Law Commons^™

Adr, The Judiciary, And Justice: Coming To Terms With The Alternatives, Erin Ryan

Scholarly Publications

Any discussion of recent developments in civil litigation must address the virtual revolution that has taken place regarding alternative dispute resolution (ADR). Attorneys have witnessed a steady growth in their clients' recourse to ADR in place of lawsuits, and ADR is increasingly incorporated into the litigation process by the judiciary itself--in the form of court-annexed arbitration, mediation, summary jury trials, early neutral evaluation, and judicial settlement conferences. "Alternative" models of dispute resolution have inarguably penetrated the mainstream; the relevant question now is how they will change it. The judicial embrace of ADR presents opportunities and concerns that distinguish court-annexed programs …

Fighting Arbitration Clauses In Franchisor Contracts, Jean R. Sternlight

Scholarly Works

Purporting to serve justice, efficiency, and freedom of contract, business interests are increasingly attempting to use binding arbitration clauses to secure unfair advantages over unknowing parties. Courts seemingly have been eager to enforce arbitration clauses that appear in franchise agreements. This article discusses courts’ enforcement of arbitration clauses, undermining protections to the franchisee, and how franchisees can create a more level playing field.

As Mandatory Binding Arbitration Meets The Class Action, Will The Class Action Survive?, Jean R. Sternlight

Scholarly Works

Assuming that the traditional prerequisites for a class action have been met, courts have four choices: (1) order the dispute to be resolved in an individualized arbitration, thereby denying plaintiffs either a litigation or arbitration venue for their class claims; (2) refuse to mandate arbitration, and instead allow plaintiffs to litigate their class claims; (3) order that the dispute be resolved through an arbitral class action, also known as classwide arbitration; or (4) order the dispute to arbitration but allow the arbitrators to make the determination as to whether the dispute should be resolved individually or on a class basis. …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 1999 and 2000.

The Settlement Of Investment Disputes Between States And Private Parties - An Overview From The Perspective Of The Icc, Horacio A. Grigera Naón

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Negligent Retention And Arbitration: The Effect Of A Developing Tort On Traditional Labor Law, Terry A. Bethel

Articles by Maurer Faculty

No abstract provided.

Establishing A Securities Arbitration Clinic: The Experience At Pace, Barbara Black

Faculty Articles and Other Publications

In the fall of1997 Pace University School of Law established one of the first law school clinics to provide student assistance to small investors who have disputes with their broker-dealers. What follows is a brief account of the clinic's educational objectives, an analysis of the initial organizational issues, and a report on the clinic's operation during its first two years. I am writing this in the hope that it will provide guidance and assistance to other law schools that contemplate establishing a securities arbitration clinic.

This is a nuts-and-bolts article written from the perspective of an experienced law professor who …

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel

Scholarly Works

Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …

The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel

Scholarly Works

The problem with viewing facilitation as the only legitimate form of mediation, of course, is that it borders on tautology: mediation is nonevaluative, therefore any evaluation in mediation must be impermissible. Although this view remains strongly held in many quarters, it appears to be in retreat, both within the mediation community and in the legal community at large. Courts and commentators have shown increasing favor toward some evaluative or advising component of mediation. More important, the eclectic style appears to be what takes place in the metaphorical trenches of mediation practice (although sound empirical data is necessarily hard to obtain …

Is Binding Arbitration A Form Of Adr?: An Argument That The Term "Adr" Has Begun To Outlive Its Usefulness, Jean R. Sternlight

Scholarly Works

Professor Frank Sander has, for many years, been one of the most prescient commentators on the alternative dispute resolution ("ADR") movement. His 1976 Pound Conference speech has been identified by many as marking the birth of the modern ADR phenomena. That speech, which compared some of the pros and cons of litigation and an array of other dispute resolution processes, has been summarized as proposing the concept of the "multi-door courthouse." In contrast, Professor Sander's more recent and very interesting review of the present and future of ADR makes little attempt to distinguish between mediation and binding arbitration, the two …

Mothers And Fathers Of Invention: The Intellectual Founders Of Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

When we think of the "founding" of the ADR movement (particularly, but not exclusively, in law), from when do we date it? Whom do we think of as our leaders? Many of us think of Frank Sander and the "multi-door courthouse" suggested by his famous paper, delivered at the Pound Conference on the Causes of Popular Dissatisfaction with the Administration of Justice in 1976. For others, the publication of Roger Fisher and William Ury's "Getting to Yes," signaled an interest in a changed paradigm for engaging in legal negotiations. Some may associate ADR's nascency with early practical efforts to institutionalize …

Arbitration And Judicial Review, Theodore J. St. Antoine

Other Publications

A quarter century ago, in a presentation at the Academy's annual meeting, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. That two-word phrase may be the only thing I ever said before this body that has been remembered. Unfortunately, it is almost invariably misunderstood. Time and again members have reproached me: "What's the big deal about contract reading, anyway? Isn't it just the same as contract interpretation?" Or, more substantively scathing: "Do you really think, Ted, that all you have to do to interpret a labor agreement is to …

Mandatory Arbitration: Bane Or Boon?, Theodore St. Antoine

Other Publications

Buy a new car that turns out to be a lemon and you may find you can't sue. Fine print in the sales contract often restricts you to arbitration. That means presenting your case before a private person instead of a judge and jury. And the arbitrator may be someone drawn from a panel compiled by the car seller.