Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Singapore Management University (9)
- Georgetown University Law Center (4)
- Texas A&M University School of Law (3)
- Chicago-Kent College of Law (2)
- University of Michigan Law School (2)
-
- University of Nevada, Las Vegas -- William S. Boyd School of Law (2)
- University of Pennsylvania Carey Law School (2)
- Yeshiva University, Cardozo School of Law (2)
- Boston University School of Law (1)
- California Western School of Law (1)
- Cornell University Law School (1)
- DePaul University (1)
- Fordham Law School (1)
- Georgia State University College of Law (1)
- Maurice A. Deane School of Law at Hofstra University (1)
- The Peter A. Allard School of Law (1)
- Touro University Jacob D. Fuchsberg Law Center (1)
- University of Florida Levin College of Law (1)
- University of Georgia School of Law (1)
- University of Missouri-Kansas City School of Law (1)
- University of Pittsburgh School of Law (1)
- University of Richmond (1)
- Vanderbilt University Law School (1)
- Wayne State University (1)
- Keyword
-
- Mediation (11)
- Arbitration (6)
- Dispute resolution (6)
- Negotiation (5)
- ADR (3)
-
- Courts (3)
- Germany (3)
- Mandatory arbitration (3)
- Arbitrators (2)
- Asia (2)
- Australia (2)
- Change (2)
- Collective bargaining (2)
- Dispute Resolution (2)
- Due process (2)
- Dunlop Commission (2)
- EEOC (2)
- Employees (2)
- Employers (2)
- Employment contracts (2)
- Employment discrimination (2)
- Fairness (2)
- Federal Arbitration Act (2)
- Judicial review (2)
- Labor arbitration (2)
- Labor disputes (2)
- Labor unions (2)
- Law reform (2)
- Mediator (2)
- National Labor Relations Board (2)
- Publication
-
- Research Collection Yong Pung How School Of Law (9)
- Faculty Scholarship (6)
- Articles (5)
- All Faculty Scholarship (4)
- Georgetown Law Faculty Publications and Other Works (3)
-
- Scholarly Works (3)
- All Faculty Publications (1)
- Cornell Law Faculty Publications (1)
- Faculty Publications By Year (1)
- Faculty Works (1)
- Hofstra Law Faculty Scholarship (1)
- LLM Theses and Essays (1)
- Law Faculty Publications (1)
- Law Faculty Research Publications (1)
- Mission and Ministry Publications (1)
- U.S. Supreme Court Briefs (1)
- UF Law Faculty Publications (1)
- Vanderbilt Law School Faculty Publications (1)
Articles 1 - 30 of 42
Full-Text Articles in Law
From Common Law To Civil Law Jurisdictions: Court Adr On The Move In Germany, Nadja Alexander
From Common Law To Civil Law Jurisdictions: Court Adr On The Move In Germany, Nadja Alexander
Research Collection Yong Pung How School Of Law
In Australia today, ADR processes are recognised not only as a distinct system of dispute resolution, but also as a system that interacts interdependently with the legal system. This is most clearly demonstrated in the context of court-related mediation, which is increasingly seen as an effective way to increase access to, participation in, and satisfaction with the way legal disputes are resolved. Cappelletti categorises ADR as the third wave in the worldwide access-to-justice movement. ADR provides a different approach and a different sort of justice for solving disputes — what Cappelletti labels ‘co-existential justice’.
Foskett V. Mckeown – Hard-Nosed Property Rights Or Unjust Enrichment?, Hang Wu Tang
Foskett V. Mckeown – Hard-Nosed Property Rights Or Unjust Enrichment?, Hang Wu Tang
Research Collection Yong Pung How School Of Law
The recent judgment of the House of Lords in Foskett is extremely important as it straddles insurance law, property law, tracing and unjust enrichment. First, it establishes the proposition that it is possible to trace misappropriated moneys wrongfully paid as premiums into the proceeds of a policy. Second, two of the Law Lords contemplated the abolition of the distinction between the rules for tracing in law and tracing in equity. Third, the judgments of the Law Lords contain valuable guidance as to the context in which equitable ownership and the law of unjust enrichment should be viewed.
Book Review: The Handbook Of Conflict Resolution: Theory And Practice, Nadja Alexander
Book Review: The Handbook Of Conflict Resolution: Theory And Practice, Nadja Alexander
Research Collection Yong Pung How School Of Law
No abstract provided.
Which Means To An End Under The Uniform Mediation Act, Andrea Kupfer Schneider
Which Means To An End Under The Uniform Mediation Act, Andrea Kupfer Schneider
Articles
No abstract provided.
