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Dispute Resolution and Arbitration

1998

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Articles 1 - 30 of 89

Full-Text Articles in Law

Are We Ready For Mediation In Cyberspace?, Joel B. Eisen Nov 1998

Are We Ready For Mediation In Cyberspace?, Joel B. Eisen

BYU Law Review

No abstract provided.


The Right Mix, Richard C. Reuben Oct 1998

The Right Mix, Richard C. Reuben

Faculty Publications

This edition of Dispute Resolution Magazine explores several aspects of the problem. It begins with a debate between Jean Sternlight and Theodore 0. Rogers over the propriety of mandatory predispute arbitration processes in the consumer and employment contexts, followed by a proposal by Terry Trantina for a "constructive compromise" regarding the general validity of arbitration agreements in contracts of adhesion.

This trio of essays is followed by articles on two major arbitration reform efforts. The first, by Thomas J. Stipanowich and J. Clark Kelso, discusses the rise of protocols and other industry standards intended to bring fairness to the arbitratica ...


Defending The Weak And Fighting Unfairness: Can Mediators Respond To The Challenge?, Michael Coyle Oct 1998

Defending The Weak And Fighting Unfairness: Can Mediators Respond To The Challenge?, Michael Coyle

Osgoode Hall Law Journal

As mediation gains in popularity as a tool for resolving civil disputes, and particularly as a substitute for court decisions, some have questioned mediation's ability to assure fairness of process and outcome. Others have argued that the main strength of mediation lies in the power it gives the parties to invent their own approach to resolving their dispute, leaving little room for mediators to impose their own notions of fairness on the process. This article examines the extent to which mediators have an obligation to address issues of fairness in the processes they manage. Through a functional and context-based ...


Conciliation Des Litiges Et Formes Alternatives De Régulation En Droit Administratif Fédéral, France Houle, Daniel Mockle Oct 1998

Conciliation Des Litiges Et Formes Alternatives De Régulation En Droit Administratif Fédéral, France Houle, Daniel Mockle

Osgoode Hall Law Journal

Despite the considerable attention devoted to Alternative Dispute Resolution (ADR) in Canada, few studies are available on its impact in public law, especially in federal administrative law. Yet, there is much evidence that these techniques are increasingly used and it is therefore timely to catalogue and classify them. To this end, a distinction is drawn between dispute resolution techniques used for transactional purposes and those used for regulatory purposes. This classification provides the basis for a theoretical analysis which focuses on public law and raises questions generally neglected in the existing literature concerning ADR: the particular nature of federal law ...


Would Adr Have Saved Romeo And Juliet?, Pam Marshall Oct 1998

Would Adr Have Saved Romeo And Juliet?, Pam Marshall

Osgoode Hall Law Journal

Like many disputes, Romeo and Juliet is a story with no winners; the outcome is destined to be lose-lose. Disputes are an inevitable part of human interaction and people need to learn effective and reasonable ways of dealing with their disputes. The question is how can this be done in a way that leaves people intact. The article compares and contrasts two modes for resolving disputes: adjudication and alternative dispute resolution (ADR). The article looks at what happens when disputes arise-how do problems become "disputes" and what do people do about them? The role of lawyers as dispute creators as ...


Protecting The Confidentiality Of Communications In Mediation, Owen V. Gray Oct 1998

Protecting The Confidentiality Of Communications In Mediation, Owen V. Gray

Osgoode Hall Law Journal

This article explores the justifications for protecting mediation communications from disclosure. It reviews the existing legal protections for mediated dispute settlement discussions. The major issues that seem to arise when statutory reform is considered are identified, and a recent study of the issue by the Manitoba Law Reform Commission is described and critiqued. The author argues that a distinction should be made between circumstances in which a party is required or permitted to testify about what took place in mediation, and circumstances in which the mediator may be required to do so. He suggests that mere extension to mediation of ...


Why Arbitrate?: Ontario's Recent Experience With Commercial Arbitration, Randy A. Pepper Oct 1998

Why Arbitrate?: Ontario's Recent Experience With Commercial Arbitration, Randy A. Pepper

Osgoode Hall Law Journal

In 1988, Ontario adopted the International Commercial Arbitration Act and in January 1992 the Arbitration Act, 1991 came into force for domestic arbitrations. These statutes and similar legislation in other provinces pushed Canadian arbitration regimes into the forefront of industrial nations. However, there has not been a significant increase in the number of commercial arbitrations being conducted in Ontario. This article suggests that Ontario is ideally placed to become an important centre for domestic and international arbitration. The author asserts that if commercial parties and their counsel were more familiar with the benefits of the arbitral process and with the ...


