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Dispute Resolution and Arbitration

1994

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Articles 31 - 52 of 52

Full-Text Articles in Law

Table Of Contents - Issue 1 Jan 1994

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

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Ethics: No One Ever Said It Would Be Easy: Bush's Contribution To Mediation Practice, Albie M. Davis Jan 1994

Ethics: No One Ever Said It Would Be Easy: Bush's Contribution To Mediation Practice, Albie M. Davis

Journal of Dispute Resolution

The beauty of Robert Baruch Bush's research on ethics is that his conclusions grow out of the real life experiences of mediators.' Yes, his interpretation is influenced by his own biases, and yes, the Florida mediation scene, where he made his observations, is not a microcosm of the rest of the nation or the world; nevertheless, in spite of these limitations, he did a remarkable job of capturing the dilemmas that most mediators face.

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Easier Said Than Done: Resolving Ethical Dilemmas In Policy And Practice, Linda Stamato Jan 1994

Easier Said Than Done: Resolving Ethical Dilemmas In Policy And Practice, Linda Stamato

Journal of Dispute Resolution

This is not to argue against core principles. There is, I think, a consensus on these: responsible and fair dealing, disclosure of personal conflicts, good faith, diligence, impartiality, confidentiality, and, certainly, honesty and integrity. I take these ethical requirements to be the sine qua non of professional mediation practice; the primary representations to be made prior to, and, indeed, to be adhered to in the course of mediation. SPIDR attempted to codify these values in its Ethical Standards of Professional Responsibility, which were adopted by the SPIDR Board in 1986 and confirmed in 1991. What we in mediation practice are …

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Dangerous Precedent: Federal Government Attempts To Vacate Judicial Decisions Upon Settlement, 27 J. Marshall L. Rev. 689 (1994), Robert P. Deyling Jan 1994

Dangerous Precedent: Federal Government Attempts To Vacate Judicial Decisions Upon Settlement, 27 J. Marshall L. Rev. 689 (1994), Robert P. Deyling

UIC Law Review

No abstract provided.

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What Happens When Mediation Is Institutionalized?: To The Parties, Practitioners, And Host Institutions, James J. Alfini, John Barkai, Robert Baruch Bush, Michele Hermann, Jonathan Hyman, Kimberlee Kovach, Carol B. Liebman, Sharon Press, Leonard Riskin Jan 1994

What Happens When Mediation Is Institutionalized?: To The Parties, Practitioners, And Host Institutions, James J. Alfini, John Barkai, Robert Baruch Bush, Michele Hermann, Jonathan Hyman, Kimberlee Kovach, Carol B. Liebman, Sharon Press, Leonard Riskin

Faculty Scholarship

The Alternative Dispute Resolution Section of the Association of American Law Schools presented a program, at the 1994 AALS Conference, on the institutionalization of mediation – through courtconnected programs and otherwise. The topic is an important one, because this phenomenon has become increasingly common in recent years. Moreover, the topic seemed especially appropriate for the 1994 program, since Florida – the host state for the conference – was one of the first states to adopt a comprehensive statute providing for court-ordered mediation (at the trial judge's option) in civil disputes of all kinds. The move toward institutionalizing mediation has raised …

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Study Of Ethical Dilemmas And Policy Implications, A, Robert A. Baruch Bush, Jan 1994

Study Of Ethical Dilemmas And Policy Implications, A, Robert A. Baruch Bush,

Journal of Dispute Resolution

This paper is based on research sponsored by the National Institute for Dispute Resolution and by Hofstra University School of Law. The research involved interviews with roughly eighty mediators working in one of the three areas mentioned above. The mediators were asked to identify situations they had experienced in mediation that, in their view, raised difficult ethical dilemmas on which they felt the need for guidance by professional standards and program policy. This report summarizes and illustrates the findings of the research as to the major types of dilemmas practicing mediators are confronted with and analyzes these dilemmas and their …

