe sees it—either before or during the mediation—he tries toshift the definition about the outcome by drawing a distinc-tion about the facts needed in deciding at the session whetherto proceed to court, and the facts necessary to solve the dis-pute immediately.

While the parameters of a court action can be mostly laidout in detail, the meeting participant suggested that the settle-

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professionals, and there are three symposia

(and counting) in legal publications on it, as

well other law review articles about it.I submit that the Vanishing Trial is a

myth—and not a particularly helpful one at

that. To say that it is a myth is not to suggest

that the facts or analysis in Prof. Galanter’s

report are fictional or inaccurate. Rather, it isa myth defined as a “popularbelief or story that has becomeassociated with a person, insti-tution, or occurrence, especiallyone considered to illustrate acultural ideal.” Human soci-eties need myths to help pro-vide meaning for life. Social sci-entists find that myths are

powerful in modern societies as popular sto-

ries are integrated into individuals’ and or-

ganizations’ core values and beliefs. This arti-

cle argues that TPKATVT is a misleading

and counterproductive myth and suggests al-

ternative myths and methods for addressing

the ideals embodied in TPKATVT.THE MYTH’S CONSTRUCTIONThe vanishing trial myth has three ele-

ments: (1) The, (2) Vanishing, and (3) Trial.

“The” implies, inaccurately, that there is a

single uniform phenomenon of trial. “Van-

ishing” implies, inaccurately, that “the trial”

is on the verge of disappearance. “Trial”

evokes many images, most of which are

highly idealized and unrepresentative of the

vast majority of trials.Focus first on the mythical aspect of

“trials” in TPKATVT. TPKATVT has great

mythic power because of the mythic charac-

ter trials themselves have in our popular and

BY JOHN LANDEUniversity of Wisconsin Law School Prof.

Marc Galanter has set much of the legal and

dispute resolution worlds abuzz with his re-

port, “The Vanishing Trial: An Examination

of Trials and Related Matters in Federal and

State Courts.” 1 J. Empirical Legal Studies

459 (November 2004).He marshals a massiveamount of data to documentan apparent paradox: The pro-portion of cases going to trialhas dropped sharply during thepast 40 years despite substan-tial increases in many other le-gal indicators, including thenumber of lawyers, the num-ber of cases filed, and the amount of pub-

lished legal authority. The most stunning

fact is that the civil trial rate in the federal

courts steadily dropped to 1.8% in 2002,

from 11.5% in 1962.“The Phenomenon Known as the Van-

ishing Trial,” or TPKATVT, has taken on a

life of its own that transcends empirical real-

ity. In TPKATVT’s short career, starting in

2002, the American Bar Association Litiga-

tion and Dispute Resolution Sections estab-

lished task forces to study it, there have been

numerous sessions about it at conferences of

judges, lawyers, and other dispute resolution

INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION VOL. 23 NO. 10 NOVEMBER 2005

DIGEST

AlternativesTO THE HIGH COST OF LITIGATION

LITIGATION

LITIGATIONBemoaning the decline in the number of

trials in the nation’s justice system isn’t

productive, contends John Lande, of

Columbia, Mo. He describes why “The

Phenomenon Known as the Vanishing

Trial” fails to recognize dispute resolution

efforts. ..................................Page 161CPR NEWSThe International Institute for Conflict

Resolution will get a new home this

month, and more. ................Page 162NEGOTIATIONJudith P. Meyer, of Philadelphia, shares

stories from art and literature–specifical-

ly, a Bible passage, a Philip Roth short

story, and a Chinese film–that show the

use of mediation skills in everyday life,

and serve as examples for maximizing

negotiation effectiveness. ........Page 163INTERNATIONAL ADRTwo “Hot Topic” sessions are excerpted

from CPR’s Annual Meeting earlier this

year–one on patent dispute manage-

ment, and the other on commercial

mediation. ...............................Page 167ADR BRIEFA wrap-up of the early conflict resolu-

tion efforts related to Hurricanes Katrina

and Rita between and among insurance

companies, home and business owners,

bar associations, government agencies

and officials, and national ADRproviders. .............................Page 171

DEPARTMENTSCPR News............................Page 162

Index Info...........................Page 166

Online Info.........................Page 166

ADR Brief............................Page 171

Cartoon by Cullum................Page 173

Replace ‘The Vanishing Trial’With More Helpful Myths

(continued on page 169)

The author is an associate professor and director of

the LL.M. Program in Dispute Resolution at the

University of Missouri-Columbia School of Law. This

article is based on his article, “Shifting the Focus

From the Myth of ‘The Vanishing Trial’ to Complex

Conflict Management Systems, or I Learned Almost

Everything I Need to Know About Conflict

Resolution From Marc Galanter,” which was set for

publication last month in 6 Cardozo Journal of

Conflict Resolution (2005). The author also wrote

on this subject in “‘The Vanishing Trial’ Report: An

Alternative View of the Data,” Dispute Resolution

Magazine 19 (American Bar Association Section of

Dispute Resolution Summer 2004).

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‘I want that out. I want that on the table. At that point in time, we have prevailed

in this process. ’