Open Access. Powered by Scholars. Published by Universities.®

Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

PDF

2012

Pepperdine Dispute Resolution Law Journal

Articles 1 - 30 of 199

Full-Text Articles in Law

Construction Partnering: Can These Protocols Build A Stronger Labor-Management Community?, Jim Stott, Juan Carlos Gonzalez Apr 2012

Construction Partnering: Can These Protocols Build A Stronger Labor-Management Community?, Jim Stott, Juan Carlos Gonzalez

Pepperdine Dispute Resolution Law Journal

In an expansive marketplace where large organizations in the construction, manufacturing, service and union industries are facing increased global competition, collaborative labor relations are essential to maximizing efficiency and productivity. It is for this reason that developing collaboration between labor and management is highly researched and consulted by academics and professionals throughout the world. Although various models of collaboration have been developed, none have been found to clearly overcome that insidious conflict and paradigm of "Labor vs. Management." The purpose of this paper is to provide academics and consultants (mediators/facilitators) an additional perspective for designing, developing and implementing the best …

Go to article

Cooperative Bargaining Styles At Fmcs: A Movement Toward Choices , Carolyn Brommer, George Buckingham, Steven Loeffler Apr 2012

Cooperative Bargaining Styles At Fmcs: A Movement Toward Choices , Carolyn Brommer, George Buckingham, Steven Loeffler

Pepperdine Dispute Resolution Law Journal

The Federal Mediation and Conciliation Service ("FMCS") was created in 1947. While an array of subsequent statutory enactments have expanded the FMCS charter, the core mission of FMCS has been, and remains, to assist labor and management to settle their disputes through mediation as well as to promote the development of sound and stable labor management relationships. The vision of how that mission will be realized has changed significantly in response to changes in our society, to expanded knowledge of conflict resolution and labor relations, and to lessons gathered by the nation's mediators over a half-century of work with collective …

Go to article

Managing Workplace Grief--Vision And Necessity , Jan Jung-Min Sunoo, Brenda Paik Sunoo Apr 2012

Managing Workplace Grief--Vision And Necessity , Jan Jung-Min Sunoo, Brenda Paik Sunoo

Pepperdine Dispute Resolution Law Journal

In the course of offering workplace expertise, the FMCS has also presented its workshop "Managing Grief in the Workplace." The trainings have been given at local, regional, national and international labor relations and mediation conferences, and in college settings. We have found great receptivity to this cutting edge topic. Support in this area can greatly help unions and companies work through the conflicting expectations of a bereaved employee's job performance. Workshops in "Managing Grief in the Workplace" can initiate needed discussions and helping the partners to set up compassionate and realistic bereavement policies in the workplace. Finally, many participants expressed …

Go to article

The Federal Mediation And Conciliation Service: A Partner In International Conflict Prevention, Andrea Strimling Apr 2012

The Federal Mediation And Conciliation Service: A Partner In International Conflict Prevention, Andrea Strimling

Pepperdine Dispute Resolution Law Journal

The Federal Mediation and Conciliation Service ("FMCS"), an independent agency of the U.S. government with over a half-century of conflict management and institutional-development experience, is a valuable resource in U.S. efforts to prevent armed conflict and build the foundations for lasting security in the U.S. and around the world. Given the urgency and complexity of this challenge, the United States should identify, support, and leverage all appropriate resources for preventive diplomacy, including short-term operational prevention and long-term structural prevention. Through its International Program, FMCS has already made important contributions to both types of prevention, drawing on three strategic assets that …

Go to article

Battling School Violence With Mediation Technology , Gary Richard Hattal, Cynthia Morrow Hattal Apr 2012

Battling School Violence With Mediation Technology , Gary Richard Hattal, Cynthia Morrow Hattal

Pepperdine Dispute Resolution Law Journal

As we begin the Twenty-First Century public schools have become dangerous places, and not just high schools. Children as young as ten and eleven have brought the system to its knees by shooting down their teachers and fellow students on campus. No one is talking about "juvenile delinquency" anymore. We are hearing and talking about lethal incidents of juvenile violence among all social classes and races, suburban and inner city youth alike. This paper is a discussion of various issues surrounding school violence and its implications for our children. Our focus is to: (1) determine the root causes of extreme …

