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2000

Dispute Resolution and Arbitration

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Full-Text Articles in Law

Re Abt Building Products Canada Ltd. And Cep, Local 434, Innis Christie Dec 2000

Re Abt Building Products Canada Ltd. And Cep, Local 434, Innis Christie

Innis Christie Collection

This is a policy grievance to determine the work the Spare Boiler Operator may perform. The Employer stated that it intended to assign duties to the Spare Boiler Operator as it saw fit, in order to keep him employed. These duties were not related to steam and boiler operation; they were jobs properly performed by a labourer. It is the position of the Employer that it may assign whatever maintenance duties it wishes to those in the Maintenance Department, so long as no senior employee is displaced. The Union's position is that the function of the Spare Boiler Operator is …

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Re Canada Post Corp And Cupw (Smith), Innis Christie Nov 2000

Re Canada Post Corp And Cupw (Smith), Innis Christie

Innis Christie Collection

The Employer called a temporary worker in to cover hours for a sick temporary letter carrier filling in the absence of the permanent carrier on that route, thus going "temp to temp". The Union claims that the Employer should have offered the overtime to a regular employee. It asks that the Employee who should have been offered extended hours or overtime be compensated. The Employer's position is that the relevant position is that of the permanent employee, not the temporary workers'.

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Impeaching Lying Parties With Their Statements During Negotiation: Demysticizing The Public Policy Rationale Behind Evidence Rule 408 And The Mediation-Privilege Statutes, Lynne H. Rambo Oct 2000

Impeaching Lying Parties With Their Statements During Negotiation: Demysticizing The Public Policy Rationale Behind Evidence Rule 408 And The Mediation-Privilege Statutes, Lynne H. Rambo

Washington Law Review

Virtually all American jurisdictions have laws—either rules of evidence or mediation-privilege statutes or both—that exclude from evidence statements that parties make during negotiations and mediations. The legislatures (and sometimes courts) that have adopted these exclusionary rules have invoked a public policy rationale: that parties must be able to speak freely to settle disputes, and they will not speak freely if their statements during negotiation can later be admitted against them. This rationale is so widely revered that many courts have relied on it to prohibit the use of negotiation statements to impeach, even when the inconsistency of the negotiation statement …

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Nova Scotia (Minister Of Education & Culture) V Nstu, Innis Christie Sep 2000

Nova Scotia (Minister Of Education & Culture) V Nstu, Innis Christie

Innis Christie Collection

Supplementary award with respect to a Union grievance dated April 23, 1998, alleging breach Article 43.01 and Schedules D1, D2, D3 and D4 of the Collective Agreement between the Minister and the Union made February 3, 1998 for the term November 1, 1997-October 31, 1999 in that all school boards in Nova Scotia have refused to pay at the salary levels set out in the Schedules following the end of the effect of the Public Sector Compensation (1994-97) Act on October 31, 1997. The parties agreed that the Halifax Regional School Board would be used as an example …

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Re Canada Post Corp And Cupw (Bedford), Innis Christie Aug 2000

Re Canada Post Corp And Cupw (Bedford), Innis Christie

Innis Christie Collection

The Grievor was suspended, then terminated for stealing taxi chits for his own use. The Union claims that discharge was excessive in this case, considering the personal stresses on the Grievor at the time, and the Grievor's previous good record. The Union also grieves that the suspension was imposed without written notice as required by the Agreement. The Employer argues that the Grievor's act is a breach of trust such that the Employer-Employee relationship is broken beyond repair.

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Re Abt Building Products Canada Ltd And Cep, Loc 434 (Shatford), Innis Christie Jul 2000

Re Abt Building Products Canada Ltd And Cep, Loc 434 (Shatford), Innis Christie

Innis Christie Collection

Employee grievance alleging breach of the Collective Agreement between the parties effective March 9, 1998 — December 15, 2002 in that the Employer breached Article 3 and Appendix "C" of the Collective Agreement by suspending the Grievor for five days with­out sufficient cause and breached the Collective Agreement by defaming the Grievor. The Grievor seeks reimbursement for the five days of wages and consequent benefits lost, and damages and a writ­ten apology for defamation.

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Developing Construction Claims For Arbitration: Two Arbitrators' Viewpoint, Douglas D. Gransberg, Charles A. Joplin Jul 2000

Developing Construction Claims For Arbitration: Two Arbitrators' Viewpoint, Douglas D. Gransberg, Charles A. Joplin

Douglas D. Gransberg

Two arbitrators' viewpoints of construction claims development are provided in the hope that the information will be useful to those needing to resolve construction claims by arbitration. It also may help to reduce the volume of costly and unnecessary documentation. Because of arbitration's relative formality, attorneys representing construction contractors and owners tend to prepare their cases in the same way as they would for litigation. This leads to potential information overkill, which threatens the arbitration panel's ability to easily sort through and understand the issues in its quest for a fair and equitable decision.

