Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Arbitration (12)
- Dispute resolution (5)
- Mediation (4)
- Masthead (2)
- Table of Contents - Issue 2 (2)
-
- American colonists (1)
- Class waivers (1)
- Dubai (1)
- Due process (1)
- Elder law (1)
- Employment (1)
- Employment rights (1)
- Federal arbitration act (1)
- Federal judicial center (1)
- Flood insurance (1)
- Insolvency (1)
- Interstate arbitration (1)
- Judging (1)
- Judicial education (1)
- Mediators (1)
- Middle east (1)
- Mindfulness (1)
- NLRA (1)
- Parental rights (1)
- Patent law (1)
- Quakers (1)
- Securities arbitration (1)
- Water law (1)
Articles 1 - 29 of 29
Full-Text Articles in Law
State Legislative Update, M. Katherine Kerbs, Katherine E. Mcmurtrey, Courtney Lauer, Theresa Mullineaux
State Legislative Update, M. Katherine Kerbs, Katherine E. Mcmurtrey, Courtney Lauer, Theresa Mullineaux
Journal of Dispute Resolution
Mediation is a non-binding type of dispute resolution. Mediation is a process where a neutral, third party with no authoritative decision-making power assists parties in a dispute to voluntarily reach a mutually acceptable agreement. The legal community has encouraged alternative dispute resolution, including mediation. With mediation as the primary alternative dispute resolution type in the federal district courts, it is now even more important that legislation surrounding mediation and confidentiality is created. In fact, over half of the ninety-four federal court districts now offer, and in most instances, require mediation.
The English Inheritance—What The First American Colonists Knew Of Mediation And Arbitration, Derek Roebuck
The English Inheritance—What The First American Colonists Knew Of Mediation And Arbitration, Derek Roebuck
Journal of Dispute Resolution
It seems fair to assume that the first American colonists took with them attitudes and practices from home, including the ways in which they routinely resolved disputes. For example, on November 11, 1647 the General Court of the Massachusetts Bay Colony authorized the purchase of Edward Coke’s Reports, First and Second Institutes and Book of Entries, “to the end we may have the better light for making and proceedings about laws.” But does that mean it was natural then for parties with differences to look to litigation for an answer? This Article provides ample evidence of a preference for other …
The Evolution Of Interstate Arbitration And The Peaceful Resolution Of Transboundary Freshwater Disputes, Tamar Meshel
The Evolution Of Interstate Arbitration And The Peaceful Resolution Of Transboundary Freshwater Disputes, Tamar Meshel
Journal of Dispute Resolution
This Article sets out to examine the potential for arbitration to be effectively employed by states in the resolution of transboundary freshwater disputes. Part II will describe the unique nature of TFDs, briefly examine the international law principles governing such disputes as well as the main mechanisms used for their resolution, and evaluate their adequacy. Part III will suggest a new approach to interstate arbitration, intended to ‘revive’ it in the context of TFD resolution. The first element of this approach calls for a return to the original purpose and true nature of arbitration, which rather than constituting a purely …
An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster
An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster
Journal of Dispute Resolution
This study examines a legal experiment that occurred during the height of the global financial crisis. As markets from the United States to Europe to the Global South shook, one country – the United Arab Emirates (U.A.E.) – found itself on the brink of economic collapse. In particular, in 2009 the U.A.E.’s Emirate of Dubai (Emirate) was contemplating defaulting on $60 billion of debt it had amassed. Recognizing that such a default would have cataclysmic reverberations across the globe, Dubai’s governmental leaders turned to a small group of foreign lawyers, judges, accountants, and business consultants for assistance. Working in a …
Seeking Justice For Grandma: Challenging Mandatory Arbitration In Nursing Home Contracts, Andi Alper
Seeking Justice For Grandma: Challenging Mandatory Arbitration In Nursing Home Contracts, Andi Alper
Journal of Dispute Resolution
This Comment advocates against the use of mandatory arbitration in nursing home admission contracts and discusses various legal theories available to refute such clauses. Part II discusses mandatory arbitration in general and its use in nursing home admission contracts. Part III summarizes some of the common arguments made in favor of and against arbitration in nursing home admission contracts. Finally, Part IV addresses how courts analyze these agreements and possible approaches to avoid arbitration of disputes arising out of the nursing home contract.
