Many employers create internal procedures for the resolution of discrimination complaints. We examine internal complaint handlers' conceptions of civil rights law and the implications of those conceptions for their approach to dispute resolution. Drawing on interview data, we find that complaint handlers tend to subsume legal rights under managerial interests. They construct civil rights law as a diffuse standard of fairness, consistent with general norms of good management. Although they seek to resolve complaints to restore smooth employment relations, they tend to recast discrimination claims as typical managerial problems. While the assimilation of law into the management realm may extend the reach of law, it may also undermine legal rights by deemphasizing and depoliticizing workplace discrimination.
Can we activate a new movement for justice?
This article analyzes advantages and disadvantages of mediation, collaborative law, and cooperative law based on the parties' capabilities, attitudes about professional services, and assessments of and preferences about the risks of various procedures. Each of these procedures has virtues and there is great value in providing clients and practitioners with a choice of procedures. Under collaborative and cooperative law, lawyers and clients agree to focus exclusively on negotiation from the outset the case, typically using a problem‐solving process. Collaborative law involves a written “disqualification agreement” between all the parties and their lawyers under which lawyers are disqualified from representing parties in litigation if either party chooses to litigate. Cooperative law is similar but does not use the disqualification agreement. Because most communities do not have lawyers offering cooperative law, collaborative law groups should encourage at least some of their members to offer clients the option of cooperative law.
C ourt-connected mediation often works very well. That is a fair conclusion based on evidence summarized in Roselle Wissler's meticulous review of court-connected mediation. Analyzing studies of small claims, general civil, and appellate mediation programs, her review suggests that mediation is usually evaluated very favorably and is rated as highly as or better than the alternatives on virtually all outcome indicators. 1 In other words, almost all of these studies find that the results are either better in mediation or that there are no significant differences.This suggests that mediation has the potential to be quite effective in producing various desired results and that whether a mediation program actually generates such results depends on how well it is designed and fits with the local practice culture. Mediation is a highly variable process that program designers and users can readily adapt. As McEwen (1988) suggests, instead of "asking whether mediation works or not, we need to examine how and why parties and lawyers 'work' mediation in varying ways" (p. 3). 2 McEwen's suggestion can be extended to analyze how mediators and program designers "work" mediation processes. Thus, this article analyzes prior research to determine why some mediation programs did not outperform traditional litigation while others did. 3 It illustrates how researchers and program designers might analyze past research findings, design programs to produce desired results, and then empirically test the effectiveness of such design efforts. 4 This article also suggests that researchers increase the use of outcome measures in addition to traditional measures of efficiency, satisfaction, and perceived fairness. These include substantive justice, empowerment and recognition, and interest-based problem solving. Given intense concerns about mediator evaluation and party self-determination, researchers should also examine these issues further.
This article analyzes advantages and disadvantages of mediation, collaborative law, and cooperative law based on the parties' capabilities, attitudes about professional services, and assessments of and preferences about the risks of various procedures. Each of these procedures has virtues and there is great value in providing clients and practitioners with a choice of procedures. Under collaborative and cooperative law, lawyers and clients agree to focus exclusively on negotiation from the outset the case, typically using a problem-solvingprocess. Collaborative law involves a written "disqualification agreement"between all the parties and their lawyers under which lawyers are disqualified from representing parties in litigation if either party chooses to litigate. Cooperative law is similar but does not use the disqualification agreement. Because most communities do not have lawyers offering cooperative law, collaborative law groups should encourage at least some of their members to offer clients the option of cooperative law. Authors' Note: This article is udupted,frr,m John Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering, 64 OHIO ST. L. J. 1315 (2003). Thanks to Greg Firestone and Lee Jorduri for helpful comments on an earlier draft. The order of author listings was chosen rundomly. John Lande is an associate prqfessor anddirector of the LL.M. Program in Dispute Resolution, University of Missouri-Columbia School of Law. He received his J.D. from the Hustings College of Law and his Ph.D. from the University of Wisconsin-Madison. Gregg Herman is a family law attorney with Loeb & Hermun, S.C., Milwuukee, Wisconsin. He is the founder of the Collaborative Family Law Council of Wisconsin, Inc., and is chair of the Divorce Cooperation Institute, Inc.
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