Law Commons^™

Customizing Employment Arbitration, Erin O'Hara O'Connor, Kenneth J. Martin, Randall S. Thomas

Scholarly Publications

According to the dispute resolution literature, one advantage of arbitration over litigation is that arbitration enables the parties to customize their dispute-resolution procedures. For example, parties can choose the qualifications of the arbitrator(s), the governing procedural rules, the limitation period, recoverable damages, rules for discovery and the presentation of evidence and witnesses, and the specificity of required arbitrator findings. While some scholars have questioned whether parties to arbitration agreements frequently take advantage of this customization, there is little solid empirical information about the topic.

In this Article, we study the arbitration clauses found in a random sample of 910 Chief …

Recourse Against An International Arbitration Award Made In Singapore, Darius Chan

Research Collection Yong Pung How School Of Law

In Astro Nusantara International BV v PT Ayunda Prima Mitra [2012] SGHC 212, the Singapore High Court set out the available recourse against an international arbitration award made in Singapore. This case has significant implications for Singapore as a seat of arbitration, and this note contrasts the position between Singapore and Hong Kong against the backdrop of this case. In October 2008, after a failed joint venture, the Claimants, which belonged to the Astro group of companies of Malaysia, commenced arbitration in Singapore against the Respondents, which belonged to the Lippo group of companies of Indonesia. In May 2009, the …

Collaboration And Coercion: Domestic Violence Meets Collaborative Law, Margaret B. Drew

Margaret B Drew

‘Collaboration and Coercion’ addresses the systemic and individual concerns that arise when family members that have experienced abuse enter into the collaborative law process. A form of alternative dispute resolution, collaborative law is a method of resolving disputes without engagement of the legal system. The author addresses the structural and cultural difficulties that survivors of abuse encounter throughout the process as well as the ethical concerns that are raised when collaborative practitioners accept cases where the parties have a history of coercion within the intimate relationship.

Preemption: The United States Arbitration Act, The Manifest Disregard Of The Law Test For Vacating An Arbitration Award, And State Courts, Paul Turner

Pepperdine Law Review

No abstract provided.

C-Drum News, Fall 2012

The C-DRUM News

No abstract provided.

Leveraging The Mining Industry’S Energy Demand To Improve Host Countries’ Power Infrastructure, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The initial phase of the Leveraging Mining-Related Infrastructure Investments for Development project consisted of a worldwide survey of regulatory, commercial and operating case studies of shared use of mining-related infrastructure. This Policy Paper delivers the findings for power infrastructure.

Quantifying The Economic Benefits Of Effective Redress: Large E-Commerce Data Sets And The Cost-Benefit Case For Investing In Dispute Resolution, Colin Rule

University of Arkansas at Little Rock Law Review

Demonstrating the economic benefit of investments in fair and effective redress systems has been one of the greatest challenges for dispute resolution. This article uses results from large e-commerce data sets to demonstrate the quantifiable benefit in of investments in effective dispute resolution processes. Specifically, the data is based not on user-reported satisfaction, which can be unreliable, but instead on an analysis of the actual behavior of users before and after a dispute event. The result is hard evidence of the economic benefits from the deployment of effective redress processes, which is relevant to e-commerce service providers, as well as …

Leveling Up To Immersive Dispute Resolution (Idr) In 3-D Virtual Worlds: Learning And Employing Key Idr Skills To Resolve In-World Developer-Participant Conflicts, Lucille M. Ponte

University of Arkansas at Little Rock Law Review

This article proposes a new conflict resolution approach called "immersive dispute resolution" (IDR) through the use of existing communication and graphical technology in 3-D virtual worlds as well as the collaborative and strategic thinking skills virtual world participants acquire in digital experiences. Specifically, this article begins by discussing research on learning in virtual worlds, with an emphasis on key collaborative conflict resolution skills accumulated through play in virtual environments. Next, this article discusses current dispute resolution processes available in certain 3-D worlds which fail to leverage the technology or collaborative skills available in these environments, and finishes with a call …

Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong

Faculty Publications

This article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.

