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Dispute Resolution and Arbitration

Journal

1999

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Articles 1 - 30 of 32

Full-Text Articles in Law

Mandatory Arbitration Of Statutory Claims In The Union Workplace After Wright V. Universal Maritime Service Corp., Daniel Roy Oct 1999

Mandatory Arbitration Of Statutory Claims In The Union Workplace After Wright V. Universal Maritime Service Corp., Daniel Roy

Indiana Law Journal

No abstract provided.


Mediation In The New Mexico Court Of Appeals, Richard Becker Jul 1999

Mediation In The New Mexico Court Of Appeals, Richard Becker

The Journal of Appellate Practice and Process

A mediator gives a summary of the implementation of, procedure relating to, and role of lawyers in the New Mexico Court of Appeals’s mediation program.


Better Late Than Never: Settlement At The Federal Court Of Appeals, Mori Irvine Jul 1999

Better Late Than Never: Settlement At The Federal Court Of Appeals, Mori Irvine

The Journal of Appellate Practice and Process

The Civil Justice Reform Act of 1990 encouraged all federal district courts to implement alternative dispute resolution programs. Federal Courts of Appeals implemented alternative dispute resolution programs as early as 1974. This article surveys federal alternative dispute resolution programsthen takes an in-depth look at the Eleventh Circuit’s program. The article provides advice for appellate advocacy during mediation.


Federal Court Positively Adopts A Federal Common Law Testimonial Privilege For Mediation: Is It Justified - Folb V. Motion Picture Industry Pension & (And) Health Plans, Ryan D. O'Dell Jul 1999

Federal Court Positively Adopts A Federal Common Law Testimonial Privilege For Mediation: Is It Justified - Folb V. Motion Picture Industry Pension & (And) Health Plans, Ryan D. O'Dell

Journal of Dispute Resolution

Mediation is a popular means of alternative dispute resolution that has proliferated in recent years. Virtually every state has adopted some form of testimonial privilege to protect the confidentiality of private parties participating in mediation. The federal courts, however, have never adopted a mediation privilege protecting the confidentiality of mediation between private parties in federal court. Federal courts have relied on other evidentiary, procedural and contractual protections to ensure that communications articulated during mediation will not be used for purposes outside mediation proceedings. Finding these protections inadequate to insulate parties in private mediation proceedings from third party discovery, the United …


On Teaching Mediation, Edwin H. Greenebaum Jul 1999

On Teaching Mediation, Edwin H. Greenebaum

Journal of Dispute Resolution

In this article, I will delineate the issues and explore the implications of resolving them in different ways. Part I develops a taxonomy of variations in models of mediation. In Part II, I analyze choices and constraints in course design. In Part III, I specify the choices I have made in structuring my own course in mediation. I will relate those choices to the context of my school, to my students' backgrounds and interests, and to my competencies and goals. The initial version of this paper was written for my students to read as they entered my course. Pedagogically, the …


Use Of Mediation In Employment Discrimination Cases, The, Matt A. Mayer Jul 1999

Use Of Mediation In Employment Discrimination Cases, The, Matt A. Mayer

Journal of Dispute Resolution

This Article will address the issues noted above. Part II discusses the realities for employers and employees created by the increased filing of employment discrimination claims. Part III encapsulates the procedural movement of a claim through the EEOC. Part IV summarizes the mediation process and notes why mediation is one of the methods used to deal with these claims. Part V highlights the pros and cons associated with the mediation of employment discrimination claims. Part VI discusses the inherent tensions between the goals of mediation and the goals of the anti-discrimination laws, as well as the inherent tensions that naturally …


Non-Union Member Complaints To Calculation Of Agency Shop Fees: Arbitration Or Judicial Relief - Air Line Pilots Ass'n V. Miller, Ann E. Ahrens Jul 1999

Non-Union Member Complaints To Calculation Of Agency Shop Fees: Arbitration Or Judicial Relief - Air Line Pilots Ass'n V. Miller, Ann E. Ahrens

Journal of Dispute Resolution

"Free rider" problems plague any group or association that provides general benefits for its participants. Members may pay a fee, but nonmembers can reap the benefits without expenditure. Labor unions address this disparity through the use of agency shop fees contained in collective bargaining agreements. These fee agreements call for those employees who choose not to join the union to pay their share of the costs of collective bargaining. Labor unions have developed extensive mechanisms in order to calculate the amount of the fee. Employees, who do not want to subsidize activities they do not support, can file complaints with …


Faa Pre-Emption: When Should Conflicting State Law Be Pre-Empted By The Faa - Weston Securities Corp. V. Aykanian, Suzanne H. Johnson Jul 1999

