Association of American Law Schools
2003 Annual Meeting
Washington, D.C.
Thursday, January 2 - Sunday, January 5, 2003


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Friday, January 3, 2003
8:45 a.m.-5:30 p.m.
Annual Meeting Workshop on Dispute Resolution:
Raising the Bar and Enlarging the Canon


Enlarging the Canon: Ethics

ADR Ethics


Scott Peppet
University of Colorado

 

MAIN QUESTIONS AND POINTS ON ENLARGING THE CANON
VIS-À-VIS ADR ETHICS:
  On Negotiation Ethics
(Ethics of Advocates)
On Mediation Ethics
(Ethics of Third Parties)
Enlarging the Research Agenda: 1. How can we tie the ethics of legal advocacy to moral theory about honesty, fairness, etc? There is a lot to learn from moral philosophy.

2. There is also a lot that bargaining analysts can give to moral philosophy: modern moral theory-particularly contractarianism and contractualism-is increasingly based in bargaining analytics. We can contribute to that debate.

My own work in this area focuses on questions such as:
~ the moral significance of the model rules;
~ whether there is a moral duty to cooperate in bargaining
~ what honesty and fairness require in bargaining

1. Almost everything remains up for grabs. Should we have uniform ethics rules? What should they be-and how uniform? How should they be enforced and institutionalized?

2. Traditional assumptions are ripe for reconsideration: What does neutrality require? How important is confidentiality?

3. How to deal with third party processes in new contexts: in deal-making, in ombuds offices, in institutional settings?

My own work in this area focuses on questions such as:

~ rethinking neutrality: the use of contingent fees by mediators

~ the use of mediation in contract formation (deal-making) as opposed to traditional disputes

Enriching the Teaching Agenda: 1. How to make moral/ethical theory practical and incorporate it as a skill in a practice-oriented course?

2. How to integrate ethics into a negotiation or mediation curriculum, rather than have it as one stand-alone day during the semester?

3. How to integrate these materials into standard Professional Responsibility courses and other core courses that touch upon negotiation and third party processes?

There is a tremendous need for new teaching materials on negotiation ethics: cases, videos, exercises, etc. How can we facilitate the development and exchange of such materials?

 


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