Unwilling Actors: Why Voluntary Mediation Works, Why Mandatory Mediation Might Not, Gary Smith Oct 1998

Unwilling Actors: Why Voluntary Mediation Works, Why Mandatory Mediation Might Not, Gary Smith

Osgoode Hall Law Journal

This article examines the debate over the introduction of mandatory mediation in civil litigation. It analyzes why and how voluntary mediation works in order to measure how the process might change under the new regime being implemented in Ontario. The underlying narrative structures of mediation are exposed using semiotic theories commonly employed in the study of theatre. This article will show that mediation, when imposed on unwilling parties, will hinder its efficacy and compromise its theatrical processes. The author concludes that the best way to ensure that making mediation mandatory does not discredit the efficacy and benefits of the process ...


Mediation In Environmental Conflicts: The Belgian Methodology, Catherine Zwetkoff Sep 1998

Mediation In Environmental Conflicts: The Belgian Methodology, Catherine Zwetkoff

RISK: Health, Safety & Environment (1990-2002)

Dr. Zwetkoff analyzes the effectiveness and feasibility of using traditional ADR techniques to resolve environmental disputes in Belgium.


Alternative Dispute Resolution In Commercial Intellectual Property Disputes , Scott H. Blackman, Rebecca M. Mcneill Aug 1998

Alternative Dispute Resolution In Commercial Intellectual Property Disputes , Scott H. Blackman, Rebecca M. Mcneill

American University Law Review

No abstract provided.


Employment Protection And Domestic Violence: Addressing Abuse In The Labor Grievance Process, Jennifer Atterbury Jul 1998

Employment Protection And Domestic Violence: Addressing Abuse In The Labor Grievance Process, Jennifer Atterbury

Journal of Dispute Resolution

The effects of domestic violence are not limited to the home environment. Its effects are felt in employment when abused employees are absent from work and when violent incidents erupt in the workplace. For example, a bruised employee might be too injured and embarrassed to attend work, or an estranged spouse might stalk and harass a victim on the job. Another issue arises in that employers often discipline victims of domestic violence for absenteeism and incidents of violence that occur in the workplace. Discipline of union members is governed by collective bargaining agreements and subject to the labor grievance process ...


Utilitarian Analysis Of The Objectives Of Criminal Plea Negotiation And Negotiation Strategy Choice, Joseph W. Vanover Jul 1998

Utilitarian Analysis Of The Objectives Of Criminal Plea Negotiation And Negotiation Strategy Choice, Joseph W. Vanover

Journal of Dispute Resolution

This article examines the repercussions of choosing a negotiating style for the present criminal case on the actions of opposing counsel in future cases. It scrutinizes the criminal plea negotiating process from the perspective of both a prosecuting attorney and a defense attorney. It analyzes this process using two philosophical theories: act utilitarianism and rule utilitarianism.


Is Alternative Dispute Resolution A Possibility In The Riverboat Gambling Quagmire - Akin V. Missouri Gaming Commission, Matthew Potter Jul 1998

Is Alternative Dispute Resolution A Possibility In The Riverboat Gambling Quagmire - Akin V. Missouri Gaming Commission, Matthew Potter

Journal of Dispute Resolution

During the 1990s, the emergence of riverboat gambling operations has led to an avalanche of social and political debates.' Since 1989, riverboat gaming has been electorally approved in several midwestern states, including Iowa, Illinois, Indiana, Mississippi, Missouri, and Louisiana.4 However, this voter acceptance of a formerly stigmatized industry has not come without a significant backlash. In particular, religious groups have denounced riverboat gambling, claiming that such activity inevitably leads to, inter alia, dissipated savings, chronic addictions, and other ancillary societal vices, including prostitution, alcoholism, and drug abuse.'


Reining In The Manifest Disregard Of The Law Standard: The Key To Restoring Order To The Law Of Vacatur, Stephen L. Hayford Jul 1998

Reining In The Manifest Disregard Of The Law Standard: The Key To Restoring Order To The Law Of Vacatur, Stephen L. Hayford

Journal of Dispute Resolution

The thesis of this article is that if the "manifest disregard" of the law standard is either rejected as doctrinally unsound or somehow harmonized with Section 10(a) of the FAA in a manner that precludes judicial intrusion into the merits of commercial arbitration awards, the legitimacy of all of the remaining nonstatutory grounds for vacatur will be eviscerated. If those nonstatutory standards were eliminated, the law of vacatur would be restored to the simple, straightforward standards articulated by Congress in Section 10(a) of the FAA


