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Pepperdine Dispute Resolution Law Journal

Journal

2012

Articles 181 - 199 of 199

Full-Text Articles in Law

"El Agua No Se Vende: Water Is Not For Sale!" The Latin American Water Tribunal As A Model For Advancing Access To Water, Mikita A. Weaver Feb 2012

"El Agua No Se Vende: Water Is Not For Sale!" The Latin American Water Tribunal As A Model For Advancing Access To Water, Mikita A. Weaver

Pepperdine Dispute Resolution Law Journal

At the international level, water is now understood to be a basic human right. However, conflict continues to intensify surrounding indigenous people's access to water as the resource becomes scarcer. In particular, this paper will examine the struggle of indigenous people in Latin America and the creation of the Latin American Water Tribunal (LAWT) as a solution. Section II will describe the LAWT, including the formation of the tribunal, case selection, and the structure of the public hearing. Section III will discuss both how the LAWT overcomes problems with the current legal system and the success of the tribunal as …

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The Disempowering Relationship Between Mediator Neutrality And Judicial Impartiality: Toward A New Mediation Ethic, Ronit Zamir Feb 2012

The Disempowering Relationship Between Mediator Neutrality And Judicial Impartiality: Toward A New Mediation Ethic, Ronit Zamir

Pepperdine Dispute Resolution Law Journal

The issue I shall discuss in this article is whether the concept of mediator neutrality advances the empowering and effective participation of parties from disadvantaged groups. Section II will deal with the relationship between the concept of neutrality in the adversarial legal process, in the mediation process, and the concept of procedural justice. I shall then present the meanings ascribed to the concept of mediator neutrality in the two prevailing models of mediation: the problem-solving model and the transformative model. The affinity between these meanings and the concept of judicial impartiality will be discussed and critiqued. Finally, I shall suggest …

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Stumbling Down The Courthouse Steps: Mediators' Perceptions Of The Stumbling Blocks To Successful Mandated Mediation In Child Custody And Visitation , Sandra J. Perry, Tanya M. Marcum, Charles R. Stoner Feb 2012

Stumbling Down The Courthouse Steps: Mediators' Perceptions Of The Stumbling Blocks To Successful Mandated Mediation In Child Custody And Visitation , Sandra J. Perry, Tanya M. Marcum, Charles R. Stoner

Pepperdine Dispute Resolution Law Journal

Although many concerns and criticisms about the efficacy of family law mediation have been made by attorneys, judges, and psychologists, we seldom hear from the mediators themselves about how the process works. In this study, we examine the mediators' perceptions of the stumbling blocks to success in mandatory child custody mediation and make some recommendations about how the process might be improved.

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The Case Against Maritime Class Arbitration: A Brief Policy Argument, Landon R. Schwob Feb 2012

The Case Against Maritime Class Arbitration: A Brief Policy Argument, Landon R. Schwob

Pepperdine Dispute Resolution Law Journal

On April 27, 2010, the United States Supreme Court decided a case that will have far-reaching implications for virtually all sectors within the arbitration industry, including the subject of this article-maritime arbitration. The question presented in Stolt-Nielsen v. AnimalFeeds International Corp. dealt with class arbitration and whether its imposition on parties whose arbitration clauses are silent on that issue is consistent with the Federal Arbitration Act (FAA). This article will primarily examine the history and viability of class arbitration-and arbitration in general-in the far more narrow context of maritime and the admiralty. Stolt-Nielsen provides an excellent backdrop against which to …

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The Truth Shall Set You Free: A Distinctively Christian Approach To Deception In The Negotiation Process, Al Sturgeon Feb 2012

The Truth Shall Set You Free: A Distinctively Christian Approach To Deception In The Negotiation Process, Al Sturgeon

Pepperdine Dispute Resolution Law Journal

This paper examines whether the Christian religion offers a distinct position on the use of deception in the negotiation process. It is expected to be of primary interest to Christian negotiators, but combining the popularly understood theorem that "everyone negotiates on some level" with the fact that there are over 173 million Christian adherents in the United States alone, the topic may be of general interest to anyone who negotiates. There is apparently neither an official nor a widespread recognition of a distinct Christian position on the use of deception in negotiation at present. It is this article's proposal, however, …

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Adr And A Smile: Neocolonialism And The West's Newest Export In Africa, Anthony P. Greco Feb 2012

Adr And A Smile: Neocolonialism And The West's Newest Export In Africa, Anthony P. Greco

