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Articles 1 - 30 of 52
Full-Text Articles in Law
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Rutgers Law School (Newark) Faculty Papers
In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …
Decision-Making In Mediation: The New Old Grid And The New New Grid System, Leonard L. Riskin
Decision-Making In Mediation: The New Old Grid And The New New Grid System, Leonard L. Riskin
UF Law Faculty Publications
This Article reviews the author's previous mediator-orientation models and proposes a new system for understanding the range of mediator orientations based on substantive, procedural, and meta-procedural decision-making grids.
Who Decides The Arbitrators' Jurisdiction? Separability And Competence-Competence In Transnational Perspective, John J. Barceló Iii
Who Decides The Arbitrators' Jurisdiction? Separability And Competence-Competence In Transnational Perspective, John J. Barceló Iii
Cornell Law Faculty Publications
No abstract provided.
Part Ii - What Would You Do - With A Taniwha At The Table?, Ian Macduff
Part Ii - What Would You Do - With A Taniwha At The Table?, Ian Macduff
Research Collection Yong Pung How School Of Law
In the last issues of Negotiation Journal, the author explored the complicating factor of having a taniwha or spirit at the negotiating table in a New Zeland case. He challenged his readers to give him suggestions about how negotiators might grapple with often preplexing problems posed by the spiritual valus of their counterparts.
The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park
The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park
Faculty Scholarship
If a pollster asked a random selection of Americans for a one-line verbal portrait of arbitration, common responses might include the following: (i) private litigation arising for construction and business disputes; (ii) a mechanism to resolve workplace tensions between management and labor; (iii) a process by which finance companies and stock brokers shield themselves from customer complaints; (iv) a way to level the playing field in deciding commercial controversies among companies from different parts of the world; (v) the way big corporations use NAFTA to escape regulation. To some extent all would be correct.'
Unfortunately, these different varieties of arbitration …
Summary Of Maki V. Chong, 119 Nev. Adv. Op. No. 46, Hilary Barrett
Summary Of Maki V. Chong, 119 Nev. Adv. Op. No. 46, Hilary Barrett
Nevada Supreme Court Summaries
Appeal from a district court order applying the statutory homestead exemption to a debtor’s real property.
Let's Put Ourselves Out Of Business: On Respect, Responsibility, And Dialogue In Dispute Resolution, Jonathan R. Cohen
Let's Put Ourselves Out Of Business: On Respect, Responsibility, And Dialogue In Dispute Resolution, Jonathan R. Cohen
UF Law Faculty Publications
This Essay works in two steps. I want to daydream with you about the future, or what I hope will someday be the future, of our dispute resolution movement. I want to then use these imaginings to reflect upon where we are today. I want to suggest something that may at first seem odd: Our ultimate goal should be to put ourselves, or virtually put ourselves, out of business. Eventually, I hope the time will come when we live in a society where the expert services of dispute resolution professionals, including not only lawyers and judges but also mediators and …
Global Trends In Mediation, Nadja Alexander
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.
What Would You Do - With A Taniwha At The Table?, Ian Macduff
What Would You Do - With A Taniwha At The Table?, Ian Macduff
Research Collection Yong Pung How School Of Law
In New Zealand, a complicating factor in some disputes may involve the presence (whether one believes it or not) of a taniwha, or spirit, as a major part of the negotiations. What advice would you have for mediators who face such significant cross-cultural, identity-based issues? The author hopes readers of this journal will be able to provide some insighful advice.
Agenda: Water Negotiation Workshop, University Of Colorado Boulder. Natural Resources Law Center, William & Flora Hewlett Foundation
Agenda: Water Negotiation Workshop, University Of Colorado Boulder. Natural Resources Law Center, William & Flora Hewlett Foundation
Water Negotiation Workshop (June 4-5)
"Sponsored by: The Natural Resources law Center of the University of Colorado Law School; Funding provided by: The William and Flora Hewlett Foundation."
"Facilitators: Lucy Moore and Steve Snyder."
"June 4 and 5, 2003, Community House, Chautauqua Park, Boulder, Colorado."