Private Resolution Of Public Disputes: Employment, Arbitration, And The Statutory Cause Of Action, Griffin Toronjo Pivateau

Pace Law Review

In this Article, I argue that arbitration agreements fall somewhere along the middle of the rights/contract continuum. My understanding of the nature of arbitration agreements relies on a previously existing area of employment law. There is a particular aspect of the employment relationship that, while open to contract, remains subject to constraints imposed by the law. A noncompete agreement permits an employee to contract with his employer to not work for a competitor following the termination of the employment relationship. This right to contract away the right to compete is, however, narrowly construed by the court system. A court may …

Adoption And Use Of Dispute Resolution Procedures In The Nonunion Workplace, Alexander Colvin

Alexander Colvin

[Excerpt] This paper investigates the adoption, structure, and function of dispute resolution procedures in the nonunion workplace. Whereas grievance procedures in unionized workplaces have been an important area of study in the field of industrial relations, research on dispute resolution procedures in nonunion workplaces has lagged behind. As a result, our knowledge of the development of nonunion procedures remains relatively limited. Similarly, with a few noteworthy exceptions (e.g. Lewin, 1987, 1990), our knowledge of workplace grievance activity is almost entirely based on research conducted in unionized settings. Given the major differences in the institutional contexts of union and nonunion workplaces …

An Empirical Study Of Employment Arbitration: Case Outcomes And Processes, Alexander Colvin

Alexander Colvin

Using data from reports filed by the American Arbitration Association (AAA) pursuant to California Code requirements, this article examines outcomes of employment arbitration. The study analyzes 3,945 arbitration cases, of which 1,213 were decided by an award after a hearing, filed and reaching disposition between January 1, 2003 and December 31, 2007. This includes all the employment arbitration cases administered nationally by the AAA during this time period that derived from employer-promulgated arbitration procedures. Key findings include: (1) the employee win rate amongst the cases was 21.4%, which is lower than employee win rates reported in employment litigation trials; (2) …

Improved Metrics For Workplace Dispute Resolution Procedures: Efficiency, Equity, And Voice, John W. Budd, Alexander Colvin

Alexander Colvin

Many debates surround systems for resolving workplace disputes. In the United States, traditional unionized grievance procedures, emerging nonunion dispute resolution systems, and the court-based system for resolving employment law disputes have all been criticized. What is missing from these debates are rich metrics beyond speed and satisfaction for comparing and evaluating dispute resolutions systems. In this paper, we develop efficiency, equity, and voice as these standards. Unionized, nonunion, and employment law procedures are then qualitatively evaluated against these three metrics.

Doping Control, Mandatory Arbitration, And Process Dangers For Accused Athletes In International Sports , Maureen A. Weston

Maureen A Weston

Athletes in a professional sports league in the United States are members of players unions, which assist their athletes in obtaining representation when they are involved in dispute resolution proceedings associated with disciplinary actions. However, individual athletes who participate in international competitions do not enjoy the same benefits. When these athletes are required to submit to mandatory drug testing, with attendant potential criminal liability, and to mandatory arbitration, they should be provided meaningful access to competent legal representation when their athletic careers are in jeopardy. This article considers the legal framework, process, and recourse for athletes in international competition to …

Institutional Pressures, Human Resource Strategies, And The Rise Of Nonunion Dispute Resolution Procedures, Alexander Colvin

Alexander Colvin

The author investigates factors influencing the adoption of dispute resolution procedures in the nonunion workplace. Various explanations are tested using data from a 1998 survey of dispute resolution procedures in the telecommunications industry. The results suggest that both institutional pressures and human resource strategies are factors driving the adoption of nonunion procedures. Among institutional factors, rising individual employment rights litigation and expanded court deferral to nonunion arbitration have led to increased adoption of mandatory arbitration procedures in the nonunion workplace. At the same time, an older institutional factor—union substitution by nonunion employers aimed at avoiding union organizing—continues to inspire the …

Employee Voice, Human Resource Practices, And Quit Rates: Evidence From The Telecommunications Industry, Rosemary Batt, Alexander J.S. Colvin, Jeffrey Keefe

