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Full-Text Articles in Dispute Resolution and Arbitration

Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr. Nov 2017

Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr.

Maine Law Review

With these words of prophecy the Commission to Study the Future of Maine's Courts launched its discussion of alternative dispute resolution (ADR). Although conceding that “the adversary process ... has served the people of the state well” and acknowledging that “the state must continue to provide a forum for forceful advocacy that produces a definite and binding judicial decision” the Commission asked the Maine judicial and legislative branches to embrace ADR. For the last dozen years, the Author has been the Supreme Judicial Court's (SJC's) liaison to its ADR Planning and Implementation Committee and Chair of the Court ...


Transforming New Zealand Employment Relations: At The Intersection Of Institutional Dispute Resolution And Workplace Conflict Management, Gaye Greenwood Ph.D., Erling Rasmussen Nov 2017

Transforming New Zealand Employment Relations: At The Intersection Of Institutional Dispute Resolution And Workplace Conflict Management, Gaye Greenwood Ph.D., Erling Rasmussen

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

In New Zealand, the contemporary shift from highly regulated, collectivist employment rights to individual employment relationships included statutory direction to mediation. Good faith negotiation in the workplace and state provision of mediation were to be the primary mechanisms for resolution of ‘employment relationship problems’ (ERP). This paper investigates the intersection between workplace conflict management and institutional provision of mediation. We investigated ERP resolution by drawing on empirical evidence from 38 narrative interviews where participants recounted experiences of employment relationship problem (ERP) resolution. We analysed 243 ERP by comparing settlements to end employment relationships with resolution of ERP where relationships endured ...


Decision-Maker And Context Effects In Employment Arbitration, Mark Gough, Alexander Colvin Nov 2017

Decision-Maker And Context Effects In Employment Arbitration, Mark Gough, Alexander Colvin

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

Using a novel survey of 284 employment arbitrators, this study investigates how decision-maker characteristics and the context of the arbitration proceeding affect employee outcomes. We analyze the predictors of settlement before an arbitrator award and, if no settlement is reached, the likelihood an employee will receive a verdict in their favor after a full hearing. We find pre-arbitration dispute resolution procedures have significant effects on settlement behavior and employee outcomes. The characteristics of the presiding arbitrator as well as the structure of the arbitration proceeding were also found to affect employee outcomes at trial. This study contributes to the existing ...


Third-Party Intervention And The Preservation Of Bargaining Relationships, Bradley R. Weinberg Nov 2017

Third-Party Intervention And The Preservation Of Bargaining Relationships, Bradley R. Weinberg

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

This article uses longitudinal contact data to examine if third-party dispute resolution procedures available in Ontario improve the health of bargaining relationships and contribute to their preservation. It performs this in two manners: (1) using survival analysis to see how the mechanisms correlate with the likelihood of relationship dissolution and (2) using dynamic panel models to observe their state dependence. The latter is undertaken to see if third-party intervention pushes the parties to settle subsequent agreements earlier in the process – a finding that would reveal another aspect of relationship preservation if those earlier interventions are shown to correlate with lower ...


Organizational Conflict Resolution And Strategic Choice: Evidence From A Survey Of Fortune 1000 Companies, David B. Lipsky, Ariel C. Avgar, J. Ryan Lamare Nov 2017

Organizational Conflict Resolution And Strategic Choice: Evidence From A Survey Of Fortune 1000 Companies, David B. Lipsky, Ariel C. Avgar, J. Ryan Lamare

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

In this paper we develop the argument that a firm’s ADR strategies are likely to be associated with a firm’s use of one conflict resolution option or the other. More specifically, we examine whether a firm’s use of either arbitration or mediation is a function of (1) the extent to which the use of either of these dispute resolution processes aligns with the goals and objectives management is seeking to advance, and (2) the extent of the firm’s commitment to the use of these practices. We expect to find that an organization’s use of either ...


Adr-Based Workplace Conflict Management Systems: A Case Of American Exceptionalism, Paul Teague, William Roche, Denise Currie, Tom Gormley Nov 2017

Adr-Based Workplace Conflict Management Systems: A Case Of American Exceptionalism, Paul Teague, William Roche, Denise Currie, Tom Gormley

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

[Excerpt] The diffusion of ADR-based conflict management systems is a development increasingly highlighted in the literature. Organizations are seen as putting in place multiple procedures and practices so that different varieties of workplace conflict can be effectively addressed. Just why organizations are electing to introduce these integrated bundles of innovative conflict management practices is a matter of debate, but many view the development as transforming the manner in which workplace problems are managed in modern organizations, with some even pronouncing that it amounts to the rewriting of the social contract at work (Lipsky and Seeber 2006). This paper argues that ...