Eleventh Circuit Adopts Manifest Disregard Of The Law As A Non-Statutory Ground For Vacating An Arbitration Award - Montes V. Shearson Lehman Brothers, Inc., The, Daniel S. Cohen Jul 1998

Eleventh Circuit Adopts Manifest Disregard Of The Law As A Non-Statutory Ground For Vacating An Arbitration Award - Montes V. Shearson Lehman Brothers, Inc., The, Daniel S. Cohen

Journal of Dispute Resolution

When parties agree to resolve disputes through arbitration, they expect the resolution to be binding and final. There are a few situations, however, where a court will be willing to intervene and vacate the arbitration board's award. The Eleventh Circuit Court of Appeals, in Montes v. Shearson Lehman Brothers, Inc., recognized that manifest disregard of the law by an arbitrator is a reason to abandon the arbitrator's ruling and remand the case to a new arbitration board. The court established that when it can be shown that the arbitrator knew the law and expressly ignored it, his decision ...


Fallacy Of Duffield V. Robertson And Rosenberg V. Merrill Lynch: The Continuing Viability Of Mandatory Pre-Dispute Title Vii Arbitration Agreements In The Post-Civil Rights Act Of 1991 Era, The, Kristen Decker, William Krizner Jul 1998

Fallacy Of Duffield V. Robertson And Rosenberg V. Merrill Lynch: The Continuing Viability Of Mandatory Pre-Dispute Title Vii Arbitration Agreements In The Post-Civil Rights Act Of 1991 Era, The, Kristen Decker, William Krizner

Journal of Dispute Resolution

Two recent decisions, one in the Ninth Circuit and one in a Massachusetts District Court, have erroneously held that mandatory Title VII pre-dispute arbitration clauses are unenforceable under the Civil Rights Act of 1991.' A statutory construction analysis of the 1991 Civil Rights Act demonstrates that Congress did not intend to abolish the use of such clauses. Instead, Congress intended to support the use of mandatory pre-dispute arbitration as a valid and useful forum for the resolution of disputes arising under Title VII of the Civil Rights Act of 1964. The purpose of the following Article is twofold. First, this ...


Recent Developments: The Uniform Arbitration Act, Benjamin K. Byrd, Mondonna L. Ghasedi, Robert J. Steintjes, Michelle Trant Jul 1998

Recent Developments: The Uniform Arbitration Act, Benjamin K. Byrd, Mondonna L. Ghasedi, Robert J. Steintjes, Michelle Trant

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.


Survey Of Domestic Mediator Qualifications And Suggestions For A Uniform Paradigm, A, Timothy Lohmar, Heidi Gryte, Amy Markel Jul 1998

Survey Of Domestic Mediator Qualifications And Suggestions For A Uniform Paradigm, A, Timothy Lohmar, Heidi Gryte, Amy Markel

Journal of Dispute Resolution

Plagued by the burdens of congestion in the family courts system, many jurisdictions have resorted to both court-connected and independent mediation referral as a means to relieve the hurdles of domestic litigation.' In efforts to ensure the quality of mediators to whom they refer cases, many states have resorted to statutory provisions which prescribe certain criteria which domestic mediators must meet. What has evolved is a variety of domestic mediator skills, personal qualities, and knowledge standards incorporated by jurisdictions throughout the United States. This note will attempt to identify the predominant themes recurrent in states ordaining statutory domestic mediator qualifications ...


A Proposed Conflict Of Interest Rule For Attorney-Mediators, Michelle D. Gaines Jul 1998

A Proposed Conflict Of Interest Rule For Attorney-Mediators, Michelle D. Gaines

Washington Law Review

Maintaining the success and fairness of mediation requires mediators to be impartial toward all parties and to protect the confidentiality of mediation sessions. Attorney-mediators encounter conflicts of interest, based on prior or subsequent representation of clients, that can disrupt impartiality or confidentiality. When attorneys practice mediation, it is unclear where they should look for guidance: attorney rules of professional conduct, mediator ethical standards, or both. Additionally, attorney-mediators encounter unique issues that ethical guidelines designed for attorneys or mediators do not address adequately. This Comment proposes a comprehensive conflict of interest rule for inclusion in the Rules of Professional Conduct that ...


Outdoor Recreation And Water Development: The National Recreation Lakes Study, Bruce R. Brown Jun 1998

Outdoor Recreation And Water Development: The National Recreation Lakes Study, Bruce R. Brown

Outdoor Recreation: Promise and Peril in the New West (Summer Conference, June 8-10)

12 pages.


