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Full-Text Articles in Law

Judicial And Practitioner Perspectives On Adr, Young Hye Chun Jun 2019

Judicial And Practitioner Perspectives On Adr, Young Hye Chun

Pepperdine Dispute Resolution Law Journal

No abstract provided.


How To Avoid The Death Of Your Case By Two Billion Paper Cuts: Encouraging Arbitration As An Alternative Way To Resolve Costly Discovery Disputes, Tzipora Goodfriend-Gelernter Feb 2014

How To Avoid The Death Of Your Case By Two Billion Paper Cuts: Encouraging Arbitration As An Alternative Way To Resolve Costly Discovery Disputes, Tzipora Goodfriend-Gelernter

Pepperdine Dispute Resolution Law Journal

This article analyzes the costly effect of electronic information on discovery practice and advocates for the arbitration of discovery disputes. Part II discusses the background of electronic discovery, the evolution of our reliance on ESI (electronically stored information) as part of our modern day discovery practice, and the benefits and detriments of electronic discovery. Part III discusses the effects of our reliance on electronic discovery and the implications of those effects on litigating parties. It examines how the increasingly computer-based world of discovery has increased the cost of litigation disputes significantly and proposes using the patent arbitration model as a …


Judicial Policing Of Consumer Arbitration , Edward A. Dauer Apr 2012

Judicial Policing Of Consumer Arbitration , Edward A. Dauer

Pepperdine Dispute Resolution Law Journal

Adhesive consumer arbitration agreements pose questions that go beyond the problems of adhesion contracting generally. This essay describes why standard-form consumer arbitration requirements may be particularly troublesome. Despite its superficial neutrality, arbitration between individual consumers and business entities may be systematically more favorable to the business entities. The rules of arbitration law, however, inhibit effective judicial policing of the consequences of those inequalities. The federal sources of arbitration law further diminish the ability of state-based contract law to police the more subtle abuses. The result is a particularly difficult jurisprudential problem with a specially weakened legal solution. This essay offers, …


The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney Apr 2012

The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney

Pepperdine Dispute Resolution Law Journal

The 1994 signing of the World Trade Organization (WTO) Agreement marked the initiation of the most far-reaching and comprehensive international agreement on trade in the history of the modern world. The creation of an actual trade organization was a marked improvement over the WTO's predecessor, the 1944 GATT, which never formed an organization per se. Among the many improvements to the GATT, the WTO Agreement substantially changed the mechanism for dispute settlement whenever conflict arose between member states. This change, codified as the Dispute Settlement Understanding ("DSU"), was initially hailed as a great improvement over the GATT dispute settlement provisions. …


First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic Apr 2012

First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic

Pepperdine Dispute Resolution Law Journal

In 1995, the United States Supreme Court in First Options of Chicago, Incorporated v. Kaplan considered whether arbitral tribunals or courts should have the primary power to decide if parties agreed to arbitrate the merits of the dispute and whether the court of appeals should accept the district court's findings of fact and law or apply a de novo standard of review. The Court unanimously held that, unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitral tribunal. Furthermore, in such a case, …


Institutionalizing Mediation: The Role Of Lawyers And Bar Associations , Ronald R. Volkmer Apr 2012

Institutionalizing Mediation: The Role Of Lawyers And Bar Associations , Ronald R. Volkmer

Pepperdine Dispute Resolution Law Journal

The world of trusts and estates is changing before our eyes - the "multidiscipline practice" trend may radically change the traditional practice of the probate bar. There is one constant, however, besides change and that is conflict. That conflict is oftentimes lurking beneath the surface when a lawyer becomes involved in the estate planning process. All of the technical knowledge you may possess about the legal system and its rules is valuable and necessary. But, the estate planning lawyer is preeminently a counselor at law. In the strongest possible way I urge students to become aware of conflict management skills …


Mediation And Jury Trials As Means Of Resolving Will Contests , Ronald Chester Apr 2012

Mediation And Jury Trials As Means Of Resolving Will Contests , Ronald Chester

Pepperdine Dispute Resolution Law Journal

In the vast range of human problems that law seeks to govern, there are certain areas in which legalisms and legal thinking are not particularly useful. It is my belief that one of these areas is that of will contests, in which nonlawyer dispute resolution seems particularly effective.


Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford Apr 2012

Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford

Pepperdine Dispute Resolution Law Journal

Mediation is the ADR process by which a neutral third party works with disputants to reach a mutually agreeable resolution. Mediation is arguably the oldest and most popular ADR technique in use today. Part I of this essay discusses the commonly accepted advantages of mediation as an alternative to litigation, and, in some instances, questions whether those advantages become disadvantages in the context of probate, trust, and guardianship cases. Part II examines the use of mediation as a component of the actual estate planning process rather than as an alternative to litigation.


Mediation Of Probate Matters: Leaving A Valuable Legacy , Lela Porter Love Apr 2012

Mediation Of Probate Matters: Leaving A Valuable Legacy , Lela Porter Love

Pepperdine Dispute Resolution Law Journal

Mediation has the power to bring parties to a different level of understanding about their underlying situation and about each other, to re-establish family harmony and to resolve both monetary and relationship issues that probate matters generally involve. To realize these advantages, this paper makes two suggestions. First, attorneys should urge testators to consider dispute resolution provisions in their will. Such provisions allow the testator to weigh in with a directive that the family pull together and attempt to resolve its conflicts creatively. A dispute resolution clause can also provide a vehicle to express and encourage family values connected with …


The Greatest Heritage Is The Love Of A Family: The Larson Case And The Mediation Of Probate Disputes, Susan N. Gary Apr 2012

The Greatest Heritage Is The Love Of A Family: The Larson Case And The Mediation Of Probate Disputes, Susan N. Gary

Pepperdine Dispute Resolution Law Journal

In 1981, two brothers, Ben and William Larson, began litigation that would last for four years. By the time the lawsuit ended, the "winning" brother was dead, and the other brother was bitter and estranged from the family of his only sibling. Although one can only speculate, had the brothers chosen mediation, rather than litigation, to resolve their dispute, both brothers might have achieved a better outcome.


Mediation Of Proposition 187: Creative Solution To An Old Problem? Or Quiet Death For Initiatives?, Nicole E. Lucy Apr 2012

Mediation Of Proposition 187: Creative Solution To An Old Problem? Or Quiet Death For Initiatives?, Nicole E. Lucy

Pepperdine Dispute Resolution Law Journal

The initiative Proposition 187 has been a catalyst for change. Supporters heralded it as the solution to "Save Our State" from the ills of illegal immigration. Those who opposed it, used Proposition 187 as a battle cry to mobilize a disenfranchised minority. Irrespective of ideology, Proposition 187 ended as no one could have predicted in November 1994 when it passed, 59% to 41%. When Governor Gray Davis inherited the Proposition 187 appeal from former Governor Pete Wilson, Governor Davis took the unprecedented step of seeking to resolve the conflict through mediation rather than actively defending Proposition 187 on appeal to …


Making Peace The Old Fashioned Way: Infusing Traditional Tribal Practices Into Modern Adr , Matt Arbaugh Apr 2012

Making Peace The Old Fashioned Way: Infusing Traditional Tribal Practices Into Modern Adr , Matt Arbaugh

Pepperdine Dispute Resolution Law Journal

Native Americans have their own unique traditional method of resolving disputes. Their processes, called peacemaking by some tribes, place the emphasis not on the guilt of the wrongdoer, but on restoring relationships and finding a solution that is amenable to all involved. This emphasis on saving the relationship has many similarities to current practices of mediation. Among the similar goals between mediation and peacemaking are the use of ADR allows both sides to reach a better conclusion and the desire to spend less money and to satisfy more people. However, this approach has critics who see it as another attempt …


Charge Me, Pay Me, But Don't Even Think Of Litigating Me: The Dominance Of Arbitration In Truth-In-Lending Claims , M. Susan Hale Apr 2012

Charge Me, Pay Me, But Don't Even Think Of Litigating Me: The Dominance Of Arbitration In Truth-In-Lending Claims , M. Susan Hale

