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Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich Dec 2013

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 Dec 2013

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 ...


Living With Adr: Evolving Perceptions And Use Of Mediation, Arbitration And Conflict Management In Fortune 1,000 Corporations, Thomas Stipanowich, Ryan Lamare Dec 2013

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 ...


Behind The Neutral: The Critical Role Of Provider Institutions, Thomas J. Stipanowich Dec 2009

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 Dec 2009

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 ...


The Arbitration Penumbra: Arbitration Law And The Rapidly Changing Landscape Of Dispute Resolution, Thomas J. Stipanowich Dec 2006

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 legal consequences affecting many different ...


'Real Time' Strategies For Relational Conflict, Thomas J. Stipanowich Dec 2006

'Real Time' Strategies For Relational Conflict, Thomas J. Stipanowich

Thomas J. Stipanowich

The emergence of mediation and other informal approaches for the efficient, effective resolution of conflict represent opportunities for “thin-slicing” that are revolutionizing public and private dispute resolution. They are also challenging the primacy of litigation and arbitration with their emphasis on extensive information exchange and weighty procedure. Today, more and more disputants and counsel are recognizing that less is usually more—especially when the emphasis is on maintaining relationships or relational systems. The need for speedy and effective intervention has promoted the evolution of a wide range of strategies in very different relational settings, from integrated conflict systems in the ...


Adr And The 'Vanishing Trial': The Growth And Impact Of 'Alternative Dispute Resolution', Thomas J. Stipanowich Dec 2003

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 Dec 1997

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 ...


Reconstructing Construction Law: Reality And Reform In A Transactional System, Thomas J. Stipanowich Dec 1997

Reconstructing Construction Law: Reality And Reform In A Transactional System, Thomas J. Stipanowich

Thomas J. Stipanowich

In this article, Professor Stipanowich extensively explores the entire transactional system surrounding contracts for design and construction of the built environment. He examines the legal landscape of construction, focusing on “cases of trouble,” and evaluates options for reforming the legal framework including codification, a Restatement and more narrowing tailored legislation. He also discusses the critical role played by families of contracts and mechanisms for the management of relational conflict.


Beyond Arbitration: Innovation And Evolution In The United States Construction Industry, Thomas J. Stipanowich Dec 1995

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 Dec 1991

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.