Faa Pre-Emption: When Should Conflicting State Law Be Pre-Empted By The Faa - Weston Securities Corp. V. Aykanian, Suzanne H. Johnson

Journal of Dispute Resolution

Since the creation of the F.A.A., courts, including the United States Supreme Court, have considered whether the F.A.A. pre-empts conflicting state law. Although courts generally find that the F.A.A. pre-empts state substantive and procedural law when it stands as an obstacle to Congress' goal of enforcing arbitration,5 the Massachusetts Court of Appeals, in Weston Securities Corp. v. Aykanian, made its own determination on this issue, since it was a case of first impression for the court. The court faced the question of whether a Massachusetts procedural rule, which did not allow an immediate appeal from an order to arbitrate, was …


Recent Developments: The Uniform Arbitration Act, Jamie K. Hunt, Ashley E. Ratcliffe, Jeffrey B. Williams, Kimberly Yates Jul 1999

Recent Developments: The Uniform Arbitration Act, Jamie K. Hunt, Ashley E. Ratcliffe, Jeffrey B. Williams, Kimberly Yates

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. The goal of this project is to promote uniformity in the interpretation of the U.A.A. by articulating the underlying policies and rationales of recent court decisions interpreting the U.A.A.


Arbitration Agreements: When Do Employees Waive Their Wrights?, Michelle R. Mitchell May 1999

Arbitration Agreements: When Do Employees Waive Their Wrights?, Michelle R. Mitchell

Brigham Young University Journal of Public Law

No abstract provided.


Arbitration, Labor Contracts, And The Ada: The Benefits Of Pre-Dispute Arbitration Agreements And An Update On The Conflict Between The Duty To Accommodate And Seniority Rights, Jan William Sturner Apr 1999

Arbitration, Labor Contracts, And The Ada: The Benefits Of Pre-Dispute Arbitration Agreements And An Update On The Conflict Between The Duty To Accommodate And Seniority Rights, Jan William Sturner

University of Arkansas at Little Rock Law Review

No abstract provided.


A Potpourri Of Recent Federal Arbitration Cases Involving Domestic And International Arbitration, Daniel E. Murray Mar 1999

A Potpourri Of Recent Federal Arbitration Cases Involving Domestic And International Arbitration, Daniel E. Murray

Brigham Young University Journal of Public Law

No abstract provided.


Arbitration Fails To Reduce Foreign Investors' Risk In China, Charles Kenworthey Harer Mar 1999

Arbitration Fails To Reduce Foreign Investors' Risk In China, Charles Kenworthey Harer

Washington International Law Journal

Arbitration is often perceived as a fair and efficient method of reducing risk associated with business transactions and investments. In China, Arbitration is constrained by statute and local protectionism such that arbitration can fail to live up to the expectations of foreign investors. Arbitration in China divides all disputes into domestic or foreign-related disputes, with different procedures for each, and different standards for enforcement and judicial review of those awards. Local protectionism presents a substantial risk to foreign parties involved in arbitration. A general lack of expertise in foreign-related disputes law, and difficulty in enforcing arbitration awards in favor of …


Awarding Costs And Attorneys' Fees In International Commercial Arbitrations, John Yukio Gotanda Jan 1999

Awarding Costs And Attorneys' Fees In International Commercial Arbitrations, John Yukio Gotanda

Michigan Journal of International Law

This Article examines the practice of awarding costs and fees in international commercial arbitrations. Part I reviews the history of awarding costs and fees and the approaches that countries have adopted to resolve these claims. It concludes that an overwhelming number of countries permit such awards and follow the principle that the losing party should reimburse the prevailing party for expenses incurred in connection with the arbitration, including attorneys' fees. Part II examines the approaches used by international arbitral tribunals in resolving claims for costs and fees and finds that they are inadequate. Part Ill proposes a new model for …


Where's The Beef? Mad Cows And The Blight Of The Sps Agreement, Ryan D. Thomas Jan 1999

Where's The Beef? Mad Cows And The Blight Of The Sps Agreement, Ryan D. Thomas

Vanderbilt Journal of Transnational Law

This Note will first outline the SPS Agreement itself--specifically, Part II attempts to present the relevant articles in a manner providing the necessary background for understanding the WTO dispute panel and Appellate Body decisions. Next, Part III discuss and critique, the dispute panel and Appellate Body decisions, specifically, noting the shortcomings of these decisions in the context of the SPS Agreement and its utility as a precedent of international dispute resolution in the area of international regulation of drugs and feedstuffs. Next, I will addresses the likely effect of these decisions upon a possible WTO resolution of the SRM dispute …


