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Full-Text Articles in Law

Escaping The Courthouse: Private Alternative Dispute Resolution In Los Angeles , Elizabeth Rolph, Erik Moller, Laura Petersen Jul 1996

Escaping The Courthouse: Private Alternative Dispute Resolution In Los Angeles , Elizabeth Rolph, Erik Moller, Laura Petersen

Journal of Dispute Resolution

Formal dispute resolution, long thought to be the province of the state, seems to have piqued the interest of the private sector in recent years as a possible sphere of activity. In settings where courts are clogged and criminal cases are forcing civil cases off the calendar, where public juries are perceived as "out of control," and where many individuals are disillusioned with incremental tort reform; a growing number of private individuals are selling their services as neutrals to facilitate dispute resolution. For-profit firms, both independent and national networks, are springing up and positioning themselves in major metropolitan areas. Nonprofit …


Head'em Off At The Impasse: A Victory For Management In The War To Implement Its Last Best Offer - Mountain Valley Educational Ass'n V. Maine Sad No. 43, Thomas C. Albus Jul 1996

Head'em Off At The Impasse: A Victory For Management In The War To Implement Its Last Best Offer - Mountain Valley Educational Ass'n V. Maine Sad No. 43, Thomas C. Albus

Journal of Dispute Resolution

The impasse doctrine in collective bargaining allows limited unilateral action by an employer when a good-faith deadlock in negotiations is reached between the employer and employees' representatives. This doctrine is a judicial invention used to reconcile the dual mandate of the National Labor Relations Act: to enforce the duty of good-faith bargaining while not compelling parties to accept agreements or make concessions. Traditionally, the impasse doctrine has been viewed as a tool to promote an ongoing bargaining process; more recently, it has been viewed as a terminal point in the negotiation process. By broadening the definition of impasse, courts ascribing …


Can The United States Be A Party To Binding Arbitration - The Constitutional Issues Re-Evaluated - Tenaska Washington Partners Ii V. The United States, Chatman Catherine Jul 1996

Can The United States Be A Party To Binding Arbitration - The Constitutional Issues Re-Evaluated - Tenaska Washington Partners Ii V. The United States, Chatman Catherine

Journal of Dispute Resolution

It has long been assumed that the Constitution prohibited the United States government from entering binding arbitration as a party. The Department of Justice recently re-examined the issue and concluded that there is no absolute constitutional bar to government participation in binding arbitration.' Tenaska is the first reported court decision to adopt the Department of Justice's new reasoning. The court in Tenaska Washington Partners II v. The United States held that a dispute between a private party and a governmental agency must be submitted to binding arbitration when the parties' voluntary agreement contains an arbitration clause.'


Primer On Competitive Bargaining, A, Gary Goodpaster Jul 1996

Primer On Competitive Bargaining, A, Gary Goodpaster

Journal of Dispute Resolution

The aim of this Article is to explore the competitive bargaining strategy in depth. Because competitive negotiation behavior is common, and sometimes advisable, one must understand it well to master negotiation practice. Knowing how competitors operate enables a negotiator to recognize competitive bargaining when it occurs and to deal with it affirmatively by transforming a competitive negotiation into a cooperative one or defensively by countering competitive moves. Furthermore, even parties who negotiate cooperatively sometimes compete. For example, negotiators may create a win-win situation by cooperating to "increase the size of the pie" to be divided between them. Nonetheless, they still …


Determining The Timeliness Of A Securities Claim Filed For Arbitration: Substantive Eligibility Requirement Or Procedural Statute Of Limitations, Carla K. Williams Jul 1996

Determining The Timeliness Of A Securities Claim Filed For Arbitration: Substantive Eligibility Requirement Or Procedural Statute Of Limitations, Carla K. Williams

Journal of Dispute Resolution

This Comment will focus on the development of this debate, the positions taken by the courts, and a possible resolution of these issues by the SROs themselves.9 Specifically, Part II briefly discusses the development of arbitration in the United States; Part III discusses the issues surrounding the debate, including what positions the courts have taken; and Part IV discusses the possible resolution of this debate by amendment to the SRO codes.


