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Class Action-Barring Mandatory Pre-Dispute Consumer Arbitration Clauses: An Example Of (And Opportunity For) Dispute System Design?, Nancy A. Welsh 2019 Texas A&M University School of Law

Class Action-Barring Mandatory Pre-Dispute Consumer Arbitration Clauses: An Example Of (And Opportunity For) Dispute System Design?, Nancy A. Welsh

Nancy Welsh

Ultimately, this essay will conclude that a private, ad hoc dispute system design process did lead to the insertion of class action waivers in mandatory pre-dispute consumer arbitration clauses. In-house and outside counsel certainly played key roles in initiating this process, but it is unclear that any individual lawyers could claim credit or responsibility as "designers." The representatives of dispute resolution organizations, meanwhile, played supporting roles-as providers of information and as amici in Supreme Court litigation. The essay will consider whether dispute resolution professionals could have managed their role in the process differently-and if so, why they would have managed ...


Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh 2019 Texas A&M University School of Law

Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh

Nancy Welsh

In 2016, the Consumer Financial Protection Bureau (CFPB) issued proposed rules that would have brought substantial transparency to mandatory pre-dispute consumer arbitration. In particular, the CFPB proposed to require regulated providers of financial products and services to report to the CFPB regarding their use and the outcomes of arbitrations conducted pursuant to arbitration clauses, and further, the CFPB proposed to make such information public (with appropriate redactions). Although Congress and the President ultimately annulled the CFPB’s proposed rule, its introduction revealed the need for dispute resolution neutrals to support bringing “measured transparency” to private dispute resolution. To place the ...


Adr And Access To Justice: Current Perspectives, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman 2019 Ohio State University Moritz College of Law

Adr And Access To Justice: Current Perspectives, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman

Michael Z. Green

Extract:

I want to give you a roadmap for our program. We will not be delivering individual papers but, rather, hope to have a discussion. We are planning to spend thirty minutes on introductions for the purpose of allowing you to identify the source of each panelist's perspectives. We will then use an hour, more or less, for a discussion among the panel. That will leave fifteen minutes for audience questions and participation. Because we will be publishing an edited transcript, we ask that you hold your questions until the end.

Access to justice is a broad topic, and ...


Impeaching Lying Parties With Their Statements During Negotiation: Demysticizing The Public Policy Rationale Behind Evidence Rule 408 And The Mediation-Privilege Statutes, Lynne H. Rambo 2019 Selected Works

Impeaching Lying Parties With Their Statements During Negotiation: Demysticizing The Public Policy Rationale Behind Evidence Rule 408 And The Mediation-Privilege Statutes, Lynne H. Rambo

Lynne H. Rambo

Virtually all American jurisdictions have laws—either rules of evidence or mediation-privilege statutes or both—that exclude from evidence statements that parties make during negotiations and mediations. The legislatures (and sometimes courts) that have adopted these exclusionary rules have invoked a public policy rationale: that parties must be able to speak freely to settle disputes, and they will not speak freely if their statements during negotiation can later be admitted against them. This rationale is so widely revered that many courts have relied on it to prohibit the use of negotiation statements to impeach, even when the inconsistency of the ...


Mediation, Self-Represented Parties, And Access To Justice: Getting There From Here, Jacqueline Nolan-Haley 2019 Fordham University School of Law

Mediation, Self-Represented Parties, And Access To Justice: Getting There From Here, Jacqueline Nolan-Haley

Fordham Law Review Online

Mediation is enthusiastically promoted as a vehicle for providing access to justice. This is as true in developing countries as it is in the United States. For individuals, mediation promises autonomy, self-determination and empowerment; for courts, there is the lure of procedural and administrative reforms—reduced dockets and greater efficiencies. Unburdened with formal discovery, evidentiary and procedural rules, pleadings, and motions, mediation is thought to generate access to justice at a faster pace than litigation. Commentators sing its praises while bemoaning its underutilization. I argue that claims about mediation’s ability to provide access to justice should be more modest ...


Nfl 3-0 In Federal Appellate Court Challenges To Player Suspensions: A Pattern Of "Substantial Deference" To The Nfl Creates And Uphill Battle For Players, Kara Crawford 2019 Villanova University Charles Widger School of Law

Nfl 3-0 In Federal Appellate Court Challenges To Player Suspensions: A Pattern Of "Substantial Deference" To The Nfl Creates And Uphill Battle For Players, Kara Crawford

Jeffrey S. Moorad Sports Law Journal

No abstract provided.


A New Strategy For Regulating Arbitration, Sarath Sanga 2019 Northwestern Pritzker School of Law

A New Strategy For Regulating Arbitration, Sarath Sanga

Northwestern University Law Review

Confidential arbitration is a standard precondition to employment. But confidential arbitration prevents a state from ensuring or even knowing whether employees’ economic, civil, and due process rights are respected. Further, employers regularly require employees to waive rights to class proceedings (thereby foreclosing small claims) and to arbitrate under the laws of another jurisdiction (thereby evading mandatory state law). In response, states have tried to regulate arbitration provisions, arbitral awards, and arbitral processes. But these efforts have all failed because the Supreme Court says they are preempted by the Federal Arbitration Act.

