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Dispute Resolution and Arbitration

2002

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Articles 91 - 109 of 109

Full-Text Articles in Law

Table Of Contents - Issue 2 Jan 2002

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

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Procedural Justice Research And The Paucity Of Trials, Chris Guthrie Jan 2002

Procedural Justice Research And The Paucity Of Trials, Chris Guthrie

Journal of Dispute Resolution

Likewise, I do not mean to criticize Hensler's contribution to this volume. Although she is a prominent procedural justice researcher herself, she is certainly not responsible for the inattention given to the questions I have identified, and her measured conclusions about what might be inferred from the existing research are certainly appropriate. Indeed, I take Hensler' s broader point to be that courts should not mandate mediation simply because they believe as a matter of faith that mediation is a "better" process than others." Rather, courts should base their decisions, to the extent possible, on empirical evidence about the relative …

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Mediating Preferences: Litigant Preferences For Process And Judicial Preferences For Settlement, Judith Resnik Jan 2002

Mediating Preferences: Litigant Preferences For Process And Judicial Preferences For Settlement, Judith Resnik

Journal of Dispute Resolution

In the 1980s, as a consultant to RAND's Institute for Civil Justice, I joined Deborah Hensler, Allan Lind, Robert MacCoun, William Felstiner, Tom Tyler, and Patricia Ebener in seeking to learn how litigants viewed their experiences with courtbased processes. We surveyed litigants whose cases had been resolved through trials, court-annexed arbitrations, judge-run settlement conferences, and bi-lateral negotiations between lawyers.' We found that litigants cared about process: they reported less satisfaction with processes in which they took no part and more satisfaction with processes in which they could participate. Contrary to some lore that litigants were alienated by trial-like procedures, the …

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Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey Jan 2002

Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey

Journal of Dispute Resolution

The Emperor's New Clothes is a very modem tale about carving out market niches, about generating and feeding unreasonable desires, and about the power of conformity within emergent occupations and powerful professions.

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Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh Jan 2002

Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh

Journal of Dispute Resolution

Such a uniform commitment to procedural justice might seem natural for the courts. However, the procedural due process jurisprudence indicates that the courts' appreciation of procedural justice is unlikely to translate easily to processes in which the disputants, not the courts, are deemed to exercise control over outcomes. Given the current state of procedural due process jurisprudence, courts may lack both the desire and the ability to demand procedural justice in third party processes that are classified as "consensual." Ironically then, disputants' decision control, which is meaningful to mediation advocates and the courts but a rather hollow promise for disputants, …

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Arbitration Agreements In Labor And Employment Contracts: Well Within The Reach Of The Faa - Circuit City Stores, Inc. V. Adams, Lisa M. Eaton Jan 2002

Arbitration Agreements In Labor And Employment Contracts: Well Within The Reach Of The Faa - Circuit City Stores, Inc. V. Adams, Lisa M. Eaton

Journal of Dispute Resolution

Despite a series of decisions where the Supreme Court has upheld the use of arbitration in the employment context, the Court has never clearly stated that arbitration agreements contained in employment contracts fall under the Federal Arbitration Act (FAA). This omission has led to a split in the Circuits as to the scope of the FAA coverage ad exemption provisions. The controversy centers on whether the FAA covers all employment contracts except those of employees who transport people or goods in interstate commerce or whether the FAA exempts all employment contracts.

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Alternatives To Economic Sanctions, Christine M. Chinkin Jan 2002

Alternatives To Economic Sanctions, Christine M. Chinkin

Book Chapters

Considering the merits of non-coercive alternatives to economic sanctions inevitably risks the charges of idealism and naIvete. However a number of speakers in this conference have raised considerable doubts about the efficacy of sanctions: even on their own terms sanctions rarely work and the material costs to non-targeted states and the implications for human rights make their justification problematic, even when they can in some sense be said to have worked. It therefore makes sense at least to give consideration to some non- coercive alternatives, either in conjunction with sanctioning policies or separate from them. The other alternative is the …

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Meeting By Signals, Playing By Norms: Complementary Accounts Of Non-Legal Cooperation In Institutions, Edward B. Rock, Michael L. Wachter Jan 2002

Meeting By Signals, Playing By Norms: Complementary Accounts Of Non-Legal Cooperation In Institutions, Edward B. Rock, Michael L. Wachter

All Faculty Scholarship

No abstract provided.

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Title Page Jan 2002

Title Page

Journal of Dispute Resolution

No abstract provided.

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Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler Jan 2002

Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler

Journal of Dispute Resolution

Across the country, people who file lawsuits are being diverted from adjudication to mediation. Whereas once mediation was seen as the preferred means of resolving family disputes (especially those involving child custody), now it is mandated for a broad range of civil disputes. Whereas once citizens were called upon to volunteer as mediators in community justice centers outside the courts, now mediation is a line of business for lawyers whose customers are sent to them by the courts. Whereas once dispute resolution theorists called on courts to provide a variety of procedural choices for civil disputants, now courts order litigants …

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Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, The, Clark Freshman, Adele Hayes, Greg Feldman Jan 2002

Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, The, Clark Freshman, Adele Hayes, Greg Feldman