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Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P, Love Jul 2000

Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P, Love

Journal of Dispute Resolution

The thesis of this essay is that when mediators try to resolve a controversy by providing their analysis fo the legal - or other- merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral's judgment, award or opinion to determine or jump-start a resolution. That add-on activity to mediation should be called by its proper name. This essay will not review the many reasons that a single neutral combining the roles of facilitator and evaluator is problematic, since that has been done extensively elsewhere.' Instead, in part one, we highlight …

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Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stemple Jul 2000

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stemple

Journal of Dispute Resolution

Preparation for the University of Missouri's lecture on dispute resolution and consideration of commentary prompted additional thoughts on the issue and a more refined perspective on the issue of facilitation-versus-evaluation and its role in the continued development of modem ADR. Rather than attempt to fine-tune a completed article, this reply will address the additional perspectives as well as note points of distinct conflict or quibble with commentators. First, this reply provides some additional assessment framing the facilitative-evaluative debate as well as a modified brief in support of the legitimacy of some elements of evaluation in the eclectic mediation that is …

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Negligent Retention And Arbitration: The Effect Of A Developing Tort On Traditional Labor Law, Terry A. Bethel Jul 2000

Negligent Retention And Arbitration: The Effect Of A Developing Tort On Traditional Labor Law, Terry A. Bethel

Journal of Dispute Resolution

As negligent retention theories continue to grow, courts will inevitably address these questions. This article will offer a brief introduction to the tort of negligent retention and related doctrines and will discuss how courts will accommodate them within traditional labor law principles. Despite my impulsive reaction that negligent retention poses a threat to arbitration, I conclude that, for the most part, negligent retention and labor arbitration can coexist peacefully.

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Mediating Citizen Complaints Against The Police: An Exploratory Study , Samuel Walker, Carol Archbold Jul 2000

Mediating Citizen Complaints Against The Police: An Exploratory Study , Samuel Walker, Carol Archbold

Journal of Dispute Resolution

This article examines the subject of mediating citizen complaints against the police. It reviews the history of citizen complaints, presents data on existing police complaint mediation programs, and discusses the potential contributions of mediation to police accountability.

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Foreword, Leonard L. Riskin Jul 2000

Foreword, Leonard L. Riskin

Journal of Dispute Resolution

In 1994, I proposed the idea of charting a mediator's role on a facilitative evaluative continuum. Since that time, the notion surely has generated at least as much heat as light. In this Symposium, we are fortunate to have a lead article and final reflections by Professor Jeffrey Stempel, one of the most thoughtful and prolific commentators on this issue. Professor Stempel's argument that eclecticism in mediation is inevitable is well-honed, and yet our distinguished commentators - Gary Gill-Austem, Richard Birke, Kim Kovach, Lela Love, Jon Lande, and Zena Zumeta - found much to say about it.

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Evaluation And Facilitation: Moving Past Either/Or, Richard Birke Jul 2000

Evaluation And Facilitation: Moving Past Either/Or, Richard Birke

Journal of Dispute Resolution

In this essay, I argue that there is no such thing as a purely facilitative mediation of a legal dispute. Neither is there such a thing as a purely evaluative mediation of a legal dispute. Mediation of legal disputes is, by its nature, always facilitative and evaluative. The evaluative-facilitative divide is an artificial artifact of history. Following this introduction, I offer a brief description of the development of the field of legal mediation, and I attempt to place the Riskin grid in historical context. I then hope to push the debate toward a new moment, one in which all mediation …

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Inevitability Of The Eclectic: Liberating Adr From Ideology, The, Jeffrey W. Stempel, Kimberlee K. Kovach Jul 2000

Inevitability Of The Eclectic: Liberating Adr From Ideology, The, Jeffrey W. Stempel, Kimberlee K. Kovach

Journal of Dispute Resolution

In this essay, I continue to argue against such rigid characterization of the mediation enterprise and in favor of what I term an "eclectic" approach to mediation. The eclectic style is one in which a mediator - while maintaining neutrality and impartiality at all times - attempts to both assist the disputants in finding acceptable solutions on their own and also remains free to provide necessary guidance as to the outcomes that might obtain in the legal regime that will govern their dispute should no agreement result from the mediation. In short, my view of good mediation practice is one …

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Toward More Sophisticated Mediation Theory, John Lande Jul 2000