In this Article, I argue that states can and ...


Judicial Mediation: From Debates To Renewal, Jean-Francois ROBERGE, Dorcas QUEK ANDERSON 2019 Universite de Sherbrooke

Judicial Mediation: From Debates To Renewal, Jean-Francois Roberge, Dorcas Quek Anderson

Research Collection School Of Law

Judicial mediation involving a judge actingas a mediator in a court dispute has been implemented in many jurisdictionsworldwide as a way to overcome access to justice challenges. This innovationhas raised many debates on the changing role of the judge built on either its congruence with or divergence from judicial adjudication. Over the years, thesedebates have become increasingly stagnant. The evolving vision on access tojustice brings an opportunity to draw from the earlier debates and forge adifferent way forward. This paper argues that a coequality approach to understanding judicial mediation is a betterway to design the process in a way that ...


Third-Party Funding In Investment Arbitration: Misappropriation Of Access To Justice Rhetoric By Global Speculative Finance, Tara Santosuosso, Randall Scarlett 2019 Boston College Law School

Third-Party Funding In Investment Arbitration: Misappropriation Of Access To Justice Rhetoric By Global Speculative Finance, Tara Santosuosso, Randall Scarlett

Boston College Law Review

The United Nations Commission on International Trade Law (UNCITRAL) is considering changes to its rules governing international arbitration proceedings. UNCITRAL Working Group III is analyzing possible reforms of the arbitral rules to address the risks associated with the increased prevalence of third-party funded investment arbitration claims. Funders claim that existing regulation is sufficient, arguing in part that funding provides access to justice for impecunious claimants who otherwise would be unable to bring claims. This Essay argues that funders’ access to justice reasoning is flawed at best and dangerously misleading at worst. UNCITRAL must take immediate action to address the potential ...


Table Of Contents, Seattle University Law Review 2019 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


The Metastasization Of Mandatory Arbitration, Alexander J.S. Colvin 2019 Cornell University

The Metastasization Of Mandatory Arbitration, Alexander J.S. Colvin

Chicago-Kent Law Review

Mandatory arbitration procedures have expanded to become a common feature of American employment relations. This article presents the results of a new original survey examining the extent of mandatory arbitration, where it is most commonly used, and which employees it is most likely to affect. Overall, 53.9 percent of private sector business establishments, representing 56.2 percent of nonunion employees, have mandatory arbitration procedures. Larger employers are more likely to have adopted mandatory arbitration, as are workplaces with lower paid employees. Mandatory arbitration is particularly common in California, North Carolina, and Texas, but is widespread nationwide. Class action waivers ...


Surveying The Scene: How Representatives’ Views Informed A New Era In Irish Workplace Dispute Resolution, Brian Barry 2019 Technological University Dublin

Surveying The Scene: How Representatives’ Views Informed A New Era In Irish Workplace Dispute Resolution, Brian Barry

Articles

The Workplace Relations Act 2015 introduced a major overhaul of workplace dispute resolution bodies in Ireland, streamlining a complicated system for resolving workplace disputes comprising multiple fora into a two-tier structure. The article describes and analyses the results of two surveys undertaken by the author of the views of employment law and industrial relations practitioners and other representatives in Ireland before the reforms in 2011 and after the reforms in 2016. This article describes the purpose, methodology and considers the results of both surveys. The 2011 survey informed the agenda for reforming the Irish workplace dispute resolution system in 2015 ...


An Implied Ground For Refusal To Enforce Imsas Under The Singapore Convention On Mediation: The Effect Of Article 6, Shouyu CHONG, Nadja ALEXANDER 2019 Singapore Management University

An Implied Ground For Refusal To Enforce Imsas Under The Singapore Convention On Mediation: The Effect Of Article 6, Shouyu Chong, Nadja Alexander

Research Collection School Of Law

This post is part of a series on the UN Convention on Mediated Settlement Agreements Resulting from Mediation (the Singapore Convention on Mediation). In previous posts we have outlined the conventional view that Article 5 of the Singapore Convention establishes exhaustively all the possible exceptions to the enforcement of iMSAs that have otherwise have complied with the requirements set out under Article 4. In this post we question this initial position and ask whether there is an implied ground for refusal to enforce iMSAs under the Singapore Convention made available through an application of Article 6.