What's Law Got To Do With It: Mapping Modern Mediation Movements In Civil And Common Law Jurisdictions, Nadja Alexander
What's Law Got To Do With It: Mapping Modern Mediation Movements In Civil And Common Law Jurisdictions, Nadja Alexander
Research Collection Yong Pung How School Of Law
Context defines mediation and has a direct impact on how it is practised. National legal contexts reveal historically embedded systemic differences that can provide insights into the reasons behind the rapid expansion of mediation in common law jurisdictions, and the comparatively hesitant development of mediation in civil law jurisdictions. In this article I consider the legal and political forces behind the modern mediation movements in Australia and Germany: two countries that represent the common law and the civil law traditions respectively.
From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander
From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander
Research Collection Yong Pung How School Of Law
In this article I will outline the development of modern mediation in Sri Lanka. I use the term mediation to mean facilitative mediation. Accordingly, for the purposes of this article, mediation does not include processes such as conciliation or evaluative mediation, which are used in Sri Lanka, for example in industrial dispute resolution practice.
From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander
From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander
Research Collection Yong Pung How School Of Law
In this article I will outline the development of modern mediation in Sri Lanka. I use the term mediation to mean facilitative mediation. Accordingly, for the purposes of this article, mediation does not include processes such as conciliation or evaluative mediation, which are used in Sri Lanka, for example in industrial dispute resolution practice.
When People Are The Means: Negotiating With Respect, Jonathan R. Cohen
When People Are The Means: Negotiating With Respect, Jonathan R. Cohen
UF Law Faculty Publications
Most scholarship on negotiation ethics has focused on the topics of deception and disclosure. In this Article, I argue for considering a related, but distinct, ethical domain within negotiation ethics. That domain is the ethics of orientation. In contrast to most forms of human interaction, a clear purpose of negotiation is to get the other party to take an action on one's behalf, or at least to explore that possibility. This gives rise to a core ethical tension in negotiation that I call the object-subject tension: how does one reconcile the fact that the other party is a potential means …
Unfriendly Actions: The Amicus Brief Battle At The Wto, Andrea Kupfer Schneider
Unfriendly Actions: The Amicus Brief Battle At The Wto, Andrea Kupfer Schneider
Articles
No abstract provided.
The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh
The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh
Faculty Scholarship
Ethical codes for mediators describe party self-determination as “the fundamental principle of mediation,” regardless of the context within which the mediation is occurring. The definition of self-determination, however, is a matter of dispute. Based on a review of the debate surrounding the promulgation and revision of ethical codes for court-connected mediators in Florida and Minnesota, this Article demonstrates that a vision of self-determination anchored in party-centered empowerment is yielding to a vision that is more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through …
When Do Rights Arise Under The Contracts (Rights Of Third Parties) Act 1999 (Uk)?, Tiong Min Yeo
When Do Rights Arise Under The Contracts (Rights Of Third Parties) Act 1999 (Uk)?, Tiong Min Yeo
Research Collection Yong Pung How School Of Law
There are two aspects to the common law doctrine of privity of contract. The first, that a contract cannot impose liabilities on a third party, is not very controversial. The second, that in general a contract can only confer rights on parties to the contract even if it is clearly the intention of the contracting parties to benefit a third party, is highly controversial, and has been the subject of much judicial criticism.
Reply To Brief In Opposition, Chris V. Tenet, No. 00-829 (U.S. Feb. 12, 2001), David C. Vladeck
Reply To Brief In Opposition, Chris V. Tenet, No. 00-829 (U.S. Feb. 12, 2001), David C. Vladeck
U.S. Supreme Court Briefs
No abstract provided.
Privatizing Justice But By How Much? Questions Gilmer Did Not Answer, Martin H. Malin
Privatizing Justice But By How Much? Questions Gilmer Did Not Answer, Martin H. Malin
All Faculty Scholarship
No abstract provided.
A Trade/Human Rights Linkage By The United States: Is Enforcing Human Rights By Use Of Trade Sanctions Effective?, Blaise Omondi Odhiambo
A Trade/Human Rights Linkage By The United States: Is Enforcing Human Rights By Use Of Trade Sanctions Effective?, Blaise Omondi Odhiambo
LLM Theses and Essays
Universally held basic human rights must remain separate from political rights. Such basic human rights are those that are so universal that all societies, systems, nations, and ideology could, and do espouse them. Conversely, political rights are those that are dependent upon compatibility with the system of government in place and arc therefore far less likely to gamer universal support. An effective multilateral enforcement mechanism can only succeed if there are universal agreement and acceptance of the protected rights. Accordingly, at the outset of such a mechanism, only basic human rights may be enforced through trade sanctions. Once such a …
A Preacher's Teacher: Lessons On Ministry From One Who Proclaims The Word, Craig Mousin
A Preacher's Teacher: Lessons On Ministry From One Who Proclaims The Word, Craig Mousin
Mission and Ministry Publications
No abstract provided.