Labor Relations Conflict In The Workplace: Scale Development, Consequences And Solutions, Lulu Zhou, Meng Xi, Xufan Zhang, Shuming Zhao Nov 2017

Labor Relations Conflict In The Workplace: Scale Development, Consequences And Solutions, Lulu Zhou, Meng Xi, Xufan Zhang, Shuming Zhao

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

Because the goals of employers and employees are often incompatible, conflicts are inevitable and an essential part of organizational life. The three studies reported in this paper addressed the issues of identifying the dimensions of workplace conflicts within organizations, exploring the consequences of conflicts, and finding appropriate methods of conflict resolution. The first study identified and developed three dimensions of labor relations conflict, including interest-based, rights-based, and emotion-based conflicts. The second study explored two sets of individual outcomes of labor relations conflicts and found labor relations conflicts had a negative effect on employee job satisfaction and affective commitment and positive ...


Do It Right Or Not At All: A Longitudinal Evaluation Of A Conflict Managment System Implementation, Benjamin B. Dunford, Kevin J. Mumford, R. Wayne Boss, Alan D. Boss, David S. Boss Nov 2017

Do It Right Or Not At All: A Longitudinal Evaluation Of A Conflict Managment System Implementation, Benjamin B. Dunford, Kevin J. Mumford, R. Wayne Boss, Alan D. Boss, David S. Boss

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

We analyzed an eight-year multi-source longitudinal data set that followed a healthcare system in the Eastern United States as it implemented a major conflict management initiative to encourage line managers to consistently perform Personal Management Interviews (or PMIs) with their employees. PMIs are interviews held between two individuals, designed to prevent or quickly resolve interpersonal problems before they escalate to formal grievances. This initiative provided us a unique opportunity to empirically test key predictions of Integrated Conflict Management System (or ICMS) theory. Analyzing survey and personnel file data from 5,449 individuals from 2003 to 2010, we found that employees ...


Disputant Preferences For Mediated Or Adjudicated Processes In Administrative Agencies: The Occupational Safety And Health Review Commission Settlement Part Program, Deanna Malatesta, Lisa Blomgren Amsler, Susanna Foxworthy Scott Nov 2017

Disputant Preferences For Mediated Or Adjudicated Processes In Administrative Agencies: The Occupational Safety And Health Review Commission Settlement Part Program, Deanna Malatesta, Lisa Blomgren Amsler, Susanna Foxworthy Scott

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

Previous research examining disputants’ preferences for mediation over more formal adjudicative proceedings is limited and mostly experimental. Moreover, this work has not examined preferences in relation to repeated experience with various types of proceedings. We surveyed disputants who have experienced different types of proceedings in administrative adjudication and administrative law judge mediation in the Settlement Part Program at the Occupational Safety and Health Review Commission (OSHRC). We find that the higher the perceptions of procedural justice, the greater the preference for use of mediation. In addition, the more total experience disputants have in the OSHRC dispute system (including both adjudication ...


Often Wrong, Never In Doubt: How Anti-Arbitration Expectancy Bias May Limit Access To Justice, Becky L. Jacobs Oct 2017

Often Wrong, Never In Doubt: How Anti-Arbitration Expectancy Bias May Limit Access To Justice, Becky L. Jacobs

Maine Law Review

While there long have been “alternatives” to the traditional trial for those seeking to resolve disputes, the so-called “litigation explosion” in the 1970s inspired a campaign for reform of the administration of justice that resulted in the modern ADR movement. The movement had many disparate goals, not the least of which was to improve public access to justice. At the historic 1976 National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (Pound Conference), Harvard Law Professor Frank E.A. Sander first posited the concept of a “comprehensive justice center,” more famously referred to as a “multi-door ...


Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson Oct 2017

Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

Maine Law Review

This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication in light of the Author’s analysis and the practical implications of this function.


Transforming News: How Mediation Principles Can Depolarize Public Talk, Carol Pauli Oct 2017

Transforming News: How Mediation Principles Can Depolarize Public Talk, Carol Pauli

Carol Pauli

News media interviews bring opposing voices into the public forum where, ideally, audience members can deliberate and reach democratic compromise. But in today’s politically polarized atmosphere, partisans increasingly accuse each other of being a threat to the country, and prospects for compromise have suffered. Journalists have been urged to take a more affirmative role, promoting problem-solving and opposing conflict. They have stopped short, citing professional norms that demand a stance of neutral detachment. This Article turns to the principles of transformative mediation. Like journalism, it is detached from any goal of settlement. It aims instead at increasing the capacity ...


Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli Oct 2017

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Carol Pauli

If Donald Trump, kicking off his campaign for the White House, was saying “what everyone is thinking,” about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales — some as old as the Flood. This article recommends that the news ...


