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Full-Text Articles in Law
An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster
An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster
Journal of Dispute Resolution
This study examines a legal experiment that occurred during the height of the global financial crisis. As markets from the United States to Europe to the Global South shook, one country – the United Arab Emirates (U.A.E.) – found itself on the brink of economic collapse. In particular, in 2009 the U.A.E.’s Emirate of Dubai (Emirate) was contemplating defaulting on $60 billion of debt it had amassed. Recognizing that such a default would have cataclysmic reverberations across the globe, Dubai’s governmental leaders turned to a small group of foreign lawyers, judges, accountants, and business consultants for assistance. Working in a …
Introduction: Judicial Education, Dispute Resolution, And The Life Of A Judge: A Conversation With Judge Jeremy Fogel, Director Of The Federal Judicial Center, Jeremy Fogel Hon., S. I. Strong
Introduction: Judicial Education, Dispute Resolution, And The Life Of A Judge: A Conversation With Judge Jeremy Fogel, Director Of The Federal Judicial Center, Jeremy Fogel Hon., S. I. Strong
Journal of Dispute Resolution
In January and June 2016, Judge Jeremy Fogel, Director of the Federal Judicial Center, sat down with Professor S.I. Strong to discuss a variety of issues ranging from the civil rules amendments and the case management process to judicial education, mediation and the role of the Federal Judicial Center. Judge Fogel also gave his views on what lawyers, academics and the public need to know about the federal judiciary and the task of judging, thereby providing important and unique insights into the judicial process.
Dispute Resolution Tools In Patent Infringement Cases: Aoki V. Gilbert, No. 2:11-Cv02787-Tln-Cnd, 2015 Wl 5734626 (E.D. Cal. 2015), Brandon Craig
Dispute Resolution Tools In Patent Infringement Cases: Aoki V. Gilbert, No. 2:11-Cv02787-Tln-Cnd, 2015 Wl 5734626 (E.D. Cal. 2015), Brandon Craig
Journal of Dispute Resolution
While arbitration has become a widely accepted alternative to litigation, the role it should play in patent disputes has been widely debated. Issued by the federal government, patents confer a temporary monopoly on the production, use, and sale of new innovations. The government may have an interest in keeping such disputes out of the private realm of arbitration, at least when the dispute is over the validity of the patent. For other patent issues such as licensing, which is essentially a private contract, arbitration may serve as a useful and cost-effective alternative. Even when arbitration is not warranted, other useful …
The Idea And The Use Of Mediation And Collaborative Dispute Resolution In Due Process Disputes, Katherine Mcmurtrey
The Idea And The Use Of Mediation And Collaborative Dispute Resolution In Due Process Disputes, Katherine Mcmurtrey
Journal of Dispute Resolution
This Comment discusses the future of alternative dispute resolution in special education conflicts by first examining a brief history of the IDEA and the areas it covers. Due process complaints under the IDEA and mediation as a solution to due process complaints will then be addressed. Then, it will focus on mediation and its impact on parents and schools, particularly the advantages and disadvantages of mediation, and the presence of attorneys in mediation. Finally, it will look towards collaborative law, when two attorneys and their clients collaborate to reach an agreement, and the future of collaborative dispute resolution in the …
A User's Guide To Easier Flood Insurance: A Look Into The History Of Flood Insurance Claims Dispute Processing And Suggestions For Improvement, Courtney Lauer
A User's Guide To Easier Flood Insurance: A Look Into The History Of Flood Insurance Claims Dispute Processing And Suggestions For Improvement, Courtney Lauer
Journal of Dispute Resolution
In 2012, Superstorm Sandy alone produced 144,484 claims for federal flood insurance coverage under the National Flood Insurance Program (NFIP). The NFIP was created under the National Flood Insurance Act of 1968, and was designed to limit the impact of flooding on both private and public structures. The NFIP’s self-stated goal was to decrease the socioeconomic effects of natural disasters by encouraging the purchase of flood insurance and general risk insurance.