Toward More Sophisticated Mediation Theory, John Lande

Journal of Dispute Resolution

Some of these benefits are due to the particular arguments of facilitation proponents, while others involve a general development of the field resulting from the debate. The first benefit is that facilitation proponents have highlighted how mediation can promote many important values such as party self-determination, and they have cautioned about risks of unfairness created by mediator evaluation as described in Part III. Second, the facilitation-evaluation debate has stimulated a better appreciation of the appropriateness of these techniques in different types of cases, as described in Part IV. Third, the debate has contributed to reducing ill-considered evaluation practice, as discussed …

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Faithful, Gary L. Gill-Austern Jul 2000

Faithful, Gary L. Gill-Austern

Journal of Dispute Resolution

The term "facilitative mediation" reminds me of the term "Old Testament." As we Jews from time to time have reminded Christians, the Jewish people call their canon the Tanakh, or, in English, the Hebrew Scriptures. That the same thirty-nine books - Genesis, Exodus, and so on - are labeled "Old Testament" by others indicates that another (later) religious community believes that an event occurred that requires what came before to be interpreted through the prism of an intervening event or reality. For Christians, this is expressed in the New Testament. Returning, then, to the current discussion, it takes a partisan …

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Mediator's Privilege: Can A Mediator Be Compelled To Testify In A Civil Case - California Privilege Law Says Yes - Olam V. Congress Mortgage Co., The, Jennifer C. Bailey Jul 2000

Mediator's Privilege: Can A Mediator Be Compelled To Testify In A Civil Case - California Privilege Law Says Yes - Olam V. Congress Mortgage Co., The, Jennifer C. Bailey

Journal of Dispute Resolution

In the present case, Olain v. Congress, the United States District Court for the Northern District of California has, in a precedent-setting opinion, forced a mediator to testify in a subsequent civil procedure. 9 This Note will examine two recurring issues regarding mediation: first, the appropriate law to be applied when a case sits in federal court; and second, the history of the mediation privilege, the present state of the mediation privilege within the federal and state courts, and the consequences of the instant case.

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Arbitration And Its Collateral Estoppel Effect On Third Parties - Vandenberg V. Superior Court, Thurston K. Cromwell Jul 2000

Arbitration And Its Collateral Estoppel Effect On Third Parties - Vandenberg V. Superior Court, Thurston K. Cromwell

Journal of Dispute Resolution

This Note examines why California's supreme court chose not to allow judicially confirmed arbitration awards to apply to third parties. The court based its decision on the contract model of arbitration and determined that an agreement to arbitrate was not necessarily an agreement binding third parties. However, this decision undermines the credibility of the arbitration process and fails to consider the negative impact relitigation of issues will have on the California courts.

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Employees Beware: Signing Arbitration Agreements May Limit Your Remedies In Suits Filed By The Eeoc - Equal Employment Opportunity Commission V. Waffle House, Inc., Sarah Baxter Jul 2000

Employees Beware: Signing Arbitration Agreements May Limit Your Remedies In Suits Filed By The Eeoc - Equal Employment Opportunity Commission V. Waffle House, Inc., Sarah Baxter

Journal of Dispute Resolution

Arbitration is used regularly to settle employment disputes, and federal policy supports these agreements between private parties. Federal statutes, however, also grant the Equal Employment Opportunity Commission the authority to pursue employment discrimination claims in court. These claims do more than vindicate the rights of individuals, they also safeguard the public interest in ending employment discrimination. A conflict may arise between these two policies when employees sign agreements to submit statutory discrimination claims to arbitration. This Note examines the split of authority on the issue of whether the Equal Employment Opportunity Commission should be permitted to seek money damages on …

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How Level Is The Playing Field - Should Employers Be Able To Circumvent State Workers' Compensation Schemes By Creating Their Own Employee Compensation Plans - Strawn V. Afc Enterprises, D/B/A Church's Chicken, Nathan E. Ross Jul 2000

How Level Is The Playing Field - Should Employers Be Able To Circumvent State Workers' Compensation Schemes By Creating Their Own Employee Compensation Plans - Strawn V. Afc Enterprises, D/B/A Church's Chicken, Nathan E. Ross

Journal of Dispute Resolution

Disputes resulting from workplace incidents are consuming increasingly greater proportions of our courts' dockets.2 In recent years, "[e]mployment litigation has grown at a rate many times greater than litigation in general ... almost one thousand percent greater than the increase in all other types of civil litigation combined."3 Due to the unequal bargaining power employers possess over employees in these disputes, states have passed workers' compensation laws to level the playing field.' However, employers have chosen not to subscribe to their states' workers' compensation systems, but instead have created their own employee compensation plans.' In addition, these employer-created compensation plans …

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Recent Developments: The Uniform Arbitration Act, S. Owen Griffin, Kelli Hopkins, Scot L. Wiggins, Emily Woodward Jul 2000

Recent Developments: The Uniform Arbitration Act, S. Owen Griffin, Kelli Hopkins, Scot L. Wiggins, Emily Woodward

Journal of Dispute Resolution

This Article is an overview of recent court decisions that interpret state versions of the Uniform Arbitration Act ("U.A.A.").' Arbitration statutes patterned after the U.A.A. have been adopted by thirty-four states and the District of Columbia. The goal of this project is to promote uniformity in the interpretation of the U.A.A. by articulating the underlying policies and rationales of recent court decisions interpreting the U.A.A?

