Carrie Menkel-Meadow

University of California, Irvine | UCI · School of Law

As Yogi Berra once said, “When you come to a fork in the road. . . . take it[!]” Our lives present us all with choices—personal and professional. My professional life has been filled with efforts to create more choices of process and ethical and political commitments to seek a more just world. I began as a poverty and civil rights lawyer and sought...

Everyone negotiates. Whenever we need someone else to help us achieve our goals we negotiate. This book introduces theories of negotiation, including assumptions of scarcity and competition, or possibilities of integration of parties’ needs and interests and problem-solving approaches to achieve both joint and individual gain. The book provides ana...

Everyone negotiates. Whenever we need someone else to help us achieve our goals we negotiate. This book introduces theories of negotiation, including assumptions of scarcity and competition, or possibilities of integration of parties’ needs and interests and problem-solving approaches to achieve both joint and individual gain. The book provides ana...

Everyone negotiates. Whenever we need someone else to help us achieve our goals we negotiate. This book introduces theories of negotiation, including assumptions of scarcity and competition, or possibilities of integration of parties’ needs and interests and problem-solving approaches to achieve both joint and individual gain. The book provides ana...

Everyone negotiates. Whenever we need someone else to help us achieve our goals we negotiate. This book introduces theories of negotiation, including assumptions of scarcity and competition, or possibilities of integration of parties’ needs and interests and problem-solving approaches to achieve both joint and individual gain. The book provides ana...

Everyone negotiates. Whenever we need someone else to help us achieve our goals we negotiate. This book introduces theories of negotiation, including assumptions of scarcity and competition, or possibilities of integration of parties’ needs and interests and problem-solving approaches to achieve both joint and individual gain. The book provides ana...

Everyone negotiates. Whenever we need someone else to help us achieve our goals we negotiate. This book introduces theories of negotiation, including assumptions of scarcity and competition, or possibilities of integration of parties’ needs and interests and problem-solving approaches to achieve both joint and individual gain. The book provides ana...

Everyone negotiates. Whenever we need someone else to help us achieve our goals we negotiate. This book introduces theories of negotiation, including assumptions of scarcity and competition, or possibilities of integration of parties’ needs and interests and problem-solving approaches to achieve both joint and individual gain. The book provides ana...

Everyone negotiates. Whenever we need someone else to help us achieve our goals we negotiate. This book introduces theories of negotiation, including assumptions of scarcity and competition, or possibilities of integration of parties’ needs and interests and problem-solving approaches to achieve both joint and individual gain. The book provides ana...

Everyone negotiates. Whenever we need someone else to help us achieve our goals we negotiate. This book introduces theories of negotiation, including assumptions of scarcity and competition, or possibilities of integration of parties’ needs and interests and problem-solving approaches to achieve both joint and individual gain. The book provides ana...

Everyone negotiates. Whenever we need someone else to help us achieve our goals we negotiate. This book introduces theories of negotiation, including assumptions of scarcity and competition, or possibilities of integration of parties’ needs and interests and problem-solving approaches to achieve both joint and individual gain. The book provides ana...

This chapter chronicles the “transnationalization” of some of the law professoriate. It highlights the extent to which both faculty and students can study law in more than one country and legal system, transforming their knowledge of the world and their ability to be well-educated professionals by learning, teaching and developing transnational leg...

This book discusses the global and local processes of legal education reform and resistance and explains what these processes mean for law and lawyers inside and outside of the United States. It provides critical insights into how these transnational processes operate in different jurisdictions around the world in light of globalization and local l...

I began teaching, practicing, and researching law in the mid-1970s, first as a legal services and civil rights lawyer, then as a first-generation legal clinician, and then as a theorist and contributor to a variety of “movements” to change law and legal education: poverty law, clinical education, legal feminism, sociolegal studies, critical legal s...

This article studies the development of case and statutory law of alternative dispute resolution (ADR). Different constituencies have pursued settlement or ADR for vastly different reasons. These purposes behind ADR have led to important policy decisions and legal rulings which have given expression to different values underlying particular forms o...

This article outlines a systematic approach to legal negotiation premised on the notion that agreements will be more effective when the parties conceive of their purposes as solving the problem or planning the transaction, rather than winning or gaining unilateral advantage. The creative problem-solving approach depends on two structural components...

I appreciate the thoughtful reflections of Jim Coben, Ellen Deason, and Elayne Greenberg on the teachings and legacies of my 1991 article, which attempted to capture the beginning of several types of institutionalization and co-optation of some of the key ideas of the “ADR movement.” Sadly, much of what I commented on then has, in my view, only got...

This article reviews the claims about rates of litigation in the United States, as either “too much” or “too little” (e.g. “The Vanishing Trial”). While we need to understand aggregate litigation rates to assess access to justice, it may be more important to understand litigation rates in the context of differentiated case types. Litigation, in som...