Judicial Review Of Contract Interpretation By Labor Arbitrators: Whose Brand Of Industrial Justice - Houston Lighting & (And) Power Co. V. Int'l Bhd. Of Elec. Workers, Local Union No. 66, Michael G. Munsell Jul 1996

Judicial Review Of Contract Interpretation By Labor Arbitrators: Whose Brand Of Industrial Justice - Houston Lighting & (And) Power Co. V. Int'l Bhd. Of Elec. Workers, Local Union No. 66, Michael G. Munsell

Journal of Dispute Resolution

The United States Supreme Court has prescribed the deference owed to an arbitrator's interpretation of labor agreements. The Court's decisions have made clear the narrow grounds upon which an arbitration award may be reversed. In Houston Lighting & Power Co. v. Int'l Bhd of Elec. Workers, Local Union No. 66, the employer claimed that the labor arbitrator had exceeded his authority by misinterpreting the labor agreement. The Fifth Circuit Court of Appeals had to weigh the policy of deference to the arbitrator's interpretation against the need to ensure that the arbitrator acted within the authority which the parties to the …


Standards Of Arbitrator Impartiality: How Impartial Must They Be - Lifecare International, Inc. V. Cd Medical, Inc., Elizabeth A. Murphy Jul 1996

Standards Of Arbitrator Impartiality: How Impartial Must They Be - Lifecare International, Inc. V. Cd Medical, Inc., Elizabeth A. Murphy

Journal of Dispute Resolution

One of the most crucial aspects of the arbitrator's role is neutrality. For arbitration proceedings to achieve a fair resolution of disputes, the arbitrator must make his decision without bias. All jurisdictions allow vacation of arbitration awards where there is "evident partiality" on the part of an arbitrator appointed as neutral. The application of this "evident partiality" test, however, has yielded widely varying results. Moreover, most state and federal courts apply a lower standard of impartiality to arbitrators than they apply to judges. The reason for this lower standard is that the parties consented to a less than perfect tribunal …


Recent Developments: The Uniform Arbitration Act, Dana A. Chamblee, Matthew S. Darrough, Reachel A. Jennings, Trina R. Ricketts Jul 1996

Recent Developments: The Uniform Arbitration Act, Dana A. Chamblee, Matthew S. Darrough, Reachel A. Jennings, Trina R. Ricketts

Journal of Dispute Resolution

This Article is an overview of recent court decisions that interpret state versions of the Uniform Arbitration Act ("U.A.A.").' Arbitration statutes patterned after the U.A.A. have been adopted by thirty-four states and the District of Columbia.2 The goal of this project is to promote uniformity in the interpretation of the U.A.A. by analyzing the various underlying policies and rationales of recent court decisions interpreting the U.A.A. '


Danger-Inequality Of Resources Present: Can The Environmental Mediation Process Provide An Effective Answer, Elaine Smith Jul 1996

Danger-Inequality Of Resources Present: Can The Environmental Mediation Process Provide An Effective Answer, Elaine Smith

Journal of Dispute Resolution

The environmental dispute resolution field has grown rapidly since its advent in 1973, when two mediators, Gerald Cormick and Jane McCarthy, undertook the first documented attempt to settle an environmental dispute.' Since this initial effort, the use of mediation in environmental disputes has grown rapidly, leading to the continual evolution and improvement of the field. Despite this progress, mediation in environmental disputes remains as it began: a hotly contested issue, with prominent and influential commentators vigorously debating whether it is an appropriate device to resolve environmental disputes


Foreign Arbitration Clauses And Foreign Forum Selection Clauses In Bills Of Lading Governed By Cogsa: Vimar Seguros Y Reaseguros, Sa. V. Miv Sky Reefer, Elizabeth A. Clark May 1996

Foreign Arbitration Clauses And Foreign Forum Selection Clauses In Bills Of Lading Governed By Cogsa: Vimar Seguros Y Reaseguros, Sa. V. Miv Sky Reefer, Elizabeth A. Clark

BYU Law Review

No abstract provided.


