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Dispute Resolution and Arbitration

Settlement

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Full-Text Articles in Law

Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck Jan 2023

Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck

Articles in Law Reviews & Other Academic Journals

During a tumultuous moment in history with shifts in power and politics, international dispute settlement stands at a crossroads. In theory, international dispute settlement should not institutionalize abuses of power, rely upon a monolithic one-size-fits-all model, or be a waste of resources, which will inevitably generate stakeholder dissatisfaction. Rather, dispute resolution should reflect both a commitment to the rule of law and equal treatment that sustains nuanced, fair, and just procedures most likely to provide results of substantive quality. Against this backdrop and with the major reforms concluded in July 2022, this article explores the reality of dispute resolution at …


Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs May 2022

Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs

Pepperdine Dispute Resolution Law Journal

The mass incarceration crisis in the United States (US) remains a vexing issue to this day. Although the US incarcerated population has decreased by twenty-five percent amid the COVID-19 pandemic, the US remains a leading country in the number of incarcerated people per capita. Focusing on Islamic law principles governing settlement in criminal cases, the rehabilitative approach of the Icelandic criminal justice model, and the powerful role of prosecutors in serving justice, this research argues that integrating settlement and mediation into the prosecutorial proceedings will significantly reduce mass incarceration in the US.


Confidential Settlements For Professional Malpractice, Sande L. Buhai Apr 2022

Confidential Settlements For Professional Malpractice, Sande L. Buhai

St. John's Law Review

(Excerpt)

A lawyer representing a plaintiff in a professional malpractice case advises her client not to file a complaint with the state regulatory body—the state bar, the medical board, or some other pertinent body—until later. The lawyer explains that she can offer to settle the case more favorably, more quickly, and at lower cost if they promise that, as part of the settlement, defendant’s malfeasance will never be reported to the state regulatory body responsible for ensuring professional competence in the area. This tactic may allow the client to negotiate a larger settlement because the defendant should be willing to …


Beyond Plea Bargaining: A Theory Of Criminal Settlement, Richard Lorren Jolly, J.J. Prescott Jan 2021

Beyond Plea Bargaining: A Theory Of Criminal Settlement, Richard Lorren Jolly, J.J. Prescott

Articles

Settlement is a term rarely used in criminal law. Instead, people speak almost exclusively of plea bargaining—i.e., enforceable agreements in which a defendant promises to plead guilty in exchange for a prosecutor’s promise to seek leniency in charging or at sentencing. But a traditional plea agreement is just the most visible instance of a much broader class of possible criminal settlement agreements. In terms of their fundamentals, criminal settlements are indistinguishable from their civil counterparts: through either an atomized or comprehensive bargain, parties exchange what they have for what they want, advancing their respective interests in cost minimization, risk mitigation, …


Jewish Law Perspectives On Judicial Settlement Practice, Shlomo Pill Jul 2020

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 …


Adversarial Failure, Benjamin P. Edwards Jul 2020

Adversarial Failure, Benjamin P. Edwards

Washington and Lee Law Review

Investors, industry firms, and regulators all rely on vital public records to assess risk and evaluate securities industry personnel. Despite the information’s importance, an arbitration-facilitated expungement process now regularly deletes these public records. Often, these arbitrations recommend that public information be deleted without any true adversary ever providing any critical scrutiny to the requests. In essence, poorly informed arbitrators facilitate removing public information out of public databases. Interventions aimed at surfacing information may yield better informed decisions. Although similar problems have emerged in other contexts when adversarial systems break down, the expungement process to purge information about financial professionals provides …


The Singapore Convention On Mediation: A Framework For The Cross-Border Recognition And Enforcement Of Mediated Settlements, Timothy Schnabel May 2019

The Singapore Convention On Mediation: A Framework For The Cross-Border Recognition And Enforcement Of Mediated Settlements, Timothy Schnabel

