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Contents And Masthead, Amy Jicha Jun 2021

Contents And Masthead, Amy Jicha

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Private Juries Within The Arbitration Framework: A Third Path In Dispute Resolution, Lionel M. Schooler, Luke Gilman Jun 2021

Private Juries Within The Arbitration Framework: A Third Path In Dispute Resolution, Lionel M. Schooler, Luke Gilman

Pepperdine Dispute Resolution Law Journal

In the context of a global pandemic and a resulting backlog of jury trials in the United States court system, this article explores the potential for employing a private jury system within existing arbitration law to provide a third path for parties seeking an expedient resolution of disputes by juries when impediments exist to jury trial in court. After an introduction and background on the current state of the global SARS-CoV-2 pandemic and its effect on court backlogs, we outline the law applicable to private jury proceedings, including (a) whether an arbitral award predicated on a private jury determination is …


Who Bears The Cost Of An Emergency: Balancing Billing's Effects On Health Care Providers, And Solutions Through Alternative Dispute Resolution, Hayden Tavoda Jun 2021

Who Bears The Cost Of An Emergency: Balancing Billing's Effects On Health Care Providers, And Solutions Through Alternative Dispute Resolution, Hayden Tavoda

Pepperdine Dispute Resolution Law Journal

Arbitration, as well as other forms of alternative dispute resolution, provide many benefits for all parties when a dispute arises, such as faster results and less expense and time than litigation, and the potential for more qualified finders of fact on a specific topic rather than a jury of peers. In the following case note, Part II will focus on the background of different types of health insurance carriers in the United States, the Knox-Keene Act, and the California Assembly Bill 1611.20 Part III will discuss more specifically the issues that stem from balance billing through explicit cases. Part IV …


Legal Lying?, Robert Angyal, Nicholas Saady Jun 2021

Legal Lying?, Robert Angyal, Nicholas Saady

Pepperdine Dispute Resolution Law Journal

Mediation has become very common in the USA and Australia—at least partly because of court-mandated mediation initiatives. Lawyers often represent clients at mediations, so the increased use of mediation makes it important to understand how both jurisdictions regulate lawyers’ advocacy on behalf of their clients during mediation. This article comparatively analyzes how professional standards regulate the truthfulness of lawyers’ advocacy during mediation in Australia and the United States. It focuses on uniform regulation in those jurisdictions. Part One will comparatively analyze the relevant regulations in Australia and the United States, and the types of obligations contained in those regulations—for example, …


Arbitration With Government, Jack I. Garvey Jun 2021

Arbitration With Government, Jack I. Garvey

Pepperdine Dispute Resolution Law Journal

Arbitration is today increasingly dominant in the affairs of government. As a principal means of alternative dispute resolution, the utility of arbitration has brought it far beyond the confines of private law. The expanding role of arbitration is now broadly evident in agreements with governments and governmental entities at state and federal levels, and in international agreements involving governments. The question this poses for the lawyer working for government, or private parties contractually bound to arbitrate with government, is whether the adoption of arbitration for disputes involving government constitutes a fundamental shift of dynamics requiring a strategic shift in perspective …


Contents And Masthead, Amy Jicha Apr 2021

Contents And Masthead, Amy Jicha

Pepperdine Dispute Resolution Law Journal

No abstract provided.


The Legal Boundaries For Impartiality Of Idea Hearing Officers: An Update, Perry A. Zirkel Apr 2021

The Legal Boundaries For Impartiality Of Idea Hearing Officers: An Update, Perry A. Zirkel

Pepperdine Dispute Resolution Law Journal

Special education has become a significant area of litigation in the K-12 school context. The impartial hearing officer (“IHO”) is the fulcrum of the adjudicative process under the Individuals with Disabilities Act (“IDEA”). However, the IDEA only provides for two standards for impartiality while the framework of remaining standards are left—via the IDEA’s structure of “cooperative federalism”—to state laws. Ultimately, the courts serve as the chief cartographer for the legal boundaries of IDEA IHO impartiality in their interpretation, gap-filling, and application of the federal and state framework. The previous research relating at least in part to IDEA IHO impartiality is …