This article adds consideration of context to the continuing focus on critical moments. In particular, there are contextual circumstances and other factors in which a critical moment involves bringing things to a halt—saying “no.” This is contrary to the improvisational notion of “yes, and” and it is underappreciated in the negotiation literature.

“Process is the human bridge between justice and peace.” “The skillful management of conflict is among the highest of human skills.” Rector Torfs, Dean Tilleman, my dear promoters and friends, Alain Laurent Verbeke, Martin Euwema, Koen Matthijs, university administrators, faculty, students, and distinguished guests: Thank you for this invitation to...

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. I...

Cambridge Core - Law: General Interest - Mediation and Its Applications for Good Decision Making and Dispute Resolution - by Menkel-Meadow Carrie

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,...

This article defines and describes modern processes of dispute resolution beyond court adjudication, including negotiation, mediation (facilitated negotiation), arbitration (decisions by party chosen private dispute resolvers), and a variety of new hybrid forms of dispute resolution (e.g., med-arb, summary jury trials, public policy consensus build...

This article considers, from the experience of the Indian Residential Schools Settlement, the limitations of the current formal justice system and the common ways that lawyers and parties act within it. Looking at the combinations of lawsuits, settlement negotiations, structured compensation schemes, truth and reconciliation processes, and memorial...

If forced to be concise and pithy, what would a room full of negotiation scholars cook up? The compilation of recipes was in response to the request for each person’s own definition of negotiation effectiveness put in the form of a recipe. Not only is this interesting in terms of seeing the similarities and differences among this leading and divers...

This chapter-report analyzes the current state of formal and informal procedure and processes in American law, prepared for the International Association of Procedural Law (meetings held in Moscow, September, 2012). This article reviews the basic values of procedural systems in both formal contexts (trials, courts and related institutions;, contras...

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...

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international confl...

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international confl...

The Idea of Justice is one of those books that – whether we agree with its ultimate conclusions or not – will be virtually impossible to ignore. And for good reason: it takes on one of the great political philosophers of our time, John Rawls, and deepens, enriches and challenges some basic Rawlsian ideas. Sen's basic argument is that the Rawlsian a...

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...

For a symposium on Women In ADR, this article reviews the existing and controversial literature on whether gender difference makes a difference in dispute resolution. In addition to focusing on the more conventional literature on whether women negotiate differently from men, this article reviews the complexity of women in additional roles in disput...

This article introduces the concept of alternate dispute resolution (ADR), and discusses its baseline measure and comparison process. Empirical research on ADR falls into two categories, empirically descriptive work and empirically comparative work. Litigation varies across legal systems and changes through time, just as does ADR. Many studies have...

Courts play a central role in legal and political processes in many countries in the common law world. Legal actors have a stake in making sure that legal processes and procedures are perceived as legitimate, both by the general population and professionals. Civil procedure, in both common law and civilian legal systems, has been historically known...

This comment to Sanford Levinson's Brandeis lecture at Pepperdine focuses on the role and types of compromises made during several stages of constitutional processes, formative and constitutive, interpretive and on-going, as negotiated by Constitutional meaning makers (drafters and Supreme Court 'deciders'), and post hoc justifications. This essay...

This essay explores how application of deliberative democracy and conflict resolution theories expose how the town hall meetings conducted on debates about recent American healthcare reform were poorly managed. The article suggests that for truly deliberative democracy to work, theory and practice must take account of three forms of discourse: rati...

All of these scenarios are based on events which have actually occurred in recent years. Some directly involve American citizens (whether individuals, corporations, or other entities) and some do not. Some are situations or problems that affect only private parties; others include state actors or affect the implementation of government policies or...

This commentary on mediating multiculturally in a chapter of Mediation Ethics (edited by Ellen Waldman) suggests there are times when mediators should not mediate, because of their own ethical commitments. Commenting on a hypothetical divorce scenario (of Ziba, a 17 year old from her 44 year old husband, with two children aged 3 and 2, where the pa...

In this brief essay I review the legacy of the NLRA for dispute resolution - which is a mixed legacy, for both employment and labor rights, as well as for other areas of human disputing. The processes which grew around labor rights, including collective bargaining, negotiation, arbitration, mediation, med-arb and other "impasse" breaking techniques...

This comprehensive look at the current state of ADR incorporates four key aspects for each of Negotiation, Mediation, Arbitration, and Hybrid processes: the theoretical framework defining the process, the skills needed to practice it, the ethical issues implicated in its use, and the legal and policy analyses.

This chapter in the forthcoming Oxford Handbook of Empirical Legal Studies reviews key issues in the empirical study of "alternative" dispute resolution processes, including both descriptive and comparative empirical studies and evaluations of negotiation, mediation, arbitration, consensus building, facilitative and other hybridized processes, such...

This essay describes how Israeli students in a course on mediation and consensus building taught in an Israeli university law department by and American law professor and an Israeli instructor analyzed and studied the conflict in the Middle East. It describes the suggestions they made for process design for the next stages of whatever peace process...

