Law Commons^™

The Exercise Of Contract Freedom In The Making Of Arbitration Agreements, Thomas E. Carbonneau

Journal Articles

A universal principle of contemporary arbitration law is that contract plays a vital role in the governance of arbitration. The vitality of that role can vary by legal system, court,statute, or treaty. Nonetheless, party agreement often provides the most significant rules for regulating arbitrations and conducting arbitral proceedings. This is especially true in international commercial arbitration. There, the lack of a functional transborder legislativeand adjudicatory process made contract the principal source of law for internationalcommercial transactions and arbitrations. Although law-making is more possible withinindividual national legal systems, the rule of contract freedom is also firmly established inmatters of domestic arbitration. …

Can Compulsory Arbitration Be Reconciled With Section 7 Rights?, Ann C. Hodges

Law Faculty Publications

Employers are increasingly imposing arbitration agreements on their employees as a condition of employment. These agreements force the employees to arbitrate, rather than litigate, any legal claims arising out of their employment. For employees covered by the National Labor Relations Act, such agreements may impair their rights to engage in concerted activity, since litigation of employment claims is protected by Section 7. Employee rights to file class actions, consolidate claims, and seek broad injunctive relief are concerted actions that are particularly threatened by the move to compelled arbitration. The Article analyzes the impact of arbitration agreements on various forms of …

Adr Without Borders, Theodore J. St. Antoine

Articles

My task is to assess the ways in which alternative dispute resolution procedures may be adapted to deal with international labor disputes. ADR refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without involving the decision-making power of the state or other sanction-imposing body. Both mediation and arbitration are included. In mediation the neutral seeks to get the parties to agree on a mutually acceptable solution. In arbitration the neutral imposes a solution after presentations by the contending parties. A third term, conciliation, is sometimes used and generally connotes a …

Institutionalization: What Do Empirical Studies Tell Us About Court Mediation?, Bobbi Mcadoo, Nancy A. Welsh, Roselle L. Wissler

Faculty Scholarship

In the 25 years since the Pound Conference, federal and state courts throughout the country have adopted mediation programs to resolve civil disputes. This increased use of mediation has been accompanied by a small but growing body of research examining the effects of certain choices in designing and implementing court-connected mediation programs.

This article focuses on the lessons that seem to be emerging from the available empirical data regarding best practices for programs that mediate non-family civil matters. Throughout the article, we consider the answers provided by research to three questions: (1) How does program design affect the success of …

Transactional Mediation: Using Mediators In Deals, Scott Peppet

Publications

This article addresses whether third-party mediators could be helpful in deal-making, just as they are in resolving disputes. It makes a theoretical case for such use of mediators and presents preliminary evidence that transactional mediation already is taking place.

Introduction To The Symposium Issue On The Americanization Of International Dispute Resolution, Mary Ellen O'Connell

Journal Articles

With the end of the Cold War and the emergence of the United States as the world's only superpower, we have heard expressions of concern about the great weight of American influence in so many aspects of international life. One area of concern is America's influence on the law and processes of international dispute resolution (IDR). Of all the practice areas in IDR, practitioners and scholars of international arbitration have had the most detailed discussions on this theme to date. Their greatest worry is the growing tendency toward American litigation style in a process that is neither American nor litigation. …

The American Influence On International Arbitration, Roger P. Alford

Journal Articles

It is indisputable that the international arbitration world is an identifiable epistemic community that transcends national borders, and whose members are shaped by their own experience. Increasingly, that experience reflects an American influence, be it heritage, training, affiliation, or client base. In these remarks, Professor Alford addresses three issues related to the Americanization of international arbitration. The first is whether international arbitration has, in fact, only recently become Americanized. He posits instead that there is always an ebb and flow to the level of the United States' involvement in international arbitration. During the drafting and signing of the 1958 New …

Sequencing, Acoustic Separation, And 3-D Negotiation Of Complex Barriers: Charlene Barshefsky And Ip Rights In China, Rebecca Green, James K. Sebenius

Faculty Publications

Taking the perspective of the lead U.S. negotiator, Charlene Barshefsky, this article details and analyzes the negotiations that took place in the mid-1990s between the United States and the People's Republic of China over intellectual property rights (IPR). Employing a "negotiation analytic" methodology, Charlene Barshefsky's actions are interpreted to suggest a number of promising approaches to managing the daunting complexities of trade and other negotiations: recognizing the multiparty aspects of apparently bilateral dealings and capturing them in a "deal diagram;" carefully assessing "barriers" to agreement; sequencing to build a winning coalition and overcome potentially blocking ones; "acoustic separation" of issueframes; …

Symposium Introduction: Perspectives On Dispute Resolution In The Twenty-First Century, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Adr Is Here: Preliminary Reflections On Where It Fits In A System Of Justice, Jean R. Sternlight