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Constitutionality Of The Indian Gaming Regulatory Act: State Sovereignty And Compulsory Negotiations - Cheyenne River Sioux Tribe V. South Dakota, The, Joel P. Brous Jan 1994

Constitutionality Of The Indian Gaming Regulatory Act: State Sovereignty And Compulsory Negotiations - Cheyenne River Sioux Tribe V. South Dakota, The, Joel P. Brous

Journal of Dispute Resolution

Indian tribes located within states that permit gambling are allowed to license and operate gaming activities on Indian lands2 as long as these activities comply with the Indian Gaming Regulatory Act [hereinafter IGRA]. 3 Congress enacted the IGRA to balance tribal autonomy and economic self-sufficiency with the state police power seeking to control tribal gaming operations.4 In Cheyenne River Sioux Tribe v. South Dakota, the United States Court of Appeals for the Eighth Circuit addressed the constitutionality of the IGRA and held that the IGRA violated neither the Eleventh nor the Tenth Amendments.' This Note examines the split of authority …

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Michigan's Binding Summary Jury Trial: Reward Or Punishment - Farleigh V. Amalgamated Transit Union, Local 1251, Thomas G. Glick Jan 1994

Michigan's Binding Summary Jury Trial: Reward Or Punishment - Farleigh V. Amalgamated Transit Union, Local 1251, Thomas G. Glick

Journal of Dispute Resolution

In 1988, the Michigan Supreme Court added the summary jury trial to its arsenal of settlement devices available to trial judges.' Unfortunately, the summary jury trial employed in Farleigh v. Amalgamated Transit Union, Local 1251 failed to meet its goal, and no settlement was reached by the parties.6 Nevertheless, the Michigan Court of Appeals chose to enforce the summary jury verdict,7 thereby drawing into question not only the ability of the summary jury trial to meet the preliminary goal of promoting settlement, but also the larger goal of the accomplishment of justice

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Good Policy Or Judicial Abdication: When Courts Uphold Arbitral Awards Which Are In Excess Of The Arbitrator's Jurisdiction - Hall V. Superior Court, Sharon E. Schulte Jan 1994

Good Policy Or Judicial Abdication: When Courts Uphold Arbitral Awards Which Are In Excess Of The Arbitrator's Jurisdiction - Hall V. Superior Court, Sharon E. Schulte

Journal of Dispute Resolution

Legislatures and the court system have advanced a strong policy to encourage individuals to arbitrate disputes and avoid the traditional judicial system. 2 In order to promote this policy, it is vital that arbitrators' awards be respected and upheld if at all possible. Consequently, the grounds for review of arbitration awards are limited.' One of the grounds available for vacating an arbitral decision arises when an arbitrator exceeds his or her jurisdiction by purporting to decide issues not submitted by the parties for arbitral determination. 4 This Note discusses the potential consequences to the overall policy goals of encouraging arbitration …

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Title Page Jan 1994

Title Page

Journal of Dispute Resolution

No abstract provided.

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Bush On Mediator Dilemmas, Joseph B. Stulberg Jan 1994

Bush On Mediator Dilemmas, Joseph B. Stulberg

Journal of Dispute Resolution

Despite its richness, I believe that there are three features of the study that raise both conceptual and practical difficulties. They are: (1) its methodology for identifying ethical dilemmas; (2) its presumptions regarding the extent to which public policy can or should address some or all of the mediator's dilemmas; and (3) its applicability to mediator roles and dilemmas in contexts outside a court-referral system. I consider each of these features below.

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Ethical Dilemmas Or Benign Neglect, Richard A. Salem Jan 1994

Ethical Dilemmas Or Benign Neglect, Richard A. Salem

Journal of Dispute Resolution

But, the real message of this study is that guidance for mediators facing ethical dilemmas is long past due. The Florida mediators, as might have been anticipated, are encountering a number of ethical problems that are familiar to mediators elsewhere and that are endemic to practicing in this field. But, as Professor Bush suggests, the interviews indicate that some of the problems confronting Florida mediators result from their being placed in the untenable position of not being provided with: (1) sufficient policy and procedural guidelines; or (2) training to competently mediate cases being referred to them.