Journal of Dispute Resolution

This article explores two related questions: First, does mood7 shape how well lawyers succeed at negotiation?" Second, can lawyers succeed better at negotiation by understanding and managing the role of mood? We begin by exploring what scientific evidence we currently have about how mild changes in mood are associated with significant differences in success at negotiation. Ultimately, we argue that existing scientific evidence shows mood plays a far more complicated role than negotiators and negotiation scholars usually imagine, but that further research needs to address more carefully exactly how mood works and how it affects lawyers and legal negotiation. We …

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Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham Jan 2002

Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham

Journal of Dispute Resolution

In this commentary, I suggest that we can get a broader picture of the research agenda to address these policy issues by refining our notions of self-determination. In addition to self-determination over process and outcome in the individual case, we need to start examining who has control over design of the dispute system as a whole. First, this commentary addresses the difference between self-determination at the case level and self-determination in dispute system design and how these two separate dimensions of self-determination can help us distinguish among different uses of mediation and arbitration. Second, using this framework, I attempt to …

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Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips Jan 2002

Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips

Journal of Dispute Resolution

This experience stands in stark contrast to the thesis of Professor Deborah Hensler in her article, Suppose It's Not True: Challenging Mediation Ideology. Therein, Professor Hensler attempts to link social psychological research that she interprets as showing dissatisfaction with the use of mediation compared to adjudication, which, in turn, leads her to conclude that clients should prefer counsel who ordinarily can resolve cases successfully without the help of mediation.7 The fallacy of Professor Hensler's argument is evident in several respects. For one, she relies far too heavily on her own intuition and previous empirical research of marginal relevance, and on …

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Ability Of Native American Tribes To Waive Their Tribal Sovereign Immunity In Clear And Unequivocal Contracts To Arbitrate - C&(And)L Enterprises, Inc. V. Citizen Band Potawatomie Tribe Of Oklahoma, The, Emily J. Huitsing Jan 2002

Ability Of Native American Tribes To Waive Their Tribal Sovereign Immunity In Clear And Unequivocal Contracts To Arbitrate - C&(And)L Enterprises, Inc. V. Citizen Band Potawatomie Tribe Of Oklahoma, The, Emily J. Huitsing

Journal of Dispute Resolution

Native American tribes enjoy immunity from suits on contracts made on or off a reservation.2 A tribe is subject to suit only if it has clearly waived its immunity or Congress has expressly authorized the suit.' Tribal immunity was given to the tribes on the principle that tribes are sovereigns or quasi sovereigns enjoying immunity from judicial attack absent their consent.4 The purpose of tribal sovereignty, according to the Supreme Court, is to promote tribal economic development and self-sufficiency.5 Though the Court has expressed its dissatisfaction with the doctrine in light of increased tribal economic self-sufficiency through successful business ventures, …

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No Out For The Federal Government: Enforcing Contractual Arbitration Clauses In Federal Government False Claims Actions - U. S. V. Bankers Ins. Co., Sarah A. Wight Jan 2002

No Out For The Federal Government: Enforcing Contractual Arbitration Clauses In Federal Government False Claims Actions - U. S. V. Bankers Ins. Co., Sarah A. Wight

Journal of Dispute Resolution

As a party to one-fourth of all civil litigation2 the federal government exerts a looming presence in American judicial proceedings. Thus, attempts by the government to elude obligations under arbitration agreements, if successful, would significantly impact the elite status that pre-dispute contractual arbitration clauses currently hold.' This casenote examines how the United States Court of Appeals for the Fourth Circuit recently addressed this issue in the context of a false claims action.

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Perceptions About The Wto Trade Institutions, John H. Jackson Jan 2002

Perceptions About The Wto Trade Institutions, John H. Jackson

Georgetown Law Faculty Publications and Other Works

This article, based on a lecture given at the inauguration ceremony for the new Advisory Centre on WTO Law, describes the broader world trading landscape into which this new Centre emerges. Taking into account the possible implications of the events on September 11, this article provides a brief analysis of the current trade policy climate, asserting the necessity of institutions for the successful functioning of markets. After a short institutional history of the GATT/WTO, the author describes the importance of institutional rules, treaty text, and practice for the success of the WTO and presents the current debate over what the …

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Introducción Al Estudio De La Interpretación En El Código Civil Peruano, Gastón Fernández Cruz Dec 2001

Introducción Al Estudio De La Interpretación En El Código Civil Peruano, Gastón Fernández Cruz

Gastón Fernández Cruz

No abstract provided.

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What Do Family Mediators Do? A Look At Practices And Models, Sherrill W. Hayes Dec 2001

What Do Family Mediators Do? A Look At Practices And Models, Sherrill W. Hayes

Sherrill W. Hayes

No abstract provided.

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Zoning, Taking, & Dealing: The Problems And Promise Of Bargaining In Land Use Planning, Erin Ryan Dec 2001

Zoning, Taking, & Dealing: The Problems And Promise Of Bargaining In Land Use Planning, Erin Ryan

Erin Ryan

Municipal land use bargaining may imply as many problems as it heralds promise, but it is widely acknowleged as the universal language of land use planning. Planners and scholars agree that public-private negotiation plays a central role in the vast majority of local land use decision-making. At least in part, this is a result of the peculiar attributes of the resource at issue. Land is, perhaps, the ultimate nonfungible. Each parcel of land possesses unique characteristics not only in its physical attributes, but also by virtue of its location, and its proximity to other unique parcels. Moreover, land uses implicate …

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