Pepperdine Dispute Resolution Law Journal

This article analyzes the impact of the courts' ever increasing priority to enforce arbitration agreements in Truth In Lending Act (TILA) claims and reform. Part I entails a general discussion of TILA's logistics; the goals, the means, and the remedies. Part II briefly traces the rise of arbitration as well as evaluating its various advantages and disadvantages. Part III reports on the current emphasis of enforcing arbitration agreements in federal courts by explaining the basis of enforcing the agreement. Part IV explores the impact of arbitrating TILA claims on the claim and on individuals. Part V provides an analysis of …


Arbitration And Judicial Civil Justice: An American Historical Review And A Proposal For A Private/Arbitral And Public/Judicial Partnership , Roger S. Haydock, Jennifer D. Henderson Apr 2012

Arbitration And Judicial Civil Justice: An American Historical Review And A Proposal For A Private/Arbitral And Public/Judicial Partnership , Roger S. Haydock, Jennifer D. Henderson

Pepperdine Dispute Resolution Law Journal

Dispute resolution systems historically have included three primary forums: the judicial process, administrative procedures, and the arbitral system. This article focuses on the modem and rapidly expanding third system - that of arbitration. The goal of everyone interested in maintaining a fair, accessible, and affordable civil justice system is to monitor, shape, and maintain arbitration as a fair, accessible, and affordable system. The purpose of this article is to provide information and ideas which will help make that goal a success. The first part of this article explains the historical development of arbitration in this country prior to and under …


The State Of Arbitral Fees After Green Tree Financial: Uncertainty And Contradiction Demands Further Guidance From The Supreme Court, Kevin C. Clark Apr 2012

The State Of Arbitral Fees After Green Tree Financial: Uncertainty And Contradiction Demands Further Guidance From The Supreme Court, Kevin C. Clark

Pepperdine Dispute Resolution Law Journal

There are millions of employees in America who work every day without regard to the technical and seemingly mundane matters that govern their employment. What they don't realize however, is that their employment may be governed by an arbitration agreement. The terms of the arbitration agreement may be unclear until a dispute arises. This is particularly applicable in the area of arbitral fees, where there is a split among United States Courts of Appeals when addressing the issue of who should pay the fees arising from the arbitration of employment disputes. This fissure in American jurisprudence is the subject of …


Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel Apr 2012

Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel

Pepperdine Dispute Resolution Law Journal

The Federal Arbitration Act ("FAA") of 1925 was created to ensure enforceability of agreements to arbitrate. The FAA is the centerpiece of the federal arbitration policy as construed by the Supreme Court. Section 10(a) FAA enumerates grounds on which an arbitral award can be set aside. The central issue discussed herein is whether parties can agree by contract to allow one of the parties to initiate review of the arbitral award by a court that would otherwise have jurisdiction over those parties, or whether the court's powers are somehow limited to the grounds for vacatur enumerated in Section 10(a) FAA. …


Contracting Around Ruaa: Default Rules, Mandatory Rules, And Judicial Review Of Arbitral Awards, Christopher R. Drahozal Apr 2012

Contracting Around Ruaa: Default Rules, Mandatory Rules, And Judicial Review Of Arbitral Awards, Christopher R. Drahozal

Pepperdine Dispute Resolution Law Journal

By specifying that its provisions generally are default rules and listing particular exceptions, the Revised Uniform Arbitration Act (“RUAA”) provides much needed certainty and avoids unnecessary litigation, at least compared to the Federal Arbitration Act, which does not always identify which of its provisions are default rules. In one important respect, however, RUAA jettisons that valuable certainty. The RUAA drafters left open (or at least sought to leave open) the question whether parties can contract to expand the grounds for judicial review of arbitration awards beyond those set out in the statute. In other words, the drafters purported not to …


The September 11th Victim Compensation Fund: The Answer To Victim Relief?, Joe Ward Mar 2012

The September 11th Victim Compensation Fund: The Answer To Victim Relief?, Joe Ward

Pepperdine Dispute Resolution Law Journal

The events of September 11, 2001 shook America to its core. The world was forever changed as the horrific tragedy unfolded on live television. Families were destroyed as loved ones were severely injured or killed, leaving spouses and children in need of aid. In response, the United States government established the September 11th Victims' Compensation Fund in an effort to provide the necessary reparations to victims of the terrorist attacks. This article will analyze the September 11th Victims' Compensation Fund (hereafter "Fund") as a way of compensating victims while preserving the financial stability of the United States economy. This Fund …


