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Dispute Resolution and Arbitration

1996

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Articles 1 - 30 of 75

Full-Text Articles in Law

A Primer On Prejudgment Interest, Michael S. Knoll Dec 1996

A Primer On Prejudgment Interest, Michael S. Knoll

Faculty Scholarship at Penn Law

No abstract provided.


The Lawyer Turns Peacemaker, Richard C. Reuben Aug 1996

The Lawyer Turns Peacemaker, Richard C. Reuben

Faculty Publications

No doubt millions of people and businesses have benefited from simpler, less stressful modes of dispute resolution. Moreover, ADR is primed for much greater growth, as witnessed by the breathtaking expansion of court-related programs, the rush of lawyers and nonlawyers alike to mediation training seminars, and the pledge of thousands of businesses and large law firms to consider ADR options. But the child born of necessity is still, at best, teetering between adolescence and adulthood. For all of its potential to reshape the ways problems are solved, it still shows a dark side-coercion, conflicts, competency issues and commercialism -that leaves ...


Transnational Responsibility And Recourse For Ozone Depletion, Jennifer S. Bales Aug 1996

Transnational Responsibility And Recourse For Ozone Depletion, Jennifer S. Bales

Boston College International and Comparative Law Review

This Article explores state responsibility to the international community as a whole and to injured states in particular for the damage occurring from the production and use of ozone depleting substances. This Article argues that pollution of the environment through the continued use and manufacture of ozone depleting substances is in violation of both treaty obligations and general obligations under customary international law. The author argues that pursuant to the international law principle of pacta sunt servanda, signatory states to the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone ...


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 ...


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 ...


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 ...


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.'


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


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.


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 ...


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. '


The Ongoing Role Of Alternative Dispute Resolution In Federal Government Litigation, Peter R. Steenland, Jr., Peter A. Appel Jul 1996

The Ongoing Role Of Alternative Dispute Resolution In Federal Government Litigation, Peter R. Steenland, Jr., Peter A. Appel

Scholarly Works

This essay demonstrates that within appropriate guidelines, ADR has an important and growing role in the conduct of government litigation. To the extent that ADR can help the government save resources, this alone is of considerable public interest. More importantly ADR can help the government settle entire disputes rather than those pieces of disputes that become litigation events. ADR also involves the parties more directly in shaping the resolution of a dispute, and can often provide a result that is beyond the capacity of a court to provide. Because of the direct participation by the parties in mediation processes, ADR ...


The Times They Are A Changin' - Or Are They? An Update On Rule 114, Barbara Mcadoo, Nancy A. Welsh Jul 1996

The Times They Are A Changin' - Or Are They? An Update On Rule 114, Barbara Mcadoo, Nancy A. Welsh

Faculty Scholarship

When Rule 114 of the General Rules of Civil Practice arrived on the Minnesota legal scene in July 1994, it took many attorneys by complete surprise. Even in Hennepin County, which has had a nonbinding arbitration program since 1984, some attorneys asked, "ADR? Is that short for Another Darn Requirement'?" Nearly two years later, now that most attorneys know that ADR is the acronym for "Alternative Dispute Resolution," it is time to take stock of Rule 114, to evaluate its influence on the practice of law and its impact on the courts.

This review is timely for another, very important ...


Using Decision Trees As Tools For Settlement, Marjorie Corman Aaron Jun 1996

Using Decision Trees As Tools For Settlement, Marjorie Corman Aaron

Faculty Articles and Other Publications

While experienced lawyers can some­ times develop an intuitive sense of what a case is worth, their intuition may not be sufficient in a case of considerable complexity. Furthermore, intuitive "gut sense" valuations are hard to support or explain to clients.

Decision trees allow the parties and their lawyers to see more clearly how the strengths and weaknesses of their positions on specific issues will affect the overall value of a case. Long popular in the business community, deci­sion analysis has evolved as a tool for lawyers to help make decisions in complex litigation.


Adr Toolbox: The Highwire Art Of Evaluation, Marjorie Corman Aaron May 1996

Adr Toolbox: The Highwire Art Of Evaluation, Marjorie Corman Aaron

Faculty Articles and Other Publications

Many mediators are uncomfortable with the idea of discussing or presenting evaluations. However, when parties reach an impasse, they often want the mediator to play an active role. In these cases, responsible use of evaluation is completely consistent with the goals of mediation. Mediators should provide an evaluation only if there is an insurmountable settlement gap that arises from the parties’ widely divergent views of what will happen if the case doesn’t settle. Evaluation is not a substitute for other essential mediation tools. It is a last step, but in many cases skipping that step means missing the sole ...


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.


