Law Commons^™

The Right Mix, Richard C. Reuben

Faculty Publications

This edition of Dispute Resolution Magazine explores several aspects of the problem. It begins with a debate between Jean Sternlight and Theodore 0. Rogers over the propriety of mandatory predispute arbitration processes in the consumer and employment contexts, followed by a proposal by Terry Trantina for a "constructive compromise" regarding the general validity of arbitration agreements in contracts of adhesion.

This trio of essays is followed by articles on two major arbitration reform efforts. The first, by Thomas J. Stipanowich and J. Clark Kelso, discusses the rise of protocols and other industry standards intended to bring fairness to the arbitratica …

Survey Of Domestic Mediator Qualifications And Suggestions For A Uniform Paradigm, A, Timothy Lohmar, Heidi Gryte, Amy Markel

Journal of Dispute Resolution

Plagued by the burdens of congestion in the family courts system, many jurisdictions have resorted to both court-connected and independent mediation referral as a means to relieve the hurdles of domestic litigation.' In efforts to ensure the quality of mediators to whom they refer cases, many states have resorted to statutory provisions which prescribe certain criteria which domestic mediators must meet. What has evolved is a variety of domestic mediator skills, personal qualities, and knowledge standards incorporated by jurisdictions throughout the United States. This note will attempt to identify the predominant themes recurrent in states ordaining statutory domestic mediator qualifications, …

Fallacy Of Duffield V. Robertson And Rosenberg V. Merrill Lynch: The Continuing Viability Of Mandatory Pre-Dispute Title Vii Arbitration Agreements In The Post-Civil Rights Act Of 1991 Era, The, Kristen Decker, William Krizner

Journal of Dispute Resolution

Two recent decisions, one in the Ninth Circuit and one in a Massachusetts District Court, have erroneously held that mandatory Title VII pre-dispute arbitration clauses are unenforceable under the Civil Rights Act of 1991.' A statutory construction analysis of the 1991 Civil Rights Act demonstrates that Congress did not intend to abolish the use of such clauses. Instead, Congress intended to support the use of mandatory pre-dispute arbitration as a valid and useful forum for the resolution of disputes arising under Title VII of the Civil Rights Act of 1964. The purpose of the following Article is twofold. First, this …

Employment Protection And Domestic Violence: Addressing Abuse In The Labor Grievance Process, Jennifer Atterbury

Journal of Dispute Resolution

The effects of domestic violence are not limited to the home environment. Its effects are felt in employment when abused employees are absent from work and when violent incidents erupt in the workplace. For example, a bruised employee might be too injured and embarrassed to attend work, or an estranged spouse might stalk and harass a victim on the job. Another issue arises in that employers often discipline victims of domestic violence for absenteeism and incidents of violence that occur in the workplace. Discipline of union members is governed by collective bargaining agreements and subject to the labor grievance process. …

Reining In The Manifest Disregard Of The Law Standard: The Key To Restoring Order To The Law Of Vacatur, Stephen L. Hayford

Journal of Dispute Resolution

The thesis of this article is that if the "manifest disregard" of the law standard is either rejected as doctrinally unsound or somehow harmonized with Section 10(a) of the FAA in a manner that precludes judicial intrusion into the merits of commercial arbitration awards, the legitimacy of all of the remaining nonstatutory grounds for vacatur will be eviscerated. If those nonstatutory standards were eliminated, the law of vacatur would be restored to the simple, straightforward standards articulated by Congress in Section 10(a) of the FAA

Utilitarian Analysis Of The Objectives Of Criminal Plea Negotiation And Negotiation Strategy Choice, Joseph W. Vanover

Journal of Dispute Resolution

This article examines the repercussions of choosing a negotiating style for the present criminal case on the actions of opposing counsel in future cases. It scrutinizes the criminal plea negotiating process from the perspective of both a prosecuting attorney and a defense attorney. It analyzes this process using two philosophical theories: act utilitarianism and rule utilitarianism.

Recent Developments: The Uniform Arbitration Act, Benjamin K. Byrd, Mondonna L. Ghasedi, Robert J. Steintjes, Michelle Trant

Journal of Dispute Resolution

This Article is an overview of recent court decisions that interpret state versions of the Uniform Arbitration Act ("U.A.A.").' Arbitration statutes patterned after the U.A.A. have been adopted by thirty-four states and the District of Columbia.' The goal of this project is to promote uniformity in the interpretation of the U.A.A. by articulating the underlying policies and rationales of recent court decisions interpreting the U.A.A.

