Dispute Resolution and Arbitration Commons^™

Massachusetts Community Mediation Center Grant Program: Fiscal Year 2014 Report & Evaluation, Susan Jeghelian, Madhawa Palihapitiya, Kaila O. Eisenkraft

Massachusetts Office of Public Collaboration Publications

The Community Mediation Center Grant Program, funded by the commonwealth and administered by the state’s office of dispute resolution, was established to “promote the broad use of community mediation in all regions of the state” by awarding operating grants to eligible community mediation centers. This annual report describes the progress made in broadening access to community mediation by the grant program under the challenge of reduced state funding in FY 2014. Due to the funding cut, fewer centers were funded in FY 2014 compared to FY 2013, which reduced the quantity of services provided. However, the amount of money per …

Lawyer, Form Thyself: Professional Identity Formation Strategies In Legal Education, Professional Responsibility, And Experiential Courses, Susan S. Daicoff

Susan Daicoff

Professional identity formation as a learning objective in law school may appear to be nontraditional and perhaps even innovative. While perhaps not a new concept, it is not typically an explicit goal of legal education. Empirical data finds that law school has demonstrable effects upon law students’ professional development; it also finds that certain nontraditional skills and competencies (or “soft skills”) make lawyers most effective. This article argues for explicit planning for and inclusion of professional identity development, including training in these nontraditional skills, in legal education. Professional identity encompasses one’s values, preferences, passions, intrinsic satisfactions, emotional intelligence, as well …

Table Of Contents

Cultural Encounters, Conflicts, and Resolutions

No abstract provided.

Introduction

Cultural Encounters, Conflicts, and Resolutions

No abstract provided.

Latino Catholicism And Indigenous Heritage As A Subfield Of Latino Studies: A Critical Evaluation Of New Approaches, Elizabeth C. Martinez Ph.D.

Cultural Encounters, Conflicts, and Resolutions

Posed through critical theory on "third-space," and a brief history of Latin American Studies, this article pursues analysis of recent interdisciplinary scholarship in English, to delineate the emergence of a new subfield in Latina/o Catholicism, connected to greater understanding of Indigenous legacy. The article also demonstrates the path of study toward creation of a themed academic issue.

The Representations Of Arab-Muslims Through The Language Lens, Abed El-Rahman Tayyara

Cultural Encounters, Conflicts, and Resolutions

The article examines the use of Arabic as a sociolinguistic marker in American films that were released around the time of the events of 9/11/01 and investigates the extent to which stereotypical factors have been continuing in the same vein as in the past. Specifically, this study is a textual analysis of the application of Arabic in five recent films: Three Kings (dir. David O. Russell, 1999), Hidalgo (dir. Joe Johnston, 2004), Kingdom of Heaven (dir. Ridley Scott, 2005), Syriana (dir. Stephen Gaghan, 2005), and Body of Lies (dir. Ridley Scott, 2008). The article demonstrates that …

Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson

Cultural Encounters, Conflicts, and Resolutions

Minority rights and religion have never been topics that are simultaneously considered. However, arguably, the two have relevance, especially when combined with the topic and theory of constitutionalism. Historically and traditionally, minorities have been granted certain rights and have been denied certain rights under various constitutions. These grants and denials relate to cultural differences and values, arguably relating to a culture’s understanding and interpretation of religion.

This article explores the relationship and status of minority rights as it relates to religiosity and constitutionalism. Essentially, there is a correlation between these topics and research shows where certain nations have used religion …

Immigrant Social-Economic Landscape Changes And Ethno-Racial Border Formation In Columbus, Ohio, David M. Walker Dr., Jack Schemenauer

Cultural Encounters, Conflicts, and Resolutions

In this study we analyze new immigrant gateways in the U.S. and the role African and Latino immigrants play in reinventing urban spaces while culturally and economically regenerating neighborhoods juxtaposed to orthodox city planning practices. Through this research we aim to further understand how urban space is produced at divergent scales in the era of heightened globalization. Through this understanding we analyze how the contestation over how urban space is used and consumed leads to distinctive forms in the production of urban space and the subsequent unintended formation of newly perceived cultural borders, often based upon race and ethnicity. Through …

Therapeutic Jurisprudence, David Wexler

Touro Law Review

No abstract provided.

Discrimination Cases Of The 2002 Term, Eileen Kaufman

Touro Law Review

No abstract provided.

American And Other National Variations On The Theme Of International Commercial Arbitration, Thomas E. Carbonneau

Georgia Journal of International & Comparative Law

No abstract provided.