Dispute Resolution, Insurance, And Points Of Convergence, Robert H. Jerry Ii
Dispute Resolution, Insurance, And Points Of Convergence, Robert H. Jerry Ii
Journal of Dispute Resolution
This essay explores the intersection of dispute resolution and insurance. I come to the intersection from the perspective of insurance law, where statutes, administrative rules, and common law regulate the industry and the policyholder-insurer relationship. At its core, the business of insurance offers individuals, businesses, and other kinds of organizations a risk management alternative which enables them to acquire some measure of control over an uncertain future. But when a loss occurs, the business of insurance becomes the business of claims processing and, when disagreements arise, dispute resolution. Surprisingly, the academic study of insurance law has not borrowed heavily from …
“Throwing The Baby Out With The Bathwater”: Parenting Coordination And Pennsylvania’S Decisions To Eliminate Its Use, Sophie B. Mashburn
“Throwing The Baby Out With The Bathwater”: Parenting Coordination And Pennsylvania’S Decisions To Eliminate Its Use, Sophie B. Mashburn
Journal of Dispute Resolution
Parenting coordination is a relatively new ADR practice utilized by courts to assist in resolving high conflict divorce cases. Though considered controversial by some, it can also serve as an effective tool for divorced parents who struggle with regular co-parenting decisions. Parenting coordination is defined as: A child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s needs, and with prior approval of the parties and/or court, making …
Opening Remarks, October 4, 2013 Symposium: Resolving Ip Disputes: Calling For An Alternative Paradigm, James Levin
Opening Remarks, October 4, 2013 Symposium: Resolving Ip Disputes: Calling For An Alternative Paradigm, James Levin
Journal of Dispute Resolution
Today, 225 years after the Constitution was drafted, we can look back and see how the protection of individual property through our patent system has helped our country grow. In 2012 alone, there were more than 576,763 U.S. patents applications filed and 276,788 patents issued. These numbers don't include the tens of thousands of patents that were bought, sold, and licensed in the private market each year. Not surprisingly, an ever-increasing number of patents are challenged through litigation. In 2012, almost 5000 patent infringement cases were filed. Litigation expenses can easily cost each party in a dispute millions of dollars, …
Convergence And Divergence In International Dispute Resolution Symposium, Peter Rutledge
Convergence And Divergence In International Dispute Resolution Symposium, Peter Rutledge
Journal of Dispute Resolution
This symposium submission draws heavily on law and economic literature to develop its thesis. Part I lays out the literature behind the parties' choice to opt for arbitration. It also builds upon that literature by attempting to sketch out some preliminary reasons why parties might opt for arbitration over another form of dispute resolution. Part II charts how, along various axes, arbitration has begun to converge with litigation - thereby depriving it of a comparative advantage that it once enjoyed - due to innovations in arbitration and innovations in the field of international civil litigation. In brief, the traditional advantages …
Effect Of Shari'a On The Dispute Resolution Process Set Forth In The Washington Convention, The, Andrew Smolik
Effect Of Shari'a On The Dispute Resolution Process Set Forth In The Washington Convention, The, Andrew Smolik
Journal of Dispute Resolution
This article will provide an overview of Shari'a law with respect to arbitration. Section I provides an overview of principles of Shari'a and its development. Section II discusses Islamic jurisprudence and the different schools of Islamic jurisprudence. Section III provides a discussion of the different schools of Islamic jurisprudence. Section IV provides a history of arbitration in the Middle East from the period before Muhammad to today. Section V gives a brief overview of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Sections VI and VI discuss issues regarding choice of …
Colliding Worlds Of Dispute Resolution: Towards A Unified Field Theory Of Adr, David A. Hoffman
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 …
Returning To The Circle: The Reemergence Of Traditional Dispute Resolution In Native American Communities, Jessica Metoui
Returning To The Circle: The Reemergence Of Traditional Dispute Resolution In Native American Communities, Jessica Metoui
Journal of Dispute Resolution
An examination of Native American cultural definitions of justice illustrates the cultural relevance of traditional dispute resolution processes. Because these alternative processes focus largely on community inclusion and the importance of party healing after a crime, concepts central to Native American worldview, traditional dispute resolution is superior to the mainstream adversarial court system for handling many criminal matters in the Native American context. The successes of traditional dispute resolution processes in Native American communities are also evidence of the potential cross cultural applications of such processes within the mainstream criminal justice system
