Dispute Resolution and Arbitration Commons^™

Negative Identity And Conflict, Jonathan R. Cohen

UF Law Faculty Publications

This article explores an aspect of identity that can be particularly challenging for conflict resolution—negative identity. By negative identity, I mean an identity in which a party implicitly or explicitly defines itself in a negative way, specifically, by way of contrast to some other party. This phenomenon occurs in conflicts ranging from small, interpersonal ones to large-scale conflicts between national, ethnic, and religious groups. Negative identities may make conflicts more likely to arise and also make them more difficult to resolve when they do. Fortunately, there are steps that both parties and neutrals can take to foster conflict resolution in …

Developing Communities Of Dialogue, Jonathan R. Cohen

UF Law Faculty Publications

We live in an age where American political discourse has become highly antagonistic. Such hostile discourse may influence not just our politics but also our private lives, for the abrasiveness that we witness in political life can readily spill over into our homes, our schools, and the other realms that we inhabit. How can we resist the spread of such antagonism? This Essay makes two basic claims. First, it is important that we consider dialogue as both an individual phenomenon and as a community-based phenomenon. How we speak with one another is a function of both our individual proclivities and …

The Centrist Case Against Current (Conservative) Arbitration Law, Stephen J. Ware

Florida Law Review

In The Politics of Arbitration Law and Centrist Proposals for Reform, I explained how issues surrounding consumer and other adhesive arbitration agreements became divisive along predictable political lines (progressives vs. conservatives) and proposed an intermediate (or centrist) position to resolve those issues. However, The Politics of Arbitration Law did not argue the case for my proposals. It left those arguments for this Article, which makes the case against current (conservative) arbitration law, and a third article, which will make the case against progressive proposals to reform arbitration law. In other words, this Article stands out from the many other articles …

Fake Arbitration: Why Florida's Nonbinding Arbitration Proceudre Is Not Arbitration Within The Scope Of The Federal Arbitration Act, Andrew Daeschsel

Florida Law Review

Does the Federal Arbitration Act (FAA) govern Florida’s nonbinding arbitration procedure? At present, this question is unresolved. As its name suggests, the FAA generally governs arbitration agreements. But the FAA does not define “arbitration,” and the U.S. Courts of Appeals have different standards for what constitutes arbitration under the FAA. This Note discusses those different standards and argues that the Eleventh Circuit provides the most logical test for determining whether a particular dispute resolution procedure is FAA arbitration. Finally, this Note argues that, under the Eleventh Circuit’s standard, Florida’s nonbinding arbitration procedure is not FAA arbitration.

Impact Preemption: A New Theory Of Federal Arbitration Preemption, Kristen M. Blankley

Florida Law Review

The United States Supreme Court has expanded its arbitration preemption jurisprudence to unprecedented and unexplained bounds, ultimately creating a new type of preemption, herein coined “impact preemption.” As applied by the Court, the scope of impact preemption is broader than even field preemption. The future policy implications of impact preemption are significant. Impact preemption shifts the balance of regulatory power in the dual federal–state arbitration system toward the federal courts and away from state regulatory authorities, contrary to the language and legislative history of the Federal Arbitration Act (FAA). In addition, impact preemption has the potential to undermine the stability …

Impact Preemption: A New Theory Of Federal Arbitration Preemption, Kristen M. Blankley

Florida Law Review

The United States Supreme Court has expanded its arbitration preemption jurisprudence to unprecedented and unexplained bounds, ultimately creating a new type of preemption, herein coined “impact preemption.” As applied by the Court, the scope of impact preemption is broader than even field preemption. The future policy implications of impact preemption are significant. Impact preemption shifts the balance of regulatory power in the dual federal–state arbitration system toward the federal courts and away from state regulatory authorities, contrary to the language and legislative history of the Federal Arbitration Act (FAA). In addition, impact preemption has the potential to undermine the stability …

Impact Preemption: A New Theory Of Federal Arbitration Preemption, Kristen M. Blankley

Florida Law Review

The United States Supreme Court has expanded its arbitration preemption jurisprudence to unprecedented and unexplained bounds, ultimately creating a new type of preemption, herein coined “impact preemption.” As applied by the Court, the scope of impact preemption is broader than even field preemption. The future policy implications of impact preemption are significant. Impact preemption shifts the balance of regulatory power in the dual federal–state arbitration system toward the federal courts and away from state regulatory authorities, contrary to the language and legislative history of the Federal Arbitration Act (FAA). In addition, impact preemption has the potential to undermine the stability …