One State’S Response To Outdoor Recreation Pressures, Laurie Mathews Jun 1998

One State’S Response To Outdoor Recreation Pressures, Laurie Mathews

Outdoor Recreation: Promise and Peril in the New West (Summer Conference, June 8-10)

5 pages.


Recreation Management By The Blm: A Local Perspective, Ann Morgan Jun 1998

Recreation Management By The Blm: A Local Perspective, Ann Morgan

Outdoor Recreation: Promise and Peril in the New West (Summer Conference, June 8-10)

10 pages.


Conflict Among User Groups: An Overview Of Major Issues And Opportunities, Mark W. Brunson Jun 1998

Conflict Among User Groups: An Overview Of Major Issues And Opportunities, Mark W. Brunson

Outdoor Recreation: Promise and Peril in the New West (Summer Conference, June 8-10)

14 pages.

Contains 2 pages of references.


Field-Level Conflict Management In Outdoor Recreation, James B. Webb Jun 1998

Field-Level Conflict Management In Outdoor Recreation, James B. Webb

Outdoor Recreation: Promise and Peril in the New West (Summer Conference, June 8-10)

7 pages.


Field Level Conflict Management In Outdoor Recreation, Arden Anderson Jun 1998

Field Level Conflict Management In Outdoor Recreation, Arden Anderson

Outdoor Recreation: Promise and Peril in the New West (Summer Conference, June 8-10)

16 pages.

Contains references.


Conflict Resolution: A Field Perspective, Ev Elmendorf Jun 1998

Conflict Resolution: A Field Perspective, Ev Elmendorf

Outdoor Recreation: Promise and Peril in the New West (Summer Conference, June 8-10)

6 pages.


A Mountain Bicycling Perspective On User Group Conflict, Martha Roskowski Jun 1998

A Mountain Bicycling Perspective On User Group Conflict, Martha Roskowski

Outdoor Recreation: Promise and Peril in the New West (Summer Conference, June 8-10)

11 pages.

Contains 1 page of references.


Agenda: Outdoor Recreation: Promise And Peril In The New West, University Of Colorado Boulder. Natural Resources Law Center, Colorado. Bureau Of Land Management Jun 1998

Agenda: Outdoor Recreation: Promise And Peril In The New West, University Of Colorado Boulder. Natural Resources Law Center, Colorado. Bureau Of Land Management

Outdoor Recreation: Promise and Peril in the New West (Summer Conference, June 8-10)

Co-sponsored by the Natural Resources Law Center and the Colorado Bureau of Land Management.

The conference will explore several components of the “promise and peril” of the ongoing outdoor recreation explosion. The conference will begin on the morning of June 8 with a series of introductory presentations designed to place the outdoor recreation movement in a useful historical and socioeconomic context. This material will be followed in the afternoon session by a discussion of environmental impacts of outdoor recreation, recognizing that the diversity and magnitude of impacts is as broad as the industry itself. This discussion will be followed on ...


Failing Faith In Litigation? A Survey Of Business Lawyers' And Executives' Opinions, John M. Lande Apr 1998

Failing Faith In Litigation? A Survey Of Business Lawyers' And Executives' Opinions, John M. Lande

Faculty Publications

To provide a more systematic assessment of contemporary faith in litigation, this article looks at a particular context-- business litigation--and analyzes the opinions of three groups of respondents: lawyers in private law firms who do commercial litigation (“outside counsel”), lawyers employed in business firms who do some litigation (“inside counsel”), and nonlawyer executives in business firms (“executives”). These groups have the greatest exposure to litigation in the corporate setting; furthermore, because they play powerful roles in our political, economic, and social life as well as the legal system, their opinions influence public opinion more generally.


Introduction: Current Issues In Arbitration, Shannon E. Pinkston Apr 1998

Introduction: Current Issues In Arbitration, Shannon E. Pinkston

Vanderbilt Law Review

"[An incompetent attorney can delay a case for years, while a competent attorney can delay it for even longer."'

This oft-repeated joke illustrates the public perception of the delays and expense that accompany courtroom litigation. Indeed, growing frustration with crowded courts and exorbitant legal costs fuels the widespread Alternative Dispute Resolution ("ADR") movement. Notwithstanding the dramatic increase in its use, ADR, defined as "procedures for settling disputes by means other than litigation," is not a novel idea. In fact, ADR was present in America as early as the seventeenth century. In certain parts of colonial America, voluntary arbitration was a ...