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Facilitative Mediator Responds, A, Zena Zumeta Jul 2000

Facilitative Mediator Responds, A, Zena Zumeta

Journal of Dispute Resolution

I appreciate the thoughtfulness and conclusions of Professor Jeffrey Stempel in his article. His title, "The Inevitability of the Eclectic," seems completely right to me. Most mediators I know who have had training in mediation are more eclectic than squarely in one camp or another. They use techniques that are geared both to their own personalities and to the needs of the case. This, indeed, is a level of sophistication that is a heartening indication of the maturity of the field of mediation. However, there are many points in Stempel's argument that I disagree with, including some of his most …

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Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen Jun 2000

Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen

UF Law Faculty Publications

In this Article, I focus on injuries committed by members of organizations, such as corporations, and examine distinct issues raised by apology in the organizational setting. In particular, I consider: (i) the process of learning to prevent future errors; (ii) the divergent interests stemming from principal-agent tensions in employment, risk preferences and sources of insurance; (iii) the non-pecuniary benefits to corporate morale, productivity and reputation; (iv) the standing and scope of apologies; and (v) the articulation of policies toward injuries to others.

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La Transición A La Economía Digital, Horacio M. Lynch, Mauricio Devoto May 2000

La Transición A La Economía Digital, Horacio M. Lynch, Mauricio Devoto

Horacio M. LYNCH

En el curso de una investigación, tropezamos con un reciente estudio de Nueva Zelanda denominado La economía del conocimiento , con un capítulo inicial cuyo título, por razones obvias, nos llamó la atención: "Venciendo la enfermedad argentina".

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Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande Apr 2000

Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande

Faculty Publications

Do you believe in mediation? That may seem like an odd question. Normally one thinks of ‘believing in‘ (or having faith in) things like magic, God, or the market. These are typically things that are beyond verifiable human knowledge (such as magic and God) and/or deeply held values (such as whether the market is a better mechanism than government for managing the flow of goods and services). At first blush, one might not think that mediation would fall into either category. There have been numerous empirical studies about many different aspects of mediation, so one can confidently say, for example, …

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Dispute Resolution In Cyberspace: Demand For New Forms Of Adr, Henry H. Perritt Jr. Mar 2000

Dispute Resolution In Cyberspace: Demand For New Forms Of Adr, Henry H. Perritt Jr.

All Faculty Scholarship

No abstract provided.

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Hacia Una Argentina Digital, Horacio M. Lynch, Mauricio Devoto Feb 2000

Hacia Una Argentina Digital, Horacio M. Lynch, Mauricio Devoto

Horacio M. LYNCH

"... En opinión de muchos especialistas respetados en el mundo, la Argentina no tiene futuro si no exporta. Pero exportar en este nuevo siglo no es lo mismo que hacerlo hacia el 1900: los precios de los productos primarios argentinos cayeron ocho veces en el siglo, lo que nos bajó del quinto puesto en el ránking de países al lugar número 50...".

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Re Farmers Co-Operative Dairy Ltd And Cep, Local 40n, Innis Christie Feb 2000

Re Farmers Co-Operative Dairy Ltd And Cep, Local 40n, Innis Christie

Innis Christie Collection

The Grievor claims that he was unjustly discharged, and seeks reinstatement with full compensation for lost pay and benefits. The Employer discharged the Grievor for failure to report to work or to call in, together with his history of failing to report to work. The issues are whether the Grievor's actions justified discipline, whether it was a culminating event, and what discipline, if any, should be substituted. The Union argues that the Collective Agreement stipulates circumstances under which an employee's disciplinary record becomes clean in Article 24 J, and that this is such a case, resulting in the Employer's inability …

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German Law Paves The Way For Mandatory Mediation, Nadja Alexander Feb 2000

German Law Paves The Way For Mandatory Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

Effective as of 1 January 2000, the Federal Government of Germany has introduced legislation permitting all German states (Laender) to introduce mandatory court-connected mediation with respect to certain kinds of civil disputes.

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The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian Jan 2000

The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian

Faculty Publications

Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power …

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