Singapore Convention Series: Why Is There No ‘Seat’ Of Mediation?, Shouyu CHONG, Nadja ALEXANDER 2019 Singapore Management University

Singapore Convention Series: Why Is There No ‘Seat’ Of Mediation?, Shouyu Chong, Nadja Alexander

Research Collection School Of Law

For dispute resolution practitioners familiar with the concept of the seat of arbitration, it may come as a surprise that the new UN Convention on International Settlement Agreement Resulting from Mediation does not include provisions in relation to the ‘seat’ of mediation. Why, you may ask? The Convention includes no provisions on ‘seat’ simply because there has never been the need for a ‘seat’ of mediation when cross-border disputes are brought before a mediator, and this remains the case. In this blog post, we will develop a hypothetical scenario to explore the issues.


Shots Fired: Digging The Uniformed Services Employment And Reemployment Rights Act Out Of The Trenches Of Arbitration, Lisa Limb 2019 University of Michigan Law School

Shots Fired: Digging The Uniformed Services Employment And Reemployment Rights Act Out Of The Trenches Of Arbitration, Lisa Limb

Michigan Law Review

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to protect servicemembers from discrimination by civilian employers and to provide servicemembers with reemployment rights. Recent circuit court decisions, however, have maimed these protections by ruling that mandatory arbitration is permissible under USERRA. This Note argues that such rulings conflict with USERRA’s plain language, statutory structure, and purpose. Ultimately, in light of strong public policy considerations, this Note contends that mandatory arbitration should not be permissible under USERRA and proposes that Congress amend the Act to explicitly prohibit arbitration.


Expanding The Scope Of Dispute Resolution And Access To Justice, Masood AHMED, Dorcas QUEK ANDERSON 2019 Singapore Management University

Expanding The Scope Of Dispute Resolution And Access To Justice, Masood Ahmed, Dorcas Quek Anderson

Research Collection School Of Law

This note considers recent civil justice reforms in England and Singapore in enhancing the role of ADR, in particular mediation, as a means of increasing access to justice. The English and Singaporean civil justice reforms reflect the continual efforts to encourage the greater utilisation of ADR for appropriate cases. The current range of mechanisms may be charted along a “continuum of madatoriness”, ranging from compulsory attendance at mediation orientation sessions; the utilisation of costs sanctions; having an opt-out system; and mandating mediation with no exemptions. However, the English and Singaporean experiences illustrate some of the drawbacks in penalising parties for ...


The Singapore Convention On Mediation - A Brighter Future For Asian Dispute Resolution, Eunice CHUA 2019 Singapore Management University

The Singapore Convention On Mediation - A Brighter Future For Asian Dispute Resolution, Eunice Chua

Research Collection School Of Law

On 26 June 2018, the UnitedNations Commission on International Trade Law (UNCITRAL) approved, largelywithout modification, the final drafts of the Convention on International SettlementAgreements Resulting from Mediation (the Singapore Convention) and amendmentsto the Model Law on International Commercial Mediation prepared by WorkingGroup II. These instruments aim to promote the enforceability of internationalcommercial settlement agreements reached through mediation in the same way thatthe New York Convention facilitates the recognition and enforcement ofinternational arbitration awards. This paper provides a critical analysis of theSingapore Convention and some commentary from an Asian perspective.


Dispute Resolution Neutrals’ Ethical Obligation To Support Measured Transparency, Nancy A. Welsh 2019 University of Oklahoma College of Law

Dispute Resolution Neutrals’ Ethical Obligation To Support Measured Transparency, Nancy A. Welsh

Oklahoma Law Review

No abstract provided.


The Singapore Convention On Mediation - A Brighter Future For Asian Dispute Resolution, Eunice CHUA 2019 Singapore Management University

The Singapore Convention On Mediation - A Brighter Future For Asian Dispute Resolution, Eunice Chua

Research Collection School Of Law

On 26 June 2018, the UnitedNations Commission on International Trade Law (UNCITRAL) approved, largelywithout modification, the final drafts of the Convention on International SettlementAgreements Resulting from Mediation (the Singapore Convention) and amendmentsto the Model Law on International Commercial Mediation prepared by WorkingGroup II. These instruments aim to promote the enforceability of internationalcommercial settlement agreements reached through mediation in the same way thatthe New York Convention facilitates the recognition and enforcement ofinternational arbitration awards. This paper provides a critical analysis of theSingapore Convention and some commentary from an Asian perspective.


Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh 2019 Texas A&M University School of Law

Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh

Faculty Scholarship

In 2016, the Consumer Financial Protection Bureau (CFPB) issued proposed rules that would have brought substantial transparency to mandatory pre-dispute consumer arbitration. In particular, the CFPB proposed to require regulated providers of financial products and services to report to the CFPB regarding their use and the outcomes of arbitrations conducted pursuant to arbitration clauses, and further, the CFPB proposed to make such information public (with appropriate redactions). Although Congress and the President ultimately annulled the CFPB’s proposed rule, its introduction revealed the need for dispute resolution neutrals to support bringing “measured transparency” to private dispute resolution. To place the ...


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