Law Commons^™

Judicial-Ish Efficiency: An Analysis Of Alternative Dispute Resolution Programs In Delaware Superior Court, Jordan Hicks

Washington and Lee Law Review

Since the late twentieth century, federal and state jurisdictions across the United States have explored the use of Alternative Dispute Resolution (“ADR”) programs to resolve legal disputes. ADR programs provide extrajudicial mechanisms through which parties can resolve their disputes without the delay and expense of a traditional judicial proceeding. Courts and practitioners alike have lauded ADR programs. For litigators, ADR programs are a way to deliver outcomes to clients quickly and efficiently. For courts, ADR programs are a way to remove cases from overcrowded dockets.

While ADR is generally considered to be speedier and more cost-efficient than a trial, little …

Comment: Court Adr Analytics, Benjamin G. Davis

Washington and Lee Law Review

For the reasons in my comments below, Jordan Hicks’s note entitled Judicial-ish Efficiency: An Analysis of Alternative Dispute Resolution Programs in Delaware Superior Court is a tour de force. Its content and methodology suggest a fresh approach to thinking about court-annexed Alternative Dispute Resolution (“ADR”) in general and court-annexed mandatory nonbinding arbitration programs in particular. The meticulous analysis of three different eras (1978–2008, 2008–2018, and 2018–present) of the program, with a focus on judicial efficiency (speed, failure rate, and prejudicial concerns), provides an important template for how this work might be expanded to look at programs in other courts …

Pass The Salt: Problem-Resolution Lawyering Across The Twenty-First Century Law Curriculum, Kris Franklin, F. Peter Phillips

Pepperdine Dispute Resolution Law Journal

Attorneys work with clients to resolve problems. Legal education can help prepare law graduates to do that work. As an added bonus, doing so would in turn help law students understand and retain the subjects they study. Law professors who teach alternative dispute resolution, lawyering skills, clinics, and sometimes traditional doctrinal courses, have all called for greater inclusion of dispute resolution in the law school curriculum. Some have urged the introduction of specific courses to prepare contemporary law students to work as problem resolvers. This Article builds on these and other calls for reform, but urges a genuine reconceptualization of …

The New Normal: Navigating Legal Challenges In The World Of Influencer Marketing & How Adr Can Help, Olivia Davis

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Mandating Early Neutral Evaluations: Efficient Or Excessive?, William J. Baker

Pepperdine Dispute Resolution Law Journal

This paper explores whether mandating alternative dispute resolution (ADR), specifically in the form of early neutral evaluations (ENEs), actually improves efficiency in federal courts. This paper attempts to challenge and test the presumption that ADR inherently promotes efficiency in all civil cases. Part I introduces the reader to ENEs, ADR, their presence in federal courts, and efficiency’s role within this framework. Part II challenges the notion that ADR and efficiency are inherently linked, and asks whether mandating ENEs can prove if this inherent efficiency exists. Part III presents the legal theory that addresses this question, tending to support the notion …

Designing Responsive Legal Systems: A Comparative Study, Nofit Amir, Michal Alberstein

Pepperdine Dispute Resolution Law Journal

The drive for efficiency has caused many legal systems to redesign themselves, creating multiple paths for dispute resolution and incorporating settlement-promoting tools into the judicial role. However, as this study shows, legal systems have taken divergent approaches as they redesign themselves to accommodate settlement practices, leading to widely disparate results. This study probes the paths taken by three countries’ legal systems—England and Wales (common law), Israel (mixed), and Italy (continental law)—drawing on court docket analyses, courtroom observations, and interviews with judges in the three legal systems. It uncovers central points of divergence—emphasized stage of dispute resolution, separation vs. combination of …

The “Fundies” Of Adr In The Nhl, Niko Tsiouvaras

Pepperdine Dispute Resolution Law Journal

This note seeks to provide to an overview of how the fundamentals (or “fundies” in hockey circles) of ADR can be applied to the NHL’s most pressing issues. It will analyze two areas specifically: the overall CBA negotiations in the big picture and the RFA system in a narrower view. Part II will provide context of the events leading up to the current NHL landscape. It will outline the history of NHL–NHLPA relations, describe the main issues influencing the upcoming CBA negotiations, and explain the workings of the RFA system. Part III will then present and discuss proposed solutions to …

The Use Of Alternative Dispute Resolution To Reduce The Perception Of Partiality In The Courts, In Order To Encourage International Entrepreneurship In Countries With National Ownership Requirements, Daniela Romagnoli

Pepperdine Dispute Resolution Law Journal

Countries that require international entrepreneurs to have a national partner (national ownership requirements (NOR)) in order to open up a new venture within their borders, run the risk of becoming less desirable to do business in. One reason for this is that some investors and international entrepreneurs may be wary of possible conflict being solved in a court system that shows a positive bias towards its citizens. This paper looks at the experiences of five international entrepreneurs involved in small and medium-size enterprises (SMEs) in Kenya and explores how their experiences have become a warning to others who see potential …

