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Articles 1 - 26 of 26
Full-Text Articles in Law
Music, Mediation, And Superstrings: The Quest For Universal Harmony, John W. Cooley
Music, Mediation, And Superstrings: The Quest For Universal Harmony, John W. Cooley
Journal of Dispute Resolution
It is my thesis that to be an effective mediator, one needs to be a musician at heart (if not in fact)-both a composer and performer. Music is what a mediator does-what a mediator makes. To design or perform well, a mediator must at least understand music composition and performance in all its aspects. A mediator has no choice in the matter, because music, in a broad sense, permeates nature and is considered to be the quintessential ingredient of all matter and energy-of everything or unthing in the universe. To understand how music relates to what he or she does, …
Adr Through A Cultural Lens: How Cultural Values Shape Our Disputing Processes, Julia Ann Gold
Adr Through A Cultural Lens: How Cultural Values Shape Our Disputing Processes, Julia Ann Gold
Journal of Dispute Resolution
I arrived for my second Nepali language class on time, but the teacher kept chatting about inconsequential things. I was paying by the hour, and we had already spent 25 minutes talking about nothing! A week later, I received an invitation to an art exhibit. The location was "Royal Museum," so that is where I went, only to find an empty building and no people. What had I missed? In my first meeting with the Dean of the Law Campus, we talked about trekking, the upcoming religious holidays, his visit to Seattle two years ago, relatives in the United States, …
Vacatur Of Labor Arbitration Awards: Watering Down The Supreme Court's Drawn From The Essence Precedent May Sound The Death Knell For Labor Arbitration , Jonathan R. Waldron
Vacatur Of Labor Arbitration Awards: Watering Down The Supreme Court's Drawn From The Essence Precedent May Sound The Death Knell For Labor Arbitration , Jonathan R. Waldron
Journal of Dispute Resolution
In CITGO Asphalt Ref. Co. v. Paper, Allied-Indus., Chem., & Energy Workers Int'l Union Local No. 2-991, the Court of Appeals for the Third Circuit, while merely giving lip service to Supreme Court precedent, further contributes to the situation where many circuit courts insidiously refuse to follow the Supreme Court's prohibition against reaching the merits of a labor arbitrator's award. It would appear that only through renewed Supreme Court vigilance and clarity can this trend be impeded.
International Arbitration Is Not Your Father's Oldsmobile, Kenneth F. Dunham
International Arbitration Is Not Your Father's Oldsmobile, Kenneth F. Dunham
Journal of Dispute Resolution
This article provides a short prospectus for the unwary lawyer who must venture into unfamiliar territory abroad. Although there are numerous arbitral forums available in countries all over the world, this article will focus primarily on the LCIA and the ICC. Following a brief history of international arbitration and the history of these two international arbitral forums, the article will discuss some of the major issues in international arbitration such as forum selection, issue preclusion and procedural matters. This article also includes sections on appealing awards and enforcement of awards under existing international treaties. The article is brought to a …
State Legislative Update, Christopher Benne, Tracy Justis, Brandon Lawson, Marty Seaton
State Legislative Update, Christopher Benne, Tracy Justis, Brandon Lawson, Marty Seaton
Journal of Dispute Resolution
As a response to a growing number of states enacting legislation regarding mediations 0 , the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the Dispute Resolution section of the American Bar Association, drafted the Uniform Mediation Act (UMA). The goal of the drafters in creating the UMA was to promote uniformity in an area of law that varied greatly from state to state. After observing the approach of several states , the drafters chose to place a broad confidentiality privilege for all mediation participants at the heart of the Act. In addition, the UMA requires the mediator …
Last Chance Agreements: How Many Chances Is An Employee Entitled To, Kathleen Birkhofer
Last Chance Agreements: How Many Chances Is An Employee Entitled To, Kathleen Birkhofer
Journal of Dispute Resolution
Over the years, a large number of cases involving labor issues have gone to arbitration. Of these labor cases, a distinct sub-category are those governed by the Railway Labor Act (RLA). In labor cases, including those governed by the RLA, the Supreme Court has repeatedly reaffirmed the strong federal policy in favor of arbitration. Furthermore, courts have consistently held that great deference must be shown toward the arbitrator when reviewing an arbitration award. However, there are still issues that arise as to just how much deference should be afforded to an arbitrator's decision and when a court can overturn an …
Why Further Development Of Adr In Latin America Makes Sense: The Venezuelan Model, Jose Alberto Ramirez Leon
Why Further Development Of Adr In Latin America Makes Sense: The Venezuelan Model, Jose Alberto Ramirez Leon
Journal of Dispute Resolution
This paper argues that Venezuelan society would benefit from further development of ADR. Part II will provide an overview of the main problems affecting the Venezuelan judiciary, part III will provide a background of ADR in the country, part IV will identify the main challenges the field has to overcome, part V will propose a different approach, and part VI will present the conclusion.