El Impacto Del Arbitraje En Los Patrones Huelgarios De Puerto Rico, 1956-1995, César F. Rosado Marzán
El Impacto Del Arbitraje En Los Patrones Huelgarios De Puerto Rico, 1956-1995, César F. Rosado Marzán
All Faculty Scholarship
No abstract provided.
Dispute Resolution In The Boundaryless Workplace, Katherine V.W. Stone
Dispute Resolution In The Boundaryless Workplace, Katherine V.W. Stone
Cornell Law Faculty Publications
Since the Supreme Court's decision Gilmer v. Interstate/Johnson Lane Corp. which compelled an employee to submit his age discrimination claim to arbitration under the Federal Arbitration Act (FAA), there has been a dramatic increase in the number of nonunion firms adopting arbitration systems. At the same time, there has been a flood of lawsuits challenging these employment systems, and a corresponding avalanche of judicial opinions addressing the legal issues left open in Gilmer – issues such as the problematic nature of consent in employment arbitration, the deficiencies in due process, and the applicability of the FAA to employment contracts. These …
Investor-State Disputes Under Nafta: A Tale Of Fear And Equilibrium, Charles Hendrickson Brower Ii
Investor-State Disputes Under Nafta: A Tale Of Fear And Equilibrium, Charles Hendrickson Brower Ii
Law Faculty Research Publications
No abstract provided.
The Employment Law Decisions Of The October 2000 Term Of The Supreme Court: A Review And Analysis, Ann C. Hodges, Douglas D. Scherer
The Employment Law Decisions Of The October 2000 Term Of The Supreme Court: A Review And Analysis, Ann C. Hodges, Douglas D. Scherer
Scholarly Works
During the October 2000 Term, the Supreme Court delivered major setbacks for employees in Circuit City Stores, Inc. v. Adams,' which upheld mandatory and binding arbitration of federal and state employment discrimination claims through arbitration clauses forced upon employees as a condition of employment, and in Board of Trustees of the University of Alabama v. Garrett, which shielded state employers from federal court law suits brought under the Americans with Disabilities Act by victims of disability discrimination in employment. Employees escaped harm in Pollard v. E.I du Pont de Nemours & Co., in which the Court followed nearly unanimous circuit …
Arbitration Of Statutory Claims In The Unionized Workplace: Is Bargaining With The Union Required?, Ann C. Hodges
Arbitration Of Statutory Claims In The Unionized Workplace: Is Bargaining With The Union Required?, Ann C. Hodges
Law Faculty Publications
This article analyzes the question of whether arbitration of statutory claims should be classified as a mandatory or permissive subject of bargaining under the National Labor Relations Act (NLRA). First, this article reviews the post-Wright cases that hold that a union-negotiated waiver is permissible. Second, this article reviews the only decision to consider the issue of classification of the bargaining subject, Air Line Pilots Ass'n, International v. Northwest Airlines, Inc., a case arising in the United States Court of Appeals for the District of Columbia under the Railway Labor Act. In that case, the court concluded that the …
All In The Family: Darwin And The Evolution Of Mediation, Nancy A. Welsh
All In The Family: Darwin And The Evolution Of Mediation, Nancy A. Welsh
Faculty Scholarship
Maybe I’ve been thinking about evolution more than is normal for the average lawyer. I have a 5-year-old son who is fascinated by every species of dinosaur. As a result, I read to my son nearly every night about the events and the evolving cast of creatures that populated the Triassic, Jurassic and Cretaceous periods. Since the Triassic period began 240 million years ago, this provides a real sense of perspective.
