PRIVACY JURISPRUDENCE AND THE APARTHEID OF THE CLOSET, 1946-1961
William N. Eskridge, Jr.
The sacking of Sumner Welles was a harbinger. A cold, brilliant patrician, Welles was a schoolmate and lifetime chum of President Franklin D. Roosevelt. Roosevelt appointed Welles Under Secretary of State, a position from which Welles essentially controlled United States foreign policy. In 1941, FBI Director J. Edgar Hoover supplied Roosevelt with information pertaining to Welles’s homosexual activities, but Roosevelt was unfazed. Armed with complaints that Welles had solicited sex from black railroad porters, U.S. Ambassador to France William Bullitt argued to the President that “the maintenance of Welles in public office was a menace to the country since he was subject to blackmail by foreign powers [which] had used crimes of this kind to get men in their power; and that . . . a terrible public scandal might arise at any time which would undermine the confidence of the country in him, the President.”
HOW WILL LAWYERING AND MEDIATION PRACTICES TRANSFORM EACH OTHER?
In the past two decades, the use of mediation in legal disputes has increased dramatically. State legislatures have enacted statutes authorizing, and in some cases mandating, courts to order cases to mediation. In some areas, the use of mediation in litigation is so routine and accepted that lawyers do not wait to be ordered into mediation, but initiate mediation themselves. Indeed, in some places, mediation has become so much a part of the litigation process that lawyers may refrain from direct, unmediated negotiations, anticipating that they will conduct their negotiations in mediation. As court planners perceive growth in the volume and complexity of their caseloads and that their resources do not keep pace with that growth, it seems likely that many courts will find it increasingly attractive to order large numbers of cases to mediation. Where mediation becomes routinely integrated into litigation practice, we can expect that this will significantly alter both lawyers’ practices in legal representation and mediators’ practices in offering and providing mediation services. I describe this new dispute resolution environment as a “liti-mediation” culture, in which it becomes taken for granted that mediation is the normal way to end litigation.
INSTITUTIONALIZATION: SAVIOR OR SABOTEUR OF MEDIATION?
As we celebrate the tenth anniversary of the creation of the Florida Dispute Resolution Center, it is only fitting that we should critically reflect on what has happened in the field of dispute resolution. Many wonderful and exciting trends have occurred in the alternative dispute resolution (ADR) arena during the past fifty years—many of which have taken place within the last decade, both in Florida and nationally. We have seen not only increased usage of ADR terminology in the press and popular magazines, but also more widespread independent use of ADR processes. The President of the United States routinely deploys mediators to assist with international crises, ballplayers routinely seek arbitration to resolve contract disputes, and students nationwide, some as young as elementary school age, participate in peer mediation programs. The use of these processes has become so increasingly pervasive that the “alternative” of ADR is increasingly being dropped in favor of such terms as “complementary,” “additional,” “appropriate,” or simply “dispute resolution.”
EVALUATIVE VERSUS FACILITATIVE MEDIATION: A DISCUSSION
James J. Alfini
DEAN ALFINI: We are celebrating the tenth anniversary of the Florida Dispute Resolution Center. The Center was founded in 1986, and soon thereafter, in 1987, the statute was passed that gave to every judge in the state the power to send any case to mediation or arbitration. In 1988, a set of rules were promulgated by the supreme court that essentially operationalized the statute. Since that time, literally tens of thousands of cases have been mediated here in the State of Florida in the court-sponsored programs at the circuit level, the family level and in the county courts. Tens of thousands of cases! They represent a significant body of experience.
THE TOP TEN REASONS WHY MEDIATORS SHOULD NOT EVALUATE
Lela P. Love
The debate over whether mediators should “evaluate” revolves around the confusion over what constitutes evaluation and an “evaluative” mediator. The following examples describe two situations in which the mediators operate in an evaluative capacity.
