Law Commons^™

Alternative Dispute Resolution In Agency Administrative Programs, Kristen Blankley, Kathleen Claussen, Judith Starr

Journal of Dispute Resolution

This Article studies how federal agencies use and might better use different types of alternative dispute resolution (ADR)—including mediation, conciliation, facilitation, factfinding, minitrials, arbitration, and the use of ombuds—in the programs Congress has entrusted them to administer. The use of ADR by the executive branch of the federal government to resolve disputes with or among private actors has deep historical roots. ADR related to managerial agency matters such as employment or procurement is well-established across the government and performed under a uniform set of laws. Much less has been known, however, about the scope and reach of ADR in the …

We’Re Getting Sued??? *Emotional* *With Proof*: Using Alternative Dispute Resolution In Child Influencer Disputes, Werthen Gass

Journal of Dispute Resolution

Thanks to a new Illinois law, alternative dispute resolution could play an important role in fighting mommy-vlogger clickbait in the coming years. It could allow us all to escape outrageous videos of exploitative parents crying on kitchen floors with titles such as “We’re getting SUED by our OWN CHILD?? *emotional* *with proof*”. On August 11, 2023, the governor of Illinois signed Illinois Public Act 103-0556 (“the Act”) into law, amending the current child labor laws in Illinois and adding a provision specifically pertaining to payment of child influencers. Essentially, the new law, which will go into effect on July 1, …

Faculty List

Journal of Dispute Resolution

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Journal of Dispute Resolution

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Journal of Dispute Resolution

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Table Of Contents

Journal of Dispute Resolution

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Arbitration And The Mandatory Law Problem: A Mixed Mode Adr Approach, Hossein Fazilatfar

Journal of Dispute Resolution

Rigorous scholarly debate has shaped the discussion on the application of mandatory laws and public policy in arbitration, which has led to an array of legal solutions to the mandatory law problem. The determination of the applicable law in arbitration is a dilemma due to arbitrators’ contractual source of authority and commitments to the parties, their mandate to issue an enforceable award, and the imperative nature of mandatory laws at stake. Proposed solutions thus far have primarily been suggestions that are based on either contractual concerns of the parties, jurisdictional (mandatory law) concerns of states involved, or a mix of …

How Can Courts–Practically For Free–Help Parties Prepare For Mediation Sessions?, John Lande

Journal of Dispute Resolution

Consider two hypothetical scenarios of mediations of a personal injury lawsuit. In one scenario, Kenji, the plaintiff, arrived at the mediation session feeling anxious because his attorney hadn’t told him much about the process and he didn’t know what to expect. He didn’t understand the factual and legal issues, how the mediation would unfold, or how he might participate in the process. He felt demoralized because he didn’t know enough to feel confident and assertive about making decisions in his case. In the mediation session, he spent a lot of time alternately hearing the mediator explain why he couldn’t get …

Mandatory Mediation In England And Wales: A Paradigm Shift In Dispute Resolution, Mckayla Bogda

Journal of Dispute Resolution

In May of 2023, Tribunals in England and Wales had a backlog of nearly 144,000 cases. In a press release issued on July 25, 2023, the Ministry of Justice (MoJ) unveiled a significant policy change to combat this backlog. Under its new directive, individuals or entities wishing to pursue debt recovery claims of £10,000 or less are required to engage in mediation proceedings prior to their case’s adjudication in the small claims courts of England and Wales. This transformative shift signifies a departure from the traditional adversarial litigation model of both of these countries’ judicial systems.

Ombuds Programs: How Alternative Dispute Resolution Improves The Lives Of Native Long-Term Care Residents, Brett Newberry

Journal of Dispute Resolution

Many Americans will spend at least some time in a long-term care facility. During their stay, every resident should receive competent care and maintain the highest possible quality of life. Long-term care ombuds programs exist to help achieve these goals. Long-term care ombuds (“LTCOs”) advocate for individuals living in long-term care facilities and for improvements to the long-term care system. Tribal long-term care ombuds are a subset of LTCOs who connect with and advocate for Native residents living in long-term care facilities. LTCOs help facilitate dispute resolution between residents, facilities, and family members, and work to improve resident care. The …

Filling The Enforcement Gap: Alternative Dispute Resolution As An Approach To Solving "Copyright" Disputes For Ai-Generated Content, Aly Rezek