Social Conflict: Some Basic Principles, Dean G. Pruitt
Social Conflict: Some Basic Principles, Dean G. Pruitt
Journal of Dispute Resolution
The term "conflict" has two generally accepted meanings.' The first refers to overt conflict-an argument, fight, or struggle. The second refers to subjective conflict-Party's perception that Party and Other have opposing beliefs or interests, or that Other has deprived or annoyed Party in some way. The latter concept is richer for theory building than the former, in that there are several strategies Party can employ in reaction to subjective conflict. Party can take a contentious approach and retaliate, or Party can try to impose its will on Other by means of an argument, demand, or threat. This strategy is very …
After Basic Mindfulness Mediation: External Mindfulness, Emotional Truthfulness, And Lie Detection In Dispute Resolution, Clark Freshman
After Basic Mindfulness Mediation: External Mindfulness, Emotional Truthfulness, And Lie Detection In Dispute Resolution, Clark Freshman
Journal of Dispute Resolution
Some years ago, our mutual friend, Carrie Menkel-Meadow, suggested Len Riskin and I talk about our shared interest in mindfulness meditation and negotiation. At the time, I had students sit quietly, eyes closed, get in touch with what was going on before a negotiation, write it out, and then crumple up the paper. It was a primitive form of meditation and journaling and, as I look back through research, not a very sound theoretical or empirically-supported way to help.' Eventually, mindfulness meditation and practices helped move me from my very primitive attempts at mindfulness to a very rich practice that …
Working With Len, James E. Westbrook
Working With Len, James E. Westbrook
Journal of Dispute Resolution
Len Riskin joined the MU faculty in 1984. Our faculty had voted in response to a recommendation of Dean Dale Whitman to begin a new emphasis on alternative dispute resolution. My recollection is that we had a group of very capable teachers with a traditional bent. On the other hand, they had an open mind about trying something new and they got along with each other very well. The kind of faculty we had and the leadership provided by Len, Dale Whitman and a few faculty members such as Tim Heinsz enabled us to do something that surprised a lot …
Not Quite A World Without Trials: Why International Dispute Resolution Is Increasingly Judicialized, Andrea Kupfer Schneider
Not Quite A World Without Trials: Why International Dispute Resolution Is Increasingly Judicialized, Andrea Kupfer Schneider
Journal of Dispute Resolution
The focus of this brief essay is to first outline some of the factors leading to increasing judicialization on the international level where public disputes (disputes between countries) are increasingly resolved by a neutral third party. In some cases, this increased judicialization includes arbitration (which we might put under the category of ADR in the U.S.). However, the use of arbitration at the international level is not ADR as we would define it in the U.S., since the important element at the international level is that the decision-making power is handed over to a third party-whether we call that a …
Worlds In A Small Room, Christopher Honeyman
Worlds In A Small Room, Christopher Honeyman
Journal of Dispute Resolution
In the lead article of this symposium, Marc Galanter points out that steeply declining trial rates hold true across a variety of trial genres, including state and federal courts, criminal and civil matters, and even federal administrative agencies' own trial equivalents. This brief essay will explore a new setting in which to examine Galanter's thesis.
Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Melody Richardson Daily, Chris Guthrie, Leonard L. Riskin
Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Melody Richardson Daily, Chris Guthrie, Leonard L. Riskin
Journal of Dispute Resolution
One of the primary goals of the Center for the Study of Dispute Resolution (CSDR) at the University of Missouri-Columbia School of Law has been to develop innovative and alternative teaching models that prepare law students to be better, more responsive lawyers and to broaden the philosophical maps (or mental models or mind sets) with which they approach their work
Understanding Settlement In Damages (And Beyond), Chris Guthrie
Understanding Settlement In Damages (And Beyond), Chris Guthrie
Journal of Dispute Resolution
The purpose of this article is to introduce these academic accounts of settlement and to consider whether they provide insight into the settlement of the Sabias' litigation against Humes and Norwalk. I believe these accounts are largely complementary rather than competing, so my own view is that each sheds some light on litigation and settlement behavior in most civil cases (including the Sabia case).