Preparations For A Storm: A Proposal For Managing The Litigation Stemming From September 11th, 2001 , A. David E. Balahadia Mar 2012

Preparations For A Storm: A Proposal For Managing The Litigation Stemming From September 11th, 2001 , A. David E. Balahadia

Pepperdine Dispute Resolution Law Journal

After the attacks, the United States government immediately began to address the exorbitant number of problems and issues that resulted. One of the first issues the government addressed was victim compensation. The creation of the September 11th Victim Compensation Fund by virtue of the Air Transportation Safety and System Stabilization Act was the first step towards victim compensation. The VCF would help relatives and families of those killed in the attacks. However, the VCF has several limitations that narrow the scope of those eligible for compensation. The limitations of the VCF are indirectly creating a new two-pronged problem: the first …


"Expanded" Judicial Review Revisited: Kyocera Overturns Lapine, Eric Van Ginkel Mar 2012

"Expanded" Judicial Review Revisited: Kyocera Overturns Lapine, Eric Van Ginkel

Pepperdine Dispute Resolution Law Journal

Just when you thought you could validly add a clause to your client's arbitration agreement providing that the losing party may take an appeal from the award to the district court having jurisdiction over the parties, think again. What was the law of the Ninth Circuit since December 1997, when a three-judge panel of the Ninth Circuit Court of Appeals decided LaPine Technology Corporation v. Kyocera Corporation ("LaPine I"), has just been reversed by the Ninth Circuit Court of Appeals sitting en banc. In its decision, on a rehearing of what the court refers to as " …


The Center Of The Center For Alternative Dispute Resolution, Wayne D. Brazil Mar 2012

The Center Of The Center For Alternative Dispute Resolution, Wayne D. Brazil

Pepperdine Dispute Resolution Law Journal

Hawaii was one of the first states to establish within its judiciary a Center for Alternative Dispute Resolution. The Center's mission is: to mediate major public policy disputes and to facilitate policy formulation dialogues, to design and help implement mediation and other ADR programs for state and local governmental agencies, to provide education about and training in mediation for the public and for employees of state and local government, and to oversee the extensive network of community mediation centers that provide grass-roots mediation services throughout the Islands. In November of 2005 the Center celebrated its 20th anniversary by sponsoring various …


Brushing Off Lawsuits: Dental Peer Review Examined , Lisa C. Markarian Mar 2012

Brushing Off Lawsuits: Dental Peer Review Examined , Lisa C. Markarian

Pepperdine Dispute Resolution Law Journal

For all contractual and legal intents and purposes, a dentist is a provider of services, while the patient who consents to treatment is a consumer. A dentist's fees reflect, in part, the cost of malpractice insurance protection. Dentists can also calculate into their fees any refunds they may pay back to patients who suffer adverse results.8 An injured patient on the other hand has limited means of protection against damages resulting from the wrongful acts of dentists. The options open to patients include: (1) filing a complaint in civil court, (2) reporting the incident to a government agency such as …


Mediation In The Health Care System: Creative Problem Solving , Sheea Sybblis Mar 2012

Mediation In The Health Care System: Creative Problem Solving , Sheea Sybblis

Pepperdine Dispute Resolution Law Journal

Part I of this paper provides a comparison of the use of litigation and mediation in the health care context. Part II explores how mediation can be used to improve many of the often criticized aspects of adjudication systems and alleviate tension between parties in health care disputes. Part III provides an evaluation of current mediation programs and studies in health care, as well as the expanding role of mediators. Part IV incorporates assessments of the potential success of mediation to resolve health care disputes in the future and provides suggestions to strengthen the process.


Planning For International Disputes (And What Makes Them Distinctive), Jack J. Coe Jr. Mar 2012

Planning For International Disputes (And What Makes Them Distinctive), Jack J. Coe Jr.

Pepperdine Dispute Resolution Law Journal

Interactive speech given at the Conflict Management Culture seminar, hosted by Pepperdine's Straus Institute for Dispute Resolution.


