Law Commons^™

Valuation Of Cases For Settlement: Theory And Practice, Peter Toll Hoffman

Journal of Dispute Resolution

Trial lawyers frequently talk about the value of their cases when they are counseling clients' negotiating with opposing counsel, or conversing with their fellow attorneys. The term "value" may have several definitions when referring to cases, but most attorneys intend it to mean the amount at which they expect a case to settle. However, despite the frequency with which they speak of value, the subject remains cloaked with a miasma of lawyer folklore.

Summary Jury Trial: Who Will Speak For The Jurors, The, Charles W. Hatfield

Journal of Dispute Resolution

Since its inception in 1980, the summary jury trial has received much attention in the scholarly journals and the courts. Most of the arguments and litigation center around the impact of the summary jury trial on the parties or their lawyers. One issue which has gone almost untouched is the authority of the courts to empanel the advisory jury; the backbone of the entire procedure. In Hume v. M,& C Management,2 the court addressed its authority to require citizens to serve as jurors in this alternative method of dispute resolution.

Quasi-Judicial Immunity: The Arbitrator's Shield Or Sword, Robert M. Carroll

Journal of Dispute Resolution

With the rising number of divorces in today's society 2 and with the national emphasis to resolve child custody disputes through alternative forms of dispute resolution,3 the ability to hold arbitrators accountable for their actions within settlement conferences is becoming a prevalent issue. Arbitrators and mediators, commonly outside of the court's supervision, are now determining the best interests of the child, a role traditionally reserved to the courts.4 This increase of out-of-court settlements creates a need for certain standards which hold these quasi-judicial officers responsible for their decisions and liable for their actions. The court in Howard v. Drapkin addressed …

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 …

The Represented Client In A Settlement Conference: The Lessons Of G. Heileman Brewing Co. V. Joseph Oat Corp., Leonard L. Riskin

UF Law Faculty Publications

This Article sets out various perspectives that litigants, lawyers and judges commonly bring to settlement conferences, perspectives on lawyer-client relations, negotiation, and the role of the judicial host. In examining the opinions in the Heileman case, along with other materials, the Article attempts to uncover the underlying assumptions about the settlement conference that informed the behavior of the judges and lawyers in that case, arguing that Heileman's explanation lies in the lawyers' and judges' tendency to embrace one of two radically different visions of the settlement conference. The Article then catalogs the advantages and disadvantages of involving clients in settlement …

Trial By Jury

Touro Law Review

No abstract provided.

A Better Approach To Arbitrability, Jeffrey W. Stempel

Scholarly Works

Historically, Anglo-American courts refused to enforce arbitration agreements, jealously guarding their dispute resolution monopoly. During the early twentieth century, merchants and attorneys began seeking legislation requiring courts to defer to arbitration. The United States Abitration Act took effect January 1, 1926 and has remained essentially unchanged. It was written with the implicit assumption that it would be invoked by commercial actors having relatively equal bargaining power and emotive appeal to a jury. The Act says nothing to direct the court's inquiry concerning the quality of either party's assent to the arbitration clause other than requiring a written arbitration agreement and …

Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel

Scholarly Works

The Federal Arbitration Act (the Act), seeks to eliminate centuries of perceived judicial hostility toward arbitration agreements. The Act made written arbitration agreements involving interstate commerce specifically enforceable. It also provided a procedural structure for enforcing awards, which were protected through deferential judicial review. The Act intended to have a wide reach, employing a broad definition of commerce that has presumably grown in breadth along with the expansion of judicial notions of commerce. Although courts applied the Act in tentative and cautious fashion until the 1960's, arbitration gained momentum during the 1970's and the 1980's. Despite growing judicial enthusiasm for …

Non-Lawyers In International Commercial Arbitration: Gathering Splinters On The Bench, James E. Meason, Alison G. Smith

Northwestern Journal of International Law & Business

In light of the frequent appearance of arbitration clauses in international contracts, and the volume of litigation handled in this manner, international commercial arbitration' has become a favorite subject of commentators who have primarily focused on the relative benefits of arbitration versus litigation and cross-institutional rules comparisons. One area that has received scant attention is the factors concerning the actual selection of particular individuals to serve as arbitrators. This article looks at how arbitrators are chosen today within the institutional context. Following this are general discussions of selected professions for indications of their members' inherent suitability for and adaptability to …

Recent Developments In Inter-American Commercial Arbitration, Charles Robert Norberg

Northwestern Journal of International Law & Business

Arbitration has become an effective procedure for resolving international commercial disputes in the Western Hemisphere. A framework of treaties exists, establishing substantive law and procedure for that purpose. The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) has been ratified by sixteen Western Hemisphere countries. The Inter-American Convention on International Commercial Arbitration (1975) has been ratified by thirteen countries. Furthermore, the World Bank's Convention establishing the International Centre for the Settlement of Investment Disputes has been ratified by four Latin American countries and six anglophobe Western Hemisphere countries and it has been signed but not …

The Place Of Arbitration In The Conflict Of Laws Of International Commercial Arbitration: An Exercise In Arbitration Planning, Filip De Ly

Northwestern Journal of International Law & Business

Growing complexities in the law and practice of international commercial arbitration and a certain loss of the spirit of arbitration require reflection by all interested parties (litigating parties, their counsels, arbitrators and arbitration centers) in order to maintain some of the traditional advantages of arbitration… The purpose of such reflection is to maintain the reputation of international commercial arbitration as a speedy and cost efficient dispute resolution mechanism for international business transactions. This may be achieved by an attempt to identify the options which interested parties may have and to indicate their respective advantages and disadvantages. This process may be …

Lawyers And Mediators: What Each Needs To Learn From And About The Other, John Wade

John Wade

The mediation movement has been given publicity, funds of taxpayers, and support by propagating simplistic notions of the “adversary” system and of what lawyers do on a daily basis. Conversely, lawyers have often attempted to neutralise this rival profession by (as major doorkeepers to serious family disputes) wilful ignorance of their own behaviour, ignorant criticism of mediator behaviour, anecdotal warfare and attempts to co-opt mediation under their own monopolistic umbrella.

This paper reflects upon the behaviour of both family lawyers and family mediators with the aim of assisting each group understand the other. Both groups have much to learn from …