Insurance Aspects Of Damages, The, Douglas R. Richmond, Robert H. Jerry Ii
Insurance Aspects Of Damages, The, Douglas R. Richmond, Robert H. Jerry Ii
Journal of Dispute Resolution
"[I]t is difficult ... to imagine an event or transaction that does not involve insurance in some way."' So it is with the most salient event in the lives of Tony and Donna Sabia, whose son Tony John Sabia, or "Little Tony," was born with profound disabilities. In the final analysis, the ability of Tony and Donna to pay for the future medical care and living expenses needed by their son depends on whether they can reach the liability insurance coverage possessed by the health care providers who attended Donna and Little Tony at the time of his birth. It …
Evaluation Dispute Resolution Under Uncertainty: An Empirical Look At Bayes' Theorem And The Expected Value Of Perfect Information, Gregory Todd Jones, Douglas H. Yarn
Evaluation Dispute Resolution Under Uncertainty: An Empirical Look At Bayes' Theorem And The Expected Value Of Perfect Information, Gregory Todd Jones, Douglas H. Yarn
Journal of Dispute Resolution
To begin, we review a standard model of litigation decision-making in Section I and propose an extension of this model to include ex post evaluative dispute resolution in Section II. Next, in Section III, we review the analytical concept of the expected value of perfect information as a means of placing a theoretical rational maximum on the value of the information provided by evaluative dispute resolution processes. In Section IV, we review Bayes' theorem and propose this as a rational benchmark for the integration of new information with previously existing subjective probabilities. In Section V, we offer a formal statement …
Taking Dispute Resolution Theory Seriously At Home And Abroad: Prospects And Limitations, Bryant G. Garth
Taking Dispute Resolution Theory Seriously At Home And Abroad: Prospects And Limitations, Bryant G. Garth
Journal of Dispute Resolution
Carrie Menkel-Meadow's splendid discussion of dispute resolution theory operates at several levels.' One level involves a questioning of the international applicability of U.S. dispute resolution theory. She shows that our theory is in many respects parochial-not necessarily capable of explaining or even contributing to shaping dispute resolution behavior outside the United States. For the theory to make any claim to universality, she suggests, it must take into account very different settings and perhaps even develop counter models applicable to some places but not others. A more context sensitive theory, she argues, can move us beyond concepts and approaches uncritically derived …
Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham
Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham
Journal of Dispute Resolution
In this commentary, I suggest that we can get a broader picture of the research agenda to address these policy issues by refining our notions of self-determination. In addition to self-determination over process and outcome in the individual case, we need to start examining who has control over design of the dispute system as a whole. First, this commentary addresses the difference between self-determination at the case level and self-determination in dispute system design and how these two separate dimensions of self-determination can help us distinguish among different uses of mediation and arbitration. Second, using this framework, I attempt to …
Enforceability Of An Agreement To Submit To A Non-Arbitral Form Of Dispute Resolution: The Rise Of Mediation And Neutral Fact-Finding - Annapolis Professional Firefighters Local 1926 V. City Of Annapolis, The, Tim K. Klintworth
Journal of Dispute Resolution
Agreements between employers and unions frequently specify a form of alternate dispute resolution to be utilized in the event of a future dispute. Annapolis addresses the issue of the enforceability of a written agreement to submit future disputes to some form of non-arbitral resolution such as mediation or neutral-fact finding.