Contents:
Agenda -- Roster of workshop participants -- Biographies of workshop participants -- Maps of Klamath basin -- Key water-related events in the upper Klamath basin -- Federal-state decisionmaking on water : applying lessons learned / David J. Hayes -- Turbulence in the Klamath River basin / Sharon Levy
Maps Of The Klamath Basin And Key Water-Related Events In The Upper Klamath Basin, University Of Colorado Boulder. Natural Resources Law Center
Maps Of The Klamath Basin And Key Water-Related Events In The Upper Klamath Basin, University Of Colorado Boulder. Natural Resources Law Center
Water Negotiation Workshop (June 4-5)
5 pages.
Contents:
Maps of Klamath Basin -- Key water-related events in the Upper Klamath Basin
Excerpted from: Ron Hathaway & Teresa Welch, Water Allocation in the Klamath Reclamation Project, 2001: An Assessment of Natural Resource, Economic, Social, and Institutional Issues with a Focus on the Upper Klamath Basin 31-34, 43 (Oregon State University, University of California, reprinted May 2003). Full report available in Klamath Waters Digital Library at http://digitallib.oit.edu/cdm/ref/collection/kwl/id/9442.
International Developments In Mediation (Internationale Entwicklungen Der Gerichtsnahen Mediation), Nadja Alexander
International Developments In Mediation (Internationale Entwicklungen Der Gerichtsnahen Mediation), Nadja Alexander
Research Collection Yong Pung How School Of Law
No abstract provided.
First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben
First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben
Faculty Publications
This article describes the context and current state of the law in this area under the Federal Arbitration Act (FAA), urges the Court to continue its path toward actual consent to arbitration, and suggests an approach for finally reconciling the tension between Prima Paint and First Options. Part II describes the nature and historical context of the arbitrability problem. Part III focuses specifically on the doctrine of separability, which is the most critical (and most complex) of these exceptions. Part IV discusses the impact on separability of recent U.S. Supreme Court case law, especially the 1995 decision in First Options …
Brief For Respondents, Green Tree Financial Corp. V. Bazzle, No. 02-634 (U.S. Mar. 27, 2003), ., Cornelia T. Pillard
Brief For Respondents, Green Tree Financial Corp. V. Bazzle, No. 02-634 (U.S. Mar. 27, 2003), ., Cornelia T. Pillard
U.S. Supreme Court Briefs
No abstract provided.
Re Canada Post Corp And Cupw (078-00-00463), Innis Christie
Re Canada Post Corp And Cupw (078-00-00463), Innis Christie
Innis Christie Collection
The Union grieves the Employer's failure to convert Part-Time Route 23 to a full time route, and staff the new route in accordance with the Agreement. The Union seeks an order that the Employer convert the route and grant full redress to all employees affected. The Employer takes the position that it is only required to carry out minor restructuring to bring Route 23 into conformity with limits on part-time routes. The Employer acknowledges that this should have been done seven months ago.
Ethical Concerns In Drafting Employment Arbitration Agreements After Circuit City And Green Tree, Martin H. Malin
Ethical Concerns In Drafting Employment Arbitration Agreements After Circuit City And Green Tree, Martin H. Malin
All Faculty Scholarship
No abstract provided.
Grief, Procedure And Justice: The September 11th Victim Compensation Fund, Elizabeth M. Schneider
Grief, Procedure And Justice: The September 11th Victim Compensation Fund, Elizabeth M. Schneider
Faculty Scholarship
No abstract provided.
The "Public Menace" Of Blight: Urban Renewal And The Private Uses Of Eminent Domain, Wendell E. Pritchett
The "Public Menace" Of Blight: Urban Renewal And The Private Uses Of Eminent Domain, Wendell E. Pritchett
All Faculty Scholarship
No abstract provided.