Scholarly Works

Reviewing some of the anthropological and other literature regarding other societies' resolution of disputes, I saw that historically many societies have placed far greater emphasis on harmony and healing, and far less emphasis on individualistic adversarial approaches, than we do in the United States today. Just as settlements occur in the "shadow of the law," that is, that the possibility of a litigated solution is often what drives disputants to resolve the dispute through mediation or negotiation, so too does litigation take place in the shadow of settlement. Despite the entanglement of various forms of dispute resolution, significant choices must …

The Rise And Spread Of Mandatory Arbitration As A Substitute For The Jury Trial, Jean R. Sternlight

Scholarly Works

THE CIVIL JURY trial is fast disappearing from our legal landscape, and one important reason for its disappearance is the rapid growth of mandatory arbitration. Yet, the imposition of mandatory arbitration eliminates the civil jury, and often this elimination is not made through a knowing, voluntary, or intelligent waiver. As I have argued elsewhere in greater detail, unless federal courts are generally willing to abandon the Seventh Amendment "knowing/voluntary/intelligent" civil jury trial waiver standard, they need to significantly revise their approach to mandatory arbitration clauses. If a given state allows the civil jury trial right to be waived through a …

Panacea Or Pandora's Box?: The Costs Of Options In Negotiation, Chris Guthrie

Vanderbilt Law School Faculty Publications

The prescriptive literature on negotiation advises negotiators to generate, evaluate, and select from multiple options at the bargaining table. At first glance, this "option-generation prescription" seems unassailable. After all, negotiators can include in their agreements only those options that they actually consider, so the more options they consider, the more likely it seems they will reach an agreement that maximizes their preferences. Upon closer inspection, however, the option-generation prescription begins to appear vulnerable, for it rests on a questionable premise about negotiator behavior. The option-generation prescription assumes that negotiators will make rational decisions when selecting from multiple options; regardless of …

Contractarian Economics And Mediation Ethics: The Case For Customizing Neutrality Through Contingent Fee Mediation, Scott R. Peppet

Publications

No abstract provided.

Book Review: East Meeting West In The Mediation Marketplace, Nadja Alexander

Research Collection Yong Pung How School Of Law

China is now ‘all the rage’. Everyone is either learning Mandarin or tripping off on a conference to Beijing or a business trip to Shanghai. Commercial concerns are busy establishing trade links with Chinese partners to prepare for the emergence of the biggest marketplace in the world. The business of ADR is no exception.

Global Trends In Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

Mediation is a process both new, in terms of its emergence in the legal arena, and old in terms of its timeless universality. From its birth in the western world, mediation has travelled a winding and often challenging path through common law and then civil law jurisdictions. Suggestions that mediation would be nothing more than a short-lived fad have been short-lived themselves. At the same time many critical questions about mediation process, mediation structures and environment, and mediation outcomes have yet to be explored from a global and comparative perspective.The civil law/ common law dichotomy has always been a fascination …

University Of Idaho College Of Law's Seventh Annual Northwest Institute For Dispute Resolution Scheduled For May 19-23, 2003, Maureen Laflin

Articles

No abstract provided.

Forgetfulness, Fuzziness, Functionality, Fairness And Freedom, In Dispute Resolution, Jeffrey W. Stempel

Scholarly Works

Professor Subrin is a self-professed traditionalist who has been one of the most forceful defenders of what I might term neo-traditional “Clarkian” litigation. By that, I mean the model of civil disputing in which litigation is a primary vehicle. More important, the litigation is based on notice pleading, broad discovery, and a preference for adjudication on the merits.

Key Subrin works over the years have focused on the historical path of the Clarkian model, which served to fuel much of the law revolution of the mid-Twentieth Century, to the “new era” of civil procedure and dispute resolution that dominated the …

Prohibiting "Good Faith Reports" Under The Uniform Mediation Act: Keeping The Adjudication Camel Out Of The Mediation Tent, Carol L. Izumi, Homer C. La Rue

Faculty Scholarship

No abstract provided.

Peace-Making Role Of A Mediator, The The Americanization Of International Dispute Resolution, John D. Feerick

Faculty Scholarship

Mediation, or the intervention of third parties, has been a tested and tried means of dispute resolution since the earliest history of the world. The theme for this program, the Americanization of International Dispute Resolution, asks whether there is an American style of dispute resolution and, if there is, whether it is positive or negative for the peaceful settlement of international disputes. In approaching my assignment of Mediation in Armed Conflict, I have focused my attention on Northern Ireland, a society that has experienced a violent conflict for the past thirty years, in which many efforts at mediation have taken …

Problem-Solving Negotiation: Northern Ireland's Experience With The Women's Coalition Symposium, Jacqueline Nolan-Haley, Bronagh Hinds

