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Articles 1 - 18 of 18
Full-Text Articles in Law
Fmcs On The Cutting Edge, Richard Barnes
Fmcs On The Cutting Edge, Richard Barnes
Pepperdine Dispute Resolution Law Journal
As a national organization with a proud and distinguished history in conflict resolution, FMCS has always felt a particular obligation to promote professionalism and public confidence in the mediation process. In light of the growing number of individuals who identify themselves as "mediators", and the lack of any uniform standards for the practice of mediation, FMCS is the first national organization to credential outside private and public sector mediators. We are focusing on three specific dispute resolution disciplines: labor, employment, and regulatory negotiations. Credentialing does not restrict mediation practitioners to the extent that licensure and certification would. Rather, credentialing distinguishes …
Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody
Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody
Pepperdine Dispute Resolution Law Journal
As more employers include mandatory arbitration provisions in their employment contracts, policy-makers are becoming concerned that employees are being forced to trade their civil and statutory rights for their jobs. The California Legislature is considering legislation designed to combat this tendency and to provide legal protection for employees who might otherwise be forced to waive the right for redress of grievances, legal protections against discrimination, and other rights. Although the legislation was designed to protect the constitutional rights of employees, there are legal considerations and policy concerns that challenge the viability of this type of legislation. The primary question is …
Charge Me, Pay Me, But Don't Even Think Of Litigating Me: The Dominance Of Arbitration In Truth-In-Lending Claims , M. Susan Hale
Charge Me, Pay Me, But Don't Even Think Of Litigating Me: The Dominance Of Arbitration In Truth-In-Lending Claims , M. Susan Hale
Pepperdine Dispute Resolution Law Journal
This article analyzes the impact of the courts' ever increasing priority to enforce arbitration agreements in Truth In Lending Act (TILA) claims and reform. Part I entails a general discussion of TILA's logistics; the goals, the means, and the remedies. Part II briefly traces the rise of arbitration as well as evaluating its various advantages and disadvantages. Part III reports on the current emphasis of enforcing arbitration agreements in federal courts by explaining the basis of enforcing the agreement. Part IV explores the impact of arbitrating TILA claims on the claim and on individuals. Part V provides an analysis of …
Arbitration And Judicial Civil Justice: An American Historical Review And A Proposal For A Private/Arbitral And Public/Judicial Partnership , Roger S. Haydock, Jennifer D. Henderson
Arbitration And Judicial Civil Justice: An American Historical Review And A Proposal For A Private/Arbitral And Public/Judicial Partnership , Roger S. Haydock, Jennifer D. Henderson
Pepperdine Dispute Resolution Law Journal
Dispute resolution systems historically have included three primary forums: the judicial process, administrative procedures, and the arbitral system. This article focuses on the modem and rapidly expanding third system - that of arbitration. The goal of everyone interested in maintaining a fair, accessible, and affordable civil justice system is to monitor, shape, and maintain arbitration as a fair, accessible, and affordable system. The purpose of this article is to provide information and ideas which will help make that goal a success. The first part of this article explains the historical development of arbitration in this country prior to and under …
Uncitral Model Law On International Commercial Conciliation: From A Topic Of Possible Discussion To Approval By The General Assembly , Robert N. Dobbins
Uncitral Model Law On International Commercial Conciliation: From A Topic Of Possible Discussion To Approval By The General Assembly , Robert N. Dobbins
Pepperdine Dispute Resolution Law Journal
By no means a Pulitzer Prize winner, for those interested enough to inquire, the story of the creation of the Model Law is remarkable. The purpose of this Note is to give a snapshot of how, what began in the shadow of Arbitration as a "possible work topic considered by the Commission . . . Conciliation," in the space of two and one-half years became the Model Law. As a secondary and intentional focus of this note, this author (conceding his own bias) hopes to allow the Secretariat of UNCITRAL to enjoy its well-deserved moment in the spotlight for its …
Why The States Should Enact The Revised Uniform Arbitration Act, Francis J. Pavetti
Why The States Should Enact The Revised Uniform Arbitration Act, Francis J. Pavetti
Pepperdine Dispute Resolution Law Journal
This article responds to concerns raised regarding the Revised Uniform Arbitration Act (RUAA), noting that such concerns appear to be based on misplaced assumptions and misconceptions.