Fundamental Misconceptions About Mediation Advocacy, Richard M. Markus Jan 1999

Fundamental Misconceptions About Mediation Advocacy, Richard M. Markus

Cleveland State Law Review

This article discusses the need for mediation courses in law school. It begins by describing the initial resistance to implementing trial advocacy courses, and how that area eventually grew into its current prolific state. The article then moves to the need for more mediation courses, as well as why mediation should be used more frequently in dispute resolution generally. Next, the author discusses and corrects the primary misconceptions about litigation mediation, including: 1) mediation advocacy is much like trial advocacy, 2) all mediations are substantially the same, 3) mediations are desirable whenever they occur in the resolution process, 4) mediation …


Court-Ordered Arbitration In North Carolina: Selected Issues Of Practice And Procedure, Thomas R. Fowler Jan 1999

Court-Ordered Arbitration In North Carolina: Selected Issues Of Practice And Procedure, Thomas R. Fowler

Campbell Law Review

No abstract provided.


An Examination Of The Developments In Chapter 19 Antidumping Decisions Under The North American Free Trade Agreement (Nafta): The Implications And Suggestions For Reform For The Next Century Based On The Experience Of Nafta After The First Five Years, Kenneth J. Pippin Jan 1999

An Examination Of The Developments In Chapter 19 Antidumping Decisions Under The North American Free Trade Agreement (Nafta): The Implications And Suggestions For Reform For The Next Century Based On The Experience Of Nafta After The First Five Years, Kenneth J. Pippin

Michigan Journal of International Law

This paper describes the themes in the Chapter 19 antidumping panel decisions that have developed over the first five years of NAFTA. Part I provides a brief overview of the Chapter 19 panel process and the method of antidumping determinations for each NAFTA party. Part II presents statistics on the number and types of antidumping panel decisions made under the first five years of NAFTA. Finally, Part III explores the most significant themes in the antidumping Chapter 19 panel decisions and discusses their implications for reforming the Chapter 19 panel process.


Getting Along: The Evolution Of Dispute Resolution Regimes In International Trade Organizations, Andrea Kupfer Schneider Jan 1999

Getting Along: The Evolution Of Dispute Resolution Regimes In International Trade Organizations, Andrea Kupfer Schneider

Michigan Journal of International Law

In the face of the remarkable growth of international organizations in the last fifty years, scholars in multiple disciplines have sought to explain why and how states cooperate. Dispute resolution is one of the most crucial components of international cooperation. Examining the dispute resolution regimes of international organizations in light of these theories can inform and help reform these evolving regimes.


Table Of Contents - Issue 1 Jan 1999

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.


Table Of Contents - Issue 2 Jan 1999

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.


Collective Bargaining Agreements, Arbitration Provisions And Employment Discrimination Claims: Compulsory Arbitration Or Judicial Remedy - Johnson V. Bodine Electric Co., Ann E. Ahrens Jan 1999

Collective Bargaining Agreements, Arbitration Provisions And Employment Discrimination Claims: Compulsory Arbitration Or Judicial Remedy - Johnson V. Bodine Electric Co., Ann E. Ahrens

Journal of Dispute Resolution

This casenote addresses the effect of mandatory arbitration provisions in collective bargaining agreements (CBA) upon statutory anti-discrimination claims. Disputes in this area arise when an employee joins a union, thus becoming subject to a CBA negotiated between the union and the employees. What often happens is that the CBA will generally contain a clause calling for arbitration of all claims arising under the agreement. Later, if the employee believes he has been subjected to discriminatory practices on the part of the employer and seeks remedies under anti-discrimination laws, such as Title VII, the employer will move to compel arbitration. The …


Does Title Vii Preclude Enforcement Of Compulsory Arbitration Agreements - The Ninth Circuit Says Yes - Duffield V. Robertson Stephens & (And) Co., Ryan D. O'Dell Jan 1999

Does Title Vii Preclude Enforcement Of Compulsory Arbitration Agreements - The Ninth Circuit Says Yes - Duffield V. Robertson Stephens & (And) Co., Ryan D. O'Dell

Journal of Dispute Resolution

This casenote examines a Ninth Circuit decision that considered the impact of the Civil Rights Act of 1991 on the unsettled question of whether Title VII precludes employers from requiring prospective employees, as a mandatory condition of employment, to foreclose their right to bring Title VII claims in federal court. The Ninth Circuit construct the 1991 Act to preclude enforcement of individual employment agreements that require employees to arbitrate statutory claims brought under Title VII. The holding of this case establishes a controversial precedent because it is inconsistent with a seminal Supreme Court decision, the FAA mandate and other recent …