The Faux Pas Of Automatic Stay Under The Indian Arbitration Act, 1996 - The Hcc Dictum, Two-Cherry Doctrine, And Beyond, Sai Ramani Garimella, Gautam Mohanty Apr 2021

The Faux Pas Of Automatic Stay Under The Indian Arbitration Act, 1996 - The Hcc Dictum, Two-Cherry Doctrine, And Beyond, Sai Ramani Garimella, Gautam Mohanty

Pepperdine Dispute Resolution Law Journal

In the matter of Hindustan Construction. Co. v. Union of India, the Honorable Supreme Court of India (“SCI”) was presented with an opportunity to adjudicate upon a petition challenging the constitutional validity of Section 87 of the Arbitration and Conciliation Act of 1996 (“1996 Act”) as inserted by Section 13 of the Arbitration and Conciliation (Amendment) Act of 2019 (“2019 Act"). The legislative insertion stated that amendments made to the 1996 Act by the Arbitration and Conciliation Act of 2015 (“2015 Act”) would not apply to court proceedings arising out of, or in relation to, arbitral proceedings initiated before the …


Employment Arbitration Agreements: The Case For Ethical Standards For Dispute Resolution System Designers, Michael L. Russell Apr 2021

Employment Arbitration Agreements: The Case For Ethical Standards For Dispute Resolution System Designers, Michael L. Russell

Pepperdine Dispute Resolution Law Journal

Dispute resolution design is an emerging field, both academically and professionally. Attorneys, mediators, and arbitrators, the other roles in the alternative dispute resolution process, have codes of ethics which guide their conduct. Dispute resolution designers, however, have no such guidelines. This article uses the example of mandatory arbitration agreements in the employment context to illustrate why this lack of ethical guidelines for dispute resolutions designers is problematic. In recent years, mandatory arbitration agreements significantly impacted employment law and litigation. The two most problematic provisions that often appear in mandatory arbitration agreements in the workplace context are cost sharing provisions and …


When Accessing Justice Requires Absence From The Courthouse: Utah’S Online Dispute Resolution Program And The Impact It Will Have On Pro Se Litigants, Julianne Dardanes Apr 2021

When Accessing Justice Requires Absence From The Courthouse: Utah’S Online Dispute Resolution Program And The Impact It Will Have On Pro Se Litigants, Julianne Dardanes

Pepperdine Dispute Resolution Law Journal

According to the 2017 Justice Gap Report conducted by Congress’s non-profit Legal Services Corporation (LSC), eighty-six percent of civil legal issues involving low-income Americans received scant or no legal assistance. The number of unrepresented (“pro se”) litigants continues to rise, with low-income Americans constituting a significant portion of this population. Due to the inefficiency of socioeconomically challenged litigants appearing pro se, this article proposes implementing Utah’s court-mandated Online Dispute Resolution (ODR) program as a solution nation-wide. Utah’s ODR program for small claims is revolutionary because it is the first ODR system able to handle an entire dispute instead of only …


Taking A Shot At Mediation Is The Solution To Nba Player-Trade Demands, Jemuel Gascon Apr 2021

Taking A Shot At Mediation Is The Solution To Nba Player-Trade Demands, Jemuel Gascon

Pepperdine Dispute Resolution Law Journal

This article proposes that the upcoming CBA in 2024 should include an initial mediation process for voluntarily resolving trade demands. Part two of this article looks at the background of player-trade demands; it looks at past demands in both the NBA and other sports.37 It also explores the pros and cons about player-trade demands and how they affect the NBA.38 Part three of this article proposes that the use of mediation can tame trade demands’ negative side effects and explores the proposition of including a voluntary mediation clause for trade demands on the next CBA negotiations.39 Part four will raise …


