Law Commons^™

Mandatory Predispute Consumer Arbitration, Structural Bias, And Incentivizing Procedural Safeguards, Nancy A. Welsh

Faculty Scholarship

Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory claims and give up their rights to pursue class relief. This Article begins by arguing that the Supreme Court’s enthusiastic embrace of mandatory predispute arbitration should be understood primarily …

Becoming "Investor-State Mediation", Nancy A. Welsh, Andrea Kupfer Schneider

Faculty Scholarship

While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed. Increasingly, states and investors express concerns regarding the costs associated with the arbitration process; some states are refusing to comply with arbitral awards; other states now hesitate to sign new bilateral investment treaties; and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. …

Making Reputation Salient: Using The Reputation Index With Law Students, Nancy A. Welsh

Faculty Scholarship

Would negotiation students act the way they do in simulations, if they knew this might come back to haunt them? Analyzing the consequences of basing part of students’ final grades on objective results they achieve in negotiation simulations, Welsh found a need for something to counterbalance the expected incentives to engage in distributive tactics and “sharp practice.” She settled on an explicit focus on reputation. While the “reputation index” compiled for each student is only a small fraction of the student’s grade, it is based on recent thinking about the value of negotiators’ reputations even in the short term, and …

The Current Transitional State Of Court-Connected Adr, Nancy A. Welsh

Faculty Scholarship

Article Extract:

Obviously, there is much to commend in court-connected mediation and what it offers to people caught up in disputes. With the help of mediators, parties may find it more feasible to reflect on their legal and extra-legal needs, prioritize among these needs, engage in open and thoughtful conversation, develop integrative solutions, and even consider the mediators' dispassionate feedback regarding positions or expectations. Proponents of court-connected mediation can also point to a multitude of accomplishments. For example, and most strikingly, many cases settle in mediation.' For the vast majority of those cases, litigants express satisfaction with the process and …