Mediators Without Borders And The Efficacy Of Community Mediation Centers In Israel And Palestine, Jenna Homeyer
Mediators Without Borders And The Efficacy Of Community Mediation Centers In Israel And Palestine, Jenna Homeyer
Journal of Dispute Resolution
This Comment will also discuss whether using specific techniques from each center can help restore relations between the people of Israel and Palestine. “[C]ulture is not posited as the cause of conflict, instead, it is intertwined with conflict and the processes of resolution.” What makes each center successful is that they embrace cultural differences. Instead of viewing cultural differences as an obstacle to peace they use cultural norms like Sulha, a traditional Arab way to resolve conflict, to invite peace. Each of these processes maintains a person’s dignity through the resolution process, and helps each party see the opposing party …
Introduction: Judicial Education, Dispute Resolution, And The Life Of A Judge: A Conversation With Judge Jeremy Fogel, Director Of The Federal Judicial Center, Jeremy Fogel Hon., S. I. Strong
Introduction: Judicial Education, Dispute Resolution, And The Life Of A Judge: A Conversation With Judge Jeremy Fogel, Director Of The Federal Judicial Center, Jeremy Fogel Hon., S. I. Strong
Journal of Dispute Resolution
In January and June 2016, Judge Jeremy Fogel, Director of the Federal Judicial Center, sat down with Professor S.I. Strong to discuss a variety of issues ranging from the civil rules amendments and the case management process to judicial education, mediation and the role of the Federal Judicial Center. Judge Fogel also gave his views on what lawyers, academics and the public need to know about the federal judiciary and the task of judging, thereby providing important and unique insights into the judicial process.
Mindful “Judging” 1.5: The Science Of Attention, “Lie Detection,” And Bias Reduction – With Kindness, Clark Freshman, Shauna Shapiro, Sarah De Sousa
Mindful “Judging” 1.5: The Science Of Attention, “Lie Detection,” And Bias Reduction – With Kindness, Clark Freshman, Shauna Shapiro, Sarah De Sousa
Journal of Dispute Resolution
This article addresses two overlapping audiences. We’ve written this article partly as a kind of manual like Mindfulness 1.0 for those who suspect they know little and as a resource to convince skeptical others, and the curious or even skeptical parts of ourselves, that mindfulness deserves its newfound, albeit shaky, respect. What is mindfulness and how can mindfulness help us judge, advocate, and negotiate? Judge Fogel’s writing and his position carry weight with many. This Article adds some of the latest research, including brain imaging and carefully controlled studies. We highlight multiple types of data from dramatic increases in working …
Professor Roebuck’S Lessons For Mediators, Arbitrators, And Historians, Douglas E. Abrams
Professor Roebuck’S Lessons For Mediators, Arbitrators, And Historians, Douglas E. Abrams
Journal of Dispute Resolution
Professor Roebuck’s biographical essay on Nathaniel Bacon, the centerpiece of his historical article, delivers a timely lesson about how adherence to solid personal standards can elevate a mediator or arbitrator above the rest of the pack. With an eye toward future national direction, the article closes by summoning American historians to chronicle the development of alternative dispute resolution (ADR) since the nation’s colonial days.
The Faa Vs. The Nlra And The Flsa: Have Courts Given The Faa Too Much Deference?, Nikki Clark
The Faa Vs. The Nlra And The Flsa: Have Courts Given The Faa Too Much Deference?, Nikki Clark
Journal of Dispute Resolution
This Comment will discuss whether courts have given too much weight to the FAA at the cost of making other federal laws such as the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) less effective. The NLRA and the FLSA are not the only federal laws that stand to be affected by the expanding application of the FAA. The Age Discrimination in Employment Act (ADEA) has also been affected by the FAA.