Reevaluating The Nursing Home Ombudsman's Role With A View Toward Expanding The Concept Of Dispute Resolution, Jeffrey S. Kahana
Reevaluating The Nursing Home Ombudsman's Role With A View Toward Expanding The Concept Of Dispute Resolution, Jeffrey S. Kahana
Journal of Dispute Resolution
The aim of this Article is to examine the function of the ombudsman in the context of long-term health care facilities.6 The first part of the Article will consider the broader history and purposes of the office of the ombudsman. The second part will focus on the traditional methods used to ensure quality of care in the nursing home. The third part will examine the specific role played by the ombudsman in the ecological context of the nursing home. Finally, the fourth part will consider the effectiveness of the nursing home ombudsman as an alternative form of dispute resolution. In …
Congress, The Executive Brand And The Dispute Resolution Process, Charles E. Grassley, Charles Pou Jr.
Congress, The Executive Brand And The Dispute Resolution Process, Charles E. Grassley, Charles Pou Jr.
Journal of Dispute Resolution
This rapid, recent expansion in administrative proceedings and related litigation is not, of course, a unique or isolated phenomenon. It is part of a greatly increased reliance on our judiciary to decide all manner of social, political, and economic issues. Much of this litigation may be an inexorable result of complicated social and economic interactions, heightened resort to regulatory schemes to deal with environmental, health and safety, civil rights and welfare concerns, and other historical factors. However, the point has been reached where much of it is unnecessary, unproductive, and less than ideally suited for many of the conflicts involved. …
Comsumer Dispute Resolution In Missouri: Missouri's Need For A True Consumer Ombudsman
Comsumer Dispute Resolution In Missouri: Missouri's Need For A True Consumer Ombudsman
Journal of Dispute Resolution
The purpose of this Article is to explore the practicality of such a "modest proposal." In determining whether Missouri really needs a consumer ombudsman, the first order of business must be to comprehend how consumer protection developed in Missouri. Once established, this framework sheds lights upon how complaints are processed and what remedies are available to Missouri consumers. Only after we know the extent of the typical consumer's helplessness can we start to appreciate the need for an alternative dispute resolution device in Missouri. Finally, this article concludes by proposing a viable solution to Missouri's consumer crisis-the Consumer Ombudsman.
Out With The Old, In With The New: The Mini-Trial Is The New Wave In Resolving International Disputes, Mark D. Calvert
Out With The Old, In With The New: The Mini-Trial Is The New Wave In Resolving International Disputes, Mark D. Calvert
Journal of Dispute Resolution
Historically, merchants used arbitration to settle commercial disputes among themselves.1 However, the early American courts viewed arbitration unfavorably, often refusing to acknowledge its validity. 2 During the 1970's, however, the courts' attitude toward arbitration shifted. The United States Supreme Court decision, The Breman v. Zapata Off-Shore Co.,3 ushered in an era of growing acceptance toward arbitration agreements. The change in the Court's attitude has allowed businesses to provide for arbitration agreements in their contracts without fearing that their desire to avoid litigation would be thwarted
Book Review , Timothy J. Heinsz
Book Review , Timothy J. Heinsz
Journal of Dispute Resolution
As the use of arbitration as a dispute resolution mechanism continues to increase not only in the area of labor relations but also in other fields as well, the authority of arbitrators to issue remedies has likewise become a more important topic. The breadth of this power was established early on in labor-management arbitrations in the Steelworkers Trilogy.1 There the Supreme Court concluded that by entering into an arbitration agreement, a company and union could commission the arbitrator to bring an informed judgment to bear in reaching a fair resolution. The Court stated: "This is especially true when it comes …
How Existing Procedures Shape Alternatives: The Case Of Grievance Mediation, Deborah M. Kolb
How Existing Procedures Shape Alternatives: The Case Of Grievance Mediation, Deborah M. Kolb
Journal of Dispute Resolution
Mediation is one of the oldest and most ubiquitous forms of conflict resolution in American society and throughout the world. Traditionally a prominent adjunct to labor and international negotiation, mediation is now used in divorce, family, civil, consumer, commercial and employee relations, environmental planning and siting, and the development of governmental procedures and regulations.' As mediation has penetrated into these new areas of social life, curiosity about the practice of mediation, that is, what mediators actually do to bring about settlement, has increased.