6th Edition 2012
The Sixth volume of the American Journal of Mediation continues our editorial philosophy of visiting a wide range of dispute resolution topics throughout the world. In this issue we look at reconciliation of family business disputes, a recent national directive in Spain calling for mediation in commercial conflicts, ethical issues in representing clients in mediated negotiations, the neurological impact of facilitated negotiation techniques on mediation participants, and a fanciful review of mediation tactics as they might have been used in ancient Greece and the Wizarding World of Harry Potter.
Leading us off, Stuart Duhl, an attorney, mediator and adjunct professor at Loyola University Chicago Law School, outlines the role of a family business lawyer as both a mediator and an architect of dispute resolution processes in anticipating and dealing with the very real problems of family business disputes. Building upon the trust and respect typically accorded to long time family lawyers by family members, Mr. Duhl suggests several compelling proposals for steering family conflicts away from the destructive forces of litigation.
Skipping over the Atlantic, we then visit with distinguished Senior Lecturers Aura Esther Vilata from Spain’s University of Catalonia and Rosa Perez Martel from University of Las Palmas de Gran Canaria, who explore the ramifications of Spain’s recent Royal Decree-Law on mediation in the Spanish commercial business community. Spain, like many other EU countries is now firmly seeking a place within the global ADR community.
Back to the United States and Atlanta, Georgia, our own ACCTM Fellow John Sherrill leads us through a thoughtful review of ethical issues frequently encountered by attorneys representing clients in mediation sessions. Mr. Sherrill demonstrates how professional duties of zealous advocacy, allocation of authority, candor and confidentiality can come into conflict in the “muddy waters” of ethical standards for lawyers in settlement negotiations, how to recognize these potential problems, and how to work through them when they arise.
Emily Fusting, a Juris Doctorate candidate at Benjamin Cardozo School of Law brings us to a fascinating intersection of neurological brain activity measurements with mediated resolution processes that promises to provide invaluable feedback for gauging effective mediation techniques. Looking closely at research generated from mediated interventions to resolve addictive personalities, Ms. Fusting leads us to related studies showing how the brain reacts to different scenarios and strategy games commonly used in mediations. From all this, we can measurably determine the effectiveness and impact of various mediation processes.
Finally, we end up with creative and entertaining looks at mediation tactics as they might have been employed in two widely separate environments - ancient Grecian mythology and the world of Harry Potter. Annalisa Gutierreza, a recent graduate of the University of Miami School of Law, walks us through a mediation as it might have been conducted by Themis, The Greek Goddess of Justice between Zeus, Demeter, Hermes and Hades for the return of Persephone, the adducted daughter of Zeus and Demeter; a mediation that ultimately gave us the seasons of the year. Christina Krandick, another Miami Law School student then gives us a magical version of what a mediation may have looked like in the “Muggle Magic Mediation Center” between Harry Potter and his Uncle Vernon and Aunt Petunia Dursley. Buried in the creativity of both tales are solid and helpful concepts of mediation technique.
As always, the Editorial Staff of The American Journal of Mediation welcomes your comments, suggestions and thoughts, and hopes you will enjoy this issue. Also, please remember we are always looking for new articles and essays, and would warmly welcome your contributions.
The Role of the Family Business Lawyer in Mediation.pdf
STUART DUHL, Esquire
Harrison Held Carroll & Wall, LLP, Chicago
Stuart Duhl is a partner in the law firm of Harrison Held Carroll & Wall, LLP, in Chicago, Illinois, and a certified mediator. B.S., Northwestern University; J.D., Northwestern University School of Law; LL.M (Taxation), John Marshall Law School. He was on the Illinois Board of Admissions to the Bar for 23 years and a former President of the Board, as well as the former Chairman of the National Conference of Bar Examiners. In addition to his law practice, he is an adjunct professor at Loyola University Chicago School of Law where he teaches Tax and Tax Ethics courses.