Dispute Resolution Tools In Patent Infringement Cases: Aoki V. Gilbert, No. 2:11-Cv02787-Tln-Cnd, 2015 Wl 5734626 (E.D. Cal. 2015), Brandon Craig
Dispute Resolution Tools In Patent Infringement Cases: Aoki V. Gilbert, No. 2:11-Cv02787-Tln-Cnd, 2015 Wl 5734626 (E.D. Cal. 2015), Brandon Craig
Journal of Dispute Resolution
While arbitration has become a widely accepted alternative to litigation, the role it should play in patent disputes has been widely debated. Issued by the federal government, patents confer a temporary monopoly on the production, use, and sale of new innovations. The government may have an interest in keeping such disputes out of the private realm of arbitration, at least when the dispute is over the validity of the patent. For other patent issues such as licensing, which is essentially a private contract, arbitration may serve as a useful and cost-effective alternative. Even when arbitration is not warranted, other useful …
For Eschewing Of Trouble And Exorbitant Expense: Arbitration In The Early Modern British Isles Symposium, Margo Todd
For Eschewing Of Trouble And Exorbitant Expense: Arbitration In The Early Modern British Isles Symposium, Margo Todd
Journal of Dispute Resolution
The history of binding arbitration in British customary law is very long, and in scope, very broad. In Scotland and in England, in settings both urban and rural, commercial and ecclesiastical, and across a broad range of social estates, from craftsmen to lords, alewives to merchant princes, it had by the sixteenth and seventeenth centuries become the default mechanism to avoid costly litigation, and to resolve disputes likely otherwise to end in bloodshed.1 It was often a device to avoid the courts, since litigation was always expensive and time-consuming; however, in a great number of cases it occurred in cooperation …
Stripping Away Employment Rights: The Unconscionability Of Class Waivers In Employment Agreements, Nikki Clark
Stripping Away Employment Rights: The Unconscionability Of Class Waivers In Employment Agreements, Nikki Clark
Journal of Dispute Resolution
As support for arbitration clauses began to grow, employers began to include arbitration clauses in employment agreements because it lowers the cost and uncertainty of litigation. Many of these arbitration clauses contain waivers of the right to class action. This Note argues that a waiver of collective action, whether express or unknowing, should be per se unconscionable to provide consistency and to resolve the inconsistency between and even within federal circuits.
Constructions Of Arbitration's Informalism: Autonomy, Efficiency, And Justicesymposium, Hiro N. Aragaki
Constructions Of Arbitration's Informalism: Autonomy, Efficiency, And Justicesymposium, Hiro N. Aragaki
Journal of Dispute Resolution
In the wake of a recent three-part series by the New York Times, arbitration is now back in the eye of the storm. The leading critique of arbitration, especially in the consumer and employment space, is that it is unjust both in the sense that it does not comport with basic notions of procedural fairness and/or because it cannot be expected to produce outcomes we would consider substantively just. For example, procedure in arbitration is dictated largely by contract rather than by mandatory rules that have been vetted by public bodies entrusted with safeguarding procedural values. Arbitrators are not bound …
The Historical Basis Of Securities Arbitration As An Investor Protection Mechanism Symposium, Jill Gross
The Historical Basis Of Securities Arbitration As An Investor Protection Mechanism Symposium, Jill Gross
Journal of Dispute Resolution
This article describes a history of securities arbitration, and uncovers the original purpose of designating arbitration to resolve investor disputes. This article argues that both investors and the industry have disregarded this underlying purpose, causing them to view securities arbitration through a distrusting, critical lens. Rather than cynically viewing securities arbitration as a forum created by and favoring industry players, investors should view arbitration as a central and critical component in a system of investor protection. Likewise, rather than promoting mandatory arbitration as desirable because of its speed and economies, broker-dealers and SIFMA should advertise the investor-protective benefits of the …
The Idea And The Use Of Mediation And Collaborative Dispute Resolution In Due Process Disputes, Katherine Mcmurtrey
The Idea And The Use Of Mediation And Collaborative Dispute Resolution In Due Process Disputes, Katherine Mcmurtrey
Journal of Dispute Resolution