Pepperdine Dispute Resolution Law Journal

This article attempts to provide a definitive overview of the text, structure, history, and purpose of the Singapore Convention on Mediation (also known as the United Nations Convention on International Settlement Agreements Resulting from Mediation), a new multilateral treaty developed by the U.N. Commission on International Trade Law (UNCITRAL). The Convention, scheduled to open for signature in August 2019, provides a uniform, efficient framework for the recognition and enforcement of mediated settlement agreements that resolve international, commercial disputes — akin to the framework that the 1958 New York Convention provides for arbitral awards. Unlike the other primary international organizations that …


Venezuela Undermines Gold Miner Crystallex's Attempts To Recover On Its Icsid Award, Sam Wesson Feb 2019

Venezuela Undermines Gold Miner Crystallex's Attempts To Recover On Its Icsid Award, Sam Wesson

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.


The New Singapore Mediation Convention: The Process And Key Choices, Harold Abramson Jan 2019

The New Singapore Mediation Convention: The Process And Key Choices, Harold Abramson

Scholarly Works

No abstract provided.


The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh Jul 2018

The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh

Nancy Welsh

Ethical codes for mediators describe party self-determination as “the fundamental principle of mediation,” regardless of the context within which the mediation is occurring. The definition of self-determination, however, is a matter of dispute. Based on a review of the debate surrounding the promulgation and revision of ethical codes for court-connected mediators in Florida and Minnesota, this Article demonstrates that a vision of self-determination anchored in party-centered empowerment is yielding to a vision that is more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through …


Utility Function And Rational Choice As Support Mechanisms To Maximize Mediation And Legal Negotiation Settlement Output, Roberto Kuster Oct 2017

Utility Function And Rational Choice As Support Mechanisms To Maximize Mediation And Legal Negotiation Settlement Output, Roberto Kuster

Pepperdine Dispute Resolution Law Journal

This article provides a general negotiation background, establishing some basic definitions such as BATNA, interests, and “Shadow of Law.” Then, it works with the two-step process of utility maximization and rational choice to achieve the optimal settlement output within mediation and legal negotiation processes. Lastly, it points out methods to support the theories in ways that a lawyer could understand and apply correctly. Thus, the article offers an idea for an optimal settlement in a legal negotiation/mediation. It takes the complementary views of recognized authors, from Fisher and Ury’s "how to negotiate" manual, Raiffa's lucid explanation of applied game theory, …


Magistrate Judges, Settlement, And Procedural Justice, Nancy A. Welsh Jun 2016

Magistrate Judges, Settlement, And Procedural Justice, Nancy A. Welsh

Nevada 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 Feb 2016

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 …


...Because It’S Not Just About Money, Elayne E. Greenberg Jan 2016

...Because It’S Not Just About Money, Elayne E. Greenberg

Faculty Publications

(Excerpt)

When lawyers represent their clients in party-decided dispute resolution processes such as negotiation or mediation, lawyers have a unique opportunity to work with their clients to help shape a comprehensive settlement beyond just a monetary settlement. This is an opportunity to address the client’s human and core concerns and to help their client secure their personalized sense of justice. However, lawyers and mediators who myopically seek to resolve every legal conflict by just monetary resolution are akin to the carpenter who sees everything as a nail because the only tool available is a hammer. This column invites you to …


Helfstein V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 91 (Dec. 3, 2015), Heather Caliguire Dec 2015

Helfstein V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 91 (Dec. 3, 2015), Heather Caliguire

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that the six-month deadline to set aside a voluntary dismissal or settlement agreement found within NRCP 60(b) could not be extended, despite an allegation of fraud.