Eleventh Circuit Adopts Manifest Disregard Of The Law As A Non-Statutory Ground For Vacating An Arbitration Award - Montes V. Shearson Lehman Brothers, Inc., The, Daniel S. Cohen

Journal of Dispute Resolution

When parties agree to resolve disputes through arbitration, they expect the resolution to be binding and final. There are a few situations, however, where a court will be willing to intervene and vacate the arbitration board's award. The Eleventh Circuit Court of Appeals, in Montes v. Shearson Lehman Brothers, Inc., recognized that manifest disregard of the law by an arbitrator is a reason to abandon the arbitrator's ruling and remand the case to a new arbitration board. The court established that when it can be shown that the arbitrator knew the law and expressly ignored it, his decision will not …

Is Alternative Dispute Resolution A Possibility In The Riverboat Gambling Quagmire - Akin V. Missouri Gaming Commission, Matthew Potter

Journal of Dispute Resolution

During the 1990s, the emergence of riverboat gambling operations has led to an avalanche of social and political debates.' Since 1989, riverboat gaming has been electorally approved in several midwestern states, including Iowa, Illinois, Indiana, Mississippi, Missouri, and Louisiana.4 However, this voter acceptance of a formerly stigmatized industry has not come without a significant backlash. In particular, religious groups have denounced riverboat gambling, claiming that such activity inevitably leads to, inter alia, dissipated savings, chronic addictions, and other ancillary societal vices, including prostitution, alcoholism, and drug abuse.'

Failing Faith In Litigation? A Survey Of Business Lawyers' And Executives' Opinions, John M. Lande

Faculty Publications

To provide a more systematic assessment of contemporary faith in litigation, this article looks at a particular context-- business litigation--and analyzes the opinions of three groups of respondents: lawyers in private law firms who do commercial litigation (“outside counsel”), lawyers employed in business firms who do some litigation (“inside counsel”), and nonlawyer executives in business firms (“executives”). These groups have the greatest exposure to litigation in the corporate setting; furthermore, because they play powerful roles in our political, economic, and social life as well as the legal system, their opinions influence public opinion more generally.

I'Ll Take It For What It Is Worth -- The Use Of Hearsay Evidence By Labor Arbitrators: A Primer And Modest Proposal, Marvin F. Hill, Jr., Tammy M. Westhoff,

Journal of Dispute Resolution

This article considers these and other selected problems dealing with hearsay evidence that are likely to be encountered in the arbitral forum. It is our thesis that arbitrators do and should credit some (but not all) forms of hearsay evidence, but that the arbitral process is not served by admitting all evidence and "taking it for what it is worth." Further, we believe when an advocate's case against a grievant consists entirely of hearsay evidence, and there is no reliable substitute for cross examination or "equivalent circumstantial guarantees of trustworthiness," the grievant should prevail. Only in the rarest of cases …

Choppy Waters, Richard C. Reuben, Nancy H. Rogers

Faculty Publications

The movement toward a uniform standard for confidentiality in mediation among the states is one that from the outset casts off into choppy waters, marked by pitching cross-currents of remarkable force.

Third Party Intervention And Joinder As Of Right In International Arbitration: An Infringement Of Individual Contract Rights Or A Proper Equitable Measure?, S. I. Strong

Faculty Publications

Arbitration has long been called a creature of contract, a dispute resolution mechanism that has no form or validity outside the four corners of the parties' arbitration agreement. Some feel, however, that it may be time to change this narrow interpretation of arbitration's function and scope, and nowhere is this need for reform more apparent than in the realm of multi-party international disputes. Arbitration has taken on an increasingly important role in international commercial transactions and has become the preferred dispute resolution mechanism in many types of transnational contracts. Although there are any number of reasons why this may be …

A "Party Satisfaction" Perspective On A Comprehensive Mediation Statute, James Levin, Chris Guthrie

Faculty Publications

Mediation Statute, 13 Ohio St. J. on Disp. Resol. 885 (1998)

During the past fifteen years, the alternative dispute resolution movement has greatly altered the legal landscape. Courts, legislatures and administrative agencies have enacted more than 2000 laws dealing with mediation and other dispute resolution processes. The National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Bar Association Section of Dispute Resolution have recently formed a unique partnership to assess whether a model or uniform mediation statute might remedy some of the problems caused by the current patchwork of often confusing and conflicting mediation laws. The task …

Table Of Contents - Issue 1

Journal of Dispute Resolution

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Table Of Contents - Issue 2

Journal of Dispute Resolution

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Functus Officio: Does The Doctrine Apply In Labor Arbitration - Teamsters Local 312 V. Matlack, Inc., Amy Markel

