Recommended Readings

Selected Publications About Mediation and ADR

This is an idiosyncratic selection of resources relevant to mediation and ADR. This list was last updated in 2001 and thus is a bit dated.


Nature and Causes of the Adversarial System

William L.F. Felstiner, Richard L. Abel, and Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …, 15 Law & Society Review 631 (1980-81). This is an important article analyzing how (only rare) situations become disputes and lawsuits.

Marc Galanter, Case Congregations and Their Careers, 24 Law & Society Review 371 (1990). This is a very thoughtful analysis.

Marc Galanter, Why the AHaves@ Come Out Ahead: Speculations on the Limits of Legal Change 9 Law & Society Review. 95 (1974). This is a classic article on the nature of power.

Samuel R. Gross & Kent D. Syverud, Getting to No: A Study of Settlement Negotiations and the Selection of Cases For Trial, 90 Mich. L. Rev. 319 (1991).

Robert Kagan, Do Lawyers Cause Adversarial Legalism? A Preliminary Inquiry, 19 Law & Social Inquiry 1 (1994). This is a very thoughtful analysis.

Stewart Macaulay, Non-Contractual Relations in Business: A Preliminary Study, 28 Amer. Sociological Review 55 (1963). This is a classic article analyzing why people prefer to avoid lawyers and litigation.

Richard E. Miller & Austin Sarat, Grievances, Claims and Disputes: Assessing the Adversary Culture, 15 Law & Society Review 525 (1980-81). A companion to Naming, Blaming, Claiming.

Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System–and Why Not?, 140 U. Penn. L. Rev. 1147 (1992). This is an eye-opening article.

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General Conflict, Negotiation, and Conflict Resolution Theory and Practice

Morton Deutsch & Peter T. Coleman, The Handbook of Conflict Resolution: Theory and Practice (2000). This is an extensive award-winning collection of essays.

Roger Fisher, William Ury,& Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In (2d ed. 1991). This is a landmark, widely popular, and easy-to-read book that focuses on using interests to develop agreements. This book spawned a series of similar books from the Harvard Negotiation Project, including Getting Past No, Difficult Conversations etc.

Robert H. Mnookin, Scott R. Peppet and Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (2000). This award-winning book extends the insights of Getting to Yes to negotiations involving represented clients.

Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem-Solving, 31 UCLA L. REV. 754 (1984). This is a more theoretical analysis of interests than Getting to Yes.

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Treatise

Nancy H. Rogers & Craig A. McEwen, Mediation: Law, Policy, Practice (1994 & Supp.). This is probably the most authoritative treatise on the subject.

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Anthologies of Dispute Resolution Readings (Casebook Style)

James J. Alfini, Sharon B. Press, Jean R. Sternlight, & Joseph B. Stulberg, Mediation Theory and Practice (2001).

Stephen B. Goldberg, Frank E.A. Sander, & Nancy H. Rogers, Dispute Resolution: Negotiation, Mediation, and Other Processes (3d ed. 1999).

John S. Murray, Alan Scott Rau, and Edward F. Sherman, Processes of Dispute Resolution: The Role of Lawyers (2d. ed. 1996).

Leonard L. Riskin & James E. Westbrook, Dispute Resolution and Lawyers (2d ed. 1997).

E. Wendy Trachte-Huber & Stephen K. Huber, Alternative Dispute Resolution: Strategies for Law and Business (1996). (There is also a 1998 edition of the book entitled, AMediation and Negotiation: Reaching Agreement in Law and Business.@)

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Mediation Texts

Mark D. Bennett & Michele S.G. Hermann, The Art of Mediation (1996).

Gary J. Friedman, A Guide to Divorce Mediation: How to Reach a Fair, Legal Settlement at a Fraction of the Cost (1993). This should be relevant for mediation of cases other than divorces. This book is unusual because it contains extended (apparently hypothetical) dialogues in mediation with analysis of the interactions.

Eric Galton, Mediation: A Texas Practice Guide (1993). Quite practical, this should be relevant to mediators outside Texas.

Dwight Golann, Mediating Legal Disputes: Effective Strategies for Lawyers and Mediators (1996). This book won a prestigious book award from the CPR Institute of Dispute Resolution.

Kimberlee K. Kovach, Mediation: Principles and Practice (2d. ed. 2000).

Christopher W. Moore, The Mediation Process: Practical Strategies For Resolving Conflict (2d ed. 1996). This book includes thoughtful advice based on social science research.

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Mediation Advocacy Texts

Edward Brunet & Charles B. Craver, Alternative Dispute Resolution: The Advocate’s Perspective (1997).

John W. Cooley, Mediation Advocacy (1996).

Eric Galton, Representing Clients in Mediation (1994).

Charles B. Wiggins & L. Randolph Lowry, Negotiation and Settlement Advocacy: A Book of Readings (1997).

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Critiques of ADR

Edward Brunet, Questioning the Quality of Alternative Dispute Resolution, 62 Tul. L. Rev. 1 (1987).