Faculty Scholarship

This paper is part of a Symposium that considered the relevance of domestic conflict resolution theories in broader cultural contexts. The Northern Ireland Women's Coalition (Women's Coalition) participated in the negotiations leading up to the 1998 Good Friday/Belfast Agreement. Members of the Woman's Coalition responded to thirty years of sectarian violence with a negotiation process based on accommodation, inclusion, and relationship building, concepts that resonate with American-style problem-solving negotiation. Using the Women's Coalition as a case study, this Article suggests that there are procedural aspects of problem-solving negotiation theory that may work across domains, specifically in multi-party, intractable conflict situations, …

Gacaca Courts: The Hope For Reconciliation In The Aftermath Of The Rwandan Genocide, Maureen Laflin

Articles

No abstract provided.

Water Dispute Resolution In The West: Process Elements For The Modern Era In Basin-Wide Problem Solving, Barbara Cosens

Articles

Growing urban water demand, recent recognition of tribal water rights, and needs for critical aquatic habitat in the face of the archaic law governing water allocation are driving people in the western United States to seek alternative methods to resolve water allocation disputes. The current ad hoc and locally driven approach to negotiation of basin-wide water issues runs the risk of overlooking broader interests. Whereas water use is local and rives local economies, the continued viability of our water resources and the legacy we leave to future generations in water infrastructure, social stability, an environmental amenities is national in scope. …

Correspondences And Contradictions In International And Domestic Conflict Resolution: Lessons From General Theory And Varied Contexts, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Does the field of conflict resolution have any broadly applicable theories that "work" across the different domains of international and domestic conflict? Or, are contexts, participants, and resources so "domain" specific and variable that only "thick descriptions" of particular contexts will do? These are important questions which have been plaguing me in this depressing time for conflict resolution professionals, from September 11,2001 (9/11), to the war against Iraq. Have we learned anything about conflict resolution that really does improve our ability to describe, predict, and act to reduce unnecessary and harmful conflict? These are the questions I want to explore …

Internationalization Of Labor Disputes: Can Adr Mechanisms Help?, Theodore J. St. Antoine

Book Chapters

My task is to assess the ways in which ADR procedures may be adapted to deal with international labor disputes. ADR refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without invoking the decision-making power of the state or another sanction-imposing body. Both mediation and arbitration are included among such methods. In mediation, the neutral aims for the parties to agree on a mutually acceptable solution. In arbitration, the neutral imposes a solution after presentations by the contending parties. A third term - conciliation - is sometimes used and generally …

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

Articles

The editors have asked us to be quite personal in our ruminations on the future of comparative labor law and policy. For me, over the past several years, the focus has been on China. My first visit to China in 1994, purely as a tourist, was almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October, I was scheduled to begin teaching a oneterm course in American law as a visiting professor at Cambridge University …

David E. Feller: The Happy Warrior, Theodore J. St. Antoine

Articles

Dave Feller and I first became acquainted when we were both union lawyers in Washington, D.C. Dave was the ultimate happy warrior. He went joyous into combat, and years later he could recount, joyously, objectively, and without rancor toward old foes, the exact details of the many triumphs and the few defeats. A favorite story came from his Supreme Court clerkship. Dave was already seven years out of Harvard Law School, with experience in university teaching, Army intelligence, and the Justice Department, and he didn't hesitate to tell Chief Justice Vinson he should vote for certiorari in a case close …

Thinking About Dispute Resolution, Trevor C. W. Farrow

Articles & Book Chapters

This is a review of Julie Macfarlane et al., eds. Dispute Resolution: Readings and Case Studies. 2nd ed. Toronto: Emond Montgomery, 2003.

Policy Recommendations For Dispute Prevention And Dispute Settlement In Transatlantic Relations: Legal Perspectives, George A. Bermann

Faculty Scholarship

The concrete case studies and general policy analyses that were the subject of inquiry in the conferences culminating in the present volume have predictably generated a series of distinctly legal – as well as political – reflections on dispute prevention and dispute settlement in the transatlantic arena. One of the merits of the dual (concrete and abstract) approach that has been adopted for these conferences is its capacity to provide a check against the risks that would result either from divorcing this study from the realities of disputes or from relying exclusively on potentially idiosyncratic dispute scenarios. The recommendations to …

The Revolution You Won’T See On Tv, Jeff Rasley

Scholarship and Professional Work - LAS

Article for Newsweek about the author’s experiences in mediation and jury trials as a civil litigator.

Getting A Head Start: More Intake Questions And Tips For Mediators, Marjorie Corman Aaron

Faculty Articles and Other Publications

A party's initial inquiry to a mediator about potentially participating in a case provides many opportunities for the neutral to initiate the steps necessary for a successful resolution. This article focuses on a list of intake questions for the mediator to direct to the parties.