Go to article

Essential Collaborative Technology Tools For The 21st Century: Fmcs Tags System , Michael J. Wolf, Jon Numair, Jack Yoedt Apr 2012

Essential Collaborative Technology Tools For The 21st Century: Fmcs Tags System , Michael J. Wolf, Jon Numair, Jack Yoedt

Pepperdine Dispute Resolution Law Journal

Mediators employed by the Federal Mediation and Conciliation Service ("FMCS") utilize a powerful set of technology tools that helps groups more effectively solve problems, make decisions and implement those decisions more successfully. FMCS mediators use these tools to help customers conduct collective bargaining negotiations, strategic planning sessions, grievance meetings, internal elections, large conferences, as well as remote meetings and online surveys via the Internet. Known as the FMCS TAGS System, this network of Internet servers, mobile computers, electronic conferencing facilities, customized software and external partners has demonstrated significant achievements during its first two years of operation. FMCS customers report that …

Go to article

Fmcs On The Cutting Edge, Richard Barnes Apr 2012

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 …

Go to article

Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody Apr 2012

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 …

Go to article

Judicial Policing Of Consumer Arbitration , Edward A. Dauer Apr 2012

Judicial Policing Of Consumer Arbitration , Edward A. Dauer

Pepperdine Dispute Resolution Law Journal

Adhesive consumer arbitration agreements pose questions that go beyond the problems of adhesion contracting generally. This essay describes why standard-form consumer arbitration requirements may be particularly troublesome. Despite its superficial neutrality, arbitration between individual consumers and business entities may be systematically more favorable to the business entities. The rules of arbitration law, however, inhibit effective judicial policing of the consequences of those inequalities. The federal sources of arbitration law further diminish the ability of state-based contract law to police the more subtle abuses. The result is a particularly difficult jurisprudential problem with a specially weakened legal solution. This essay offers, …

Go to article

Medical Malpractice Arbitration In The New Millennium: Much Ado About Nothing ?, Ann H. Nevers Apr 2012

Medical Malpractice Arbitration In The New Millennium: Much Ado About Nothing ?, Ann H. Nevers

Pepperdine Dispute Resolution Law Journal

This paper reviews the constitutional issues surrounding medical malpractice arbitration clauses and the implementation of arbitration contracts, and the existing medical malpractice process. Federal preemption issues under the Federal Arbitration Act, enterprise liability and ERISA preemption, and cybermalpractice will be discussed. Finally, dispute resolution industry standards implemented by the American Arbitration Association and American Health Lawyers Association will be reviewed as well as current medical malpractice mediation practices in industry. While the past has shown that arbitration has not been used a great deal future trends may increase use. Emerging medical malpractice arbitration issues arising in the new millennium include …

Go to article

Issues Facing The Family Mediation Field , Joan B. Kelly Apr 2012

Issues Facing The Family Mediation Field , Joan B. Kelly

Pepperdine Dispute Resolution Law Journal

This article analyzes a number of important issues confronting family mediation in the new millennium. The article addresses family mediation as an interdisciplinary field and the certification of family mediators. The article also explores how to ensure competence in family mediators.

Go to article

Images Of Justice , Lela P. Love Apr 2012

Images Of Justice , Lela P. Love

Pepperdine Dispute Resolution Law Journal

This Essay crystallizes core elements of the major dispute resolution processes: litigation, arbitration and mediation. The purpose is both to clarify essential characteristics of and the role of the neutral in each process and to identify the relation of those characteristics and that role to a conception of "justice." The piece explores whether certain shifts in process characteristics or the neutral's role (for example, arbitration that is not voluntary or a mediator adopting an evaluative orientation) so fundamentally change the particular process as to compromise its relation to a compelling conception of fairness and justice.