Penelope E. Bryan, Killing Us Softly: Divorce Mediation and The Politics of Power, 40 Buffalo L Rev. 411 (1992).

Owen Fiss, Against Settlement, 93 Yale L.J. 1073 (1984).

David Greatbatch & Robert Dingwall, Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators, 23 Law & Soc’y Rev. 613 (1989).

Trina Grillo, The Mediation Alternative: Process Dangers For Women, 100 Yale L.J. 1545 (1991). For a response, see Joshua Rosenberg, In Defense of Mediation, 33 Ariz. L. Rev. 467 (1991).

Sally Engle Merry & Neal Milner, eds., The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (1993).

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Ethical and Court Rules, Guidelines etc.

CPR-Georgetown Commission on Ethics and Standards in ADR, Proposed Model Rule of Professional Conduct for the Lawyer as a Third Party, www.cpradr.org/cpr-george.html

CPR-Georgetown Commission On Ethics and Standards of Practice in ADR, Principles for ADR Provider Organizations, www.cpradr.org/providerprinciples.htm (see especially Appendix A, Taxonomy of ADR Provider Organizations)

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Confidentiality

Draft Uniform Mediation Act, www.law.upenn.edu/bll/ulc/ulc_frame.htm. The Reporter’s Notes provide a thorough analysis of the legal issues. The Reporter’s Notes to early drafts include valuable analyses omitted from the final version.

Ron Kelly’s critiques of various drafts of Uniform Mediation Act, www.ronkelly.com/RonKellyMedAct.html

Confidentiality in Mediation, Special Issue of Dispute Resolution Magazine (ABA) (Winter 1998).

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Family Court Practices in Dealing with Domestic Violence

Linda K. Girdner, Mediation Triage: Screening for Spouse Abuse in Divorce Mediation, 7 Mediation Q. 365 (1990).

Jessica Pearson, Mediating When Domestic Violence is a Factor: Policies and Practices in Court-Based Divorce Mediation Programs, 14 Mediation Q. 319 (1997).

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Barriers to Agreement

Kenneth Arrow et al., eds., Barriers to Conflict Resolution (1995).

Ian Ayres & Barry J. Nalebuff, Common Knowledge as a Barrier to Negotiation, 44 UCLA L. Rev. 1631 (1997).

Robert H. Mnookin, Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict, 8 Ohio St. J. on Disp. Resol. 235 (1993).

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Drafting Agreements

Christopher Honeyman, In Defense of Ambiguity, www.convenor.com/madison/ambig.htm (reprinted from 3 Neg. J. 81 [1987].)

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Goals and Philosophies of Mediation

James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of AGood Mediation@?, 19 Fla. St. U. L. Rev. 47 (1991).

Robert A. Baruch Bush, Mediation and Adjudication, Dispute Resolution and Ideology: An Imaginary Conversation, 3 J. Contemp. Legal Issues 1 (1989). This is an engaging article using an imaginary conversation to illustrate competing philosophies of mediation.

Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (1994). This is the Abible@ of the transformationalist approach to mediation.

Christopher Honeyman, Two Out of Three, www.convenor.com/madison/2outof3.htm (reprinted from Negotiation Journal’s January 1995 issue).

Kimberlee K. Kovach & Lela P. Love, AEvaluative@ Mediation is an Oxymoron, 14 ALTERNATIVES TO HIGH COST OF LITIG. 31, 32 (1996). A critique of Riskin’s grid.

Deborah M. Kolb ed., When Talk Works: Profiles of Mediators (1994). This is a wonderful collection of profiles of 12 mediators including a detailed description of a case handled by each one.

John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 Fla. St. U. L. Rev. 839, 849- 53 (1997).

Sally Engle Merry & Susan Silbey, What Do Plaintiffs Want? Reexamining the Concept of Dispute, 9 Justice Sys. J. 151 (1984).

Jacqueline M. Nolan-Haley, Informed Consent in Mediation: a Guiding Principle for Truly Educated Decisionmaking, 74 Notre Dame L. Rev. 775 (1999).

Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEG. L. REV. 7 (1996). This article won a prestigious award from the CPR Institute for Dispute Resolution. It explains Riskin’s grid with dimensions of facilitative-evaluative techniques and broad-narrow definitions of issues.

Frank E.A. Sander, The Obsession with Settlement Rates, 11 Neg. J. 329 (1995).

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Role of Lawyers in Mediation and Negotiation / Institutionalization of Court-Annexed ADR

Wayne D. Brazil, Comparing Structures for the Delivery of ADR Services by Courts: Critical Values and Concerns, 14 Ohio St. J. on Disp. Resol. 715 (1999).

Wayne D. Brazil, Continuing the Conversation about the Current Status and the Future of ADR: A View From The Courts, 2000 J. Disp. Resol. 11.

Robert A. Baruch Bush, Alternative Futures: Imagining How ADR May Affect the Court System in Coming Decades, 15 Rev. Litig. 455 (1996).