I wonder how Charles Darwin would use his theory of evolution to explain the many strange and wonderful variations of mediation that have flowered in the past decade. And …
The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie
The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie
Vanderbilt Law School Faculty Publications
Riskin's categorization of mediation has engendered much debate among academics and practitioners. Although most in the mediation community accept Riskin's positive assertion that mediation as currently practiced includes both facilitation and evaluation, a vocal group of purist critics rejects Riskin's pluralist view of mediation on normative grounds. These purist critics -- including such prominent mediator-scholars as Professors Kim Kovach, Lela Love," and Josh Stulberg -- argue that mediation is in fact, and should be, solely a facilitative process "designed to capture the parties' insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes." For …
Mediation In Practice: Common Law And Civil Law Perspectives Compared, Nadja Alexander
Mediation In Practice: Common Law And Civil Law Perspectives Compared, Nadja Alexander
Research Collection Yong Pung How School Of Law
Australian mediation practice is thriving. Effective forms of mediation are practised in court-connected schemes, in the public sector, in the community justice sector and in the private business sector. Indeed, no industry is excluded from the application of mediation. In contrast, Hoffmann-Riem laments that despite many years of discussions about ADR (alternative dispute resolution) in Germany, mediation plays a marginal role only. Further, Labes states that 'ADR mechanisms are relatively obscure methods in Germany.' The comparison between Australia and Germany is particularly interesting because it considers both a common law and a civil law tradition. This essay will discuss the …
A Well-Founded Fear Of Prosecution: Mediation And The Unauthorized Practice Of Law, David A. Hoffman, Natasha Affolder
A Well-Founded Fear Of Prosecution: Mediation And The Unauthorized Practice Of Law, David A. Hoffman, Natasha Affolder
All Faculty Publications
To many mediators, "UPL" is an acronym with an increasingly ominous ring. This growing concern about the unauthorized practice of law (UPL) arises from reports around the country of charges filed against mediators who are not lawyers. These prosecutions - or in some cases warnings - are primarily directed at divorce mediators as a result of their drafting of detailed marital settlement agreements. However, all mediators have a reason to be concerned, because of uncertainties about what constitutes UPL in the context of mediation. This article surveys the legal terrain of UPL, and argues that it's time for new, clear …
Making Deals In Court-Connected Mediation: What's Justice Got To Do With It?, Nancy A. Welsh
Making Deals In Court-Connected Mediation: What's Justice Got To Do With It?, Nancy A. Welsh
Faculty Scholarship
When mediation was first introduced to the courts, the process was hailed as “alternative.” Mediation gave disputants the opportunity to discuss and resolve their dispute themselves; the role of the third party was to facilitate the disputants’ negotiations, not to dictate the outcome; and because the disputants were able to focus on their underlying interests in mediation, the process could result in creative, customized solutions. The picture of mediation is changing, however, as the process settles into its role as a tool for the resolution of personal injury, contract, and other nonfamily cases on the courts’ civil dockets. Attorneys dominate …
Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel
Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel
Scholarly Works
One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One …
Mandatory Binding Arbitration And The Demise Of The Seventh Amendment Right To A Jury Trial, Jean R. Sternlight
Mandatory Binding Arbitration And The Demise Of The Seventh Amendment Right To A Jury Trial, Jean R. Sternlight
Scholarly Works
How can the body of law which protects the federal constitutional jury trial right be reconciled with a body of arbitration law which often states such propositions as (1) arbitration is favored; (2) arbitration clauses may be upheld absent a showing of voluntary, knowing, or intentional consent; (3) the party opposing arbitration bears the burden of proof; (4) arbitration can sometimes be imposed using unsigned envelope "stuffers," handbooks, and warranties; and (5) ambiguous contracts should be construed broadly to support arbitration? To be valid, in most courts the waiver and whether it was actually state arbitration clauses need not be …
On Trademarks, Domain Names, And Internal Auctions, Gideon Parchomovsky
On Trademarks, Domain Names, And Internal Auctions, Gideon Parchomovsky
All Faculty Scholarship
No abstract provided.
Assessing The Advocacy Of Negotiated Rulemaking: A Response To Philip Harter, Cary Coglianese
Assessing The Advocacy Of Negotiated Rulemaking: A Response To Philip Harter, Cary Coglianese
All Faculty Scholarship
For many years, advocates of negotiated rulemaking have advanced enthusiastic claims about how negotiated rulemaking would reduce litigation and shorten the rulemaking process. In an earlier study, I tested these claims systematically by assessing the effectiveness of negotiated rulemaking against existing rulemaking processes. I found that negotiated rulemaking neither saves time nor reduces litigation. Recently, Philip Harter, a longtime advocate of negotiated rulemaking, has criticized my study and asserted that negotiated rulemaking has succeeded remarkably in achieving its goals. Harter criticized the way I measured the length of the rulemaking process, claimed that I failed to appreciate differences in litigation, …
Is The Use Of Mediation Appropriate In Adult Guardianship Cases?, Mary F. Radford
Is The Use Of Mediation Appropriate In Adult Guardianship Cases?, Mary F. Radford
Faculty Publications By Year
No abstract provided.