Llcs And The Private Ordering Of Dispute Resolution, Peter Molk, Verity Winship

UF Law Faculty Publications

An emerging question in U.S. business law is how the organizational documents of a business entity set the rules for resolving internal disputes. This practice is routine in commercial contracts, which may specify where or how disputes must be resolved. Recent use of litigation provisions in corporation charters and bylaws have sparked controversy, ultimately leading to legislative action to preserve shareholder suits from contractual waiver. Yet despite accounting for the majority of business organizations and sharing features with corporations, non-corporate business entities and their internal dispute resolution process have been largely ignored. How do these non-corporate entities set ex ante …

A Genesis Of Conflict: The Zero-Sum Mindset, Jonathan R. Cohen

UF Law Faculty Publications

Parties in conflict often operate under the assumption that for one party to win, the other party must lose. This concept, known as the “zero-sum mindset,” can lead to undesirable results, both because it can make disputes harder to resolve and because people holding such beliefs are more likely to get into conflicts to begin with. Over the past several decades, legal educators specializing in dispute resolution have worked hard to challenge that mindset. This task is not simple, for framing conflict in zero-sum terms has very deep cultural roots tracing back at least to the Biblical stories in Genesis. …

Unbundling Procedure: Carve-Outs From Arbitration Clauses, Christopher R. Drahozal, Erin O'Hara O'Connor

Florida Law Review

A rich literature analyzes how parties choose between courts and arbitration. Within this literature, scholars traditionally assume that sophisticated parties make a single choice between courts and arbitration based on the bundle of dispute resolution services that seems most appealing ex ante. As with the literature on bundling generally, however, legal scholars are increasingly focusing their attention on the unbundling of court and arbitral procedures—that is, the ability of parties to contract for à la carte or customized dispute resolution procedures in court and arbitration. While such unbundling is common ex post, i.e., after a dispute arises, most …

Beginning With Yes: A Review Essay On Michael Wheeler's The Art Of Negotiation: How To Improvise Agreement In A Chaotic World, Leonard L. Riskin

UF Law Faculty Publications

Michael Wheeler's The Art of Negotiation: How to Improvise Agreement in a Chaotic World stands on the shoulders of a number of previous books on negotiation by Wheeler's colleagues in the Program on Negotiation at Harvard Law School (PON), and others, but not because it needs their support. Instead, The Art of Negotiation illuminates the principal models in such books, by showing why, when, and how to improvise in relation to them. Some standard models of negotiation seem static, Wheeler tells us, whereas negotiation mastery requires dealing with the ‘inherent uncertainty‘ of almost any negotiation, and that calls for improvisation, …

Open-Minded Listening, Jonathan R. Cohen

UF Law Faculty Publications

Parties in conflict do not typically listen to one another well. On a physical level they hear what their counterparts say, but on a deeper level they do not truly absorb or think seriously about their counterparts’ words. If they listen at all, they listen with an ear toward how they can refute rather than toward what they may learn. This article explores how we might change this. In contrast to prior research examining external aspects of listening (e.g., how being listened to influences the speaker), this article probes the internal side of listening, specifically, whether the listener will allow …

Annual Saltman Lecture: Further Beyond Reason: Emotions, The Core Concerns, And Mindfulness In Negotiation, Leonard L. Riskin

UF Law Faculty Publications

This article focuses on one particularly common problem: Sometimes people who understand the Core Concerns System, know how to use it, and intend to employ it in a particular negotiation, either fail to do so or fail to do so skillfully; when they review the negotiation, they regret not having used the Core Concerns System, and believe that using it would have produced a better process and outcome. When this occurs, it often results from deficits or faults in the negotiator's awareness.

It follows that a negotiator can enhance his ability to employ the Core Concerns System through improving his …

Managing Inner And Outer Conflict: Selves, Subpersonalities, And Internal Family Systems, Leonard L. Riskin

UF Law Faculty Publications

This article describes potential benefits of considering certain processes within an individual that take place in connection with external conflict as if they might be negotiations or other processes that are routinely used to address external disputes, such as mediation or adjudication. In order to think about internal processes in this way, it is necessary to employ a model of the mind that includes entities capable of engaging in such processes. The Internal Family Systems (IFS) model, developed by Richard C. Schwartz, works well for this purpose. The IFS model is grounded on the construct that the mind is composed …

Conflicts As Inner Trials: Transitions For Clients, Ideas For Lawyers, Jonathan R. Cohen

UF Law Faculty Publications

As times of transition, conflicts often produce significant inner trials for parties. This paper categorizes some of the more common inner trials parties in conflict face (e.g., coping with loss, strong emotions, uncertainty, etc.) and suggests that, as liminal times in people’s lives, some conflicts may also hold within them important opportunities for learning, growth and self-definition. This paper also offers some ideas for how lawyers might best assist clients during such transitions.

