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Keystone Conference: Megatrends for Mediators in the Law

by Carrie J. Menkel-Meadow
October 2006 Carrie J.  Menkel-Meadow
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1. Consider the “law of unintended consequences”—what we sometimes think is good turns out differently and sometimes the reverse could be true as well … Law has been particularly reactive to larger “events” or “scandals”

  • Watergate-produced requirement of legal ethics taught in all law schools

  • Enron-MCI-etc., produced Sarbanes-Oxley, new legislation on corporate governance with many non-profits now thinking they are governed by these rules for disclosure, etc.

2. Bigger Practice Units (larger law firms, in-house counsel in major Fortune 500 companies

3. More specialization of practice—both in substance (e.g. intellectual property) and process (mediation, deal makers,)

4. Greater diversification of legal profession (women will constitute ½ of profession in decades to come but minority representation not growing as rapidly, Asian-Americans making gains, but less so for African-Americans, Hispanics/Latinos and Native Americans

  • Still “segregated” clusters within the profession- large firms, see how “white” our own meeting is here of mediators….

5. Biggest contests will continue to be political battles waged in national and state legislatures over important legal policies (with contested and polarized party and non-party constituents):

  • Mass torts
  • Juries
  • Punitive damages and large jury awards
  • Expert witnesses
  • Class action reforms C
  • orporate scandals
  • Tax Reform
  • Homeland security/terrorism
  • Immigration

6. More privatization of legal processes (we are a part of this)—mediation, arbitration, ) both domestically and in internationalization and globalization of legal matters and relations

  • This will be “layered” by economics—who gets to choose to exit the legal system and choose another form of dispute resolution

  • Effects will depend on whether there is a background of law enforcement (US domestic) or little legal enforcement (international and transnational disputes and issues)

  • These processes may be co-opted or colonized by particular users (large multi-national corporations in international and domestic spheres; repeat player phenomenon)
7. Greater use of technology in law
  • Confidentiality/Privacy issues
  • Elimination of jobs
  • Less face to face negotiation, mediation, transacting
  • All mediated by costs-who can pay for access?
  • Possible greater competition for lawyers—online services and information
8. More in-house counsel (less “independent” of clients)-different incentives

9. More Competition from outside the profession –mediators, paralegals, real estate agents, other “brokers” of information or skill sets

10. More pro se (unrepresented) parties if legal costs continue to increase—less access to legal services or differentiated legal needs

11. Loss of “rights” (in era of War on Terrorism)—irony of American international policy being “rule of law” exportation while internally we are eliminating the rule of law in the name of safety and security-manipulation of legal principles

12. BIG QUESTION debates (tracking basic American values in law and politics, some tracking RED/BLUE politics and some not:

  • Supreme Court (it matters whether Ds or Rs decide questions of state/federalism; reproductive rights, discrimination, environmental issues, governance, regulation, etc.)

  • Security/Liberty

  • Separation of Powers—real checks and balances or not?

  • Metaphors “axis of evil” vs. international cooperation

  • Continued emphasis on legality, equality and rights or other metaphors—

  • Shared governance (different units of government-deliberative democracy, etc.)

13. New roles for lawyers (they are entrepreneurial)?—will they control conceptions of law and legal institutions internally or be more controlled by competition and external regulation…?

Biography


Carrie Menkel-Meadow, who is also the director of the Hewlett-Georgetown Program in Conflict Resolution and Legal Problem Solving, is a national expert in the areas of alternative dispute resolution (ADR), civil procedure, the legal profession, legal ethics, clinical legal education, feminist legal theory, and women in the legal profession. Additionally, she is Chair of the Center for Public Resources (CPR)- Georgetown Commission on Ethics and Standards in Alternative Dispute Resolution. Menkel-Meadow has written and lectured extensively in her field and has been recognized with many honors, including the CPR Institute for Dispute Resolution First Prize for Scholarship in ADR (three times) and the Rutter Prize for Excellence in Teaching at UCLA Law School.  She also received the Georgetown Law Center’s staff appreciation award for Faculty Member of the Year in 1998. She is the author of Dispute Processing and Conflict Resolution: Theory, Policy and Practice (2003), and co-author of What's Fair: Ethics for Negotiators (2004, with Michael Wheeler), Dispute Resolution: Beyond the Adversarial Model (2004, with Lela Love, Andrea Schneider and Jean Sternlight), Negotiation: Beyond the Adversarial Model (with Andrea Schneider and Lela Love, 2005), Mediation: Beyond the Adversarial Model (with Lela Love and Andrea Schneider, 2005) and editor of Mediation: Theory, Policy and Practice (2000). 



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