Level The Playing Field: Advocating For The Removal Of Major League Baseball’S Prohibition On The Admissibility Of Statcast-Generated Sabermetrics As Evidence In Salary Arbitration Hearings, Christian Podest Apr 2021

Level The Playing Field: Advocating For The Removal Of Major League Baseball’S Prohibition On The Admissibility Of Statcast-Generated Sabermetrics As Evidence In Salary Arbitration Hearings, Christian Podest

Pepperdine Dispute Resolution Law Journal

This paper argues that Major League Baseball should amend its Collective Bargaining Agreement (CBA) to remove the outright ban on certain types of statistical evidence to help prove a player’s value. First, the paper briefly describes the history of the compensation system in the MLB and its evolution. Then, it details how final offer arbitration became the default mechanism for resolving compensation disputes between teams and players. The paper subsequently focuses on the Collective Bargaining Agreement’s carve-out of statistical evidence and notes the similarities and differences between Major League Baseball’s evidentiary standards governing salary arbitration hearings and the Federal Rules …


The “Fundies” Of Adr In The Nhl, Niko Tsiouvaras Apr 2021

The “Fundies” Of Adr In The Nhl, Niko Tsiouvaras

Pepperdine Dispute Resolution Law Journal

This note seeks to provide to an overview of how the fundamentals (or “fundies” in hockey circles) of ADR can be applied to the NHL’s most pressing issues. It will analyze two areas specifically: the overall CBA negotiations in the big picture and the RFA system in a narrower view. Part II will provide context of the events leading up to the current NHL landscape. It will outline the history of NHL–NHLPA relations, describe the main issues influencing the upcoming CBA negotiations, and explain the workings of the RFA system. Part III will then present and discuss proposed solutions to …


In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor Apr 2021

In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Pepperdine Dispute Resolution Law Journal Contents & Masthead, Savannah Billingham-Hemminger Oct 2020

Pepperdine Dispute Resolution Law Journal Contents & Masthead, Savannah Billingham-Hemminger

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Interpretation Of Pathological Arbitration Agreements: Non-Existing And Inaccessible Elements, Morten Frank Oct 2020

Interpretation Of Pathological Arbitration Agreements: Non-Existing And Inaccessible Elements, Morten Frank

Pepperdine Dispute Resolution Law Journal

In the following, I will initially present the terminological and analytical framework for handling pathological arbitration agreements (Part II). Against this background, I will analyze case law from USA (Part III), Singapore and Hong Kong (Part IV), and England (Part V) in order to establish under which circumstances Solution 1, Solution 2 and Solution 3 apply in respect of arbitration agreements containing non-existing and inaccessible elements. Finally, Part VI considers an adjoining—although fundamentally different—interpretation situation across jurisdictions. Part VII provides a summary as well as concluding remarks on the drafting of arbitration agreements.


The Use Of Alternative Dispute Resolution To Reduce The Perception Of Partiality In The Courts, In Order To Encourage International Entrepreneurship In Countries With National Ownership Requirements, Daniela Romagnoli Oct 2020

The Use Of Alternative Dispute Resolution To Reduce The Perception Of Partiality In The Courts, In Order To Encourage International Entrepreneurship In Countries With National Ownership Requirements, Daniela Romagnoli

Pepperdine Dispute Resolution Law Journal

Countries that require international entrepreneurs to have a national partner (national ownership requirements (NOR)) in order to open up a new venture within their borders, run the risk of becoming less desirable to do business in. One reason for this is that some investors and international entrepreneurs may be wary of possible conflict being solved in a court system that shows a positive bias towards its citizens. This paper looks at the experiences of five international entrepreneurs involved in small and medium-size enterprises (SMEs) in Kenya and explores how their experiences have become a warning to others who see potential …


An Empirical Study Of Reforming Commercial Arbitration In China, Mimi Zou Oct 2020

An Empirical Study Of Reforming Commercial Arbitration In China, Mimi Zou

Pepperdine Dispute Resolution Law Journal

This paper examines recent reforms to the regulatory and institutional framework of commercial arbitration in China, based on an empirical study conducted between 2018 and 2019 of semi-structured interviews with over 80 actors, including Chinese lawmakers and policymakers, judges, arbitration institutions, legal practitioners, academic researchers, and companies and users of arbitration. The author has also consulted a variety of primary materials including publicized laws, regulations and policies, official reports, data and statistics, and internal guidelines and policy documents of the various actors that were interviewed for this study.