A Price Theory Of Legal Bargaining: An Inquiry Into The Selection Of Settlement And Litigation Under Uncertainty, Robert J. Rhee Sep 2015

A Price Theory Of Legal Bargaining: An Inquiry Into The Selection Of Settlement And Litigation Under Uncertainty, Robert J. Rhee

Robert Rhee

Conventional wisdom says that economic surplus is created when the cost of litigation is foregone in favor of settlement, a theory flowing from the Coase Theorem. The cost-benefit analysis weighs settlement against the expected value of litigation net of transaction cost. This calculus yields the normative proposition that settlement is a superior form of dispute resolution and so most trials are considered errors. While simple in concept, the prevailing economic model is flawed. This article is a theoretical inquiry into the selection criteria of settlement and trial. It applies principles of financial economics to construct a pricing theory of legal …


Advising Clients To Apologize, Jonathan R. Cohen Aug 2015

Advising Clients To Apologize, Jonathan R. Cohen

Jonathan R. Cohen

The article argues that lawyers should consider the possibility of advising clients to apologize for harms they commit, as in some cases apology may best serve their client's interests. The articles discusses some of the pros and cons to apology in the legal setting, as well as barriers that may inhibit apologies.


The Recognition And Enforcement Of Foreign Country Judgments And Arbitral Awards: A North-South Perspective, Michael Quilling May 2015

The Recognition And Enforcement Of Foreign Country Judgments And Arbitral Awards: A North-South Perspective, Michael Quilling

Georgia Journal of International & Comparative Law

No abstract provided.


When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave Feb 2015

When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave

D. Theodore Rave

On the conventional account, a class action settlement is a vehicle through which the defendant buys peace from the class action lawyer. That single transaction will preclude future litigation by all class members. But peace, at least through preclusion, may not always be the goal. In a recent Fair Credit Reporting Action (FCRA) case, In re Trans Union Privacy Litigation, the parties agreed to a class action settlement that did not preclude individual claims. The 190 million class members surrendered only their rights to participate in a future class or aggregate action; they remained free to march right back into …


Family Lawyering With Planned Early Negotiation, John M. Lande Jan 2015

Family Lawyering With Planned Early Negotiation, John M. Lande

Faculty Publications

Whether you know it or not, you may already be using planned early negotiation (PEN). As the term suggests, this process involves planning to negotiate your cases at the earliest appropriate time. Normally you can be ready to negotiate long before you are ready for trial.

This article summarizes PEN procedures based on interviews with excellent lawyers about how they handle their cases. For example, one lawyer said that he “prepares for settlement from day one of the lawsuit” and that he engages in a “constant process of evaluating the claim” throughout the litigation. Planning to negotiate from the outset …


Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande Oct 2014

Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande

Faculty Publications

Although the ostensible purpose for pretrial litigation is to prepare for trial, such preparation is inextricably intertwined with negotiation because the expected trial outcome is a major factor affecting negotiation. Indeed, since most litigated cases are settled, good litigators prepare for negotiation at least as much as trial. The lawyers interviewed for this article, who were selected because of their good reputations, described how they prepare for both possibilities. They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases, …


Protocols For International Arbitrators Who Dare To Settle Cases, Harold Abramson Mar 2014

Protocols For International Arbitrators Who Dare To Settle Cases, Harold Abramson

Harold I. Abramson

The best time to settle an international business dispute can be after the international arbitration proceeding has been commenced. Just like in court litigation, parties may be ready to settle only after the adjudicatory process has begun and even has progressed. In court, judges commonly open the door to settlement; they hold settlement conferences and even actively participate in settlement negotiations. But arbitrators rarely open the door to settlement; when they do, they risk losing their jobs. So, what can international arbitrators safely do? What dare they do? In this article, the author explores the dilemma presented when one neutral …


When The Price Of Settlement Is Ethically Prohibitive: Non-Disparagement Clauses That Apply To Lawyers, Elayne E. Greenberg Jan 2014

When The Price Of Settlement Is Ethically Prohibitive: Non-Disparagement Clauses That Apply To Lawyers, Elayne E. Greenberg

Faculty Publications

(Excerpt)

At last! You have lived with this case for many years, and you are now on the verge of finalizing the terms of a settlement agreement. All the contentious issues have finally been resolved, so you thought, when the defendant leans over the table and says, “Just one more thing. We want you and your client to sign a non-disparagement clause as part of the settlement.” Yes, non-disparagement clauses have been frequently used as a controversial reputational shield in high-conflict divorces, sensitive employee terminations and contentious consumer actions. However, barely discussed is whether lawyers are ethically able to suggest …