Restitution In Public Concern Cases, Candace Kovacic-Fleischer
Restitution In Public Concern Cases, Candace Kovacic-Fleischer
Articles in Law Reviews & Other Academic Journals
Enron Corporation. Arthur Andersen. Guns. Tobacco. Lead. Asbestos. Water Pollution. All are in the news as allegedly having caused injury. All involve restitution. Plaintiffs are bringing suits claiming that not only have they been injured, but also that the companies involved have been unjustly enriched at the plaintiffs' expense. The plaintiffs use, either explicitly or implicitly, the broad concept of restitution found in section one of the Restatement of the Law of Restitution. That section, entitled "Unjust Enrichment," says "[a] person who has been unjustly enriched at the expense of another is required to make restitution to the other."' In …
Enforcement Of Wto Rulings: An Interest Group Analysis, Mark L. Movsesian
Enforcement Of Wto Rulings: An Interest Group Analysis, Mark L. Movsesian
Faculty Publications
The WTO's Dispute Settlement Understanding ("DSU") provides that disputes are to be resolved in adversarial proceedings before impartial panels of experts. These panels have authority to decide whether members' laws conform to WTO requirements; members may appeal rulings to a permanent Appellate Body within the organization, which has the final say on questions of law and legal interpretation. Under the DSU, if a member fails to comply with a final ruling in a dispute, the prevailing party may retaliate by suspending trade concessions that it owes the offending member. This retaliation can continue until the offending member implements the WTO's …
Possibilities For Collaborative Law: Ethics And Practice Of Lawyer Disqualification And Process Control In A New Model Of Lawyering, John M. Lande
Possibilities For Collaborative Law: Ethics And Practice Of Lawyer Disqualification And Process Control In A New Model Of Lawyering, John M. Lande
Faculty Publications
This article assesses the possibilities for collaborative law (CL) to promote problem-solving negotiation and analyzes the operation and effect of the CL disqualification agreement (DA), which CL leaders hold as essential to the process. In CL, the lawyers and clients agree to negotiate from the outset of the case using a problem-solving approach. Under CL theory, the process creates a metaphorical "container" by using a DA disqualifying both lawyers from representing their clients if either party chooses to proceed in litigation. This article argues that much CL theory and practice is valuable, including protocols of early commitment to negotiation, interest-based …
The Sound Of Dust Settling: A Response To Residual Criticisms Of The Uma, Richard C. Reuben
The Sound Of Dust Settling: A Response To Residual Criticisms Of The Uma, Richard C. Reuben
Faculty Publications
The Uniform Mediation Act has gone to the states for consideration after about five years of research, drafting, and vetting, and ultimately, overwhelming support by the American Bar Association, the National Conference of Commissioners on Uniform State Laws, most major dispute resolution professional organizations and service providers, and many if not most leading dispute scholars. Despite this support, concerns about the UMA still continue to echo from its drafting. Professor Brian Shannon's criticisms largely echo these discussions, and in this article I seek to respond to some of them - after first extending my greatest appreciation to Professor Shannon for …
Interdisciplinary Collaboration And The Beauty Of Surprise: A Symposium Introduction, Robert M. Ackerman, Nancy A. Welsh
Interdisciplinary Collaboration And The Beauty Of Surprise: A Symposium Introduction, Robert M. Ackerman, Nancy A. Welsh
Law Faculty Research Publications
The rapid changes in technology and society are destabilizing old occupations, while the newly emerging ones are still in a state of chaos. "What constitutes good work?" is a question all of us must ask again and again. How can we live up to the demands of our job and the expectations of society without denying the needs of our personal identities? What resources can we draw on, as powerful, often contradictory forces cause stress, doubt, and guilt to creep into the performance of our work?
Structure, Legitimacy And Nafta’S Investment Chapter, Charles Hendrickson Brower Ii
Structure, Legitimacy And Nafta’S Investment Chapter, Charles Hendrickson Brower Ii
Law Faculty Research Publications
In this Article, Professor Brower examines the investment chapter of the North American Free Trade Agreement (NAFTA). He argues that the relevant treaty provisions lack a substantial measure of textual clarity. In addition, he argues that ad hoc tribunals based on the commercial arbitration model have generated incoherent doctrine and are relatively less accountable, transparent, and accessible than permanent tribunals. Furthermore, he argues that the NAFTA Parties and their courts so far appear to place a higher priority on the pursuit of narrow self-interest than on the principled administration of international governance. Collectively, these circumstances help to explain the frequency …
The Exercise Of Contract Freedom In The Making Of Arbitration Agreements, Thomas E. Carbonneau
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
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
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
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
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
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. …