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Consolidation Of Separate Arbitration Proceedings: Liberal Construction Versus Contractarian Approaches - United Kingdom Of Great Britain V. Boeing Co., Michael L. Decamp Jan 1994

Consolidation Of Separate Arbitration Proceedings: Liberal Construction Versus Contractarian Approaches - United Kingdom Of Great Britain V. Boeing Co., Michael L. Decamp

Journal of Dispute Resolution

The Federal Arbitration Act (F.A.A.) provides arbitration agreements with the validity and enforceability afforded other contracts under the law. The F.A.A. does this by vesting the United States district courts with the authority to compel parties to arbitrate according to their agreements. However, when a court must decide whether to consolidate separate arbitration proceedings because they involve common questions of fact and law and common parties, the F.A.A. is silent as to the court's authority. This silence has resulted in courts either allowing consolidation under a liberal interpretation of the act ("liberal construction" approach), or refraining from granting consolidation under …

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Finding The Parameters: The Scope Of Arbitration Agreements In Medical Service Contracts In California - Pietrelli V. Peacock, Mark Riley Kroeker Jan 1994

Finding The Parameters: The Scope Of Arbitration Agreements In Medical Service Contracts In California - Pietrelli V. Peacock, Mark Riley Kroeker

Journal of Dispute Resolution

There is perhaps no better indicator of the general perception of "crisis" in the American medical system than the lavish attention given President Clinton's health care reform initiatives in the media.2 In the 1970s, the frequency of medical malpractice claims and the cost of malpractice insurance, two sources of this perceived crisis, came into sharp focus.3 Experiencing a decline in profits as a result of increased malpractice litigation, many insurers began refusing to provide coverage or demanding high premium increases.4 This created a problem in malpractice insurance availability to health care providers.5 Health care providers, insurers, and state legislatures responded …

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Emergency Medical Treatment Statute: A Federal How To On Avoiding Mandatory Arbitration Of Medical Malpractice Claims - Brooks V. Maryland Hospital, Inc., The, Karen E. Martin Jan 1994

Emergency Medical Treatment Statute: A Federal How To On Avoiding Mandatory Arbitration Of Medical Malpractice Claims - Brooks V. Maryland Hospital, Inc., The, Karen E. Martin

Journal of Dispute Resolution

To combat the explosion of medical malpractice claims, some states have made arbitration a mandatory prerequisite to filing medical malpractice suits. These states hope that mandatory arbitration will decrease the number of claims and lessen the impact of medical malpractice suits. The federal government has created an obstacle to this effort in the form of the emergency medical treatment statute. This federal statute regulates emergency room care, but courts have been hesitant to call it a medical malpractice statute. As a result of the ambiguity in the federal statute, claimants are able to avoid state-mandated arbitration, thereby circumventing the goals …

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Reply To The Commentators On The Ethical Dilemmas Study, A, Robert A. Baruch Bush Jan 1994

Reply To The Commentators On The Ethical Dilemmas Study, A, Robert A. Baruch Bush

Journal of Dispute Resolution

The invitation to republish here the report on my study of mediators' ethical dilemmas was a very gratifying one. My hope was that this report would generate further thought and discussion on this important subject, and this symposium will certainly help to realize that aim. For this I am grateful to the editors of the Journal and their advisor, Professor Leonard Riskin. Moreover, the best part of this invitation was that it contemplated the publication of comments on the report from a number of well-known and thoughtful figures in the mediation field. This kind of public dialogue is something all …

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Reversal Arbitration Board: An Adr Model For Resolving Intra-Corporate Disputes, The, Rene Stemple Ellis, Geetha Ravindra, Neil Vidmar, Thomas Davis Jan 1994

Reversal Arbitration Board: An Adr Model For Resolving Intra-Corporate Disputes, The, Rene Stemple Ellis, Geetha Ravindra, Neil Vidmar, Thomas Davis

