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Articles 1 - 30 of 32
Full-Text Articles in Law
The History, Application, And Policy Of The Judicially Created Standards Of Review For Arbitration Awards, Bret F. Randall
The History, Application, And Policy Of The Judicially Created Standards Of Review For Arbitration Awards, Bret F. Randall
BYU Law Review
No abstract provided.
Mediation Of Environmental Enforcement: Overcoming Inertia, Bruce Stiftel, Neil G. Sipe
Mediation Of Environmental Enforcement: Overcoming Inertia, Bruce Stiftel, Neil G. Sipe
Journal of Dispute Resolution
This Article aims to examine the claims for the usefulness of environmental mediation in the context of enforcement through consideration of two environmental enforcement cases processed by the Florida Department of Environmental Regulation (DER) during 1990-1991. Specifically outlined is a pilot mediation program designed to improve the resolution of the cases. Next, two DER cases are described and compared, in detail; the two cases are quite similar except that one underwent mediation and one did not. Finally, this Article draws conclusions about environmental enforcement dispute resolution processes. Particularly examined is the success of mediation at overcoming the reluctance of environmental …
Negotiating In Good Faith: Management's Obligation To Maintain The Status Quo During Collective Bargaining Under The Railway Labor Act - International Ass'n Of Machinists & Aerospace Workers V. Transportes Aereos Mercantiles Pan Americandos, S.A., Jay M. Dade
Journal of Dispute Resolution
When an employer and employee-representative union engage in collective bargaining negotiations, their negotiating activities are covered under the auspices of the Railway Labor Act.2 The Act, particularly applicable today in the tumultuous airline industry, established a rather elaborate mechanism for negotiation, mediation, voluntary arbitration, and conciliation to avoid interruptions to interstate commerce, to protect employees' freedom of association with respect to labor unions, and to provide prompt and orderly dispute settlements. 3 Indispensable to this scheme, Section 152, First of the Act imposes a statutory obligation upon the parties to such negotiations to bargain in good faith.4 In International Ass …
Punitive Damages In New York Arbitration: Who Is Really Being Punished - Barbier V. Shearson Lehman Hutton, Inc. , Brian R. Hajicek
Punitive Damages In New York Arbitration: Who Is Really Being Punished - Barbier V. Shearson Lehman Hutton, Inc. , Brian R. Hajicek
Journal of Dispute Resolution
Promotion of settlement to reduce litigation is a well-established policy goal in our federal court system.2 However, when parties cannot resolve all of their disputes in alternative dispute resolution, this policy goal is undermined. In arbitration governed by the law of the state of New York, parties are generally unable to resolve all of their disputes in arbitration when punitive damages would be warranted. In most cases, the parties' dispute cannot be fully resolved where punitive damages would be available because an arbiter is not free to award punitive damages in arbitration under New York law. This is particularly troublesome …
Mediation And Joke Design: Resolving The Incongruities , John M. Cooley
Mediation And Joke Design: Resolving The Incongruities , John M. Cooley
Journal of Dispute Resolution
The purposes of this Article are: (1) to highlight some of these new discoveries; (2) to discuss their implications for mediators generally, particularly toward achieving super-optimum resolutions of conflict; (3) to explore the relationship of these discoveries to the brain's bilateral functions, creativity, and the process of humor and joke design; (4) to suggest techniques, based on joke design, for altering conflict frames of disputants; and (5) to suggest directions for further experimentation and research. Although the interrelationships among the separate topics presented here may not be immediately discernible, the seeming incongruities will be resolved in Part VIII
Twenty Years Later...Contractual Arbitration As Medical Malpractice Tort Reform, Maureen Dulen
Twenty Years Later...Contractual Arbitration As Medical Malpractice Tort Reform, Maureen Dulen
Journal of Dispute Resolution
Although there is minimal empirical data to support many of the conclusions, 4 the purported advantages and disadvantages of using private tort reform such as contractual arbitration are popular subjects of debate." This Comment will examine both the acceptance of and the use of private contract arbitration clauses in the medical malpractice legal arena.