The 2000 Revision To The Uniform Arbitration Act: A Harbinger?, Timothy J. Heinsz
The 2000 Revision To The Uniform Arbitration Act: A Harbinger?, Timothy J. Heinsz
Pepperdine Dispute Resolution Law Journal
On August 3, 2000, the National Conference of Commissioners on Uniform State Laws (NCCUSL) unanimously passed major revisions to the Uniform Arbitration Act (UAA). These revisions are the first substantive changes in 55 years to the UAA, which in some form is the basis of arbitration law in 49 jurisdictions. The federal counterpart to the UAA, the Federal Arbitration Act (FAA), has not been amended in any substantial fashion for nearly 75 years. Between Congress's passage of the FAA in 1925 and NCCUSL's approval of the UAA in 1955 and the NCCUSL's approval of the Revised Uniform Arbitration Act (RUAA) …
Contracting Around Ruaa: Default Rules, Mandatory Rules, And Judicial Review Of Arbitral Awards, Christopher R. Drahozal
Contracting Around Ruaa: Default Rules, Mandatory Rules, And Judicial Review Of Arbitral Awards, Christopher R. Drahozal
Pepperdine Dispute Resolution Law Journal
By specifying that its provisions generally are default rules and listing particular exceptions, the Revised Uniform Arbitration Act (“RUAA”) provides much needed certainty and avoids unnecessary litigation, at least compared to the Federal Arbitration Act, which does not always identify which of its provisions are default rules. In one important respect, however, RUAA jettisons that valuable certainty. The RUAA drafters left open (or at least sought to leave open) the question whether parties can contract to expand the grounds for judicial review of arbitration awards beyond those set out in the statute. In other words, the drafters purported not to …
Uniformity In Adr: Thoughts On The Uniform Arbitration Act And Uniform Mediation Act, John M. Mccabe
Uniformity In Adr: Thoughts On The Uniform Arbitration Act And Uniform Mediation Act, John M. Mccabe
Pepperdine Dispute Resolution Law Journal
Private resolution of disputes, now thought of as alternate dispute resolution, has a lengthy history in American law. The National Conference of Commissioners on Uniform States Laws (NCCUSL) has been a contributor to that history for about as long as there has been a history, promulgating the first uniform law on arbitration in 1925. Today the Conference continues its commitment to private dispute resolution with a new momentum, having recently completed its most comprehensive revision of the Uniform Arbitration Act, and having completed its first Uniform Mediation Act. Both acts are important to the way that American law is being …
The September 11th Victim Compensation Fund: The Answer To Victim Relief?, Joe Ward
The September 11th Victim Compensation Fund: The Answer To Victim Relief?, Joe Ward
Pepperdine Dispute Resolution Law Journal
The events of September 11, 2001 shook America to its core. The world was forever changed as the horrific tragedy unfolded on live television. Families were destroyed as loved ones were severely injured or killed, leaving spouses and children in need of aid. In response, the United States government established the September 11th Victims' Compensation Fund in an effort to provide the necessary reparations to victims of the terrorist attacks. This article will analyze the September 11th Victims' Compensation Fund (hereafter "Fund") as a way of compensating victims while preserving the financial stability of the United States economy. This Fund …
Preparations For A Storm: A Proposal For Managing The Litigation Stemming From September 11th, 2001 , A. David E. Balahadia
Preparations For A Storm: A Proposal For Managing The Litigation Stemming From September 11th, 2001 , A. David E. Balahadia
Pepperdine Dispute Resolution Law Journal
After the attacks, the United States government immediately began to address the exorbitant number of problems and issues that resulted. One of the first issues the government addressed was victim compensation. The creation of the September 11th Victim Compensation Fund by virtue of the Air Transportation Safety and System Stabilization Act was the first step towards victim compensation. The VCF would help relatives and families of those killed in the attacks. However, the VCF has several limitations that narrow the scope of those eligible for compensation. The limitations of the VCF are indirectly creating a new two-pronged problem: the first …
Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law , Roger Alford
Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law , Roger Alford
Pepperdine Dispute Resolution Law Journal
In this Article, Professor Alford discusses a report by the Law Revision Commission recommending that certain changes be made to arbitration law in California. It begins by outlining the history of arbitration in California, from its 1961 adoption of the Uniform Arbitration Act, to the 1988 enactment of an international arbitration statute modeled on the UNCITRAL Model Law, to the 1989 enactment of Section 1281.8, which allowed courts to grants provisions remedies to parties involved in arbitration proceedings. It also provides a general overview of the purpose and practice of arbitration law. Then, it provides a chapter-by-chapter analysis the Law …
New Amendments To Resolving Special Education Disputes: Any Good Ideas?, Demetra Edwards
New Amendments To Resolving Special Education Disputes: Any Good Ideas?, Demetra Edwards
Pepperdine Dispute Resolution Law Journal