This Comment discusses the future of alternative dispute resolution in special education conflicts by first examining a brief history of the IDEA and the areas it covers. Due process complaints under the IDEA and mediation as a solution to due process complaints will then be addressed. Then, it will focus on mediation and its impact on parents and schools, particularly the advantages and disadvantages of mediation, and the presence of attorneys in mediation. Finally, it will look towards collaborative law, when two attorneys and their clients collaborate to reach an agreement, and the future of collaborative dispute resolution in the …
A User's Guide To Easier Flood Insurance: A Look Into The History Of Flood Insurance Claims Dispute Processing And Suggestions For Improvement, Courtney Lauer
A User's Guide To Easier Flood Insurance: A Look Into The History Of Flood Insurance Claims Dispute Processing And Suggestions For Improvement, Courtney Lauer
Journal of Dispute Resolution
In 2012, Superstorm Sandy alone produced 144,484 claims for federal flood insurance coverage under the National Flood Insurance Program (NFIP). The NFIP was created under the National Flood Insurance Act of 1968, and was designed to limit the impact of flooding on both private and public structures. The NFIP’s self-stated goal was to decrease the socioeconomic effects of natural disasters by encouraging the purchase of flood insurance and general risk insurance.
Robbing The Cradle: The Use Of Mediation In Parental Rights Termination With Evidence Of Drug Abuse By The Mother, M. Katherine Kerbs
Robbing The Cradle: The Use Of Mediation In Parental Rights Termination With Evidence Of Drug Abuse By The Mother, M. Katherine Kerbs
Journal of Dispute Resolution
This Comment will explore the use of mediation in termination of parental rights proceedings where there is evidence of drug abuse by the parents. First, this Comment will give an overview of termination proceedings and examine a specific statute’s guidelines for termination. Then, this Comment will provide an overview of mediation and its uses in family law. Finally, this Comment will argue for increased use of mediation in termination of parental rights cases where there is evidence of drug abuse by the mother.
Beyond The Faa: Arbitration Procedure, Practice, And Policy In Historical Perspective Symposium: Introduction, Carli N. Conklin
Beyond The Faa: Arbitration Procedure, Practice, And Policy In Historical Perspective Symposium: Introduction, Carli N. Conklin
Journal of Dispute Resolution
The purpose of this symposium edition of the Journal of Dispute Resolution is to widen the focus of our present-day discourse on arbitration by exploring the broader histories of arbitration in America, considering not only what arbitration procedure, practice, and policy looked like in early America (and in the earlier legal, cultural, or religious systems from which American arbitration was adopted), but also how those broader histories might contribute to important discussions and developments in arbitration procedure, practice, and policy today. To that end, we brought together scholars in law and history whose combined works restore breadth and depth to …
The Historically Shifting Sands Of Reasons To Arbitrate Symposium, James Oldham
The Historically Shifting Sands Of Reasons To Arbitrate Symposium, James Oldham
Journal of Dispute Resolution
It is well established that for many centuries, arbitration has been a regular, even frequent, method of dispute settlement in the Western World. Derek Roebuck has done path breaking research demonstrating this in his recent book covering the middle ages (1154-1558)1 and in his contribution to this symposium, “The English Experience: What the First American Colonists Knew of Mediation and Arbitration.”2 My own work, with the excellent help of co-authors Henry Horwitz and Su Jin Kim, has explored English patterns from the late 17th century into the 1800s, also tracing the English approach into the American colonies and the early …
Arbitration And Elite Honour In Elizabethan England: A Case Study Of Bess Of Hardwick Symposium, Francis Calvert Boorman
Arbitration And Elite Honour In Elizabethan England: A Case Study Of Bess Of Hardwick Symposium, Francis Calvert Boorman
Journal of Dispute Resolution
During the 1580s, Queen Elizabeth I intervened in a marital dispute between two of her foremost subjects, George Talbot, Earl of Shrewsbury and his wife, commonly referred to as Bess of Hardwick. The Queen appointed several of her Privy Councillors to negotiate a reconciliation. These events provide a case study of the use of arbitration and mediation in resolving familial disputes among the elite of Elizabethan England, and their particular application by the Queen and her closest advisers. This article also highlights the importance of contemporary conceptions of gender and honor to dispute resolution.