Go to article

Mediating On The Internet Today And Tomorrow , James C. Melamed Apr 2012

Mediating On The Internet Today And Tomorrow , James C. Melamed

Pepperdine Dispute Resolution Law Journal

This paper will examine Internet opportunities for mediators and mediation participants. We will examine current Internet opportunities as well as where all of this may be taking us. The author suggests that there are unique qualities and opportunities for mediators on the Internet, including cost and convenience.

Go to article

Alternative Dispute Resolution In The New Millennium , Journal Editors Apr 2012

Alternative Dispute Resolution In The New Millennium , Journal Editors

Pepperdine Dispute Resolution Law Journal

Introduction to the inaugural issue of the Pepperdine Dispute Resolution Law Journal

Go to article

The Future Of Adr, Edward A. Dauer Apr 2012

The Future Of Adr, Edward A. Dauer

Pepperdine Dispute Resolution Law Journal

This article addresses the use of alternative dispute resolution in health care.The article provides a historical analysis of medical malpractice and traces the development of ADR in healthcare. The article discusses the benefits that ADR can and will bring to health care in the future.

Go to article

The Philosophical Underpinning And General Workings Of Chinese Mediation Systems: What Lessons Can American Mediators Learn?, Kevin C. Clark Apr 2012

The Philosophical Underpinning And General Workings Of Chinese Mediation Systems: What Lessons Can American Mediators Learn?, Kevin C. Clark

Pepperdine Dispute Resolution Law Journal

Of the various ADR processes available to the disputant seeking ADR, mediation has arguably become the "process choice of today" because -it is a very dynamic, user-friendly process" with a high success rate. Despite its recent successes, however, mediation is not a modern creation. It has been used for centuries in places all around the world. One of these places is China. This article introduces the reader to the philosophical underpinnings of the Chinese legal system as it relates to mediation and the general workings of the Chinese mediation model. It is the author's thesis that as western nations enthusiastically …

Go to article

First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic Apr 2012

First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic

Pepperdine Dispute Resolution Law Journal

In 1995, the United States Supreme Court in First Options of Chicago, Incorporated v. Kaplan considered whether arbitral tribunals or courts should have the primary power to decide if parties agreed to arbitrate the merits of the dispute and whether the court of appeals should accept the district court's findings of fact and law or apply a de novo standard of review. The Court unanimously held that, unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitral tribunal. Furthermore, in such a case, …

Go to article

The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney Apr 2012

The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney

Pepperdine Dispute Resolution Law Journal

The 1994 signing of the World Trade Organization (WTO) Agreement marked the initiation of the most far-reaching and comprehensive international agreement on trade in the history of the modern world. The creation of an actual trade organization was a marked improvement over the WTO's predecessor, the 1944 GATT, which never formed an organization per se. Among the many improvements to the GATT, the WTO Agreement substantially changed the mechanism for dispute settlement whenever conflict arose between member states. This change, codified as the Dispute Settlement Understanding ("DSU"), was initially hailed as a great improvement over the GATT dispute settlement provisions. …

Go to article

Pre-Hearing Techniques To Promote Speed And Cost-Effectiveness--Some Thoughts Concerning Arbitral Process Design , Jack J. Coe Jr. Apr 2012

Pre-Hearing Techniques To Promote Speed And Cost-Effectiveness--Some Thoughts Concerning Arbitral Process Design , Jack J. Coe Jr.

Pepperdine Dispute Resolution Law Journal

This essay considers factors and pre-hearing techniques that bear on international arbitration hearings by attempting to answer this question: "What can be done to promote speed and efficiency in the hearing process?" First, it offers general observations, including the goals and by-products of efficiency, issues related to defining terms and frames of reference, the flexibility of arbitration practice techniques, and the role of technology in arbitration proceedings. Then, it discusses specific factors that influence the expeditiousness of arbitration, especially the arbitration clause and its use to define critical elements of the proceedings, such as situs, number of arbitrators, and time …

Go to article

The Icc Prosecutor V. President Medema: Simulated Proceedings Before The International Criminal Court , Pieter H. F. Bekker, David Stoelting Apr 2012