Justifying Restorative Justice: A Theoretical Justification For The Use Of Restorative Justice Practices, Zvi D. Gabbay
Justifying Restorative Justice: A Theoretical Justification For The Use Of Restorative Justice Practices, Zvi D. Gabbay
Journal of Dispute Resolution
This paper analyzes the premises of the two main theories of punishment that influence sentencing policies in most Western countries-retributivism and utilitarianism-and compares them to the basic values that structure the restorative justice theory. It then makes clear distinctions between restorative justice and the rehabilitative ideal and addresses the criticism that, like rehabilitation, restorative justice results in different punishments to equally culpable offenders. The paper concludes that restorative justice does not contradict retribution and utility as theoretical justifications for penal sanctioning. Moreover, it suggests that restorative practices rehabilitate the basic notions of retribution and deterrence that have been neglected in …
Everybody Loves Arbitration: The Second Circuit Sets Pro-Arbitration Precedent In International Commercial Arbitration Cases, Jasen Matyas
Everybody Loves Arbitration: The Second Circuit Sets Pro-Arbitration Precedent In International Commercial Arbitration Cases, Jasen Matyas
Journal of Dispute Resolution
Phoenix Aktiengesellschaft v. Ecoplas, Inc. presented the Second Circuit with an unresolved question of preemption in international arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention). The court specifically addressed the issue of whether the consent-to-confirmation requirement of section 9 of the Federal Arbitration Act (FAA) conflicted with section 207 of the FAA which does not require such consent. Section 208 incorporates Chapter 1 provisions to the extent that such provisions are not in conflict with Chapter 2. Phoenix held that the two provisions were in conflict, and consent-to-confirmation is not incorporated into Chapter 2. …
Rules For A New Game: Finding A Workable Solution For Applying Class Actions To The Arbitration Process, Andrew Remy Norton
Rules For A New Game: Finding A Workable Solution For Applying Class Actions To The Arbitration Process, Andrew Remy Norton
Journal of Dispute Resolution
In 2003, the Supreme Court's decision in Green Tree Financial Corp. v. Bazzle, indicated that class-wide arbitration was permissible. As a result the number of cases of class-wide arbitration is likely to increase. Because of the few courts that have actually employed class-wide arbitration it has not been definitively settled as to how the hybrid procedure should be conducted. One school of thought emphasizes the class members' due process rights, while another argues that maintaining the integrity of the arbitration process should be a priority. This casenote analyzes the two separate theories and attempts to devise a workable solution for …
Pro-Arbitration Policy: Is This What The Parties Really Intended - The Courts' Treatment Of Forum Selection Clauses In Arbitration Agreements, The, Lance Roskens
Journal of Dispute Resolution
In today's global economy, it is not uncommon for parties from different locations to contract together both in commerce and in employment. Especially in the context of employers, one party will often want any and all disputes it has with its employees to be resolved via arbitration in a certain forum. To accomplish this, employers often include a forum selection clause in the arbitration agreement with the future employee. Thus, if and how courts address forum selection clauses is of paramount importance to employers. In Sterling Financial Investment Group, Inc. v. Hammer, the 11 th Circuit Court of Appeals were …
Arbitrability Of Arbitrability, The, Michelle St. Germain
Arbitrability Of Arbitrability, The, Michelle St. Germain
Journal of Dispute Resolution
If you can read the following only once and understand it, consider yourself part of a very small minority: "It is the dilemma of the box within a box or, in the case of arbitration, the authority as to the decision as to the authority to make the decision." That is "arbitrability" in a nutshell; not a simple concept. Indeed, at oral argument in First Options of Chicago, Inc. v. Kaplan, the confusion occurred to a U.S. Supreme Court Justice.