Statements Of The Arbitration Decision According To Jordanian Law And French Law “A Comparative Study”, Noor Issa Al-Hendi Oct 2020

Statements Of The Arbitration Decision According To Jordanian Law And French Law “A Comparative Study”, Noor Issa Al-Hendi

Pepperdine Dispute Resolution Law Journal

This study deals with the statements of the arbitration decision in a comparative study between the Jordanian arbitration law and the French Procedures law, by revising the legal texts related to specific statements required in the arbitration decision, according to each of them. This study also clarifies the implications of the omissions of these statements n in the arbitration decision.


Global Dispute Resolution Conference: Reflections, Trends, And Continued Development, Alexine Carr, Sukhsimranjit Singh Oct 2020

Global Dispute Resolution Conference: Reflections, Trends, And Continued Development, Alexine Carr, Sukhsimranjit Singh

Pepperdine Dispute Resolution Law Journal

The Global Dispute Resolution Conference brought together scholars, students, attorneys, and professionals from across the country. Co-hosted by Pepperdine’s Straus Institute for Dispute Resolution and Prince Mohammad Bin Fahd University, the event drew perspectives from a wide range of cultures, areas of ADR, and career experiences. Grouped into two full days with distinct focuses, the conference covered topics from commercial ADR to the significance of history, culture, and faith. To open the discussion, Professor Muamar Salameh of PMU spoke to the audience on the importance of accepting the global differences in legal systems within international dispute resolution. His remarks were …


Pepperdine Dispute Resolution Law Journal Contents & Masthead, Savannah Billingham-Hemminger Jul 2020

Pepperdine Dispute Resolution Law Journal Contents & Masthead, Savannah Billingham-Hemminger

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Jewish Law Perspectives On Judicial Settlement Practice, Shlomo Pill Jul 2020

Jewish Law Perspectives On Judicial Settlement Practice, Shlomo Pill

Pepperdine Dispute Resolution Law Journal

The classic adjudicatory paradigm of opposing attorneys facing off at trial before a judge and jury in order to receive a favorable judgment is an image long past. Increased litigation volume, and the added time and expense of modern litigation has resulted in a rich practice of judges working to broker settlements between litigants in lieu of formal adjudication. Judicial settlement is the subject of much debate, however, and the diverse range of judicial practice in this area reflects the institutional, ethical, and jurisprudential uncertainties we still have regarding the propriety of judges facilitating settlements. This paper offers a new …


Blending Scripture And The Law: The Lack Of Christian Law And The Dangers It Presents In Christian Arbitration, Emily Holland Jul 2020

Blending Scripture And The Law: The Lack Of Christian Law And The Dangers It Presents In Christian Arbitration, Emily Holland

Pepperdine Dispute Resolution Law Journal

This paper will examine the ways in which a lack of an established substantive law within the Christian faith tradition affects the Christian arbitration process and explore the possible means to address these issues. It will outline the history and functions of Christian tribunals, highlighting the unique space within the justice system that these special tribunals fill. Next, it will discuss the differences between the application of law in tribunals of other religious faith traditions and the application of law in Christian arbitration. This paper will demonstrate how a lack of concrete and applicable law creates issues in the enforceability …


California: A New Golden Hub Of International Commercial Arbitration?, Tiffany Luu Jul 2020

California: A New Golden Hub Of International Commercial Arbitration?, Tiffany Luu