How To Take Control Of The Runaway Litigation Train , Jeremy Fogel Mar 2012

How To Take Control Of The Runaway Litigation Train , Jeremy Fogel

Pepperdine Dispute Resolution Law Journal

My subject today is how informed and appropriate use of alternative dispute resolution can benefit the parties in a business dispute, both by reducing costs and by producing qualitatively better results. As I will explain, although my colleagues on the bench and I do not mind presiding over your cases, litigating a commercial case rarely is the best means of advancing the interests of the companies involved.


Immunizing Arbitrators From Claims For Equitable Relief, Michael D. Moberly Mar 2012

Immunizing Arbitrators From Claims For Equitable Relief, Michael D. Moberly

Pepperdine Dispute Resolution Law Journal

The article begins with a summary of the historical origins of the judicial and arbitral immunity doctrines. Next, the article discusses the courts' refusal to extend judicial immunity to claims for declaratory, injunctive, or other equitable relief, except perhaps in the case of federal judges. The article then explores the propriety of recognizing a similar limitation in cases construing the arbitral immunity doctrine. The article ultimately concludes that (1) arbitrators should be immune from claims for equitable relief as a matter of policy, and (2) in jurisdictions where that result is currently precluded by existing precedent, a comparable result can …


California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon Mar 2012

California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon

Pepperdine Dispute Resolution Law Journal

Confidentiality serves as a cornerstone of mediation. The public policy underlying confidentiality is the promotion of candid communications between disputing parties. As explained in this article, mediation confidentiality affects more than just communication. It affects other important mediation values, such as party self-determination and mediator impartiality. Mediation confidentiality affects parties' ability to enforce their mediated agreements. Finally, confidentiality affects multiple dispute resolution processes, as seen by the interrelated nature of mediation and arbitration in the seminal case of Fair v. Bakhtiari.


Mediation Outcomes: Lawyers' Experience With Commercial And Construction Mediation In The United Kingdom , Penny Brooker, Anthony Lavers Mar 2012

Mediation Outcomes: Lawyers' Experience With Commercial And Construction Mediation In The United Kingdom , Penny Brooker, Anthony Lavers

Pepperdine Dispute Resolution Law Journal

This paper reports on the final phase of a three-year study into the role of lawyers in the development of Alternative Dispute Resolution (ADR) following the implementation of the Civil Procedure Rules in 1999 and draws comparisons between US and Canadian studies. The paper centres on the use of mediation, which is recognised as the pre-eminent ADR process in the UK. Data are analysed from 30 interviews with specialist commercial and construction-related lawyers who have utilised mediation in the dispute resolution process. Interviewees were selected from respondents to a national survey of lawyers specializing in commercial and construction-related practice. Whereas …


Copyright Arbitration Royalty Panels And The Webcasting Controversy: The Antithesis Of Good Alternative Dispute Resolution, Jeremy Delibero Mar 2012

Copyright Arbitration Royalty Panels And The Webcasting Controversy: The Antithesis Of Good Alternative Dispute Resolution, Jeremy Delibero

Pepperdine Dispute Resolution Law Journal

Music is becoming increasingly synonymous with big business and corporate influence. The advent of Internet radio and streaming webcasts are simply one example of this shift. Organizations such as the Radio Industry Association of America ("RIAA") have discovered a new way to receive royalties from the performance of musical works, and have fought vigorously to obtain favorable rates to achieve the maximum profit. On the other hand, small webcasters have fought equally hard to avoid these large rates. Although arguments for each side are equally persuasive, neither is persuasive enough to force a compromise. In attempting to solve these disputes, …


Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis Mar 2012

Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis

Pepperdine Dispute Resolution Law Journal

This article begins with a brief description of what the Wilko Court said with respect to the vacatur of arbitral awards and how federal and state appellate courts have construed that language. Traditional American arbitration vacatur law, including but not limited to the cases relied upon by the Wilko Court, are then reviewed in depth such that the Wilko decision and the Wilko Court's choice of language may be placed in context and fully examined. The intent and proper operation of the FAA are then discussed based on both the legislative history of the FAA and other authorities that consistently …