Marc Galanter & Mia Cahill, AMost Cases Settle@: Judicial Promotion and Regulation of Settlements, 46 Stan. L. Rev. 1339 (1994).

Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 Colum. L. Rev. 509 (1994).

Milton Heumann & Jonathan Hyman, Negotiation Methods and Litigation Settlement Methods in New Jersey: AYou Can’t Always Get What You Want,@ 12 Ohio St. J. on Disp. Resol. 253 (1997) .

John Lande, Failing Faith in Litigation? A Survey of Business Lawyers’ and Executives’ Opinions, 3 Harv. Neg. L. Rev. 1 (1998).

John Lande, Getting the Faith: Why Business Lawyers and Executives Believe in Mediation, 5 Harv. Neg. L. Rev. 201 (2000).

John P. McCrory, Mandated Mediation of Civil Cases in State Courts: A Litigant’s Perspective on Program Model Choices, 14 Ohio St. J. on Disp. Resol. 813 (1999).

Craig A. McEwen, Managing Corporate Disputing: Overcoming Barriers to the Effective Use of Mediation for Reducing the Cost and Time of Litigation, 14 Ohio St. J. on Disp. Resol. 1 (1998).

Craig A McEwen, Lynn Mather, & Richard J. Maiman, Lawyers, Mediation, and the Management of Divorce Practice, 28 Law & Society Review 149 (1994). This is an excellent article describing the factors promoting lawyers acceptance of divorce mediation in Maine.

Craig A. McEwen, Nancy H. Rogers, & Richard J. Maiman, Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 Minn. L. Rev. 1317 (1995). A policy analysis based on the findings in the preceding article.

Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950 (1979). This is a classic article describing how the Ashadow of the law@ and other factors affect negotiation outcomes.

Elizabeth Plapinger & Margaret Shaw, Court ADR: Elements of Program Design (1992).

Richard C. Reuben, Public Justice: Toward a State Action Theory of Alternative Dispute Resolution, 85 Calif. L. Rev. 577 (1977).

Leonard L. Riskin, Mediators and Lawyers, 43 Ohio St. L.J. 29 (1982). This article is often cited for analysis of lawyers’ Astandard philosophical maps.@

Frank E.A. Sander & Stephen B. Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure, 10 Neg. J. 4 (1994).

Edward F. Sherman, The Impact on Litigation Strategy of Integrating Alternative Dispute Resolution into the Pretrial Process, 15 Rev. Litig. 503 (1996).

Jean R. Sternlight, Lawyers’ Representation of Clients in Mediation: Using Economics and Psychology to Structure Advocacy in a Nonadversarial Setting, 14 Ohio St. J. on Disp. Resol. 269 (1999).

Carrie Menkel-Meadow is a prolific author in this field. Virtually everything that she writes is worth reading.

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Practical Resources for Mediators

Ron Kelly’s Training & Practice Handouts, www.ronkelly.com/RonKellyBestHandouts.html

James C. Melamed, Building a Successful Mediation Practice, http://mediate.com/articles/building.cfm

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Bibliographies

Catherine Morris, Readings in Dispute Resolution: A Selected Bibliography, http://www.peacemakers.ca/bibliography/bibintro99.html.

Bill Warters, Bibliographies/Online Articles, http://www.campus-adr.org/Faculty_Club/books_texts.html. See especially “Essential Readings in Dispute Resolution”, which is based on a survey of dispute resolution academics in 1996.

Additional bibliographies

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Websites and Listservs

Additional websites are at http://www.law.missouri.edu/lande/links

Re Listservs: A listserv is a discussion group of people with common interests which proceeds through an exchange of email messages. Members of a listserv post messages to the listserv which distributes the messages to all members, each of whom may then reply to the message. All of the listservs listed here are moderated, which means that membership in the group is controlled by a coordinator of the list. To join one of the discussions, send the stated message to the address shown. In sending a message to subscribe, be careful not to include any information other the above words, including in the subject line. Usually you will receive a reply that your name has been added to the list and providing instructions for participation and, most importantly, for exiting the list. Save these instructions.

Discussions of Issues in Dispute Resolution, Practitioners and Academics (Dispute Res). Send a message saying “subscribe dispute-res” to: listserv@listserv.law.cornell.edu. This is the general-purpose listserv that most people will want to start with various announcements, requests for assistance, and discussions of dispute resolution issues.

Recent Developments in Dispute Resolution. Send a message “subscribe dis-res [your name]” to listproc@willamette.edu This provides summaries of recent cases etc. and you can get emails of the full texts of items you want. A very useful listserv. Subscribers cannot make postings on this listserv.

American Bar Association Section on Dispute Resolution sponsored discussion of ADR related subjects. Send a message “subscribe ADR” to listserv@mail.abanet.org

©  John Lande 2000-2001. Permission to copy granted if copyright notice is retained for credit.

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