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Full-Text Articles in Law
Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich
Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich
Thomas J. Stipanowich
A wide-ranging new Straus Institute for Dispute Resolution Survey of experienced arbitrators, conducted with the cooperation of the College of Commercial Arbitrators, reflects the growing professionalization of commercial arbitration, increasing competition for cases, and many other trends in arbitration practice. It also shows that a grower percentage of arbitrated cases are being settled prior to award or to the start of hearings, and offers a strong rationale for greater emphasis on the role of arbitrators in setting the stage for or facilitating settlement. Early settlement of a dispute can be a uniquely effective way of minimizing cost and cycle time …
Managing Construction Conflict: Unfinished Revolution, Continuing Evolution, Thomas Stipanowich
Managing Construction Conflict: Unfinished Revolution, Continuing Evolution, Thomas Stipanowich
Thomas J. Stipanowich
Two decades ago many believed we were experiencing a “Quiet Revolution” in the way conflict was managed, and nowhere was this more true than in the construction sector. Frustration with the costs, delays, risks and limitations of lawyer-driven adjudication prompted growing attention to informal methods aimed at early resolution of disputes, with those who “owned” the dispute back in the driver’s seat. A smorgasbord of options for preventing, managing and resolving conflict was suddenly on the table. There were strategies aimed at the very roots of conflict, including contractual terms aimed at promoting collaboration and reducing the chance of serious …
Living With Adr: Evolving Perceptions And Use Of Mediation, Arbitration And Conflict Management In Fortune 1,000 Corporations, Thomas Stipanowich, Ryan Lamare
Living With Adr: Evolving Perceptions And Use Of Mediation, Arbitration And Conflict Management In Fortune 1,000 Corporations, Thomas Stipanowich, Ryan Lamare
Thomas J. Stipanowich
As attorneys for the world’s most visible clients, corporate counsel played a key role in the transformation of American conflict resolution in the late Twentieth Century. In 1997 a survey of Fortune 1,000 corporate counsel provided the first broad-based picture of conflict resolution processes within large companies. In 2011, a second landmark survey of corporate counsel in Fortune 1,000 companies captured a variety of critical changes in the ways large companies handle conflict. Comparing their responses to those of the mid-1990s, clear and significant evolutionary trends are observable, including a further shift in corporate orientation away from litigation and toward …
In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program, Thomas Stipanowich
In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program, Thomas Stipanowich
Thomas J. Stipanowich
The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …
National Roundtable On Consumer And Employment Dispute Resolution: Consumer Arbitration Roundtable Summary Report, Thomas J. Stipanowich, Nancy Walsh, Lisa Blomgren Bingham, Lawrence R. Mills
National Roundtable On Consumer And Employment Dispute Resolution: Consumer Arbitration Roundtable Summary Report, Thomas J. Stipanowich, Nancy Walsh, Lisa Blomgren Bingham, Lawrence R. Mills
Thomas J. Stipanowich
This report is a summary of the discussions at the Consumer Arbitration Roundtable held at Pepperdine University on February 2-4, 3012 and co-sponsored by Pepperdine School of Law, The Straus Institute for Dispute Resolution, and Penn State University, Dickinson School of Law. It was prepared by members of the Planning Committee.
The Arbitration Fairness Index: Using A Public Rating System To Skirt The Legal Logjam And Promote Fairer And More Effective Arbitration Of Employment And Consumer Disputes, Thomas J. Stipanowich
The Arbitration Fairness Index: Using A Public Rating System To Skirt The Legal Logjam And Promote Fairer And More Effective Arbitration Of Employment And Consumer Disputes, Thomas J. Stipanowich
Thomas J. Stipanowich
Recent Supreme Court decisions have heightened concerns about the degree of effective judicial oversight of consumer and employment arbitration under binding predispute agreements. Efforts to address such concerns are largely stymied by a political logjam. Because binding arbitration serves as the adjudicative backdrop for many kinds of consumer disputes or employer-employee conflict, the choice of arbitration and the kind of justice available under arbitration agreements may be every bit as important as consumer warranties and other substantive rights and remedies. Yet consumers and employees tend to know very little about arbitration and how it affects their rights and obligations; arbitration …
Revelation And Reaction: The Struggle To Shape American Arbitration, Thomas J. Stipanowich
Revelation And Reaction: The Struggle To Shape American Arbitration, Thomas J. Stipanowich
Thomas J. Stipanowich
In this article, Professor Stipanowich explores recent decisions by the U.S. Supreme Court and the implications for the respective domains of courts of law and arbitration tribunals regarding so-called “gateway” determinations surrounding the enforcement of arbitration agreements and the contracts of which they are a part. The decisions address the complex interplay between federal substantive law focusing on questions of arbitrability, a body of law defined and expanded by the Court under the Federal Arbitration Act (FAA), and the law of the states and bring into play competing judicial philosophies of contractual assent and contrasting views about the balance between …
The Third Arbitration Trilogy: Stolt-Nielsen, Rent-A-Center, Concepcion And The Future Of American Arbitration, Thomas J. Stipanowich
The Third Arbitration Trilogy: Stolt-Nielsen, Rent-A-Center, Concepcion And The Future Of American Arbitration, Thomas J. Stipanowich
Thomas J. Stipanowich