The essay reviews the content of twenty-five years of the Harvard Program on Negotiation's Negotiation Journal, identifying themes and issues explored on its pages in the past, the current issues challenging the field’s scholars and practitioners, and the issues likely to confront us in the future. It argues that while we in the field hoped for sim...

This paper reviews ethical issues that occur when systems of dispute resolution are designed for organizations, institutions and situations of iterated disputing and grievances. It explores the state of the art of the field and suggests that ethics codes can be both inductively and deductively derived. After reviewing some ethics issues in both dom...

This chapter in a book edited by Michael Asimow, "Lawyers in Your Living Room: Lawyers on TV" (ABA Press, 2009) explores the treatment of lawyers' ethics (dilemmas, choices and ethics violations) on modern television programs about the law, including classics like Perry Mason and The Defenders and the more modern period of legal ethics on TV -- LA...

On the occasion of the 30th Anniversary of the Center for Public Resources-International Institute for Conflict Prevention & Resolution, Professor Menkel-Meadow considers the issues in maintaining high quality and integrity in the use of ADR methods, including mediation, negotiation and arbitration. The initial goals of the ADR movement are contras...

An extensive statistical study of disparities in asylum adjudication throughout the United States reveals gross disparities in rates of asylum grants by region of country, experience of adjudicators, prior employment, and other factors. One of the most robust findings was one of gender disparities in adjudication rates. If the adjudicator of claims...

This essay discusses the factors which are encouraging or disabling collaborative decision making and legal processes in environmental disputes. As a commentary on Brad Karkkainen's article on the use of collaborative processes in situations of both "natural and legal destabilization" events, the article reports on several successful environmental...

This essay (as a festschrift/melanges en l'honneur de Pierre Tercier, outgoing Chairman of the International Chamber of Commerce International Court of Arbitration and Professor at the University of Fribourg, Switzerland) argues that it is possible and desirable for such bodies as the ICC to promulgate and enforce ethics standards for use in intern...

This article reviews the now extensive literature on the varied arenas in which restorative justice is theorized and practiced — criminal violations, community ruptures and disputes, civil wars, regime change, human rights violations, and international law. It also reviews — by examining empirical studies of the processes in different settings — ho...

This article reviews the history of different schools of legal education from Langdellian formalism to legal realism, law and economics, critical legal studies, feminist and critical race theory, clinical education, law and social science, law and literature, law and behaviorism, and pragmatism. It then offers a specific program for interdisciplina...

An art is best observed, and the effort to specify the criteria for watching art is a worthy enterprise. Like all "art criticism," however, it is not clear to me that we will always have convergence in our evaluations. If the Interim Guidelines are tested in more settings (and subjected to test validation studies) we will learn more about whether i...

Over the past two decades, there has been an ever-increasing amount of attention paid to negotiation and dispute resolution in practice and inscholarly and general audience publications. The author in 1983 suggested that negotiation was a study of “strategies in search of a theory.” In this review essay, she considers three recently published books...

This is a review essay on the occasion of the 25th anniversary of the publication of Roger Fisher, William Ury and Bruce Patton's, Getting to Yes, which reviews the interdisciplinary field of Negotiation and how it came to be, as well as where it is heading. The review focuses on constituent questions, constituent disciplines, the legacy of GTY on...

This text of the inaugural lecture for the A.B. Chettle, Jr. Chair in Dispute Resolution and Civil Procedure at Georgetown University Law Center presents an intellectual outline (theory and practice) for a house of justice built on the foundations of Lon Fuller, the Legal Process school, Jurgen Habermas' and Stuart Hampshire's social philosophy abo...

Negotiators must improvise. As the negotiations process unfolds, they work with new information, continually making decisions along the way to achieve favorable results. Skilled improvisational jazz musicians and actors perform in similar ways: they repeatedly practice song chord progressions and notes or scene guidelines before a performance; then...

This article reviews the history of dispute processes from early English legal history to the present to contest the notion that the vanishing trial is either a new or necessarily problematic development. Anglo-American legal procedure has always been characterized by process pluralism or choices of different fora for different kinds of dispute res...

This essay analyzes the treatment of legal negotiations in films, literature, TV and various forms of popular culture, focusing on how legal negotiations are conceptualized often as competitive, war-like battles of will and force or cleverness, rather than more modern approaches to negotiation as a site of collaborative human problem solving and jo...

In this paper I will explore the idea of a "neutral" lawyer who may have neither "client" (in the conventional sense of client) to represent nor advocacy to perform, yet still be functioning fully as a lawyer or "learned professional" schooled in the law. Indeed, in this paper I will suggest that lawyers may be especially useful in performing a var...

Although this essay traces my own intellectual journey as a teacher and scholar of "alternative dispute resolution," it describes as well the evolution of the field of dispute resolution (rooted in legal studies) to the now broader field of conflict resolution that encompasses the study of disputes and conflicts, not only when they "come to law" in...