When Contracting Around The Law Will Not Work: The Potential Inability To Expressly Prohibit Punitive Damages In Arbitration, Alexia Norris
When Contracting Around The Law Will Not Work: The Potential Inability To Expressly Prohibit Punitive Damages In Arbitration, Alexia Norris
Journal of Dispute Resolution
Just as the availability of all appropriate remedies is an important part of judicial litigation, the attempt to identify and limit those remedies is an issue in an arbitration proceeding. After the United States Supreme Court's 1995 decision in Mastrobuono v. Shearson Lehman Hutton, Inc., it seemed clear that parties would be allowed to seek punitive damages if an agreement did not expressly prohibit such damages. Even so, parties continue to falter in writing agreements meant to contain the proper language that will succeed in limiting the availability of certain remedies. This is due to the continued confusion over how …
Tribute To Dean Timothy J. Heinsz, A, Robert G. Bailey
Tribute To Dean Timothy J. Heinsz, A, Robert G. Bailey
Journal of Dispute Resolution
Timothy J. Heinsz, Earl F. Nelson Professor of Law, and Director for the Center for the Study of Dispute Resolution, received his undergraduate degree from St. Louis University and his law degree from Cornell University. He came to the University of Missouri-Columbia School of Law as an associate professor in 1979, and became a full professor in 1981. Between 1988 and 2001, he was dean of the law school. He became Director of the Center for the Study of Dispute Resolution in 2002. On July 2, 2004, Dean Heinsz had a heart attack while jogging on the MKT Trail near …
Discord Behind The Table: The Internal Conflict Among Israeli Jews Concerning The Future Of Settlements In The West Bank And Gaza, Robert H. Mnookin, Ehud Eiran
Discord Behind The Table: The Internal Conflict Among Israeli Jews Concerning The Future Of Settlements In The West Bank And Gaza, Robert H. Mnookin, Ehud Eiran
Journal of Dispute Resolution
Our exclusive focus is on one of these conflicts-the profound internal rift among Israeli Jews over the Jewish settlements in the West Bank and Gaza. We are especially interested in the role of the national religious settlers and the Israeli government's response to them. These settlers lead the movement and are dominant actors in the internal conflict. The current controversies within Israel regarding Prime Minister Ariel Sharon's "unilateral initiative," which was not the product of a negotiation with Palestinians, demonstrate the importance of understanding the internal conflict within Israel and the dominant role of the leaders of the settlement movement
Influence Of Procedural And Distributive Variables On Settlement Rates In Employment Discrimination Mediation, The, E. Patrick Mcdermott, Danny Ervin
Influence Of Procedural And Distributive Variables On Settlement Rates In Employment Discrimination Mediation, The, E. Patrick Mcdermott, Danny Ervin
Journal of Dispute Resolution
Mediators and scholars are interested in factors that contribute to a successful mediation. The settlement of the dispute is one measure of success. If one could identify certain key process or outcome variables that caused more disputes to be settled in mediation, a mediator could use this information to maximize settlement potential. We seek to add to this search for the "holy grail" of mediation settlement.' Using an extensive database from the evaluation of the Equal Employment Opportunity Commission (EEOC) we attempt to determine whether certain procedural and distributive factors are significant predictors of case resolution. We also examine whether …
California's Unique Approach To Arbitration: Why This Road Less Traveled Will Make All The Difference On The Issue Of Preemption Under The Federal Arbitration Act, Michael G. Mcguiness, Adam J. Karr
California's Unique Approach To Arbitration: Why This Road Less Traveled Will Make All The Difference On The Issue Of Preemption Under The Federal Arbitration Act, Michael G. Mcguiness, Adam J. Karr
Journal of Dispute Resolution
We begin this article by framing the issue in simple terms. The statute itself is clear. The FAA contains a "savings clause" that provides that arbitration agreements shall be "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.", By its terms, the FAA permits courts to refuse to enforce arbitration agreements if the agreement is invalid under state laws that "arose to govern issues concerning the validity, revocability, and enforceability of contracts generally."