For the third time in the modern era, a triad of key Supreme Court decisions represents a milestone in American arbitration. In this highly controversial “Third Arbitration Trilogy,” the U.S. Supreme Court aggressively expands the “revealed” penumbra of substantive arbitration law under the Federal Arbitration Act and shores up the bulwarks of private, binding dispute resolution under standardized contracts of adhesion binding employees and consumers. In Stolt-Nielsen S.A. v. AnimalFeeds International, 130 S. Ct. 1758 (2010), the Court, against the backdrop of an international commercial contract scheme and a unique procedural scenario, draws upon the wellspring of divined “federal substantive …
Behind The Neutral: The Critical Role Of Provider Institutions, Thomas J. Stipanowich
Behind The Neutral: The Critical Role Of Provider Institutions, Thomas J. Stipanowich
Thomas J. Stipanowich
In the last generation the “quiet revolution” in conflict resolution has spawned a vast array of organizations sponsoring or promoting the services of arbitrators and mediators. These “provider institutions” are often in a position, directly or indirectly, to exert significant influence on the lives and fortunes of individuals in all sectors of society. For this reason they have become increasingly visible, the focus of growing scrutiny and, in some cases, regulation. This article explores the roles of providers and the need for greater awareness of their impact.
Arbitration: The "New Litigation", Thomas J. Stipanowich
Arbitration: The "New Litigation", Thomas J. Stipanowich
Thomas J. Stipanowich
Today, binding arbitration procedures are employed in a wider variety of contracts than at any time in our nation's history, and arbitration has become a wide-ranging surrogate for court trial of civil disputes. As a result, arbitration is subjected to unprecedented stresses and strains, and it is fair to say that arbitration has never been subject to wider criticism. Once advocates promoted arbitration as a means of avoiding the contention, cost and expense of court trial; economy, efficiency and the opportunity to fashion true alternatives to litigation are still associated with conventional perceptions of arbitration. Yet today business arbitration is …
Arbitration And Choice: Taking Charge Of The 'New Litigation', Thomas J. Stipanowich
Arbitration And Choice: Taking Charge Of The 'New Litigation', Thomas J. Stipanowich
Thomas J. Stipanowich
Despite meaningful efforts to promote better practices and ensure quality among arbitrators and advocates, criticism of American arbitration is at a crescendo. Much of this criticism stems from the fact that arbitration under standard procedures has taken on the trappings of litigation - extensive discovery and motion practice, highly contentious advocacy, long cycle time and high cost. Paradoxically, concerns about the absence of appeal on the merits in arbitration have caused some to craft provisions calling for judicial review for errors of law or fact in awards. It is time to return to fundamentals in American arbitration. Those who seek …
The Arbitration Penumbra: Arbitration Law And The Rapidly Changing Landscape Of Dispute Resolution, Thomas J. Stipanowich
The Arbitration Penumbra: Arbitration Law And The Rapidly Changing Landscape Of Dispute Resolution, Thomas J. Stipanowich
Thomas J. Stipanowich
After a generation of growing emphasis on informal methods of conflict resolution, the surrounding legal landscape remains "aimless, meandering, and . . . confusing." The "penumbra" of arbitration law - a body of judicial decisions involving application of federal or state arbitration statutes to processes that are to one degree or another different from "classic" arbitration, or to the interface between arbitration and earlier stages in multi-step dispute resolution processes - reflects the failure of courts to articulate clear and well-reasoned approaches to the new generation of dispute resolution tools. The application of arbitration law entails a variety of specific …
Adr And The 'Vanishing Trial': The Growth And Impact Of 'Alternative Dispute Resolution', Thomas J. Stipanowich
Adr And The 'Vanishing Trial': The Growth And Impact Of 'Alternative Dispute Resolution', Thomas J. Stipanowich
Thomas J. Stipanowich
In the past quarter-century, significant changes have occurred in the ways lawyers approach conflict. There have been unprecedented efforts to develop strategies aimed at more efficient, less costly, and more satisfying resolution of conflict, including more extensive and appropriate use of mediation and other “alternative dispute resolution” (ADR) approaches. This study examines what we know and do not know about the growth and impact of ADR in federal and state courts, in the business sector, and in employment and consumer settings. The analysis examines the relationship between ADR and court trial, but also underlines the broader uses of and rationale …
The Multi-Door Contract And Other Possibilities, Thomas J. Stipanowich
The Multi-Door Contract And Other Possibilities, Thomas J. Stipanowich
Thomas J. Stipanowich
The pressure of recent legislative, judicial and administrative developments and increasing awareness of the possibilities of other alternatives is encouraging unprecedented experimentation in the consensual arena. As courts and agencies have experimented with a range of solutions to more effectively address the many and varied controversies presented to them, litigators have been exposed to the possibilities of purposive third party intervention prior to adjudication. At the same time, nonlawyers have recoiled from the perceived high costs of “Total Process” in the litigation mode and have become more proactive in their approaches to conflict. Gradually, both these trends are feeding, together …
Punitive Damages And The Consumerization Of Arbitration, Thomas J. Stipanowich
Punitive Damages And The Consumerization Of Arbitration, Thomas J. Stipanowich
Thomas J. Stipanowich
In this sequel to his 1986 article on punitive damages in arbitration, Professor Stipanowich explores the issues at the heart of the debate over whether punitive or exemplary damages should be available in arbitration between investors and securities brokers and firms. He critiques relevant proposals by the NASD’s Ruder Commission and examines mechanisms for more effectively addressing the punitive damages issue. This article predates and foreshadows the eventual recognition of the authority of securities arbitrators to award punitive damages.