Journal of Dispute Resolution

The doctrine of functus officio was developed at common law in response to concerns about the "solemnity of judgments" and the effect of outside influences on arbitrators' decisions.2 Although not strictly applied in arbitration that is conducted pursuant to the Labor Management Relations Act,3 the doctrine of functus officio prevents an arbitrator from vacating, modifying, supplementing, or correcting his award . Most courts recognize three narrow exceptions to the doctrine which allow an arbitrator to revisit his award under limited circumstances. This Note examines the application of the "clarification exception" to the doctrine in a labor dispute setting and outlines …

Preliminary Injunction Of Arbitration Proceedings - Six Clinics Holding Corporation, Ii V. Cafcomp Systems, Inc., Heidi Albers

Journal of Dispute Resolution

The issue presented in Six Clinics Holding Corporation, I v. Cafcomp Systems, Inc., is whether a court is prohibited from issuing a preliminary injunction in a case subject to arbitration.' The parties had a private agreement to arbitrate any disputes, but the court enjoined the arbitration in order to determine a federal issue outside the arbitrator's jurisdiction The defendant argued that the Anti-Injunction Act, which prohibits federal courts from enjoining state court proceedings, was violated.4 However, the court found a loophole by stating that a private arbitration is not a state proceeding and thus is not governed by the Act.5 …

Restoring Faith In The Attorney/Client Relationship: Alaska's Mandatory Fee Arbitration - A. Fred Miller, Attorneys At Law, P.C. V. Purvis, Byron D. Brown

Journal of Dispute Resolution

Arbitration is an effective method of alternative dispute resolution (ADR) in resolving a disagreement between an attorney and client over legal fees. The arbitration proceeding offers benefits for both lawyers and clients. Attorneys avoid having to sue a former client for a delinquent bill and face the very real possibility of a malpractice counterclaim. The client, on the other hand, avoids the aggravation of retaining another counsel to defend the suit. Mandatory fee arbitration, as established by the Alaska Supreme Court, places the decision to submit to arbitration squarely in the client's hands. Once the client chooses arbitration, the attorney …

Faa Exclusionary Clause: Are We Headed For A Broader Interpretation Of Interstate Commerce - Miller V. Public Storage Management, Inc., The, Matthew Potter

Journal of Dispute Resolution

The Federal Arbitration Act ("FAA") encompasses a vast spectrum of arbitration controversies. The FAA provides that "[a] written provision in .. . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction... shall be valid, irrevocable, and enforceable."2 The preceding section of the Act, however, states that "nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."3 In their efforts to maintain a balance between these competing interests, many courts have attempted to assemble …

Qualification Requirements Of Mediators, Norma Jeanne Hill

Journal of Dispute Resolution

As the use of Alternative Dispute Resolution spreads, the question of who is qualified to provide mediation services becomes ever more important. In determining which selection methods to use in choosing qualified mediators for a particular court or program, attention should be paid to the effectiveness of each specific method, the cost to use it, and whether the method unduly discriminates against individuals of different cultural groups or with varying mediation styles. Just like any other selection procedure in the world of employment, a mediator qualification requirement ought to be analyzed in terms of effectiveness, cost, and discriminatory effects before …

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Journal of Dispute Resolution

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Arbitration Agreements: Should A Union Be Allowed To Make Collective Bargaining Agreements That Bind Individuals' Federal Statutory Claims To Arbitration - Brisentine V. Stone & (And) Webster Engineering Corp., Troy Groat

Journal of Dispute Resolution

With the constant increase of employment litigation2 among individuals, unions and companies, the use of arbitration clauses continues to grow each day. While it is clear that arbitration clauses can be beneficial, it is not clear when and in what situations they should be binding, and hence, waive the rights of parties to have their day in court. Against this backdrop, the Brisentine court faced the issue of whether a union, when making a collective bargaining agreement, can bind individual employee's federal statutory rights to arbitration

Protecting Against Employment Discrimination: The Ninth Circuit's Interpretation Of Mandatory Arbitration Of Title Vii Claims - Renteria V. Prudential Ins. Co. Of America, Todd C. Stanton

Journal of Dispute Resolution

The growing trend toward reliance upon arbitration, rather than judicial adjudication, has resulted in a reformation regarding the resolution of disputes within the employment industry. It has become a standard practice of many employers to require that employees sign employment agreements before they are allowed to work. Recently, these types of agreements have begun to require that employees resolve any disputes or claims against their employers through arbitration rather than judicial adjudication. Unfortunately, the average employee is often unaware of the binding nature of these agreements until a dispute actually arises with his or her employer. The Ninth Circuit has …