Table Of Contents - Issue 2 Jan 1996

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.


Table Of Contents - Issue 1 Jan 1996

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.


Title Page Jan 1996

Title Page

Journal of Dispute Resolution

No abstract provided.


Crisis Intervention For Legal Counselors, Brian Easton Jan 1996

Crisis Intervention For Legal Counselors, Brian Easton

Journal of Dispute Resolution

To assume clients phone for legal appointments with mere problems is to negate the initial thrust that propels the need for legal advice. A crisis is often this propelling factor, and an attorney must be able to understand, act from a knowledgeable position, empathize and know the legal and nonlegal implications facing the client. To be stationary, aloof, or combative when a client's situation roars toward a crisis peak, is to fail as a legal counselor.


Post-Settlement Settlements: Agreeing To Make Resolutions Efficient, Robert W. Mendenhalt Jan 1996

Post-Settlement Settlements: Agreeing To Make Resolutions Efficient, Robert W. Mendenhalt

Journal of Dispute Resolution

The purpose of this article is to more fully describe the concept of postsettlement settlements, to discuss the assumptions upon which it is based, to critique the concept, and to make proposals that will assist third-party intervenors in achieving advantageous post-settlement settlements. Since the goal of post-settlement settlements is to increase conflicting parties' joint gains, the concept of joint gains must be first addressed.


Law Office As Indicator And Amplifier Of Professional Status, The, Fred I. Williams Jan 1996

Law Office As Indicator And Amplifier Of Professional Status, The, Fred I. Williams

Journal of Dispute Resolution

The following pages contain a detailed discussion of law office design as an indicator, even amplifier, of professional status and lawyer-client relations. Section II examines the effect that office design can play in defining the lawyer's relationship with clients and other visitors to the office. Section Il discusses the power of office design in properly marking the lawyer's office as a professional domain. Finally, Section IV concludes that office decor is an effective communicator of professional status and can be an effective tool for the lawyer in forming the professional persona.


Scope Of Review For Orders Confirming, Vacating, Or Modifying Arbitral Awards: An End To Deferential Standards - First Options Of Chicago, Inc. V. Kaplan, Michael G. Munsell Jan 1996

Scope Of Review For Orders Confirming, Vacating, Or Modifying Arbitral Awards: An End To Deferential Standards - First Options Of Chicago, Inc. V. Kaplan, Michael G. Munsell

Journal of Dispute Resolution

Congressional intent to make arbitration a viable alternative to traditional litigation is codified in the Federal Arbitration Act ("FAA"). Although the FAA and the subsequent case law have settled most questions about the details of the arbitration process, the United States Supreme Court in First Options took up the narrow issue of what standard of review should be used by an appellate court reviewing a district court decision vacating, confirming or modifying an arbitrator's order.' Facing the Court were two competing policies: the Court's own policy of keeping standards of review simple and rational against the Congressional policy of assuring …


Harvesters: Alternatives To Judicial Intervention In Medical Treatment Decisions, Karen A. Butler Jan 1996

Harvesters: Alternatives To Judicial Intervention In Medical Treatment Decisions, Karen A. Butler

Journal of Dispute Resolution

This article will examine the problem of making medical decisions for those who cannot decide for themselves. Current models of decision making will be examined as well as various proposals for alternative dispute resolution. A proposed New York model will be examined in detail. As America enters the twenty-first century, it is imperative that its citizens formulate mechanisms of dispute resolution that protect the rights of the incompetent patients to dignity and autonomy when such persons are seriously ill and unable to decide for themselves. Alternative forms of dispute resolution may be superior to judicial intervention in meeting the needs …


Pilot Study On Marital Power As An Influence In Division Of Pension Benefits At Divorce Of Long Term Marriages, A, Joan M. Krauskopf, Sharon Burgess Seiling Jan 1996

Pilot Study On Marital Power As An Influence In Division Of Pension Benefits At Divorce Of Long Term Marriages, A, Joan M. Krauskopf, Sharon Burgess Seiling

Journal of Dispute Resolution

The Hewlett Foundation on Dispute Resolution funded a small pilot project designed by the authors to explore whether the hypothesis might be true and to determine a methodology for more extensive research. This article explains the applicable law, aspects of power in negotiation, the research methodology, and the tentative findings from the project.