Journal of Dispute Resolution

On August 12, 2019, the United States Copyright Office (“the Copyright Office”) sent Stephen Thaler a rejection letter stating it would not issue him federal copyright protection for artwork generated by a computer program he owned. After countless appeals to the Copyright Office and the Federal District Court under various legal theories, one thing was made clear: The U.S. Copyright system would not protect works created by non-human authors. This principle presents a problem. Artificial intelligence (“AI”) is a rapidly developing tool in business and a rapidly developing issue in the law. Courts have routinely held that to be copyrightable, …

The Copyright Infringement Threat To X: How X (Formerly Twitter) Could Benefit From Licensing Agreements With Arbitration Clauses, Mary Claire Rose

Journal of Dispute Resolution

Copyright infringement on social media platforms is an ever increasing threat to society today. As social media platforms have grown, music publishers and movie studios have become more outspoken in criticizing the inadequacies in handing copyright infringement on these platforms. On June 14, 2023 a civil complaint was brought by Concord Music Group Inc. along with many other music publishers against X Corp. (“X”), formerly Twitter, for copyright infringement. The complaint alleges that X has infringed the copyright of more than 1,700 songs and the plaintiffs are seeking more than $250 million in damages. However, one can argue this was …

Exempting The Fmla From Forced Arbitration: The Need For Special Consideration Of Pregnant And Working Mothers To Achieve Gender Equality In The Workplace, Taylor Trefger

Journal of Dispute Resolution

Pregnant and working mothers face a multitude of challenges when making decisions that pertain to their health, children, and their livelihoods. Historically, women have encountered numerous barriers regarding their entrance and treatment in the United States labor force as a result of gender discrimination that promotes the idea that women, in their inherent ability to become mothers, renders them inadequate or inferior workers in comparison to men. Unfortunately, such archaic notions of gender roles persist still; today, the reality is that women are more likely to be employed part-time, occupy lower-paid roles, and are less likely to take on managerial …

Real Practice Systems Annotated Bibliography, John Lande

Faculty Publications

Real Practice Systems (RPS) theory holds that practitioners’ practice systems are based on their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and the cases in their work. RPS analysis can be used in many dispute resolution roles such as mediator, advocate in mediation, negotiator, and litigator generally. In mediation, practitioners develop categories of cases, parties, and behavior patterns that lead them to design routine procedures and strategies for dealing with recurring challenges before, during, and after mediation sessions.

RPS theory is the culmination of much of the work in my scholarly career. The bibliography …

Table Of Contents

Journal of Dispute Resolution

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Masthead

Journal of Dispute Resolution

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Climate Diplomacy: Can Mediating Climate Considerations Into Peace Agreements Create A Sustainable Future?, Kayla Fowler

Journal of Dispute Resolution

The Earth’s temperature has risen on average 0.14 degrees Fahrenheit per decade since 1880—a total of 2 degrees. Since 1981, the rate of warming has been over twice as fast at 0.32 degrees Fahrenheit per decade. 2022 was the sixth-warmest year on record, and the 10 warmest years have all occurred since 2010. These long-term shifts in temperature exemplify the changes to our climate due to the increasing accumulation of gases caused by human activity on Earth, more commonly referred to as climate change. While it is abundantly clear that climate change is negatively affecting our environment, it is also …

Why Removing Institutional Discretion And Applying Restorative Justice To Mediation Could Prove Beneficial To Title Ix Dispute Resolution, Clare Hensley

Journal of Dispute Resolution

University students have often voiced concern that their institution did not do enough in addressing sexual assaults on campus. There is a perception among students and potential victims that there is a culture of ignoring and underreacting to sexual violence on campus. As many as one in five female undergraduate students experience sexual violence during college, but few feel confident enough to report it.

Legislative Update, Katherine Albers, Lauren Bean, Dillon Dewey, Hannah Jackson, Victoria Mantel

Journal of Dispute Resolution

The Legislative Update is compiled and written annually by the Journal of Dispute Resolution’s Associate Members under the direction of the Associate Editor in Chief. It is designed to provide readers with a listing of pertinent legislation affecting the field of alternative dispute resolution (“ADR”) and a more detailed look at certain bills because of their importance or novelty within the field.

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Journal of Dispute Resolution

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Faculty List

Journal of Dispute Resolution

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Ending The Epidemic Of Accidental Personality Disorder Discrimination By Well-Meaning Mediators, Dan Berstein, Hannah Diamond, Philip T. Yanos

Journal of Dispute Resolution

People who have or appear to have mental disorders encounter rampant bias and stigma, including from mediators. This article focuses on some of the most heavily stigmatized mental health problems - personality disorders - and how some mediators discriminate against parties based on their guesses and assumptions that those parties may have these conditions.