Beyond Arbitration: Innovation And Evolution In The United States Construction Industry, Thomas J. Stipanowich
Beyond Arbitration: Innovation And Evolution In The United States Construction Industry, Thomas J. Stipanowich
Thomas J. Stipanowich
Disagreement among contracting parties has a rich tradition in the construction industry, which has been at the forefront of creating and experimenting with alternatives to litigation. In this article, Professor Stipanowich examines traditional alternatives to litigation utilized by the construction industry, including summary adjudication by design professionals, arbitration, mediation, minitrial, dispute review boards, early neutral evaluation, and partnering. After analyzing the results from the 1991 ABA-sponsored survey on dispute resolution in the construction industry, the author presents data from the 1994 Multidisciplinary Study on Dispute Avoidance and Resolution in the Construction Industry, a landmark study of which the author was …
The Quiet Revolution Comes To Kentucky: A Case Study In Community Mediation, Thomas J. Stipanowich
The Quiet Revolution Comes To Kentucky: A Case Study In Community Mediation, Thomas J. Stipanowich
Thomas J. Stipanowich
This article is part of a symposium entitled “Emerging Alternative Dispute Resolution Systems” and discusses Professor Stipanowich's experience helping to establish a court-connected community mediation program. The article includes extensive discussion of the practical, legal and ethical issues associated with such programs and includes some early case statistics.
Of "Procedural Arbitrability": The Effect Of Noncompliance With Contract Claims Procedures, Thomas J. Stipanowich
Of "Procedural Arbitrability": The Effect Of Noncompliance With Contract Claims Procedures, Thomas J. Stipanowich
Thomas J. Stipanowich
This article is part of a symposium entitled “Construction Contract Issues.” In it, Professor Stipanowich surveys contemporary judicial attitudes regarding the effect of noncompliance with procedures for handling construction claims and controversies. It also analyzes the policies advanced in support of deferring questions of "procedural arbitrability" to arbitration and proposes a straightforward rationale for judicial disposition of such issues. Although the discussion emphasizes scenarios involving construction contracts, the principles addressed in this article are applicable to commercial arbitration agreements generally and may be extended by analogy to the labor sphere.
Rethinking American Arbitration, Thomas J. Stipanowich
Rethinking American Arbitration, Thomas J. Stipanowich
Thomas J. Stipanowich
In this 1987 article, Professor Stipanowich extensively analyzes data from an unprecedented broad-based survey on contract-based commercial arbitration in the United States. The study, based on a survey by the ABA Forum on the Construction Industry, provides considerable insight into experiences and perceptions of American attorneys regarding arbitration and litigation of construction and engineering disputes. It also summarizes and compares data developed in earlier studies of arbitration practice and procedure and suggests possible new directions for arbitration procedures.
Arbitration And The Multiparty Dispute: The Search For Workable Solutions, Thomas J. Stipanowich
Arbitration And The Multiparty Dispute: The Search For Workable Solutions, Thomas J. Stipanowich
Thomas J. Stipanowich
In this article, Professor Stipanowich explores the legal and practical problems associated with arbitration of commercial disputes involving multiple parties. He examines relevant legislation and judicial decisions as well as arbitration procedures aimed at facilitating consolidation of claims among multiple parties in a single arbitration hearing as well as joinder and “vouching in” of parties. He proposes the passage of legislation adapting provisions of the California Arbitration Act as a means of more effectively addressing these issues—a proposal that was later effectively adopted in a section of the Revised Uniform Arbitration Act.
Punitive Damages In Arbitration: Garrity V. Lyle Stuart, Inc. Reconsidered, Thomas J. Stipanowich
Punitive Damages In Arbitration: Garrity V. Lyle Stuart, Inc. Reconsidered, Thomas J. Stipanowich
Thomas J. Stipanowich
In this article, Professor Stipanowich discusses the evolution of arbitration as a wide-ranging “surrogate” for civil trial and the debate over arbitrators’ power to levy awards of punitive or exemplary damages. He exhaustively summarizes and analyzes relevant court decisions, policy and practical concerns.