If You Lose, It Is Binding, But If You Win - They Get A New Trial: Illinois Uninsured Motorist Arbitration, Michael J. Hanagan
If You Lose, It Is Binding, But If You Win - They Get A New Trial: Illinois Uninsured Motorist Arbitration, Michael J. Hanagan
Journal of Dispute Resolution
In Reed v. Farmers Insurance Group the Illinois Supreme Court-by a 4-3 vote-upheld an arbitration system in which injury victims are bound by awards below $20,000, but in which insurance companies can insist on a trial de novo for awards over that amount.' A recent legislative enactment has complicated the threshold at which awards change from binding to non-binding, by increasing it to $50,000. However, even in cases where a higher threshold applies, those injury victims receiving awards below the threshold (or losing on the issue of liability) are bound by the arbitration, while injury victims receiving awards higher than …
Confidentiality In Mediation: Is It Encouraging Good Mediation Or Bad Conduct, Sarah Williams
Confidentiality In Mediation: Is It Encouraging Good Mediation Or Bad Conduct, Sarah Williams
Journal of Dispute Resolution
Mediation has long been used in the judicial system of the United States to offer an alternative to litigation which can save time and money. Not only have its cost-effective and time efficient attributes contributed to its use, but the judiciary and legislature have often encouraged its use in order to mitigate the number of cases in the court system. In some states, the legislature has enacted statutes to make mediation mandatory before certain adjudications will even take place. Furthermore, to encourage these mediations to settle, many legislatures and jurisdictions have enacted statutes to protect the confidentiality of the mediation. …
Horizontal Uniformity And Vertical Chaos: State Choice Of Law Clauses And Preemption Under The Federal Arbitration Act, Jennifer Trieshmann
Horizontal Uniformity And Vertical Chaos: State Choice Of Law Clauses And Preemption Under The Federal Arbitration Act, Jennifer Trieshmann
Journal of Dispute Resolution
Although the goal of arbitration is speedy and efficient resolution of disputes, these goals may be frustrated by judicial interpretation of choice of law provisions in commercial agreements. There is uncertainty as to the law that a court will apply in deciding a motion to stay or otherwise interfere with an arbitration. There is further uncertainty surrounding whether the law governing arbitration is the Federal Arbitration Act (FAA), the arbitration law of the state where the arbitration is taking place, or that of the state mentioned in a choice of law clause. The federal courts have adopted conflicting standards so …
Resolving A Split: May Courts Order Consolidation Of Arbitration Proceedings Absent Express Agreement By The Parties, Jonathan R. Waldron
Resolving A Split: May Courts Order Consolidation Of Arbitration Proceedings Absent Express Agreement By The Parties, Jonathan R. Waldron
Journal of Dispute Resolution
In Illinois Farmers Insurance Co. v. Glass Service Co., 8 the Minnesota Supreme Court had the opportunity to revisit its 1973 decision in Grover-Dimond Associates v. American Arbitration Ass'n 9 in light of conflicting case law developed since that time.' 0 This Note will address the current split in state and federal courts, and suggest that the best way to resolve this issue is through state adoption of the RUAA.
No Notice Is Good News: Notice Under The New Ombuds Standards For The Establishment And Operation Of Ombuds Offices , Katherine A. Welch
No Notice Is Good News: Notice Under The New Ombuds Standards For The Establishment And Operation Of Ombuds Offices , Katherine A. Welch
Journal of Dispute Resolution
The American Bar Association (ABA) recently announced its decision to endorse the revised Standards for the Establishment and Operation of Ombuds Offices, dated February 2004.1 A modification to the 2001 Standards for the Establishment and Operation of Ombuds Offices, 2 the new Standards are responsible for certain clarifications of the role of an ombuds. One such clarification is that of notice in the employment context. Under the new Standards, communications made to an ombuds regarding complaints of violations or unlawful practices within the workplace do not constitute notice to the employer, provided that the ombud's practices are consistent with the …
Where Can Unconscionability Take Arbitration - Why The Fifth Circuit's Conscience Was Only Partially Shocked, Mary Jane Groff
Where Can Unconscionability Take Arbitration - Why The Fifth Circuit's Conscience Was Only Partially Shocked, Mary Jane Groff
Journal of Dispute Resolution
As a means of countering the pro-arbitration stance taken by the Supreme Court, a number of lower courts have chosen to police the fairness of arbitration clauses in contracts by using the doctrine of unconscionability. The Supreme Court has authorized the use of generally applicable contract law principles including unconscionability-to invalidate arbitration agreements. Unconscionability provides courts with a flexible tool for coming to the rescue of parties who, if the court is sufficiently shocked, find themselves entangled in unfair arbitration clauses. This Note addresses the Fifth Circuit's use of unconscionability in respect to a particularly one-sided arbitration clause, and examines …