Future Claimants And The Quest For Global Peace, Rhonda Wasserman Jan 2014

Future Claimants And The Quest For Global Peace, Rhonda Wasserman

Articles

n the mass tort context, the defendant typically seeks to resolve all of the claims against it in one fell swoop. But the defendant’s interest in global peace is often unattainable in cases involving future claimants – those individuals who have already been exposed to a toxic material or defective product, but whose injuries have not yet manifested sufficiently to support a claim or motivate them to pursue it. The class action vehicle cannot be used because it is impossible to provide reasonable notice and adequate representation to future claimants. Likewise, non-class aggregate settlements cannot be deployed because future claimants …


Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich Dec 2013

Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich

Thomas J. Stipanowich

A wide-ranging new Straus Institute for Dispute Resolution Survey of experienced arbitrators, conducted with the cooperation of the College of Commercial Arbitrators, reflects the growing professionalization of commercial arbitration, increasing competition for cases, and many other trends in arbitration practice. It also shows that a grower percentage of arbitrated cases are being settled prior to award or to the start of hearings, and offers a strong rationale for greater emphasis on the role of arbitrators in setting the stage for or facilitating settlement. Early settlement of a dispute can be a uniquely effective way of minimizing cost and cycle time …


For Reconciliation, Thomas Shaffer, Andrew Mcthenia Nov 2013

For Reconciliation, Thomas Shaffer, Andrew Mcthenia

Thomas L. Shaffer

No abstract provided.


California Code Of Civil Procedure Sections 877, 877.5 And 877.6: The Settlement Game In The Ballpark That Tech-Bilt, Emery J. Mishky, Robert Tessier, Patrick G. Vastano Jan 2013

California Code Of Civil Procedure Sections 877, 877.5 And 877.6: The Settlement Game In The Ballpark That Tech-Bilt, Emery J. Mishky, Robert Tessier, Patrick G. Vastano

Pepperdine Law Review

No abstract provided.


Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen May 2012

Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen

Jonathan R. Cohen

In this Article, I focus on injuries committed by members of organizations, such as corporations, and examine distinct issues raised by apology in the organizational setting. In particular, I consider: (i) the process of learning to prevent future errors; (ii) the divergent interests stemming from principal-agent tensions in employment, risk preferences and sources of insurance; (iii) the non-pecuniary benefits to corporate morale, productivity and reputation; (iv) the standing and scope of apologies; and (v) the articulation of policies toward injuries to others.


Collaborative Family Law, Pauline H. Tesler Mar 2012

Collaborative Family Law, Pauline H. Tesler

Pepperdine Dispute Resolution Law Journal

Collaborative Law appears to meet significant needs both among family law clients and among the lawyers who assist them through divorce. As will be discussed more fully below, clients appear to want the advantages of a contained, settlement-oriented, creative, private, respectful process without sacrificing the benefits of having a committed legal advocate at their sides. For that reason Collaborative Law appeals to clients who may hesitate to commit to a dispute resolution process facilitated solely by a neutral mediator. And, while many family lawyers suffer considerable professional angst as a consequence of their awareness that family law courts are neither …


The Mediated Settlement: Is It Always Just About The Money? Rarely!, Steven L. Schwartz Mar 2012

The Mediated Settlement: Is It Always Just About The Money? Rarely!, Steven L. Schwartz

Pepperdine Dispute Resolution Law Journal

Since our legal system of dispute resolution tends to remedy wrongs only by payment of money, most settlements will eventually involve negotiations over the amount to be paid and received. Yet, in both the theory and actual practice of mediation that has lead this writer to conclude that it is never just about the money. Effective lawyer representation of clients in mediation requires a different kind of investigation and preparation than lawyers may be accustomed to conducting. Similarly, an effective mediator must be adept in identifying the clues that reveal the "below the water line" interests at work and which …