This article first analyzes the state of affairs under the Individuals with Disabilities Education Act (IDEA), prior to the passage of the Individuals with Disabilities Education Improvement Act of 2004, and the affects that the 1997 reauthorization alternative dispute resolution amendments had on special education law. Next, this article will address the appropriateness of the newly enacted negotiation and settlement methods, specifically the resolution session provision, and the benefits and detriments for resolving special education issues using these processes. This article will further discuss the amendments regarding attorneys' fees, and finally the House's failed proposal for voluntary binding arbitration and …
Available Dispute Resolution Processes Within The Reauthorized Individuals With Disabilities Education Improvement Act (Ideia) Of 2004: Where Do Mediation Principles Fit In? , Andrea F. Blau
Pepperdine Dispute Resolution Law Journal
The Individual Disabilities Education Act of 1997 first offered mediation processes to parents and school systems as an available dispute resolution process. Congress mandated that mediation be made available whenever a due process hearing was filed. The intent was to assist parents and school systems in resolving their differences regarding the educational needs for children with disabilities through increased discussions and collaborative efforts; this would reduce the need for costly and adversarial litigation. Alternative dispute resolution processes have taken an increasingly dominant role within the newly reauthorized IDEIA of 2004, reflecting Congressional promotion of parent and district collaboration for achieving …
The Clinton-Obama Approach To Medical Malpractice Reform: Reviving The Most Meaningful Features Of Alternative Dispute Resolution, Grant Wood Geckeler
The Clinton-Obama Approach To Medical Malpractice Reform: Reviving The Most Meaningful Features Of Alternative Dispute Resolution, Grant Wood Geckeler
Pepperdine Dispute Resolution Law Journal
An introduction to medical malpractice reform would be incomplete without mentioning the Institute of Medicine's (IOM) 1999 report, To Err is Human: Building a Safer Health System, which lists medical errors as the eighth leading cause of death in the United States. While much attention premiums, the media's recent interest in the application of alternative dispute resolution (ADR) tactics in medical malpractice cases has increased. The quest for a one-size-fits-all fix to rising health care costs has turned to ADR for guidance in the past, with hopes that binding arbitration and voluntary mediation would resolve the crisis. Recently, the …
Collective Bargaining Agreements In Professional Sports: The Proper Forum For Establishing Performance-Enhancing Drug Testing Policies, David M. Washutka
Collective Bargaining Agreements In Professional Sports: The Proper Forum For Establishing Performance-Enhancing Drug Testing Policies, David M. Washutka
Pepperdine Dispute Resolution Law Journal
The intrusive nature of drug testing implicates the concern over a person's right to privacy. Currently, Congress has proposed legislation which would establish minimum drug testing requirements in professional sports. This legislation is a reaction to suspicions and investigations surrounding Major League Baseball players and the use of performance enhancing drugs. Federally mandated drug testing would raise constitutional issues regarding the players' rights against mandatory drug testing. These concerns could be avoided if drug testing policies are implemented through a collective bargaining agreement, negotiated and agreed upon between the leagues and their players associations. Thus, as previously asserted, collective bargaining …
Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales
Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales
Pepperdine Dispute Resolution Law Journal
This article first argues that to determine the enforceability of a class action waiver, courts should take a "totality of the circumstances" approach rather than adopting a bright-line rule. A set of defined factors that also allows courts to consider real-world issues facing litigants will provide a substantial framework for courts to interpret this area of the law and will lead to more consistent and well-reasoned outcomes in the future. These factors include: the probable size of each class member's individual recovery, the potential for retaliation against class members, the awareness of potential class members that their rights have been …
Clouded Diamonds: Without Binding Arbitration And More Sophisticated Dispute Resolution Mechanisms, The Kimberley Process Will Ultimately Fail In Ending Conflicts Fueled By Blood Diamonds , Shannon K. Murphy
Pepperdine Dispute Resolution Law Journal
In 2003, under an initiative of the United Nations (U.N.), various nations of the world gave life to the Kimberley Process Certification Scheme (KPCS)-a method by which consumers of all levels could know the origin of their diamonds-with the Scheme only certifying those harvested from legal, government-run mines. The Scheme's drafters believed that, if given the choice, consumers would choose to buy diamonds mined legally, with profits flowing to legitimate sources of power. However, the KPCS as it stands is voluntary and lacks the teeth needed to deter its violators. The KPCS lacks a binding arbitration agreement and needs a …