Building Consensus For Racial Harmony In American Cities: A Case Model Approach, Wallace Warfield Jan 1996

Building Consensus For Racial Harmony In American Cities: A Case Model Approach, Wallace Warfield

Journal of Dispute Resolution

This article uses an informal case model approach to discuss the importance of understanding the role of consensus in the resolution of interracial conflict. As well, the article offers an elaboration on the classic mediation model as a way of enriching the technology of intervention.


Who's Watching Out For The Children - Making Child Custody Determinable By Binding Arbitration - Dick V. Dick, Barbara E. Wilson Jan 1996

Who's Watching Out For The Children - Making Child Custody Determinable By Binding Arbitration - Dick V. Dick, Barbara E. Wilson

Journal of Dispute Resolution

"Many is the custody case which almost seems to outlive the parents .... To remedy this problem, many members of the legal profession advocate greater utilization of arbitration to include determination of child custody.' As state courts struggle to incorporate and interpret the Uniform Arbitration Act ("UAA") into child custody case law, the Dick case stands as the latest decision demonstrating the advantages and pitfalls of using binding arbitration to resolve custody disputes.


Arbitrator's Jurisdiction To Determine Arbitrability Of Labor Disputes Under Public Sector Collective Bargaining Agreements: Is The Arbitrator's Jurisdiction To Decide Arbitrability In The First Instance The Worst Of Both Worlds - Mclaughlin V. Chester Upland School District, An, Brian D. Kennedy Jan 1996

Arbitrator's Jurisdiction To Determine Arbitrability Of Labor Disputes Under Public Sector Collective Bargaining Agreements: Is The Arbitrator's Jurisdiction To Decide Arbitrability In The First Instance The Worst Of Both Worlds - Mclaughlin V. Chester Upland School District, An, Brian D. Kennedy

Journal of Dispute Resolution

The general rule permitting pre-arbitration adjudication of arbitrability has been criticized as an invitation to forum-shopping and a "race to the courthouse," an unnecessary obstacle to expeditious resolution of labor disputes,6 and a bad faith attempt by one party (usually the employer) to breach a contractual commitment to arbitration.7 Overruling a number of its own precedents following this majority rule, the Commonwealth Court of Pennsylvania recently held in McLaughlin v. Chester Upland School District that an arbitrator has the sole and exclusive jurisdiction in the first instance to decide the arbitrability of a labor dispute arising out of a public …


Negotiation As A Healing Process, Gerald R. Williams Jan 1996

Negotiation As A Healing Process, Gerald R. Williams

Journal of Dispute Resolution

Beginning in the late 1970's and continuing even today, there has been intense criticism in the media and elsewhere that Americans are too litigious, that people and institutions are too frequently going to court against one another. While the criticism may be partly merited, when considered from a more personal perspective, what seems remarkable is not how much litigation there is, but how little. For example, most members of society suffer harms, inconvenienses, and injustices that infringe on their legal rights and could be, if they chose, grounds for legal action. Most individuals recognize, however, that if they made a …


Mandatory Arbitration Of Title Vii Claims: A New Approach - Prudential Insurance Co. Of America V. Lai, Catherine Chatman Jan 1996

Mandatory Arbitration Of Title Vii Claims: A New Approach - Prudential Insurance Co. Of America V. Lai, Catherine Chatman

Journal of Dispute Resolution

Many employees sign arbitration agreements as part of the hiring process. Often, these agreements are standardized forms composed by an employer or industry, and presented to the prospective employee as yet another form essential to employment. When the dispute that arises involves Title VII claims, should the employee be compelled to arbitrate those claims? This note examines one court's approach to safeguarding judicial resolution of Title VII claims, as well as alternative approaches.