The Icc Prosecutor V. President Medema: Simulated Proceedings Before The International Criminal Court , Pieter H. F. Bekker, David Stoelting

Pepperdine Dispute Resolution Law Journal

On July 18, 2000, as part of the Annual Meeting of the American Bar Association, an all star cast of American and English lawyers gathered in the Common Room of the Law Society of England and Wales in London to simulate oral argument before the International Criminal Court ("ICC"). The fictitious proceedings involved a head of state, President Luis Medema, charged with genocide, war crimes and crimes against humanity. The prosecutors and defense counsel engaged in lively oral argument before the Trial Chamber in the context of three critical issues: (1) jurisdiction of the ICC over citizens of non-state parties; …

Go to article

Institutionalizing Mediation: The Role Of Lawyers And Bar Associations , Ronald R. Volkmer Apr 2012

Institutionalizing Mediation: The Role Of Lawyers And Bar Associations , Ronald R. Volkmer

Pepperdine Dispute Resolution Law Journal

The world of trusts and estates is changing before our eyes - the "multidiscipline practice" trend may radically change the traditional practice of the probate bar. There is one constant, however, besides change and that is conflict. That conflict is oftentimes lurking beneath the surface when a lawyer becomes involved in the estate planning process. All of the technical knowledge you may possess about the legal system and its rules is valuable and necessary. But, the estate planning lawyer is preeminently a counselor at law. In the strongest possible way I urge students to become aware of conflict management skills …

Go to article

Internet Dispute Resolution (Idr): Bringing Adr Into The 21st Century , Richard Michael Victorio Apr 2012

Internet Dispute Resolution (Idr): Bringing Adr Into The 21st Century , Richard Michael Victorio

Pepperdine Dispute Resolution Law Journal

It was only a matter of time before ADR hit the Interet. The Internet has sweepingly transformed society just as ADR has wrought tremendous change in our society, by enabling the swift and economical settlement of disputes, and unclogging the legal system in the process. The application of alternative dispute resolution methods to the Internet, termed "iDR" in this comment, has the potential to impact the landscape of both traditional ADR and the Internet itself. It brings the communication technology of the Internet to the practice of traditional, non-virtual, "real world" ADR, reducing costs and speeding up the exchange of …

Go to article

Mediation And Jury Trials As Means Of Resolving Will Contests , Ronald Chester Apr 2012

Mediation And Jury Trials As Means Of Resolving Will Contests , Ronald Chester

Pepperdine Dispute Resolution Law Journal

In the vast range of human problems that law seeks to govern, there are certain areas in which legalisms and legal thinking are not particularly useful. It is my belief that one of these areas is that of will contests, in which nonlawyer dispute resolution seems particularly effective.

Go to article

Mediation Of Probate Matters: Leaving A Valuable Legacy , Lela Porter Love Apr 2012

Mediation Of Probate Matters: Leaving A Valuable Legacy , Lela Porter Love

Pepperdine Dispute Resolution Law Journal

Mediation has the power to bring parties to a different level of understanding about their underlying situation and about each other, to re-establish family harmony and to resolve both monetary and relationship issues that probate matters generally involve. To realize these advantages, this paper makes two suggestions. First, attorneys should urge testators to consider dispute resolution provisions in their will. Such provisions allow the testator to weigh in with a directive that the family pull together and attempt to resolve its conflicts creatively. A dispute resolution clause can also provide a vehicle to express and encourage family values connected with …

Go to article

Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford Apr 2012

Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford

Pepperdine Dispute Resolution Law Journal

Mediation is the ADR process by which a neutral third party works with disputants to reach a mutually agreeable resolution. Mediation is arguably the oldest and most popular ADR technique in use today. Part I of this essay discusses the commonly accepted advantages of mediation as an alternative to litigation, and, in some instances, questions whether those advantages become disadvantages in the context of probate, trust, and guardianship cases. Part II examines the use of mediation as a component of the actual estate planning process rather than as an alternative to litigation.