Arbitration Clauses In Retainer Agreements: A Lawyer's License To Exploit The Client - Haynes V. Kuder, Mark G. Anderson
Arbitration Clauses In Retainer Agreements: A Lawyer's License To Exploit The Client - Haynes V. Kuder, Mark G. Anderson
Journal of Dispute Resolution
An attorney is in an influential and superior position to the client when negotiating fee contracts. Because of this position, an attorney has the opportunity to exploit his or her client. Consequently, courts view agreements between a lawyer and client rather suspiciously and apply a higher standard to these agreements. Furthermore, a lawyer is subject to ethical rules which require a lawyer to meet certain duties, including the duty to inform the client about matters regarding the representation! Because of the higher obligations imposed on an attorney when dealing with a client, any benefit of the doubt should go to …
Leading Horses To Water: May Courts Which Have The Power To Order Attendance At Mediation Also Require Good-Faith Negotiation - Decker V. Lindsay, Charles J. Mcpheeters
Leading Horses To Water: May Courts Which Have The Power To Order Attendance At Mediation Also Require Good-Faith Negotiation - Decker V. Lindsay, Charles J. Mcpheeters
Journal of Dispute Resolution
Settlement is a favorite of the law,4 and courts encourage it as a social good which may even outweigh other important policy considerations.5 Reasons for this favoritism include a desire to avoid the time-consuming uncertainty and cost of litigation,6 settlement's contributions to the efficient use of the court system,7 and a general wish for peaceful resolution of controversies.
Recent Developments: The Uniform Arbitration Act, Angela C. Cole, Nicole J. Cress, Kevin L. Fritz, Lori L. Green
Recent Developments: The Uniform Arbitration Act, Angela C. Cole, Nicole J. Cress, Kevin L. Fritz, Lori L. Green
Journal of Dispute Resolution
Arbitration, once viewed as an undesirable alternative to litigation, has become widely accepted as a viable and often superior cost-effective approach to resolving disputes. In 1955, the national Conference of Commissioners on Uniform State Laws proposed a Uniform Arbitration Act.' Currently, 35 jurisdictions have arbitration statutes patterned after the U. A.A..' What began as an article in the Missouri Law Review entitled Recent Developments: The Uniform Arbitration Act, has evolved into an annual survey of recent developments in case law interpreting state versions of the U.A.A.' This detailed update monitors the underlying principles and rationales that develop from recent decisions. …
Book Review
Journal of Dispute Resolution
Getting Past No is an important companion to a previous book co-authored by William Ury. In 1981, Ury collaborated with Roger Fisher on a book entitled Getting to Yes, 3 which has sold more than two million copies and has become one of the most influential works on the subject of negotiation. Getting to Yes is a lucid, step-by-step guide for negotiating mutually satisfactory agreements. The authors labeled their approach "principled negotiation" and boiled it down to the following points: separate the people from the problem; focus on interests, not positions; generate a variety of possibilities before deciding what to …
Deferral To The Intraunion Appellate Process: A Response, Paul Alan Levy
Deferral To The Intraunion Appellate Process: A Response, Paul Alan Levy
University of Michigan Journal of Law Reform
In their recent Article on the deferral policy of the National Labor Relations Board (Board or NLRB), two attorneys for the United Auto Workers (UAW), Leonard Page and Daniel W. Sherrick, argue that the Board has adopted "an indefensible double standard" by applying its policy of "deferral to arbitration" only to contractual dispute resolution processes but not to intraunion review procedures. By deferring to intraunion procedures, they contend, the Board would further many of the same policy objectives it now achieves by deferring to arbitration, with the added benefit of advancing the interest in democratic union self-government. Moreover, by drawing …
Further Thoughts On Deferral To Private Dispute Resolution Procedures: A Response, Leonard Page, Daniel W. Sherrick
Further Thoughts On Deferral To Private Dispute Resolution Procedures: A Response, Leonard Page, Daniel W. Sherrick
University of Michigan Journal of Law Reform
We would first like to respond to one aspect of Levy's Article before discussing our proposal. Levy seems to argue as a general matter that "joint committee" determinations should not receive the same deference as arbitral resolutions. After establishing some of the basic analytic parameters in Part I of this Response, we argue in Part II that Levy's distinction between joint committees and arbitral resolutions has no relevance to disputes concerning contractual rights, and is useful only in the context of disputes concerning statutory rights. In Part III, we outline a framework for analyzing internal union review procedures that will …