AURA ESTHER VILALTA, PhD, Open University of Catalonia, Barcelona, Spain
ROSA PEREZ MARTELL, PhD, University of Las Palmas de Gran Canaria Las Palmas de Gran Canaria, Spain
VILALTA, Aura Esther
ENGLISH: PhD bythe University of Barcelona (UB). Studies of Postgraduate Civil Law (UB), Advanced legal Studies in Civil Law (DEA-UB), specialization on civil and comparative law (UNICAM, It). Senior Lecturer of Civil Law at the Universitat Oberta de Catalunya.
Appointed Magistrate at the Provincial Court of Barcelona, has been Lecturer of civil procedural law in the Barcelona Bar Association and was law practicioner for over fourteen years. As a fruit of all this practice, she co-developed a largely extended and popular legal digital product called Actionis, addressed to practicioners and Courts. Actionis has been recognized by the National General Council of Judicial Power and was supplied to all Courts and tribunals in Spain.
She has published hundreds of studies in the field of her expertise (civil and agricultural contracts, leases, condominiums, real property, liability, family law and procedural law). Her latest scientific research "El derecho de superficie/La superficie rustica" has been recently awarded by the European Agricultural Law Committee (NDRC) with the Award of Honor, the highest distinction of this non-governmental advisory body of the Council of Europe and adviser of the EU.
She currently focuses her research on alternative dispute resolution methods (ADR / ODRs) from a substantive and procedural point of view and for their incardination into the judicial system.
MARTELL, Rosa Pérez
Rosa Pérez Martell is a lecturer at the University of Las Palmas deGran Canaria (ULPGC), consultor at the University Oberta of Cataluña, Director of the new degree “university expert in educational mediation at the ULPGC. She did a postgraduate course in the United States. She has written 5 books and more than 30 articles, most concerning mediation, Alternative Dispute Resolution, and On-line Dispute Resolution. She is a Director and Consultant of more than a hundred courses, workshops and seminaries about Mediation, Negotiation and Arbitration. She has worked as a lawyer, substitute Judge, Mediator, and visiting Lecturer at different Universities in Europe.
Ethics for Lawyers Representing Clients in Mediation.pdf
JOHN A. SHERRILL, Fellow
Seyfarth Shaw, LLP, Atlanta, GA
John Sherrill is senior partner in the Litigation Department of the Atlanta Office of Seyfarth Shaw LLP, and he is the Chair of the Firm's National ADR Group. In addition to his litigation practice, he has served as a mediator in over 500 mediations and an arbitrator in over 200 arbitrations and has lectured and published on a number of litigation and ADR-related topics. He is a member of the Panel of Distinguished Neutrals of the CPR Institute, and an arbitrator and mediator on the Commercial, Construction and Large Complex Case and Olympic Arbitration Panels of the American Arbitration Association. He has also served as an administrative law judge and special master appointed by a number of state and federal courts and agencies. Mr. Sherrill is a fellow in the American College of Civil Trial Mediators and the College of Commercial Arbitrators. He is currently on the Governing Council of the ABA Dispute Resolution Section and is the Immediate Past Chair of the Dispute Resolution Section of the State Bar of Georgia.
EMILY FUSTING, Law Student
Benjamin N. Cardozo School of Law
Emeritus Fellow Sponsor: Prof. Lela P. Love
Emily Fusting is a student at the Benjamin N. Cardozo School of Law, New York, NY. She is an approved mediator with the New York Peace Institute, Cardozo Mediation Clinic graduate, Mediation Clinic Teaching Assistant, and competed in several ABA competitions as part of Cardozo’s ADR Competition Team. She hopes to continue her work in the ADR field after graduation. She wishes to express special thanks to Lela Love for her support on this paper.
ANNALISA GUTIERREZ, 2012 Graduate
University of Miami School of Law
Distinguished Fellow Sponsor: Melvin A. Rubin
Annalisa Gutierrez is an attorney in South Florida. Annalisa earned her bachelor’s degree from Tufts University where she majored in biology, economics, and environmental studies. She graduated magna cum laude from the University of Miami School of Law in 2012.
CHRISTINA KRANDICK, Exchange Student
University of Miami School of Law
Distinguished Fellow Sponsor: Melvin A. Rubin
Christina Krandick is currently a law student at Bucerius Law School, Hamburg in Germany. This paper was written for the mediation course she attended during her stay as an exchange student at the University of Miami in 2011.