Transforming News: How Mediation Principles Can Depolarize Public Talk, Carol Pauli Oct 2017

Transforming News: How Mediation Principles Can Depolarize Public Talk, Carol Pauli

Carol Pauli

News media interviews bring opposing voices into the public forum where, ideally, audience members can deliberate and reach democratic compromise. But in today's politically polarized atmosphere, partisans increasingly accuse each other of being a threat to the country, and prospects for compromise have suffered. Journalists have been urged to take a more affirmative role, promoting problem solving and opposing conflict. They have stopped short, citing professional norms that demand a stance of neutral detachment. This article turns to the principles of transformative mediation. Like journalism, it is detached from any goal of settlement. It aims instead at increasing the ...


Alternative Dispute Resolution, Patrick Crowley Oct 2017

Alternative Dispute Resolution, Patrick Crowley

The Catholic Lawyer

No abstract provided.


Alternative Dispute Resolution, Jessie Clayton Dye Oct 2017

Alternative Dispute Resolution, Jessie Clayton Dye

The Catholic Lawyer

No abstract provided.


Alternative Dispute Resolution, Sister Donna Mikula Oct 2017

Alternative Dispute Resolution, Sister Donna Mikula

The Catholic Lawyer

No abstract provided.


Alternative Dispute Resolution, Santiago Feliciano, Jr. Oct 2017

Alternative Dispute Resolution, Santiago Feliciano, Jr.

The Catholic Lawyer

No abstract provided.


Clergy Arbitrator Liability: A Potential Pitfall Of Alternative Dispute Resolution In The Church, Lee Tarte Oct 2017

Clergy Arbitrator Liability: A Potential Pitfall Of Alternative Dispute Resolution In The Church, Lee Tarte

The Catholic Lawyer

No abstract provided.


A Realist Systematic Review Of Cross-Sector Collaboration Implementation In Developing Countries & Mediation As A Useful Instrument, Jessica Kritz Oct 2017

A Realist Systematic Review Of Cross-Sector Collaboration Implementation In Developing Countries & Mediation As A Useful Instrument, Jessica Kritz

Pepperdine Dispute Resolution Law Journal

This review will provide a realistic systematic review to synthesize evidence on successful cross-sector collaboration implementation in developing (low and middle income) countries. More specifically, this review will explicitly consider interactions between strategy, context, and mechanisms to provide an indication as to how cross-sector collaboration governance helps some cross-sector collaboration succeed, grow, and become sustainable. This paper will also present mediation as potentially a useful mechanism to implement cross-sector collaboration implementation in developing countries.


Mediating Towards Forgiveness & Family Reconciliation In Divorce; Select Issues In Dispute Resolution: Apology & Forgiveness, Selina J. Shultz Oct 2017

Mediating Towards Forgiveness & Family Reconciliation In Divorce; Select Issues In Dispute Resolution: Apology & Forgiveness, Selina J. Shultz

Pepperdine Dispute Resolution Law Journal

This paper examines the importance of forgiveness and the rebuilding of trust in the reconciliation of the family during and after a divorce, and contemplates the mediator’s role in leading the parties in this direction.


Identity-Related Information Asymmetry: Exploring Responses To The “Faceless Other”, Connor Bildfell Oct 2017

Identity-Related Information Asymmetry: Exploring Responses To The “Faceless Other”, Connor Bildfell

Pepperdine Dispute Resolution Law Journal

This paper will explore the following core question: What are the various ways in which a known subject may respond to the “faceless other,” and how do we navigate and explain that choice? I will proceed as follows: Parts I and II synthesize the literature on identity and anonymity in conflicts. Part I focuses on understanding the behavior of the “faceless other”, and Part II examines theories as to how the subject responds to the “faceless other.” In Part III, I argue that, when faced with IRIA, we typically adopt one of five common (though often ill-advised) responses. These are ...


The Eternal Debate On External Law In Labor Arbitration: Where We Stand Five Decades After Meltzer V. Howlett, Philip Baldwin Oct 2017

The Eternal Debate On External Law In Labor Arbitration: Where We Stand Five Decades After Meltzer V. Howlett, Philip Baldwin

Pepperdine Dispute Resolution Law Journal

This article details the oft-debated issue of how labor arbitrators should reconcile collective bargaining agreements (“CBAs”) with public sources of law, i.e., “external law,” particularly when the plain meaning of a CBA would lead to an arbitration award in contravention of public law. The article traces the origin of the debate back to 1967, when renowned labor arbitrators Robert Howlett and Bernard Meltzer took opposing views on the matter in front of the National Academy of Arbitrators. Although Meltzer’s traditional view, that arbitrators should respect the CBA and ignore the law when the two diverge, may have been ...