Medieval Iceland And Modern Legal Scholarship, Richard A. Posner
Medieval Iceland And Modern Legal Scholarship, Richard A. Posner
Michigan Law Review
A Review of Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland by William Ian Miller
Drafting Dispute Resolution Clauses For Western Investment And Joint Ventures In Eastern Europe, Mary Theresa Kaloupek
Drafting Dispute Resolution Clauses For Western Investment And Joint Ventures In Eastern Europe, Mary Theresa Kaloupek
Michigan Journal of International Law
This Note discusses issues the practitioner should consider in drafting a dispute resolution provision for a client investing in one of the newly democratizing countries. Part I will discuss arbitration law in Eastern Europe; the dispute resolution provisions in the various foreign investment laws; the applicable national law; and each nation's enforcement procedures for arbitral awards issued in other nations. Part II reviews the dispute resolution provisions in various bilateral and multilateral treaties relating to foreign investment including the Convention on the Settlement of Investment Disputes (ICSID Convention) and the informal agreements between the American Arbitration Association (AAA) and the …
Demise Of The Faa's Contract Of Employment Exception - Gilmer V. Interstate/Johnson Lane Corp., The, Michael G. Holcomb
Demise Of The Faa's Contract Of Employment Exception - Gilmer V. Interstate/Johnson Lane Corp., The, Michael G. Holcomb
Journal of Dispute Resolution
The recent trend in the federal courts is to expand the scope of the Federal Arbitration Act2 (FAA) to include statutory claims. 3 Gilmer v. Interstate/Johnson Lane Corp. illustrates this trend by compelling claims under the Age Discrimination in Employment Act of 19674 (ADEA) to arbitration pursuant to an arbitration clause in an employment contract' But does this trend neglect the rights of the individual employee vis-a-vis his employer and does it undermine the purpose of the "contract of employment" exception in the FAA?' This Note will examine the Gilmer case and its adherence to the current trend of expanding …
Bargaining In The Dark: The Normative Incoherence Of Lawyer Dispute Bargaining Role, Robert J. Condlin
Bargaining In The Dark: The Normative Incoherence Of Lawyer Dispute Bargaining Role, Robert J. Condlin
Maryland Law Review
No abstract provided.
Voluntary Commercial Arbitration: Carefully Constructed Contract Clauses Can Cure Countless Conflicts, 25 J. Marshall L. Rev. 309 (1992), Barry C. Silverman
Voluntary Commercial Arbitration: Carefully Constructed Contract Clauses Can Cure Countless Conflicts, 25 J. Marshall L. Rev. 309 (1992), Barry C. Silverman
UIC Law Review
No abstract provided.
Corcoran V. Ardra: The Impact Of Insolvency On International Reinsurance Arbitration, 25 J. Marshall L. Rev. 527 (1992), John S. Diaconis
Corcoran V. Ardra: The Impact Of Insolvency On International Reinsurance Arbitration, 25 J. Marshall L. Rev. 527 (1992), John S. Diaconis
UIC Law Review
No abstract provided.
Just, Speedy, And Inexpensive Or Just Speedy And Inexpensive - Mandatory Alternative Dispute Resolution In The Western District Of Missouri, April A. Fredlund
Just, Speedy, And Inexpensive Or Just Speedy And Inexpensive - Mandatory Alternative Dispute Resolution In The Western District Of Missouri, April A. Fredlund
Journal of Dispute Resolution
This Comment will address five questions which may arise as challenges to the Western District of Missouri's implementation of its ADR program. First, is the experimental program designed by the court likely to be predictive? That is, will the program be able to tell us whether cost and delay are being reduced by the ADR program? Second, is the program as implemented likely to reduce cost and delay? Third, does the Western District of Missouri have authority to impose mandatory ADR on litigants? Fourth, is the provision for mandatory ADR constitutionally sound? And fifth, assuming affirmative answers to these questions, …
Settlement In Securities Fraud: Is Settlement Promoting Litigation - In Re Jiffy Lube Securities Litigation, Brian R. Hajicek
Settlement In Securities Fraud: Is Settlement Promoting Litigation - In Re Jiffy Lube Securities Litigation, Brian R. Hajicek
Journal of Dispute Resolution
In the complex securities fraud arena, partial pretrial settlement in cases involving multiple defendants would appear to reduce litigation in the dispute. However, conflict over the proper method of allocating responsibility for a damage award among settling and non-settling defendants can in fact increase litigation. Federal courts disagree as to which method most fairly and equitably apportions damage liability. In re Jiffy Lube Securities Litigation is the most recent case that touches upon the issue of damage allocation among settling and non-settling defendants. This Note will address competing policy considerations which drive courts to choose different allocative methods.