Pepperdine Dispute Resolution Law Journal

While the ills of the West's corporatization of the world have long been debated and catalogued, often neglected is the role the law plays in empowering the rich, disenfranchising the poor, and serving as the "handmaiden to empire." Since what has been termed the "rule of law revival," which saw its genesis sometime in the late 1980s, the adoption of Western legal frameworks to help developing and Third World nations transition and gain access to the ever growing global market has become commonplace. With the coming of the Alternative Dispute Resolution (ADR) revolution during the last few decades, the West …

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For Heaven's Sake, Give The Child A Voice: An Adr Approach To Interfaith Child Custody Disputes , Charlee Lane Feb 2012

For Heaven's Sake, Give The Child A Voice: An Adr Approach To Interfaith Child Custody Disputes , Charlee Lane

Pepperdine Dispute Resolution Law Journal

There has been ample study devoted to the problems that arise when courts are faced with custody disputes intertwined with issues of religion. Unfortunately, many of those studies conclude without proposing an effective solution or by suggesting an alternative without defining what that alternative might be. A solution must be employed that allows religious consideration in a forum more suitable to facilitating a resolution in the complete best interest of the child and parents. Mediation provides this forum by facilitating a negotiation in which parents are allowed to develop their own collaborative solutions to interfaith child custody disputes. Through techniques …

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Arbitration Hurdles Facing Foreign Investors In Russia: Analysis Of Present Issues And Implications, Elliot Glusker Feb 2012

Arbitration Hurdles Facing Foreign Investors In Russia: Analysis Of Present Issues And Implications, Elliot Glusker

Pepperdine Dispute Resolution Law Journal

Russia has come a long way since the collapse of the Soviet Union in 1991, but there are still some structural reforms that need to take place in order to increase investor confidence. In 2007, one hundred billion dollars was invested in Russia from overseas, which represents a record for a developing market economy. However, direct foreign investment in Russia is still low compared to other European nations. Foreign investment is one of Russia's main strategies for improving the long-term health of the economy. There is a lot of promise for future economic growth, but some recent actions by the …

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Employees Losing Power, Losing Jobs: Making The Case For Mediating Power In The Era Of Buy-Ins And Bailouts, Lovalerie Mullins Feb 2012

Employees Losing Power, Losing Jobs: Making The Case For Mediating Power In The Era Of Buy-Ins And Bailouts, Lovalerie Mullins

Pepperdine Dispute Resolution Law Journal

This article proposes that dispute in the workplace is the best illustration of the loss of equanimity boundaryless employees experience in their work environment, and further, that dispute systems design necessitates a power neutralizing approach for mediating struggles caused by power disparity present in today's private employment relationships. To that end, my goal is to provide an employee-centered perspective of self-regulated employment policy in America, and to demonstrate the degree of conflict (and eventual disputation) such policy creates for boundaryless workforces. Ultimately, I make the case for an evolved dispute resolution process more able to manage power disparity in modem …

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Resolving Conflicts Over Climate Change Solutions: Making The Case For Mediation , Alana Knaster Feb 2012

Resolving Conflicts Over Climate Change Solutions: Making The Case For Mediation , Alana Knaster

Pepperdine Dispute Resolution Law Journal

This article explores the role that mediation can play in resolving the conflicts that are emerging in the climate change arena. Case studies describing mediation of disputes over air quality standards, timber harvesting, species protection, and ecosystems restoration, which resulted in consensus agreements among multiple, diverse stakeholder groups, demonstrate its applicability to the climate change arena. Mediation is not suited to every dispute or set of disputants. However, an analysis of the opportunities and constraints for addressing climate change disputes at the state, regional, and local levels suggests that mediated negotiations is well suited for resolving a number of the …

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Getting The Green Light For Senate Bill 375: Public Engagement For Climate-Friendly Land Use In California, Greg Greenway Feb 2012

Getting The Green Light For Senate Bill 375: Public Engagement For Climate-Friendly Land Use In California, Greg Greenway

Pepperdine Dispute Resolution Law Journal

Signed into law in September 2008, California's Senate Bill 375 (SB 375) is the first statewide legislation in the nation to link transportation and land use planning to climate change. The law is lengthy and complex, but the central concept is simple: locate homes closer to jobs, services, and transit so that Californians drive less frequently, travel shorter distances, and reduce their greenhouse gas (GHG) emissions. This article examines the approach to public participation outlined in SB 375, and argues that a critical success factor is the design and execution of strategies by local governments to engage citizens in the …

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South Pasadena: A Dialogue On Dialogue, Steve Zikman Feb 2012