Go to article

The Greatest Heritage Is The Love Of A Family: The Larson Case And The Mediation Of Probate Disputes, Susan N. Gary Apr 2012

The Greatest Heritage Is The Love Of A Family: The Larson Case And The Mediation Of Probate Disputes, Susan N. Gary

Pepperdine Dispute Resolution Law Journal

In 1981, two brothers, Ben and William Larson, began litigation that would last for four years. By the time the lawsuit ended, the "winning" brother was dead, and the other brother was bitter and estranged from the family of his only sibling. Although one can only speculate, had the brothers chosen mediation, rather than litigation, to resolve their dispute, both brothers might have achieved a better outcome.

Go to article

Public Sector Dispute Resolution In Local Governments: Lessons From The Scag Project , Alana Knaster, Gregory L. Ogden, Peter Robinson Apr 2012

Public Sector Dispute Resolution In Local Governments: Lessons From The Scag Project , Alana Knaster, Gregory L. Ogden, Peter Robinson

Pepperdine Dispute Resolution Law Journal

This article seeks to share lessons from an ongoing six-year project to overcome the barriers to the use of facilitation and mediation (ADR) processes for addressing regional and interjurisdictional planning disputes throughout Southern California. The participants in this effort originally assumed that the successful use of mediation in high profile disputes would lead to greater acceptance of ADR processes by governmental officials. After several failed attempts, project leaders concluded that it would be appropriate to refocus the original methodology and strategy for promoting the use of ADR. The new strategy focuses on the establishment of mediation services for community-based disputes …

Go to article

Mediation Of Proposition 187: Creative Solution To An Old Problem? Or Quiet Death For Initiatives?, Nicole E. Lucy Apr 2012

Mediation Of Proposition 187: Creative Solution To An Old Problem? Or Quiet Death For Initiatives?, Nicole E. Lucy

Pepperdine Dispute Resolution Law Journal

The initiative Proposition 187 has been a catalyst for change. Supporters heralded it as the solution to "Save Our State" from the ills of illegal immigration. Those who opposed it, used Proposition 187 as a battle cry to mobilize a disenfranchised minority. Irrespective of ideology, Proposition 187 ended as no one could have predicted in November 1994 when it passed, 59% to 41%. When Governor Gray Davis inherited the Proposition 187 appeal from former Governor Pete Wilson, Governor Davis took the unprecedented step of seeking to resolve the conflict through mediation rather than actively defending Proposition 187 on appeal to …

Go to article

Making Peace The Old Fashioned Way: Infusing Traditional Tribal Practices Into Modern Adr , Matt Arbaugh Apr 2012

Making Peace The Old Fashioned Way: Infusing Traditional Tribal Practices Into Modern Adr , Matt Arbaugh

Pepperdine Dispute Resolution Law Journal

Native Americans have their own unique traditional method of resolving disputes. Their processes, called peacemaking by some tribes, place the emphasis not on the guilt of the wrongdoer, but on restoring relationships and finding a solution that is amenable to all involved. This emphasis on saving the relationship has many similarities to current practices of mediation. Among the similar goals between mediation and peacemaking are the use of ADR allows both sides to reach a better conclusion and the desire to spend less money and to satisfy more people. However, this approach has critics who see it as another attempt …

Go to article

The Right To Die: Definitional Inquiry And The Search For Truth, Bryan A. Kelley Apr 2012

The Right To Die: Definitional Inquiry And The Search For Truth, Bryan A. Kelley

Pepperdine Dispute Resolution Law Journal

This article explores the significant advantages of ADR techniques when dealing with elusive definitions in medical ethics. Part I briefly explores the meaning of definitional inquiry and justifies its important role in debate and achieving truth. Part II illustrates how confusion associated with certain terms leads to faulty reasoning, even in a recent Supreme Court decision. In Part III, some governmental sources of this confusion are revealed. Part IV illustrates the common use of rhetoric in the right-to-die debate as an appeal to emotion, rather than true meaning. Part V attempts to illustrate why this problem greatly affects the medical …

Go to article

Next Last