Zf Automotive V. Luxshare: The Supreme Court’S New Gloss On 28 U.S. Code § 1782 And What It Means For International Commercial Arbitration, Madina Lokova

Journal of Dispute Resolution

The federal statute 28 U.S.C. § 1782 (“Section 1782”) allows litigants in foreign proceedings to obtain discovery in the United States, under the broad US discovery rules, for use in such proceedings. Although Section 1782’s use by parties to foreign proceedings has been expanding, there was a split in authority regarding whether the statute was broad enough to permit United States’ courts to authorize discovery for use in private arbitration proceedings overseas.

Sunny Days Ahead: Using Adr To Fuel The Future Of Green Energy, Matthew Graham

Journal of Dispute Resolution

The energy landscape in the United States (“U.S.”) has undergone significant changes in the last few centuries. Energy consumption has increased dramatically as more energy sources have been developed. As one of the world’s leading energy consumers, the U.S. has a large incentive to develop energy solutions that are both sustainable, dependable, and independent of foreign powers. For these reasons, Congress has spent the last few decades passing numerous pieces of legislation encouraging investment in energy solutions that will benefit the U.S. for centuries. With the enactment of the Inflation Reduction Act (“IRA”) of 2022, the U.S. has made its …

Strategies For Successful Negotiation Of International Disputes: Positional Bargaining Vs. Principled Negotiation In The Indus Water Treaty Negotiations, Sushant Mahajan

Journal of Dispute Resolution

Water is the root of all civilization. Great empires of the past arose around lakes and river systems, from the Yangtze to the Nile to the Tiber. While water resources bolstered the power of world leaders, water mismanagement had the potential to lead to their downfall. Even in modern times, water availability is a significant constraint on development – the magnitude of this constraint is particularly felt in arid and semi-arid regions especially as climate change takes effect. This importance has made water supply a great source of conflict. Though it has been a cause of conflict for centuries, transboundary …

A “Rule Making” Class: The Federal Trade Commission’S Expansive Per Se Ban On Noncompete Clauses: Authority, Enforceability, And The Need For Congressional Action, Nolan Johnson

Journal of Dispute Resolution

A non-compete clause is “an agreement or contract not to interfere or compete with a former employer (as by working with a competitor).” The Federal Trade Commission (“FTC”) has proposed a per se ban on non-compete provisions in employment contracts. This would arguably be the FTC’s second substantive rule under the FTC Act. This substantive rule making departs from the traditional common law style rule-making process in which the courts create antitrust jurisprudence standards. In this way, the FTC has challenged the practice by exploring a new avenue of power under Section 5 of the FTC Act.

Odd One Out: Inconsistency In The Federal Arbitration Act’S Jurisdictional Language, Joshua Long

Journal of Dispute Resolution

After almost a century, the Federal Arbitration Act (FAA) continues to guide and change the arbitration landscape. While greater focus has been placed on the FAA’s substantive merits and evolution, the act’s procedural role in outlining the relationship between arbitration and the federal court system plays an equally important role in alternate dispute resolution. Notably, recent concerns regarding inconsistencies in the act’s jurisdictional language may undermine the FAA’s ability to provide a clear, efficient, and fair process for arbitration.

Mandatory Arbitration And Lgbtq+ Hostile Workplace Protections: A Review Of The Ending Forced Arbitration Act, Its Impact, And Implications, Jared E. Munster

Journal of Dispute Resolution

In 2022, the 117th Congress amended the Federal Arbitration Act (FAA) in response to widespread public pressure to change the culture of American employment. After years of pervasive sexual harassment across industries, supported by the growth of mandatory, adhesive arbitral agreements in employment contracts, Congress adopted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Ending Forced Arbitration Act”) which rendered unenforceable pre-dispute arbitral agreements for claims of sexual harassment or sexual assault. 1

Law Students Can Use Portfolios To Plan Their Practice Systems, John Lande

Faculty Blogs

This post describes how law schools can help students plan for successful careers by using Real Practice System self-assessments to guide them in developing individualized portfolios. Portfolios identify students’ learning objectives and experiences designed to achieve them. Portfolios may include a variety of elements such as writing samples, video recordings, grades, faculty evaluations, clinical course journals, and extracurricular experiences.

Helping Law Students Define And Pursue Success, John Lande

Faculty Blogs

This post collects prior posts about how to help law students define and pursue professional success.