South Pasadena: A Dialogue On Dialogue, Steve Zikman

Pepperdine Dispute Resolution Law Journal

In the last half century, South Pasadena has fought many land use related battles-from efforts to stop the extension of the 710 freeway (710) through the heart of the city, to the recent ballot measure (Measure SP) that sought to overturn the City Council's approval of the new Downtown Revitalization Plan. The pattern of engagement continues to be one of "us versus them," with locals assuming extremely polarized positions, escalating the level of mistrust and demonization, and further dividing the city's civic and social fabric. Mediators are typically called in to help stakeholders resolve specific land use conflicts. However, there …

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Foreword , Steve Zikman Feb 2012

Foreword , Steve Zikman

Pepperdine Dispute Resolution Law Journal

Taking It Upstream: Collaboration, Consensus Building & Sustainable Development-A Green Leadership (Un)conference was held at Pepperdine University's Graziadio Conference Center on September 25, 2009. In the spirit of collaboration, the symposium marked the first event jointly sponsored by the Straus Institute for Dispute Resolution and the Geoffrey H. Palmer Center for Entrepreneurship & the Law. The two journals have created special symposium editions comprised of papers authored by a number of the panelists, reflecting important trends in the evolution of conflict management and dispute resolution in the areas of multi-party environmental, land use, and public policy matters.

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Teaching The Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, A Defining Features Matrix, Games, And An Exercise Based On Grievances Filed Against Florida Mediators , Paula M. Young Feb 2012

Teaching The Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, A Defining Features Matrix, Games, And An Exercise Based On Grievances Filed Against Florida Mediators , Paula M. Young

Pepperdine Dispute Resolution Law Journal

Teaching Professional Ethics to Lawyers and Mediators Using Active Learning Techniques will serve as the first article in a series of articles I have planned on the use of active learning techniques to teach the core values of mediation: mediator impartiality, party self-determination, confidentiality, and quality of the process/mediator competence. This article is the second article in that series. In Section III, I summarize the first article in the series. In Section IV, I describe the role of mediator impartiality as a core value of the mediation field. I evaluate the definitions of mediation found in several ethics codes as …

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Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales Feb 2012

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 …

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The Assault Of Jamie Leigh Jones: How One Woman's Horror Story Is Changing Arbitration In America, Jeffrey Adams Feb 2012

The Assault Of Jamie Leigh Jones: How One Woman's Horror Story Is Changing Arbitration In America, Jeffrey Adams

Pepperdine Dispute Resolution Law Journal

This article examines Jones v. Halliburton Co., the "Al Franken Amendment" to the 2010 U.S. Defense Department Budget (Franken Amendment) that was created in response to Jones, and the impact that both could have on mandatory arbitration clauses in employment contracts in the future. Part II recounts the troubling events that led to Jones and the inclusion of the Franken Amendment in the 2010 Defense Department Budget. Part III details the arguments made for and against the inclusion of the Franken Amendment. Part IV analyzes the impact that the Franken Amendment could have on mandatory arbitration clauses in contacts in …

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Collaborative Practice's Radical Possibilities For The Legal Profession:"[Two Lawyers And Two Clients] For The Situation" , Robert F. Cochran Jr. Feb 2012

Collaborative Practice's Radical Possibilities For The Legal Profession:"[Two Lawyers And Two Clients] For The Situation" , Robert F. Cochran Jr.

Pepperdine Dispute Resolution Law Journal

This article will consider the two dramatic changes that collaborative practice [CP] brings to law practice: a change in the mental attitude of lawyers and clients toward the conflict and a change in lawyers' counseling techniques. Part II defines CP and compares it to traditional negotiation-pending-litigation. Part III considers the change in attorney and client mental attitudes wrought by CP, where both lawyers and clients take responsibility for identifying a resolution that will meet the needs of all of the parties. Part IV considers the type of client-counseling that is often generated by CP-lawyers in CP may strongly encourage clients …

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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 Feb 2012

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 …

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Multi-Stakeholder Dispute Resolution: Building Social Capital Through Access To Justice At The Community Level , Shala Ali, Williams E. Davis, Joanna Lee Feb 2012

Multi-Stakeholder Dispute Resolution: Building Social Capital Through Access To Justice At The Community Level , Shala Ali, Williams E. Davis, Joanna Lee

Pepperdine Dispute Resolution Law Journal

Systems of multi-stakeholder dispute resolution are increasingly recognized as objectives of good governance by international organizations such as the United Nations Development Program (UNDP). Such objectives arise out of insights based on the dynamics of social capital that community based initiatives cannot succeed where trust is absent and mechanisms for collective decision-making do not exist. Yet localized decision-making can take many forms-whether distributional, competitive, or collaborative. This paper will examine, in particular, the impact of collaborative systems of decision-making on building social capital through access to justice in local communities. It will do this through examining participant feedback, meeting minutes, …

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