Legal Consequences Of Apologizing, Peter H. Rehm, Denise R. Beatty Jan 1996

Legal Consequences Of Apologizing, Peter H. Rehm, Denise R. Beatty

Journal of Dispute Resolution

This article discusses the legal consequences of saying you are sorry, whether as an apology or an expression of sympathy. It discusses questions such as whether an apology is understood to be an admission of guilt, whether an apology fulfills any elements of a tort, how an apology can be useful for avoiding litigation, how an expression of sympathy should be worded to minimize the possibility that it could be misunderstood to be an admission of guilt, and why someone who is guilty of some error should apologize without concern that this would make their situation worse. It analyzes various …


Retroactive Application Of Rule Changes: Arbitration Agreements May Be Circumvented - Nielsen V. Greenwood, Douglas M. Worley Jan 1996

Retroactive Application Of Rule Changes: Arbitration Agreements May Be Circumvented - Nielsen V. Greenwood, Douglas M. Worley

Journal of Dispute Resolution

From early historical jurisprudence, courts have recognized the "timeless and universal human appeal"2 of the presumption against the retroactive application of newly enacted statutes and rules. This principle, as a result, has perpetually been "a solid foundation of American law."3 In Nielsen, however, the court challenged this principle and retroactively applied a National Association of Security Dealer's ("NASD") rule change barring any agreements to arbitrate putative class actions.4 Effectively distinguishing this case from precedent which arrived at a different result, the Nielsen decision remains consistent with relevant precedent and, significantly, does not violate fundamental notions of justice.


Culture And Mediation: A Red Herring, Cynthia A. Savage Jan 1996

Culture And Mediation: A Red Herring, Cynthia A. Savage

American University Journal of Gender, Social Policy & the Law

No abstract provided.


Reformulated Gasoline Under Reformulated Wto Dispute Settlement Procedures: Pulling Pandora Out Of A Chapeau?, Jeffrey Waincymer Jan 1996

Reformulated Gasoline Under Reformulated Wto Dispute Settlement Procedures: Pulling Pandora Out Of A Chapeau?, Jeffrey Waincymer

Michigan Journal of International Law

Part I of the article begins by outlining existing GATT/WTO provisions concerning trade-related environmental measures which were relevant to the Reformulated Gasoline case. Part II then outlines the facts in the dispute and gives a brief introduction to the decisions at the Panel and Appellate Body stages. Part III deals with the present and potential implications for the appellate process in terms of the substance of the dispute, the methodology and procedure adopted, and the wider issues that the case brings to attention. This Part also addresses some of the theoretical and practical issues that affect the question of the …


Resolving Economic Disputes In Russia's Market Economy, Karen Halverson Jan 1996

Resolving Economic Disputes In Russia's Market Economy, Karen Halverson

Michigan Journal of International Law

The purpose of this paper is to examine the recent transformation of state arbitrazh into economic courts along with the development of commercial arbitration in Russia, and to consider the relative utility of these mechanisms for resolving disputes in Russia's evolving market economy. Part I describes state arbitrazh and details its evolution into the existing system of economic courts. Part II discusses the past and recent development of commercial arbitration in Russia as an alternative to litigating domestic disputes. Part III considers various social and historic factors that hinder genuine reform.


Taking The Public Out Of Determining Government Policy: The Need For An Appropriate Scope Of Bargaining Test In The Illinois Public Sector, 29 J. Marshall L. Rev. 531 (1996), Eric C. Scheiner Jan 1996

Taking The Public Out Of Determining Government Policy: The Need For An Appropriate Scope Of Bargaining Test In The Illinois Public Sector, 29 J. Marshall L. Rev. 531 (1996), Eric C. Scheiner

UIC Law Review

No abstract provided.