Continuing Power Of Cultural Tradition And Socialist Ideology: Cross-Cultural Negotiations Involving Chinese, Korean, And American Negotiators, The, Richard W. Downing
Continuing Power Of Cultural Tradition And Socialist Ideology: Cross-Cultural Negotiations Involving Chinese, Korean, And American Negotiators, The, Richard W. Downing
Journal of Dispute Resolution
This Comment approaches the issue of "cultural" factors in international negotiations by examining cross-cultural negotiation in which the People's Republic of China (PRC) and Korea (North and South) have dealt with Western nations. First, the cultural heritage of these nations appears important. Confucian ideals, for example, have had a tremendous impact on China for thousands of years,7 and they continue to influence modern societies. Second, more recent political tradition, namely the "ideology" of Marx, Lenin, and Mao, has also had an impact on the conduct and goals of conflict resolution today. As one scholar states, the "Chinese view of negotiation, …
Arbitration And Salary Inflation In Major League Baseball, Deborah R. Swank
Arbitration And Salary Inflation In Major League Baseball, Deborah R. Swank
Journal of Dispute Resolution
Major league baseball has undergone significant changes since its inception over a century ago.2 While the game itself remains basically the same, the system governing management and player relations is hardly the same as it was even twenty years ago.' In years past, team owners exercised absolute authority over terms of players' employment including player mobility and salary levels. 4 Under this system, players essentially had no voice in salary determinations and players were contractually restricted from signing with another team.5 Players were forced either to accept the terms as offered by management or to quit the game altogether.6
Congress, The Executive Brand And The Dispute Resolution Process, Charles E. Grassley, Charles Pou Jr.
Congress, The Executive Brand And The Dispute Resolution Process, Charles E. Grassley, Charles Pou Jr.
Journal of Dispute Resolution
This rapid, recent expansion in administrative proceedings and related litigation is not, of course, a unique or isolated phenomenon. It is part of a greatly increased reliance on our judiciary to decide all manner of social, political, and economic issues. Much of this litigation may be an inexorable result of complicated social and economic interactions, heightened resort to regulatory schemes to deal with environmental, health and safety, civil rights and welfare concerns, and other historical factors. However, the point has been reached where much of it is unnecessary, unproductive, and less than ideally suited for many of the conflicts involved. …
Confidentiality In Mediation: A Moral Reassessment, Kevin Gibson
Confidentiality In Mediation: A Moral Reassessment, Kevin Gibson
Journal of Dispute Resolution
In discussing mediation confidentiality, it appears that different commentators address different issues. For example, some commentaries discuss only court ordered mediation while others consider the possibility of any intervention by a neutral to be mediation, and hence under scrutiny. There is also disagreement about what should be protected: pre-mediation screening calls, post session discussions among mediators and their supervisors and so on.5 In order to keep the discussion as broad and inclusive as possible, I will use "mediation" to refer to any organized intervention by an impartial third party and to any part of that process. Although some may consider …
Shackling The Secretary's Hands: Limits To Authorizing Whistle-Blower Settlements Under Section 210 Of The Energy Reorganization Act - Macktal V. Secretary Of Labor, Jay M. Dade
Journal of Dispute Resolution
In seeking to encourage nuclear industry employees to report safety concerns, Section 210 of the Energy Reorganization Act of 1974 (ERA) acts to protect such "whistle-blowers" in the event they are terminated or discriminated against because of their whistle-blowing activities.2 When an employee and an employer negotiate a Section 210 "whistle-blower" complaint and subsequently submit the settlement for approval, the Secretary of Labor faces certain encumbrances when reviewing the agreement . This limitation on review arises when certain provisions may be in violation of public policy.4 In Macktal v. Secretary of Labor, the United States Court of Appeals for the …
Arbitrator And The Double Jeopardy Clause: Does The Postman Always Ring Twice - United States V. Reed, The, David A. Cole
Arbitrator And The Double Jeopardy Clause: Does The Postman Always Ring Twice - United States V. Reed, The, David A. Cole
Journal of Dispute Resolution
When an arbitrator's decision is adverse to one party, does the double jeopardy clause2 prohibit further pursuit of the claim by the successful party? With the rising emphasis being placed on arbitration clauses in collective bargaining agreements, it was only a matter of time before this question arose in the workplace. In United States v. Reed3 the Eleventh Circuit established the test for determining if an arbitrator's decision invokes the double jeopardy clause.
Waiver Of A Contractual Arbitration Agreement By Causing Prejudice To The Opponent: Should Federal Courts Adopt A Bright-Line Test - Kramer V. Hammond, Mark G. Anderson
Waiver Of A Contractual Arbitration Agreement By Causing Prejudice To The Opponent: Should Federal Courts Adopt A Bright-Line Test - Kramer V. Hammond, Mark G. Anderson
Journal of Dispute Resolution
Due to the high costs of litigation and the backlog on court dockets, parties to a contract are beginning to rely more and more on contractual provisions requiring arbitration for future disputes.2 In the past, courts were reluctant to enforce these provisions,' but now the federal courts enforce a strong presumption in favor of such provisions.' Because of this strong federal policy, waiver of the contractual agreements is not easily inferred.5 To overcome this presumption federal courts have developed tests to determine when waiver of contractual agreements to arbitrate occurs.6 These tests focus on whether the opposing party has been …