Dispute Resolution and Arbitration Commons^™

Bill Would Encourage Effective Dispute Resolution, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Many of the processes involved in traditional local land use review procedures involve two or more adversarial parties arguing their position with little to no consideration for the other party’s interest, and no regard for mutually beneficial outcome. This article describes a proposed New York law that would promote the use of mediation to supplement the traditional process. The article discusses studies geared towards testing the effectiveness of mediation, gives a review of out of state mediation legislation, as discusses corresponding court decisions. Finally, the article concludes with a review of the traditional roles of lawyers in the process, and …

C-Drum News, V. 2, No. 1, Fall 2008

The C-DRUM News

No abstract provided.

Curing Consumer Warranty Woes Through Regulated Arbitration, Amy J. Schmitz

Faculty Publications

This article proposes legislative procedural reforms accounting for the realities of consumer arbitration that have threatened and denied consumers' access to remedies for companies' violations of public, or statutory, warranty remedies under the Magnuson-Moss Warranty Act (MMWA). Furthermore, the Article proposes to clarify and expand the MMWA's current dispute resolution template in order to resolve judicial disagreement regarding the template's application and foster beneficial use of finding arbitration. Accordingly, this is not a call to ban all pre-dispute arbitration clauses in consumer contracts, but is instead an invitation for more politically palatable reforms that preserve both companies' savings and consumers' …

Confronting Adr Agreements' Contract/No-Contract Conundrum With Good Faith, Amy J. Schmitz

Faculty Publications

This Article explores the intricate problem, or conundrum, of enforcing "Alternative Dispute Resolution ('ADR') agreements" that require mediation or other non-binding dispute resolution procedures. Although public policy supports ADR, courts' inadequate analysis of ADR agreements is threatening their vitality. Instead of properly considering the flexible nature of these agreements, courts assume formalist contract or no-contract conclusions similar to those they impose on what Professor Charles Knapp has termed "contracts to bargain." ADR agreements and other contracts to bargain pose enforcement problems because they require parties' cooperation without specifying what cooperation means or how to enforce such flexible duties. This Article …

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 …

C-Drum News, V. 1, No. 2, Spring 2008

The C-DRUM News

No abstract provided.

Commercial Peace And Political Competition In The Crosshairs Of International Arbitration, Thomas E. Carbonneau

Journal Articles

This article examines the mixed effect of arbitration upon the generation of international law norms; in particular, how arbitration can generate private law norms so effectively and yet still face strong resistance in public international law processes and controversies. The work of arbitration for international commercial litigation has been nothing less than spectacular. In both the private international and domestic civil contexts, arbitration has provided viable remedial solutions and functional adjudication when the law was either nonexistent or incapacitated. It has supplied a workable and adaptable trial system, which-on the international side-could also generate substantive legal norms. Arbitration thereby has …

The Revolution In Law Through Arbitration, Thomas E. Carbonneau

Journal Articles

My subject is arbitration. I explore how its re-emergence during the last forty years has revolutionized the thinking about, and the practice of, law. The development of a "strong federal policy favoring arbitration" cast aside traditional acceptations about law and adjudication. The rule of law-the human civilization associated with law and the legal process-has been profoundly, perhaps irretrievably, altered by the rise of arbitration. The landmark cases in labor and employment arbitration- Alexander v.Gardner-Denver Company (the "old time religion") and Gilmer v. Interstate/JohnsonLane Corporation (the "new age" thinking)- attest to the enormous distance that separates past and present concepts of …

Developing Better Lawyers And Lawyering Practices: Introduction To The Symposium On Innovative Models Of Lawyering, John M. Lande

Faculty Publications

This article provides an overview of a symposium sponsored by the University of Missouri Center for the Study of Dispute Resolution in 2007 that featured leading practitioners and scholars to analyze innovative models of lawyering, including Collaborative Law and other processes. The authors include David Hoffman, Nancy Welsh, Julie Macfarlane, Richard Shields, Pauline Tesler, Scott Peppet, Forrest ("Woody") Mosten, Jeanne Fahey, Kathy Bryan, Lawrence McLellan, and John Lande. The articles address issues including: teaching law students to "feel" like lawyers and not just "think" like them, using "conflict resolution advocacy" (which is not necessarily oriented to the courts), developing lawyers' …

Practical Insights From An Empirical Study Of Cooperative Lawyers In Wisconsin, John M. Lande

Faculty Publications

This article reports on a study of members of the Divorce Cooperation Institute (DCI), a group of Wisconsin lawyers who use a "Cooperative" process to provide a constructive and efficient negotiation process in divorce cases. The study involved in-depth telephone interviews and several surveys of DCI members. Although DCI members use this process only in divorce cases, it can be readily adapted for other types of cases.DCI's approach generally involves an explicit process agreement at the outset, based on principles of: (1) acting civilly, (2) responding promptly to reasonable requests for information, (3) disclosing all relevant financial information, (4) obtaining …

Colliding Worlds Of Dispute Resolution: Towards A Unified Field Theory Of Adr, David A. Hoffman

Journal of Dispute Resolution

In the essay that follows, I advocate for greater acceptance of the diversity of belief and practice in the field of dispute resolution and contend that the unifying elements of law and dispute resolution practice predominate over those elements that divide practitioners. After providing definitions of some of the primary forms of dispute resolution (in Part II), the article describes tensions in the Alternative Dispute Resolution (ADR) field (in Part III), quoting some of the harsh criticism that mediators, Collaborative practitioners, and other dispute resolvers have leveled at each other. Part III also expresses the concern that demonization and harsh …

Panel Discussion: Problem-Solving Mechanisms To Achieve Consensus: How Do We Ensure Successful Resolution?, Jacqueline Nolan-Haley, Cathy A. Costantino, Sean F. Nolon, Joseph A. Siegel

Fordham Urban Law Journal

The focus of the panel discussion is problem-solving mechanisms in the public arena to ensure and achieve consensus via the question, "How do we ensure successful resolution?" Each speaker gives a 20-minute speech followed by questions from attendees. After all three speakers conclude their remarks, Professor Nolan-Haley opens the floor to general questions. Speakers include: 1. Cathy A. Constantino, Federal Deposit Insurance Corporation, Georgetown Law School, George Washington Law School 2. Sean F. Nolon, Pace University School of Law 3. Joseph A. Siegel, U.S. Environmental Protection Agency

Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel

Scholarly Works

The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling commercial matters among commercial actors. While the "old" system involved parties who were relatively equal in bargaining power and knowledge, these systems for mass arbitration lack a freely entered bargain and resemble more closely, contracts of adhesion. Privatized arbitration resolves issues of both statutory and substantive law, and there is a strong argument, given the inexperience of …

Examining The Dispute Resolution Section Pro Bono Mediation Project: Lessons Learned And A Plan For The Future, Sherrill W. Hayes

Sherrill W. Hayes