Article Iii Judicial Power And The Federal Arbitration Act, Roger J. Perlstadt

UF Law Faculty Publications

Arbitrators determine facts and apply law to those facts to bindingly resolve disputes between two or more parties, a task normally reserved for judges. The Federal Arbitration Act (FAA) makes agreements to arbitrate disputes enforceable, including disputes that would normally be heard by an Article III judge, such as those arising under federal law or between parties of diverse citizenship. Accordingly, disputes subject to an arbitration agreement brought before a federal court for adjudication must instead, pursuant to the FAA, be resolved by an arbitrator. Yet, while Article III ostensibly mandates that life-tenured and salary-protected judges decide such disputes, arbitrators—selected …

Fostering Race-Related Dialogue: Lessons From A Small Seminar, Jonathan R. Cohen

UF Law Faculty Publications

People frequently shy away from discussing race. Yet, for many reasons, discussing race is extremely important. Drawing upon my experience of teaching a small seminar that addressed race through the lens of reconciliation, in this essay I offer several suggestions for fostering constructive race-related dialogue. I begin by identifying some factors that can make race-related dialogue difficult. I then suggest five steps that may facilitate constructive dialogue: (1) establish trust and good conversational dynamics before discussing race, (2) prompt the discussion with a reading or other informative stimulus, (3) listen to others with the goal of understanding their thoughts, (4) …

Expanding The Nafta Chapter 19 Dispute Settlement System: A Way To Declaw Trade Remedy Laws In A Free Trade Area Of The Americas?, Stephen J. Powell

UF Law Faculty Publications

Chapter 19 of the NAFTA transfers judicial review of U.S., Canadian, and Mexican government investigations under the controversial anti-dumping and countervailing duty (AD/CVD) laws from national courts to binational panels of private international law experts. The system stands as a unique surrender of judicial sovereignty to an international body, a hybrid of national courts and international dispute settlement with as yet no parallel in the world of international trade or other international law regimes. Binational panel decisions have been controversial because agencies chafe at their intimate examination of agency findings and supporting evidence. Panels also are viewed as substantially more …

It Takes Two To Tango, And To Mediate: Legal Cultural And Other Factors Influencing United States And Latin American Lawyers’ Resistance To Mediating Commercial Disputes, Don C. Peters

UF Law Faculty Publications

This article examines legal cultural and other factors influencing the resistance to mediating commercial disputes displayed by U.S. and Latin American lawyers. After surveying current contexts in which commercial mediation occurs in the United States and in Latin American countries and summarizing data regarding commercial actors’ knowledge of the benefits of mediating, it analyzes the relatively infrequent use of mediation despite its potential advantages over adjudicating. Focusing on lawyers, the article next explores factors that influence U.S. and Latin American lawyers when they converse with commercial clients about selecting dispute resolution methods.

Awareness And Ethics In Dispute Resolution And Law: Why Mindfulness Tends To Foster Ethical Behavior, Leonard L. Riskin

UF Law Faculty Publications

This paper is an extended version of a luncheon presentation given at the Symposium, Ethics in the Expanding World of ADR: Considerations, Conundrums, and Conflicts, sponsored by South Texas College of Law in Houston, Texas, on Nov. 2, 2007.

Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh

UF Law Faculty Publications

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …

Toward A Vibrant Peruvian Middle Class: Effects Of The Peru-United States Free Trade Agreement On Labor Rights, Biodiversity, And Indigenous Populations, Stephen J. Powell, Paola A. Chavarro

Stephen Joseph Powell

Past research confirms that trade and human rights are inextricably linked by trade's effects on poverty, labor, women, indigenous populations, health, and the environment. We identified surprisingly direct linkages between these two vital policies in WTO agreements as well as that regional trade agreements add positive indirect contributions by to rules-based governance through their emphasis on transparency, accountability, and due process by governments, as well as timeliness, inclusive record keeping, and impartiality in the administrative decisional process. The present research examines a particular country and a single trade agreement, Peru and the trade agreement between Peru and the United States. …

Tort Arbitrage, Robert J. Rhee

UF Law Faculty Publications

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the empirical world. This Article models the interaction of settlement dynamics and the theory of negligence. It shows that tort claims are systematically devalued during settlement relative to the legal standard. Central to this thesis is a proper conception and accounting of cost. Cost is typically viewed as the transaction cost of litigation processing. Cost, however, encompasses more than this. Each dispute has a cost of resolution, defined as the discounting effect of risk on legal valuation. A spread between the parties' …