Dick Woodson's Revenge: The Evolution Of Salary Arbitration In Major League Baseball, Edward Silverman

Pepperdine Law Review

This paper examines the evolution of salary arbitration in professional baseball through the lens of the original 1974 Dick Woodson salary arbitration. Part II discusses the general development of labor relations in professional baseball, with an emphasis on how and why salary arbitration came to be implemented. Part III focuses specifically on Dick Woodson’s salary arbitration and how that experience shaped the immediate evolution of the practice and informed the current state of affairs in Major League Baseball (“MLB”). Part IV discusses MLB’s salary arbitration rules and how the process actually works. Part V addresses prevailing criticisms of baseball style …

User Friendly: Informality And Expertise, Annelise Riles

Annelise Riles

No abstract provided.

Alternative Dispute Resolution In U.S. Bankruptcy Practice, Jacob A. Esher

University of Massachusetts Law Review

The use of ADR in bankruptcy cases, while firmly established in concept across the nation, has been realized in a minority of jurisdictions. Mediation training of judges, lawyers and professionals of other disciplines, together with the continued development of ADR programs, is necessary to achieve the vision of a judicial system in which both adjudicative and non-adjudicative, or negotiative, dispute resolution services are available to all parties in all cases.

Burden Of Proof, Prima Facie Case And Presumption In Wto Dispute Settlement, John J. Barceló Iii

John J. Barceló III

The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof-the concepts of prima facie case, presumption, and burden shifting-are disturbingly ambiguous and potentially misleading. This is so whether one thinks of these terms from either a common law or a civil law perspective. In the face of the current ambiguity, a future panel might understand the AB's prima facie case concept to require an overwhelming level of proof from the claimant. On the other hand, a different panel might allow a rather weak level of claimant's proof to meet the prima facie requirement, …

Who Decides The Arbitrators' Jurisdiction? Separability And Competence-Competence In Transnational Perspective, John J. Barceló Iii

John J. Barceló III

No abstract provided.

Expanded Judicial Review Of Awards After Hall Street And In Comparative Perspective, John J. Barceló Iii

John J. Barceló III

The essay addresses whether party preference for more intrusive court review of the facts and law of an aribitral award will (or should) be respected in national arbitration law. The recent U.S. Supreme Court decision in Hall Street rules that expanded review clauses are not enforceable under the Federal Arbitration Act. The essay argues, however, that expanded review of an international arbitral award should still be possible in the U.S. if the parties draft the arbitration clause carefully. For that purpose the parties should include an expanded review clause and should place the arbitral seat in a State that allows …

Acciones Colectivas Vs Cláusula De Arbitraje, Jorge E. De Hoyos Walther

Jorge E De Hoyos Walther

Análisis de la resolución de la Suprema Corte de Justicia que permite la procedencia una accione colectiva, aun cuando las partes se hayan sometido al arbitraje.

International Law - Enforcement Of International Centre For Settlement Of Investment Disputes Arbitral Awards In The United States - Signatories To The Convention On The Settlement Of Investment Disputes Between States And Nationals Of Other States Are Not Entitled To Sovereign Immunity With Respect To Enforcement Of Icsid Arbitral Awards, Liberian Eastern Timber Corp. V. Government Of Republic Of Liberia, 650 F. Supp. 73 (S.D.N.Y.1986), Dorothy B. Franzoni

Georgia Journal of International & Comparative Law

No abstract provided.

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

Stephen Joseph Powell

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 …

Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Leonard Riskin

Leonard L Riskin

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …

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

Leonard L Riskin

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 would …

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

Leonard L Riskin

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 …

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

Leonard L Riskin

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 …

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

Leonard L Riskin

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 …

The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin

Leonard L Riskin

This Article proposes that introducing mindfulness meditation into the legal profession may improve practitioners' well-being and performance and weaken the dominance of adversarial mind-sets. By enabling some lawyers to make more room for - and act from - broader and deeper perspectives, mindfulness can help lawyers provide more appropriate service (especially through better listening and negotiation) and gain more personal satisfaction from their work. Part I of this article describes a number of problems associated with law school and law practice. Part II sets forth a variety of ways in which lawyers, law schools, and professional organizations have tried to …

Creating And Certifying The Professional Mediator -- Education And Credentialing, Joseph B. Stulberg, Donald C. Peters, Tracy L. Allen, Judith P. Meyer

Don Peters

Existing and pending law school mediation programs, post-graduate mediator training programs, mentorship programs, credentialing movements, and continuing mediation education were examined by a panel and speakers directly involved in those fields. Are we effectively training new mediators in law schools and post-graduate programs? Should we, and how can we, "credential" mediators? Do good mediators need to be re-trained? How would continuing mediation educational requirements be implemented?

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

Don Peters

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.

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

Don Peters

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 …

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

Don Peters

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, …