Jewish Law Perspectives On Judicial Settlement Practice, Shlomo Pill

Pepperdine Dispute Resolution Law Journal

The classic adjudicatory paradigm of opposing attorneys facing off at trial before a judge and jury in order to receive a favorable judgment is an image long past. Increased litigation volume, and the added time and expense of modern litigation has resulted in a rich practice of judges working to broker settlements between litigants in lieu of formal adjudication. Judicial settlement is the subject of much debate, however, and the diverse range of judicial practice in this area reflects the institutional, ethical, and jurisprudential uncertainties we still have regarding the propriety of judges facilitating settlements. This paper offers a new …

Blending Scripture And The Law: The Lack Of Christian Law And The Dangers It Presents In Christian Arbitration, Emily Holland

Pepperdine Dispute Resolution Law Journal

This paper will examine the ways in which a lack of an established substantive law within the Christian faith tradition affects the Christian arbitration process and explore the possible means to address these issues. It will outline the history and functions of Christian tribunals, highlighting the unique space within the justice system that these special tribunals fill. Next, it will discuss the differences between the application of law in tribunals of other religious faith traditions and the application of law in Christian arbitration. This paper will demonstrate how a lack of concrete and applicable law creates issues in the enforceability …

Compelling Parties To Mediate Investor-State Disputes: No Pressure, No Diamonds?, James M. Claxton

Pepperdine Dispute Resolution Law Journal

There was nothing preordained about arbitration becoming shorthand for investor-state dispute settlement. The ICSID system was built on the assumption that disputing parties would choose conciliation to settle their disputes. Those expectations went unrealized as arbitration rose to prominence, and since that time institutions, parties, and academics have observed that facilitated negotiation could play a greater role in resolving investor-state disputes. A number of domestic court systems have made mediation part of the fabric of dispute resolution through incentives and compulsions to mediate. Drawing on this experience, this manuscript considers how obstacles to the uptake of investor-state mediation might be …

Judicial And Practitioner Perspectives On Adr, Young Hye Chun

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Measuring Diversity In The Adr Field: Some Observations And Challenges Regarding Transparency, Metrics And Empirical Research, Maria R. Volpe

Pepperdine Dispute Resolution Law Journal

This article, which will address some observations and challenges of measuring diversity in the dispute resolution field, grows out of an invitation from Nancy Welsh to give a presentation at Texas A&M University Law School’s conference focusing on transparency, metrics, and empirical research. The theme of the conference provided a reminder not only about the necessity but also the urgency to deepen our thinking regarding diversity and inclusivity among dispute resolution neutrals by giving greater attention to the metrics needed for transparency and a better understanding of the field. What this article will illustrate is that the search for data …

The Media, A Polarized America & Adr Tools To Enhance Understanding Of Perspectives, Ginsey Varghese Kramarczyk

Pepperdine Dispute Resolution Law Journal

This article will survey: (1) the intended role of the media in a democracy; (2) the current polarized political climate in the United States; (3) the challenges facing the twenty-first century with the growth of technology, cable news, and online platforms; (4) the media's role in perpetuating conflict; and (5) propose that media professionals use Alternative Dispute Resolution (ADR) tools and processes to increase the public’s understanding of differing perspectives in our conflict-laden political discourse.

Human Rights The "Asean Way": Exploring The Possibilities For A Regional Adr And Adjudicative Body In Southeast Asia, Mariam Sarwar

Loyola of Los Angeles Law Review

No abstract provided.

... Because "Yes" Actually Means "No": A Personalized Prescriptive To Reactualize Informed Consent In Dispute Resolution

Marquette Law Review

None.

Alternative Dispute Resolution In Africa: Is Adr The Bridge Between Traditional And Modern Dispute Resolution?, Catherine Price

Pepperdine Dispute Resolution Law Journal

This article advocates for using Ghana’s introduction of ADR as a model for other African countries. Like Ghana, most African countries have adopted a form of ADR based on Western nations; however, as African culture and legal systems are quite different than Western culture, modifications are necessary. Ghana’s experience shows that modern ADR can be adopted into African countries, but an understanding of the traditional mechanisms is necessary. Part II of this article provides an introduction of ADR and its historical context in Africa. Part III examines customary and modern dispute resolution. It looks at the relationship between the two …

Collaborating For Transformation, Marjorie A. Silver

Journal of Experiential Learning

No abstract provided.