Pepperdine Dispute Resolution Law Journal

This article will explore 2018 SB 766’s impact on International Commercial Arbitration (ICA) within California and will propose initiatives to help California ascend in the list as a preferred seat of ICA. Part II provides the background context of ICA and its use in California. Part III explores the benefits of increasing the use of ICAs seated in California. Part IV suggests ways lawyers and the legal arbitration community can assist in making California a more attractive seat of ICA among international and domestic jurisdictions. Finally, Part V concludes by describing the effect that SB 766 and proposed initiatives will …


Negotiation: Women’S Voices, Morial Shah Jul 2020

Negotiation: Women’S Voices, Morial Shah

Pepperdine Dispute Resolution Law Journal

Gender shapes the way we communicate. Using legal theory, case studies and intercultural analysis, this paper explores the way women’s self-identity interacts with negotiation processes and outcomes. Part I examines social, psychological, cultural and political factors shaping women’s identity, voice and participation in negotiations. Part II explores the way women’s view of themselves impacts their participation in negotiations. Lastly, Part III studies the impact of formal training on gender-based differences in negotiations. Through investigating gender’s impact on negotiations, this paper finds that gender and context interact with negotiation process and outcomes. Through gaining more insight on gender’s context-specific impact, negotiators …


Resolving Disputes Before They Decant: An Alternative Dispute Resolution System For Growers And Wine Producers, Savannah Billingham-Hemminger Jul 2020

Resolving Disputes Before They Decant: An Alternative Dispute Resolution System For Growers And Wine Producers, Savannah Billingham-Hemminger

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Pepperdine Dispute Resolution Law Journal Contents & Masthead, Savannah Billingham-Hemminger Apr 2020

Pepperdine Dispute Resolution Law Journal Contents & Masthead, Savannah Billingham-Hemminger

Pepperdine Dispute Resolution Law Journal

No abstract provided.


In God We Trust (Unless We Change Our Mind): How State Of Mind Relates To Religious Arbitration, Skylar Reese Croy Apr 2020

In God We Trust (Unless We Change Our Mind): How State Of Mind Relates To Religious Arbitration, Skylar Reese Croy

Pepperdine Dispute Resolution Law Journal

Arguably, binding religious arbitration agreements are constitutionally problematic because they hinder freedom of religion: They inhibit parties’ ability to change their beliefs. However, religious arbitration agreements also offer an outlet for the religiously inclined to further practice their beliefs. This Article offers a middle ground: If a party to a religious arbitration agreement changes religion, he or she can claim a “conscientious objector” status if he or she can prove the agreement violates his or her sincerely held religious beliefs. Courts are allowed to inquire into the sincerity of a person’s religious beliefs. The religious question doctrine — which restricts …


Mediation In Education For Foster Care, Anelise Powers Apr 2020

Mediation In Education For Foster Care, Anelise Powers

Pepperdine Dispute Resolution Law Journal

There are well over 400,000 children in foster care. Education can improve the well-being of foster children in critical development stages of life and support their economic success in adulthood. In recent years, the law has given greater priority to the education of foster children, and foster children are often eligible for additional services. However, a common trend in foster care research is that foster children, though eligible, do not always receive the services created to assist them. This paper will explore how improving mediation related to education and foster care can help maximize the impact of efforts to improve …


Compelling Parties To Mediate Investor-State Disputes: No Pressure, No Diamonds?, James M. Claxton Apr 2020

Compelling Parties To Mediate Investor-State Disputes: No Pressure, No Diamonds?, James M. Claxton

Pepperdine Dispute Resolution Law Journal

There was nothing preordained about arbitration becoming shorthand for investor-state dispute settlement. The ICSID system was built on the assumption that disputing parties would choose conciliation to settle their disputes. Those expectations went unrealized as arbitration rose to prominence, and since that time institutions, parties, and academics have observed that facilitated negotiation could play a greater role in resolving investor-state disputes. A number of domestic court systems have made mediation part of the fabric of dispute resolution through incentives and compulsions to mediate. Drawing on this experience, this manuscript considers how obstacles to the uptake of investor-state mediation might be …