BEYOND FORMALISM AND FALSE DICHOTOMIES: THE NEED FOR INSTITUTIONALIZING A FLEXIBLE CONCEPT OF THE MEDIATOR’S ROLE
Jeffrey W. Stempel
This Article builds upon the issues aired during a panel discussion at the Fifth Annual Conference for Florida Mediators and Arbitrators, an event that marked the tenth anniversary of the Florida Dispute Resolution Center (DRC). In effect, the Conference marked the end of a decade of the ADR revolution in Florida. Court-ordered mediation was established and mandated for many state cases beginning with the enactment in 1987 of chapter 44, Florida Statutes (“Mediation Alternatives to Judicial Action”), although this resulted from substantial ADR efforts during the 1970s and early 1980s that laid the groundwork for ADR’s arrival as official state policy. Since ADR became official state policy, mediation has become part of the legal landscape in Florida, but issues continue to rage concerning the proper scope and process of mediation. The panel discussion, entitled “Evaluative v. Facilitative Mediation: Current Ethical and Policy Considerations,” reflects a debate conducted nationally as well as in Florida. Expanding upon my comments in the panel discussion, I defend the evaluative aspects of mediation and question the notion that “good” mediation must fit the facilitative model. Primarily, however, I am not advocating evaluative mediation but rather endorsing flexible mediation that permits judicious use of evaluative techniques. Conceptual oversimplification occurs when the debate is cast in the wooden form of evaluation versus facilitation. Not only is this framing unwise and misleading, but it also may lead to government-sponsored unfairness when the mediation enterprise takes place under the auspices of court-compelled mediation.
FACILITATIVE VERSUS EVALUATIVE MEDIATOR ORIENTATIONS: PIERCING THE “GRID” LOCK
Joseph B. Stulberg
Professor Leonard Riskin introduced his “grid” of mediator orientations almost two years ago. The vocabulary of “facilitative” and “evaluative” mediation derives from that article and his most recent, eloquent exposition.
The distinction has become the focal point of constructive dialogue and controversy regarding the nature and scope of mediation. Riskin and others contend that the range of mediation practices and values, when properly described, encompasses a wide array of evaluative conduct by the mediator. Some critics retort that “evaluative mediation” is an oxymoron and that “facilitative mediation” is a redundancy. The decided benefit of the Riskin grid and its attendant analysis, then, is that it invites us to revisit traditional questions regarding the nature of the process, its users, and its practitioners, sharpened with increased insights regarding dispute resolution theory and the lessons of mediation’s current widespread use.
Leonard L. Riskin
THE ADMINISTRATIVE DRIVER’S LICENSE SUSPENSION FOR THOSE UNDER TWENTY-ONE: AN ANALYSIS OF SECTION 322.2616, FLORIDA STATUTES
A profound statement by United States Supreme Court Justice Tom Clark sums up the problem of drinking and driving in the United States: “[T]he increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield.” Ironically, the Vietnam War, which divided the nation and raised its consciousness with respect to the tragic loss of young lives, had a casualty level far short of the death and mayhem attributable to drinking and driving. Some 47,369 Americans, mostly teenagers, lost their lives in the jungles of Vietnam. During that same time, because of drinking and driving, 274,000 Americans lost their lives4 in the far more deadly concrete jungle of our nation’s streets and highways.
ABROGATING THE DOCTRINE OF NECESSARIES IN FLORIDA: THE FUTURE OF SPOUSAL LIABILITY FOR NECESSARY EXPENSES AFTER CONNOR V. SOUTHWEST FLORIDA REGIONAL MEDICAL CENTER, INC.
Shawn M. Willson
The doctrine of necessaries is a common-law doctrine first adopted by the Florida courts in 1895. The doctrine, which originated in English courts more than three hundred years ago, held a husband liable to third parties for any necessaries the third party provided to his wife. At common law, a woman’s legal identity merged with that of her husband; she could not own property, enter into contracts, or receive credit as an individual. This condition, known as coverture, created a need for the doctrine of necessaries because a married woman was dependent upon her husband for maintenance and support. By prohibiting women from obtaining necessaries, the law forced women to look to the bounty of their husbands for food, shelter, clothing, and medical services.
CONSTITUTIONAL CHALLENGES TO COURTORDERED ARBITRATION
Kimberly J. Mann
Legislatures and courts encourage, and sometimes require, parties to resolve their disputes using various alternatives to litigation. These alternative methods have the potential to increase the parties’ satisfaction with the process and relieve stress on the court system.
Court-ordered, nonbinding arbitration is one such alternative. This method requires parties to present their dispute to an arbitrator or a panel of arbitrators for resolution. When parties are ordered to arbitrate, however, they face the possibility of losing their day in court. For example, some jurisdictions have allowed judges to deny motions for a trial de novo when a party can show that it did not adequately participate in the arbitration. Moreover, although parties may request a trial de novo if they are not satisfied with an arbitration result, those who do so are sometimes penalized if the result of the new trial is not more favorable than the arbitration decision.