Alexander Colvin

The authors draw on strategic human resource and industrial relations theories to identify the sets of employee voice mechanisms and human resource practices that are likely to predict firm-level quit rates, then empirically evaluate the predictive power of these variables using data from a 1998 establishment level survey in the telecommunications industry. With respect to alternative voice mechanisms, they find that union representation predicts lower quit rates, even after they control for compensation and a wide range of other human resource practices that may be affected by collective bargaining. Also predicting lower quit rates is employee participation in offline problem-solving …

Telecommunications 2004: Business Strategy, Hr Practices, And Performance, Rosemary Batt, Alexander J.S. Colvin, Harry C. Katz, Jeffrey Keefe

Alexander Colvin

This national benchmarking report of the U.S. telecommunications services industry traces the tumultuous changes in management and workforce practices and performance in the sector over the last 5 years. This is a follow-up report to our 1998 study. At that time, when the industry was booming, we conducted a national survey of establishments in the industry. In 2003, we returned to do a second national survey of the industry, this time in a sector that was recovering from one of the worst recessions in its history.

Rethinking Bargaining Unit Determination: Labor Law And The Structure Of Collective Representation In A Changing Workplace, Alexander Colvin

Alexander Colvin

[Excerpt] Arguably the leading issue for current labor law research is whether the existing system of law based on the Wagner Act model can continue to be relevant and appropriate for the contemporary workplace. Changes in the environment of work during the over half-century since this model was developed have brought pressures for re-evaluation and adaptation of key elements of its structure. Criticism of this system has focused on a number of areas, including: the reliance on the formal grievance procedure and arbitration; the separation of the realms of collective bargaining and business decision making; the limitations on employee participation …

From Supreme Court To Shopfloor: Mandatory Arbitration And The Reconfiguration Of Workplace Dispute Resolution, Alexander Colvin

Alexander Colvin

[Excerpt] In a series of court battles during the 1990s, employers successfully defended the use of mandatory employment arbitration against challenges that the procedures inherently undermined the statutory rights of employees. Efforts to introduce legislation in Congress aimed at reversing the Gilmer decision were unsuccessful. In 2001, the Supreme Court reaffirmed its acceptance of mandatory arbitration to resolve employment disputes in Circuit City Stores, Inc. v. Adams. However, some courts have been willing to strike down arbitration procedures that contain particularly egregious violations of due process. For example, courts have refused to enforce arbitration agreements that restrict employee damage awards, …

Let's Put Ourselves Out Of Business: On Respect, Responsibility, And Dialogue In Dispute Resolution, Jonathan R. Cohen

Jonathan R. Cohen

This Essay works in two steps. I want to daydream with you about the future, or what I hope will someday be the future, of our dispute resolution movement. I want to then use these imaginings to reflect upon where we are today. I want to suggest something that may at first seem odd: Our ultimate goal should be to put ourselves, or virtually put ourselves, out of business. Eventually, I hope the time will come when we live in a society where the expert services of dispute resolution professionals, including not only lawyers and judges but also mediators and …

The Culture Of Legal Denial, Jonathan R. Cohen

Jonathan R. Cohen

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 …

When People Are The Means: Negotiating With Respect, Jonathan R. Cohen

Jonathan R. Cohen

Most scholarship on negotiation ethics has focused on the topics of deception and disclosure. In this Article, I argue for considering a related, but distinct, ethical domain within negotiation ethics. That domain is the ethics of orientation. In contrast to most forms of human interaction, a clear purpose of negotiation is to get the other party to take an action on one's behalf, or at least to explore that possibility. This gives rise to a core ethical tension in negotiation that I call the object-subject tension: how does one reconcile the fact that the other party is a potential means …

Legislating Apology: The Pros And Cons, Jonathan R. Cohen

Jonathan R. Cohen

Should apologies be admissible into evidence as proof of fault in civil cases? While this question is a simple one, its potential ramifications are great, and legislative and scholarly interest in the admissibility of apologies has exploded. Shortly after the idea of excluding apologies from admissibility into evidence was raised in academic circles three years ago, it rapidly spread to the policy arena. For example, California and Florida enacted laws in 2000 and 2001 respectively excluding from admissibility apologetic expressions of sympathy ("I'm sorry that you are hurt") but not fault-admitting apologies ("I'm sorrythat I injured you") after accidents. Eight …

Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen

Jonathan R. Cohen

In this Article, I focus on injuries committed by members of organizations, such as corporations, and examine distinct issues raised by apology in the organizational setting. In particular, I consider: (i) the process of learning to prevent future errors; (ii) the divergent interests stemming from principal-agent tensions in employment, risk preferences and sources of insurance; (iii) the non-pecuniary benefits to corporate morale, productivity and reputation; (iv) the standing and scope of apologies; and (v) the articulation of policies toward injuries to others.

The Immorality Of Denial, Jonathan R. Cohen

Jonathan R. Cohen

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 …

Construction Partnering: Can These Protocols Build A Stronger Labor-Management Community?, Jim Stott, Juan Carlos Gonzalez

Pepperdine Dispute Resolution Law Journal

In an expansive marketplace where large organizations in the construction, manufacturing, service and union industries are facing increased global competition, collaborative labor relations are essential to maximizing efficiency and productivity. It is for this reason that developing collaboration between labor and management is highly researched and consulted by academics and professionals throughout the world. Although various models of collaboration have been developed, none have been found to clearly overcome that insidious conflict and paradigm of "Labor vs. Management." The purpose of this paper is to provide academics and consultants (mediators/facilitators) an additional perspective for designing, developing and implementing the best …

Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody

Pepperdine Dispute Resolution Law Journal

As more employers include mandatory arbitration provisions in their employment contracts, policy-makers are becoming concerned that employees are being forced to trade their civil and statutory rights for their jobs. The California Legislature is considering legislation designed to combat this tendency and to provide legal protection for employees who might otherwise be forced to waive the right for redress of grievances, legal protections against discrimination, and other rights. Although the legislation was designed to protect the constitutional rights of employees, there are legal considerations and policy concerns that challenge the viability of this type of legislation. The primary question is …

Judicial Policing Of Consumer Arbitration , Edward A. Dauer

Pepperdine Dispute Resolution Law Journal

Adhesive consumer arbitration agreements pose questions that go beyond the problems of adhesion contracting generally. This essay describes why standard-form consumer arbitration requirements may be particularly troublesome. Despite its superficial neutrality, arbitration between individual consumers and business entities may be systematically more favorable to the business entities. The rules of arbitration law, however, inhibit effective judicial policing of the consequences of those inequalities. The federal sources of arbitration law further diminish the ability of state-based contract law to police the more subtle abuses. The result is a particularly difficult jurisprudential problem with a specially weakened legal solution. This essay offers, …

Medical Malpractice Arbitration In The New Millennium: Much Ado About Nothing ?, Ann H. Nevers

Pepperdine Dispute Resolution Law Journal

This paper reviews the constitutional issues surrounding medical malpractice arbitration clauses and the implementation of arbitration contracts, and the existing medical malpractice process. Federal preemption issues under the Federal Arbitration Act, enterprise liability and ERISA preemption, and cybermalpractice will be discussed. Finally, dispute resolution industry standards implemented by the American Arbitration Association and American Health Lawyers Association will be reviewed as well as current medical malpractice mediation practices in industry. While the past has shown that arbitration has not been used a great deal future trends may increase use. Emerging medical malpractice arbitration issues arising in the new millennium include …

Images Of Justice , Lela P. Love

Pepperdine Dispute Resolution Law Journal

This Essay crystallizes core elements of the major dispute resolution processes: litigation, arbitration and mediation. The purpose is both to clarify essential characteristics of and the role of the neutral in each process and to identify the relation of those characteristics and that role to a conception of "justice." The piece explores whether certain shifts in process characteristics or the neutral's role (for example, arbitration that is not voluntary or a mediator adopting an evaluative orientation) so fundamentally change the particular process as to compromise its relation to a compelling conception of fairness and justice.