A Variety Of State-Level Procedures, Practices, And Policies: Arbitration In Early America Symposium, Carli N. Conklin
A Variety Of State-Level Procedures, Practices, And Policies: Arbitration In Early America Symposium, Carli N. Conklin
Journal of Dispute Resolution
This article seeks to explore the history of arbitration more in depth by taking a close look at the historical procedures, practices, and policies of arbitration in three states: Kentucky, New Jersey, and Massachusetts. Each state developed a complex system of arbitration that included multiple arbitration procedures drawn from English law. Each state had unique geographic, political, social, religious, or commercial conditions that influenced not only the development of arbitration in that state, but also arbitration practice and the policy goals surrounding its use. A closer look at arbitration in early America reveals that, rather than one history of American …
Exploring The Federal Arbitration Act Through The Lens Of History Symposium, Imre Stephen Szalai
Exploring The Federal Arbitration Act Through The Lens Of History Symposium, Imre Stephen Szalai
Journal of Dispute Resolution
The United States Arbitration Act (known today as the Federal Arbitration Act, or FAA) is a relatively short and deceptively cryptic statute. The heart of the statute, section 2, is one sentence, and this key provision simply declares that arbitration agreements are generally “valid, irrevocable, and enforceable.” There is not much traditional legislative history surrounding this statute because much of the development of the bill that became the FAA occurred through organizations outside of Congress, like the American Bar Association and the New York Chamber of Commerce.3 As a result, to understand the FAA at a deeper level, it is …
Ancient And Comely Order: The Use And Disuse Of Arbitration By New York Quakers Symposium, F. Peter Phillips
Ancient And Comely Order: The Use And Disuse Of Arbitration By New York Quakers Symposium, F. Peter Phillips
Journal of Dispute Resolution
From the late 17th century, the Religious Society of Friends ("Quakers") observed a method of resolving disputes arising within congregations that was scripturally based, and culminated in final and binding arbitration. The practice of Quaker arbitration gradually disappeared during the late 19th and early 20th centuries, and few modern Quakers are even aware of it. This article traces that decline and notes similarities with mercantile arbitration. In both religious and mercantile arbitration, a defined community valued the goal of avoiding group disruption more than the goal of vindicating individual legal rights. In both cases, members of the community applied distinct …
The Latest Nfl Fumble: Using Its Commissioner As The Sole Arbitrator, Theresa Mullineaux
The Latest Nfl Fumble: Using Its Commissioner As The Sole Arbitrator, Theresa Mullineaux
Journal of Dispute Resolution
The National Football League (NFL) is the governing body of professional football in America and is led by Commissioner Roger Goodell who acts as the chief executive of the NFL overseeing all 32 NFL teams. Amongst his vast powers includes resolving disputes with “full, complete, and final jurisdiction to arbitrate any dispute between any player, coach, and/or other employee of any member of the League (or any combination thereof) and any member club or clubs.” The Commissioner’s ability to make binding decisions in these disputes is diminished by a clear conflict of interest. This must be changed. This Note will …