Resolving Time Sensitive Construction Disputes: Are Attorneys Just Getting In The Way?, Jeremy Winter

Pepperdine Dispute Resolution Law Journal

In addition to promoting the usage of other compelling dispute resolution alternatives such as dispute review boards, this Article advances the argument for marginalizing the over-involvement of and dependence upon zealous adversarial attorneys when attempting to resolve time sensitive construction disputes. More specifically, the remainder of this Article is divided into four main sections. Part II will introduce the construction industry's transactional system through the lens of principal construction professionals, examine the different types of construction contracts, and outline some common time sensitive construction disputes. Part III will provide an overview of alternative dispute resolution's rich connection to the construction …

Piracy On Peer-To-Peer File Sharing Networks: Why A Streamlined Online Dispute Resolution System Should Not Be Forgotten In The Shadow Of A Federal Small Claims Tribunal, Naomi Gemmell

Pepperdine Dispute Resolution Law Journal

This Article proposes application of an ADR system for resolving online copyright disputes related to P2P file sharing. Section II provides an overview of P2P file sharing networks and associated copyright infringement. Section III explores current approaches that fall short in resolving P2P copyright disputes, namely the Digital Millennium Copyright Act, litigation, and private agreements. Section IV examines the two primary proposed solutions to online copyright disputes: alternative dispute resolution and federal small claims. Section V recommends that a streamlined online dispute resolution system is necessary (even if a federal small claims tribunal is adopted), and concludes.

Realizing Dispute Resolution: Meeting The Challenges Of Legal Realism Through Mediation, Robert Rubinson

Nevada Law Journal

No abstract provided.

Surveying The Landscape Of Conflict Management, Tom Stipanowich, J. Kwang Ho Lim, E. Y. Park, Beomsu Kim, Joongi Kim

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Lightening The Load Or Losing Potential? Adr And The Courts Of Appeal, Paul Thies

Pepperdine Dispute Resolution Law Journal

No abstract provided.

The Glucose Model Of Mediation: Physiological Bases Of Willpower As Important Explanations For Common Mediation Behavior, Roy F. Baumeister, W. Scott Simpson, Stephen J. Ware, Daniel S. Weber

Pepperdine Dispute Resolution Law Journal

Success in life requires the ability to resist urges and control behavior. This ability is commonly called “willpower,” the capacity to overcome impulses and engage in conscious acts of self-control. Social psychologists believe willpower is a finite resource dependent on physiological bases including glucose (from food and drink), sleep and other forms of rest, and the absence of stress. In short, people who are hungry, exhausted, or highly stressed tend to have less willpower than those who are well-fed, well-rested, and relatively stress-free. In addition, a person who exerts self-control (uses willpower) tends to reduce temporarily the amount of willpower …

Minding The Gap: A Call For Standardizing Pre-Dispute Arbitration Clauses In Otc Derivative Transactions, Zachary E. Davison

NYLS Law Review

No abstract provided.

The Evolution And Decline Of The Effective-Vindication Doctrine In U.S. Arbitration Law, Okezie Chukwumerije

Pepperdine Dispute Resolution Law Journal

This article offers information on the history, significance and role of the effective-vindication doctrine in U.S. arbitration law in promoting access to justice. It analyzes the significance of broad policy implications regarding the interpretation of the Federal Arbitration Act (FAA) by the Court facilitating the arbitration of commercial disputes and protecting the statutory rights of consumers in the context of the U.S. Supreme Court's decision in Green Tree Financial Corp. v. Randolph.

Growing Pains And Coming-Of-Age: The State Of International Arbitration In India, Jory Canfield

Pepperdine Dispute Resolution Law Journal

The article offers information on the history, development and significance of international arbitration in India. It analyzes the decision of the Indian Supreme Court in the case of Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., which marks the era of major changes in Indian law regarding international arbitration. It mentions that development of Indian arbitration law enhances global standards and attitudes toward international dispute resolution in India.

Blending The Law, The Individual, And Traditional Values To Create An Effective Adr System: A Study On The Adr Processes In Rwanda And Nicaragua, Sarah Yance

Pepperdine Dispute Resolution Law Journal

This article offers information on the history, development and significance of the adoption and implementation of the alternative dispute resolution (ADR) techniques in Nicaragua and Rwanda. The ADR system addresses the issues of women and children suffering from domestic abuse and from the repercussions of the Rwandan Genocide and helps in rebuilding and restoring traditional values of family and community in the context of human rights.

Luck V. Justice: Consent Intervenes, But For Whom?, Jennifer W. Reynolds

Pepperdine Dispute Resolution Law Journal

Consent in civil settlements should improve access to and delivery of justice by making luck (chance, contingencies, arbitrariness) less significant in process and outcomes. Consent-based processes and private settlement are supposed to support justice by redistributing decision-making power away from judicial-coercive authorities to the people most affected by the dispute. But consent today has become little more than a pro forma process lever for bypassing regulation, litigation, and other more formal structures. No longer does consent serve as a reliable bulwark against luck distortions and arbitrariness in legal systems. Opening shrink-wrap (consent to arbitrate!), being shunted into compulsory mediation (consent …

A Tightrope Over Both Your Houses: Ensuring Party Participation And Preserving Mediation's Core Values In Foreclosure Mediation, Heather Scheiwe Kulp

Pepperdine Dispute Resolution Law Journal

The article focuses on the laws made for regulating the party's participation in preserving the principles of mediation for the resolution of disputes related to the foreclosure crisis. Topics discussed include the impact of the foreclosure crisis on the housing and domestic markets, the impact of foreclosures on the sales and price value of the houses and the impact of the foreclosure crisis on the economic conditions of the local communities.