Coping With Lasting Social Injustice, Jonathan R. Cohen

UF Law Faculty Publications

Sometimes we experience poetry in human life -- a sense of joy and wonder, connectedness and meaning, and occasionally even transcendence. Sometimes we do not. This is, I believe, a general aspect of the human condition. Such generality notwithstanding, different persons face different obstacles to hearing that poetry. Some obstacles are internal, rooted in an individual's personality. Others are external, deriving from an individual's family, community, or society. This essay explores one distinctive and particularly difficult external obstacle to that poetic joy: lasting social subordination. How does lasting social subordination affect a subordinated person's ability to hear that poetry? What, …

When Lawyers Move Their Lips: Attorney Truthfulness In Mediation And A Modest Proposal, Donald C. Peters

UF Law Faculty Publications

This article examines whether the punch line that you can tell when lawyers are lying by confirming that their lips are moving applies to their conduct when negotiating in mediations. General surveys of lawyer honesty suggest that this perception probably does apply to the way lawyers negotiate in mediations. Only 20% of people surveyed in a 1993 American Bar Association poll described the legal profession as honest, and that number fell to 14% in a 1998 Gallup poll. However, research demonstrates a connection between honest negotiating and perceived effectiveness. A study of 5,000 Denver and Phoenix lawyers found that honest, …

Eleven Big Ideas About Conflict: A Superficial Guide For The Thoughtful Journalist, Leonard L. Riskin

UF Law Faculty Publications

When Professor Richard Reuben asked me to speak about the most basic ideas in conflict resolution to a group that included renowned journalists and journalism scholars, I balked. Surely these notions would seem too obvious, mundane, or superficial. But Richard - a practicing journalist for many years as well as an expert on conflict - assured me that the audience would find most of them surprising and useful. I hope he is correct.

I plan to present eleven ideas from the dispute resolution literature that I find particularly helpful in my work and life and which I think any journalist …

A Price Theory Of Legal Bargaining: An Inquiry Into The Selection Of Settlement And Litigation Under Uncertainty, Robert J. Rhee

UF Law Faculty Publications

Conventional wisdom says that economic surplus is created when the cost of litigation is foregone in favor of settlement, a theory flowing from the Coase Theorem. The cost-benefit analysis weighs settlement against the expected value of litigation net of transaction cost. This calculus yields the normative proposition that settlement is a superior form of dispute resolution and so most trials are considered errors. While simple in concept, the prevailing economic model is flawed. This article is a theoretical inquiry into the selection criteria of settlement and trial. It applies principles of financial economics to construct a pricing theory of legal …

The Immorality Of Denial, Jonathan R. Cohen

UF Law Faculty Publications

This article is the first of a two-part series critically examining the role of lawyers in assisting clients in denying responsibility for harms they have caused. If a person injures another, the moral response is for the injurer actively to take responsibility for what he has done. In contrast, the common practice within our legal culture is for injurers to deny responsibility for harms they commit. The immoral, in other words, has become the legally normal. In this Article, Professor Cohen analyzes the moral foundations of responsibility-taking. He also explores the moral, psychological, and spiritual risks to injurers who knowingly …

To Sue Is Human; To Settle Divine: Intercultural Collaborations To Expand The Use Of Mediation In Costa Rica, Donald C. Peters

UF Law Faculty Publications

Virtually all societies have developed non-adjudicative methods to resolve disputes. Third party intervention to help resolve disputes consensually, typically called mediation or conciliation, occurs in all cultures throughout the world. It now occurs in Costa Rica only voluntarily and primarily in family, community, labor, agricultural, and trade contexts.

Connecting mediation or conciliation to court systems provides a comparatively new use of third party interventions not involving adjudication through arbitration or litigation. This typically occurs by referring matters for mediation services provided by state-funded programs, private centers, and private mediators. Florida, the first American state to authorize courts to order mediation …

The Culture Of Legal Denial, Jonathan R. Cohen

UF Law Faculty Publications

The goals of this essay are twofold. The first is to examine critically the practice of lawyers assisting clients in denying harms they commit and suggest some ways of changing that practice. Lawyers commonly presume that their clients' interests are best served by denial. Yet such a presumption is not warranted. Given the moral, psychological, relational, and sometimes even economic risks of denial to the injurer, lawyers should consider discussing responsibility taking more often with clients. The second is to explore several structural or systemic factors that may reinforce the practice of denial seen day in and day out within …