Nasd Applications Require Arbitration Of Employment Disputes - Mouton V. Metropolitan Life Insurance Co., Christina S. Young Jan 1999

Nasd Applications Require Arbitration Of Employment Disputes - Mouton V. Metropolitan Life Insurance Co., Christina S. Young

Journal of Dispute Resolution

Under the Federal Arbitration Act's (FAA) mandate favoring arbitration, numerous statutory claims are subjected to arbitration. For employment disputes falling under Title VII, competing approaches based on whether the employment agreement was a union or a non-union agreement, have been adopted. Union agreements to arbitrate employment disputes are generally not compelled to arbitrate. Conversely, in a non-union employment agreement, the broad arbitration clauses are interpreted to require arbitration of Title VII claims. These inconsistent rules have been applied to the detriment of non-union employees.


Labor Law - The Substance Of Procedure: Defining Judicial Authority And The Role Of The Arbitrator In Independent Association Of Continental Pilots V. Continental Airlines, Wendy A. Tyson Jan 1999

Labor Law - The Substance Of Procedure: Defining Judicial Authority And The Role Of The Arbitrator In Independent Association Of Continental Pilots V. Continental Airlines, Wendy A. Tyson

Villanova Law Review (1956 - )

No abstract provided.


Title Page Jan 1999

Title Page

Journal of Dispute Resolution

No abstract provided.


Evaluating Bankruptcy Mediation, William J. Woodward Jr. Jan 1999

Evaluating Bankruptcy Mediation, William J. Woodward Jr.

Journal of Dispute Resolution

This Article aims to do several things. First, it will briefly describe a court sponsored mediation program developed several years ago by the court and bankruptcy bar in the Eastern District of Pennsylvania. The program depended on trained mediators who did their work on court-selected bankruptcy matters on a pro bono basis. Partly because of its "cost-free" nature, the program created a need for periodic evaluation to ensure the court and bar that it was delivering positive results without inflicting undesirable hidden costs on the participants or the local bankruptcy system as a whole.6


Giving Meaning To The Second Generation Of Adr Education: Attorneys' Duty To Learn About Adr And What They Must Learn, Suzanne J. Schmitz Jan 1999

Giving Meaning To The Second Generation Of Adr Education: Attorneys' Duty To Learn About Adr And What They Must Learn, Suzanne J. Schmitz

Journal of Dispute Resolution

This article explores the need for attorneys to learn about ADR and sets out a basic primer for the second generation of ADR education. Part II of this article details why attorneys have a duty to be educated about ADR. Part IV sets out an ADR primer, with recommended readings, for litigation and transactional attorneys who desire to meet the expectations of the courts and of their clients.


Federal Mediation Privilege: Should Mediation Communications Be Protected From Subsequent Civil & (And) Criminal Proceedings - In Re: Grand Jury Subpoena Dated December 17, 1996, Joshua J. Englebart Jan 1999

Federal Mediation Privilege: Should Mediation Communications Be Protected From Subsequent Civil & (And) Criminal Proceedings - In Re: Grand Jury Subpoena Dated December 17, 1996, Joshua J. Englebart

Journal of Dispute Resolution

This Note examines the decision of the Fifth Circuit to deny the existence of a federal mediation privilege when parties moved to quash a grand jury subpoena that sought mediation records to investigate criminal wrongdoing allegedly committed in the mediation program. This Note will focus on the federal government's refusal to establish a mediation privilege despite the fact that some states have embraced such a privilege.


Exceptional Circumstances Justifying Vacatur When Lower Court Decision Mooted By Settlement: Repeat Litigants Slide Into Home With Second Circuit Decision - Major League Baseball Properties, Inc. V. Pacific Trading Cards, Inc., S. Kristina Starke Jan 1999

Exceptional Circumstances Justifying Vacatur When Lower Court Decision Mooted By Settlement: Repeat Litigants Slide Into Home With Second Circuit Decision - Major League Baseball Properties, Inc. V. Pacific Trading Cards, Inc., S. Kristina Starke

Journal of Dispute Resolution

At heart in the scholarship advocating Alternative Dispute Resolution are two interests: one, that using processes such as negotiation, mediation, and arbitration conserve public and private resources otherwise expended on litigation; and two, that in certain circumstances, these alternative processes may provide better justice than would occur in litigation.' However, once litigation of a case has commenced, and an adverse judgment has been made against one party, that party may not be willing to settle the case unless the adverse judgement is vacated.4 Historically, most state and federal courts would routinely grant vacatur when requested by litigants who settled their …