Journal of Dispute Resolution

In this article, we describe the development and implementation of an innovative Alternative Dispute Resolution (ADR) program that uses neutral adjudicators to minimize lawsuits between Toyota Motor Sales, USA and its automobile dealerships. The Toyota Reversal Arbitration Board [hereinafterRAB] has several distinguishing characteristics. First, while many forms of ADR seek to shift the focus of disputes away from formal rules, the Toyota RAB was specifically designed to convey and enforce organizational rules. Second, an aspect of organizational decision making is entrusted to neutral, outside adjudicators trained as specialists in the rules and the context out of which disputes arise. Third, …

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Comparative Analysis Of Labor Mediation Using A Bargaining Strength Model, Alvin L. Goldman Jan 1994

Comparative Analysis Of Labor Mediation Using A Bargaining Strength Model, Alvin L. Goldman

Law Faculty Scholarly Articles

The comparison of different legal systems offers a number of analytical and research advantages, one of which is that it provides a laboratory for observing differences and similarities in the ways in which common regulatory and dispute resolution models operate in similar and dissimilar environments. This Essay uses that laboratory to illustrate how the bargaining strength model presented in Settling for More: Mastering Negotiation Strategies and Techniques can be applied in analyzing mediatory interventions and provide a better understanding of (a) how such interventions can be utilized most effectively, (b) when they are useful, (c) when they are superfluous, and …

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Divergent Strategies: Union Organizing And Alternative Dispute Resolution, Theodore J. St. Antoine Jan 1994

Divergent Strategies: Union Organizing And Alternative Dispute Resolution, Theodore J. St. Antoine

Articles

The Commission on the Future of Worker-Management Relations, the so-called "Dunlop Commission," is focusing on three principal subjects: (1) union organizing, (2) worker participation in management decision making, and (3) alternative dispute resolution (ADR). I am going to concentrate on the last, but first I would like to say a few words about union organizing. After all, unionization and collective bargaining - and for that matter, worker participation as well - can fairly be viewed as special forms of alternative dispute resolution.

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Disputing Through Agents: Cooperation And Conflict Between Lawyers In Litigation, Ronald J. Gilson, Robert H. Mnookin Jan 1994

Disputing Through Agents: Cooperation And Conflict Between Lawyers In Litigation, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

Do lawyers facilitate dispute resolution or do they instead exacerbate conflict and pose a barrier to the efficient resolution of disputes? A distinctive characteristic of our formal mechanisms of conflict resolution is that clients carry on their disputes through lawyers. Yet, at a time when the role of lawyers in dispute resolution has captured not only public but political attention, social scientists have remained largely uninterested in the influence of lawyers on the disputing process. This is not to say that academics have ignored the growth in civil litigation in the United States. Economists have developed an extensive literature that …

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Icsid Reports: Reports Of Cases Decided Under The Convention On The Settlement Of Investment Disputes Between States And Nationals Of Other States, 1965, Rosemary Rayfuse (Ed.) Dec 1993

Icsid Reports: Reports Of Cases Decided Under The Convention On The Settlement Of Investment Disputes Between States And Nationals Of Other States, 1965, Rosemary Rayfuse (Ed.)

Rosemary Rayfuse

The World Bank Convention on the Settlement of Investment Disputes entered into force in 1965. An international dispute settlement system which is of great and growing importance, its reports have been published haphazardly in various periodicals, but are presented in these volumes in consolidated form for the first time, together with materials related to the ICSID cases from national courts around the world. All the decisions are presented in English with summaries, and are translated from other languages where necessary. This second volume contains materials relating to proceedings from 1983 to 1991, and is fully indexed.

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La Obligación: Apuntes Para Una Dogmática Jurídica Del Concepto, Gastón Fernández Cruz Dec 1993

La Obligación: Apuntes Para Una Dogmática Jurídica Del Concepto, Gastón Fernández Cruz

Gastón Fernández Cruz

No abstract provided.

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