Utility Function And Rational Choice As Support Mechanisms To Maximize Mediation And Legal Negotiation Settlement Output, Roberto Kuster Oct 2017

Utility Function And Rational Choice As Support Mechanisms To Maximize Mediation And Legal Negotiation Settlement Output, Roberto Kuster

Pepperdine Dispute Resolution Law Journal

This article provides a general negotiation background, establishing some basic definitions such as BATNA, interests, and “Shadow of Law.” Then, it works with the two-step process of utility maximization and rational choice to achieve the optimal settlement output within mediation and legal negotiation processes. Lastly, it points out methods to support the theories in ways that a lawyer could understand and apply correctly. Thus, the article offers an idea for an optimal settlement in a legal negotiation/mediation. It takes the complementary views of recognized authors, from Fisher and Ury’s "how to negotiate" manual, Raiffa's lucid explanation of ...


Investor-State Dispute Settlement Reconceptionalized: Regulation Of Disputes, Standards And Mediation, Monde Marshall Oct 2017

Investor-State Dispute Settlement Reconceptionalized: Regulation Of Disputes, Standards And Mediation, Monde Marshall

Pepperdine Dispute Resolution Law Journal

This paper argues that the current criticisms of Investor-State Dispute Settlement (ISDS) are ill-informed, and attempts at reforming the system are misguided. The definition of ISDS itself has been, for a long time, limited to investment quasi-judicial bodies or at best arbitration. Analysis of the roots of the ever growing backlash reveals that the main causes for concern are politically negotiated investment treaties, an inherently biased system, lack of transparency, and inconsistent decision-making. Examination of the core reasons behind these complaints leads to the conclusion that the EU Commission’s solution to reform ISDS through a permanent court raises more ...


Uber Hitches A Ride With Arbitration: How Pro-Arbitration Attitudes And Uber Will Prevail In California And The Ninth Circuit, Neil Eddington Oct 2017

Uber Hitches A Ride With Arbitration: How Pro-Arbitration Attitudes And Uber Will Prevail In California And The Ninth Circuit, Neil Eddington

Pepperdine Dispute Resolution Law Journal

Part I of this article will introduce Uber and describe how the sharing economy functions. This section will explain Uber’s current conflict with their drivers regarding arbitration agreements and why the stakes are so high. Part II will explore the FAA—its history, original legislative intent and purpose—in order to provide a baseline from which to contrast its current broad application. Part III will highlight Supreme Court jurisprudence on arbitration to illustrate how the FAA is now expansively interpreted contrary to its original limited scope. This Part will culminate in an examination of the Concepcion and American Express ...


Conduct Detrimental: Examining The Nfl’S Collective Bargaining Agreement And The Commissioner’S Role Through A Case Study Of Deflategate, David Shyu Oct 2017

Conduct Detrimental: Examining The Nfl’S Collective Bargaining Agreement And The Commissioner’S Role Through A Case Study Of Deflategate, David Shyu

Pepperdine Dispute Resolution Law Journal

This Note will closely examine whether the NFL, specifically its Commissioner, has exceeded its authority in its handling of the recent incident involving allegations of the New England Patriots and quarterback Tom Brady’s role in deflating footballs during a crucial playoff game. The Note will look at the existing the NFL current Collective Bargaining Agreement, and trace the source of the Commissioner’s power. Then it will delve into the details of the case—including the Wells Report and investigation, the arbitration process, and the District Court opinion. The Note will analyze the District Court’s opinion in anticipation ...


The Cohasset Marshlands Dispute: International Arbitration In Colonial New England, William Park Oct 2017

The Cohasset Marshlands Dispute: International Arbitration In Colonial New England, William Park

Faculty Scholarship

One of the earliest international arbitrations in the Americas arose from rival claims to hayfields contested between two groups of religious dissidents. The dispute resolution process which unfolded in 1640 between the Massachusetts and Plymouth colonies takes special significance as an epochal step toward the robust cross-border cooperation that ultimately united thirteen disparate colonies into a single nation.


Calming The Chaos: A Complexity Science Approach To Dispute Resolution On A Macro And Micro Level, Martha E. Simmons Oct 2017

Calming The Chaos: A Complexity Science Approach To Dispute Resolution On A Macro And Micro Level, Martha E. Simmons

Pepperdine Dispute Resolution Law Journal

The aim of this paper is to provide readers with a starting point from which to examine the extent to which their own areas of legal research can benefit from a complexity lens. The current research focuses on family law merely to provide an illustration. This work is particularly inspired by the research conducted by Glouberman and Zimmerman, who examined the medical system on both a systemic and individual patient level from a complexity lens. It is from this foundation that this paper examines the legal system from both a systemic and individual dispute level, with a focus on complexity.


Surfing To Success As A Mindful Negotiator, Leslie Larkin Cooney Oct 2017

Surfing To Success As A Mindful Negotiator, Leslie Larkin Cooney

Pepperdine Dispute Resolution Law Journal

No abstract provided.