Preliminary Reflections On The Establishment Of A Mediation Clinic, James Stark Apr 1996

Preliminary Reflections On The Establishment Of A Mediation Clinic, James Stark

Faculty Articles and Papers

No abstract provided.


Fairness In Civil Rights Arbitration, Douglas E. Abrams Apr 1996

Fairness In Civil Rights Arbitration, Douglas E. Abrams

Faculty Publications

No abstract provided.


Understanding Mediators' Orientations, Strategies, And Techniques: A Grid For The Perplexed, Leonard L. Riskin Apr 1996

Understanding Mediators' Orientations, Strategies, And Techniques: A Grid For The Perplexed, Leonard L. Riskin

UF Law Faculty Publications

This Article begins with a review of previous efforts to categorize mediation and their shortfalls, including the lack of any widely-shared comprehensive method for describing the various approaches to mediation practice. The Article then offers a new "grid" system for classifying mediator orientations, strategies, and techniques and describes the potential utility of the grid, particularly its effectiveness in selecting mediators.


Mediating Bioethical Disputes, Diane E. Hoffmann, Naomi Karp Mar 1996

Mediating Bioethical Disputes, Diane E. Hoffmann, Naomi Karp

Faculty Scholarship

No abstract provided.


Arbitrating Statutory Employment Claims In The Aftermath Of Gilmer, Martin H. Malin Feb 1996

Arbitrating Statutory Employment Claims In The Aftermath Of Gilmer, Martin H. Malin

All Faculty Scholarship

No abstract provided.


Foreign Forum Selection Clauses Under Cogsa: The Supreme Court Charts New Waters In The Sky Reefer Case, Christine N. Schnarr Jan 1996

Foreign Forum Selection Clauses Under Cogsa: The Supreme Court Charts New Waters In The Sky Reefer Case, Christine N. Schnarr

Washington University Law Review

No abstract provided.


Mediation And The Americans With Disabilities Act, Ann C. Hodges Jan 1996

Mediation And The Americans With Disabilities Act, Ann C. Hodges

Law Faculty Publications

This Article will analyze the potential uses of mediation in ADA disputes, focusing primarily on employment issues. Part II of the Article provides a description and analysis of the mediation process. Part III provides an overview of the ADA. Part IV examines the dispute resolution provisions of the ADA and both the current and proposed uses of alternative dispute resolution. Finally, Part V analyzes the use of mediation in ADA cases and recommends appropriate uses of mediation that will effectuate the purpose of the statute.


The Enforceability Of Arbitration Agreements In Employment Disputes Between Securities Firms And Their Employees, Drew F. Davis Jan 1996

The Enforceability Of Arbitration Agreements In Employment Disputes Between Securities Firms And Their Employees, Drew F. Davis

Washington University Law Review

No abstract provided.


Court Mediation And The Search For Justice Through Law, Jacqueline M. Nolan-Haley Jan 1996

Court Mediation And The Search For Justice Through Law, Jacqueline M. Nolan-Haley

Washington University Law Review

The trend toward court mediation is remarkable because our civil justice system has traditionally promised justice through law. The promise of mediation is different: Justice is derived, not through the operation of law, but through autonomy and self-determination. When mediation occurs in court, significant policy questions arise: What happens to law? To justice? Do they collapse in the experience of self-determination? If so, what then happens to the promise of justice through law, particularly where one or both of the parties are not represented by lawyers? These are the questions I address in this article. Part I of this Article ...


Department Of Dispute Resolution Ph.D. Program Student Handbook 1996-97, Nova Southeastern University Jan 1996

Department Of Dispute Resolution Ph.D. Program Student Handbook 1996-97, Nova Southeastern University

College of Arts, Humanities, and Social Sciences Course Catalogs

No abstract provided.


Department Of Dispute Resolution Annual Report 1996-1997, Nova Southeastern University Jan 1996

Department Of Dispute Resolution Annual Report 1996-1997, Nova Southeastern University

College of Arts, Humanities, and Social Sciences Course Catalogs

No abstract provided.


M.S. In Dispute Resolution Student Handbook, Nova Southeastern University Jan 1996

M.S. In Dispute Resolution Student Handbook, Nova Southeastern University

College of Arts, Humanities, and Social Sciences Course Catalogs

No abstract provided.


Arbitrating Employment Discrimination Claims: The Lower Courts Extend Gilmer V. Interstate/Johnson Lane Corp. {111 S. Ct. 1647 (1991)} To Include Individual Employment Contracts, Jennifer A. Marler Jan 1996

Arbitrating Employment Discrimination Claims: The Lower Courts Extend Gilmer V. Interstate/Johnson Lane Corp. {111 S. Ct. 1647 (1991)} To Include Individual Employment Contracts, Jennifer A. Marler

Washington University Law Review

No abstract provided.