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2006

Dispute Resolution and Arbitration

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Full-Text Articles in Law

The International Tribunal For The Law Of The Sea And The Possibility Of Judicial Settlement Of Disputes Involving The Fishing Entity Of Taiwan - Taking Ccsbt As An Example, Yann-Huei Song Nov 2006

The International Tribunal For The Law Of The Sea And The Possibility Of Judicial Settlement Of Disputes Involving The Fishing Entity Of Taiwan - Taking Ccsbt As An Example, Yann-Huei Song

San Diego International Law Journal

The main purpose of this paper is to assess the possibility of judicial settlement of fishery disputes involving the fishing entity of Taiwan and examine the legal questions regarding jurisdiction over the disputes. This analysis is based on the articles related to dispute settlement that are provided in the SBT Convention, the ITLOS Statute and the international law of the sea and the judicial practice of the ITLOS and other relevant arbitration courts in the Southern Bluefin Tuna case. Following this introductory section, Section II describes the establishment of the CCSBT and the selection and application of the methods of …


The Future Of Apologies, Aaron Lazare Oct 2006

The Future Of Apologies, Aaron Lazare

New England Journal of Public Policy

Aaron Lazare spoke on the topic of apologies at the inauguration of Chancellor Michael Collins at the University of Massachusetts Boston. This text is taken from Lazare’s 2004 book On Apology published by Oxford University Press and reprinted here with permission.


Shaffer's Footnote 36, Arístides Díaz-Perosa Sep 2006

Shaffer's Footnote 36, Arístides Díaz-Perosa

West Virginia Law Review

No abstract provided.


Is There A Compelling Interest To Compel ? Examining Pre-Hearing Subpoenas Under The Federal Arbitration Act, Dean W. Sattler Sep 2006

Is There A Compelling Interest To Compel ? Examining Pre-Hearing Subpoenas Under The Federal Arbitration Act, Dean W. Sattler

Pace Law Review

No abstract provided.


Adding Judicial Mediation To The Debate About Judges Attempting To Settle Cases Assigned To Them For Trial, Peter Robinson Jul 2006

Adding Judicial Mediation To The Debate About Judges Attempting To Settle Cases Assigned To Them For Trial, Peter Robinson

Journal of Dispute Resolution

The article then explores the ramifications of the Uniform Mediation Act's express inapplicability of its confidentiality provisions to a mediation "conducted by a judge who might make a ruling on the case." Finally, the article suggests how the advent of judicial mediation might lead to standards of practice that would clarify the law and resolve the debate about judges conducting either settlement conferences or mediations for cases assigned to them for trial.


How Can A Mediator Be Both Impartial And Fair: Why Ethical Standards Of Conduct Create Chaos For Mediators, Susan Nauss Exon Jul 2006

How Can A Mediator Be Both Impartial And Fair: Why Ethical Standards Of Conduct Create Chaos For Mediators, Susan Nauss Exon

Journal of Dispute Resolution

This article focuses on newly developing Standards designed to regulate the mediation industry with respect to civil disputes. The particular focus is on the mediator's requirements of neutrality and impartiality and whether these requirements are impacted by assurances of a fair result and other fairness concepts such as a balanced process and informed decision making. The basic problem is that mediators are guided by Standards and stand-alone definitions of mediation, yet many Standards contain contradictory or vague provisions. Furthermore, the mediator's actual role may be dictated by her own personal style, values, and commercial needs in conjunction with the parties' …


Thou Shalt Love Thy Neighbor: Rluipa And The Mediation Of Religious Land Use Disputes, Jeffrey H. Goldfien Jul 2006

Thou Shalt Love Thy Neighbor: Rluipa And The Mediation Of Religious Land Use Disputes, Jeffrey H. Goldfien

Journal of Dispute Resolution

The question addressed in this article is whether existing systems for processing religious land use claims are well-suited to the task. The conclusion is that they are not, and that local officials and others involved in religious land use disputes ought to consider employing mediation at an early stage. The main virtue of mediation in this context is the opportunity it provides for disputants to meet face-to-face in an effort to understand the views of others, even if they do not agree with them. Facilitated dialogues among persons with differing perspectives is precisely what is missing from the traditional systems …


New Judicial Hostility To Arbitration: Federal Preemption, Contract Unconscionability, And Agreements To Arbitrate, The, Steven J. Burton Jul 2006

New Judicial Hostility To Arbitration: Federal Preemption, Contract Unconscionability, And Agreements To Arbitrate, The, Steven J. Burton

Journal of Dispute Resolution

Part I of this Article sketches the basics of arbitration law and practice, and traces the development of the federal policy favoring arbitration, to establish a basis for evaluating contemporary judicial decisions. Part II examines the justification for the policy favoring arbitration and the reasons contracting parties may prefer arbitration. Part III evaluates the reasons courts give for finding arbitration agreements in employment and consumer contexts unconscionable, and therefore, unenforceable. The conclusion is that many courts make many clearly erroneous decisions, including decisions that are unconstitutional because they are preempted.


Working With Len, James E. Westbrook Jul 2006

Working With Len, James E. Westbrook

Journal of Dispute Resolution

Len Riskin joined the MU faculty in 1984. Our faculty had voted in response to a recommendation of Dean Dale Whitman to begin a new emphasis on alternative dispute resolution. My recollection is that we had a group of very capable teachers with a traditional bent. On the other hand, they had an open mind about trying something new and they got along with each other very well. The kind of faculty we had and the leadership provided by Len, Dale Whitman and a few faculty members such as Tim Heinsz enabled us to do something that surprised a lot …


Reflections On A Mindful Giant: A Tribute To Len Riskin, Margaret Shaw Jul 2006

Reflections On A Mindful Giant: A Tribute To Len Riskin, Margaret Shaw

Journal of Dispute Resolution

Len Riskin is a man who is usually associated with raisins. This is because he is known for getting you to close your eyes and picture grapes growing on a vine somewhere in South America and after a really, really long time and a really, really long trip for those grapes, you get to take a miniscule bite out of the raisin you have been holding that gradually has become the focus of all of your attention.


After Basic Mindfulness Mediation: External Mindfulness, Emotional Truthfulness, And Lie Detection In Dispute Resolution, Clark Freshman Jul 2006

After Basic Mindfulness Mediation: External Mindfulness, Emotional Truthfulness, And Lie Detection In Dispute Resolution, Clark Freshman

Journal of Dispute Resolution

Some years ago, our mutual friend, Carrie Menkel-Meadow, suggested Len Riskin and I talk about our shared interest in mindfulness meditation and negotiation. At the time, I had students sit quietly, eyes closed, get in touch with what was going on before a negotiation, write it out, and then crumple up the paper. It was a primitive form of meditation and journaling and, as I look back through research, not a very sound theoretical or empirically-supported way to help.' Eventually, mindfulness meditation and practices helped move me from my very primitive attempts at mindfulness to a very rich practice that …


Resolving Conflict Together: The Understanding-Based Model Of Mediation, Gary Friedman, Jack Himmelstein Jul 2006

Resolving Conflict Together: The Understanding-Based Model Of Mediation, Gary Friedman, Jack Himmelstein

Journal of Dispute Resolution

The following excerpt is from a book in progress-tentatively titled, Resolving Conflict Together: The Understanding-Based Model of Mediation-that is planned to be published in 2007 by the American Bar Association. In this book, we seek to set out the approach to mediation that we have been developing through our work with the Center for Mediation in Law (the Center). We have termed this approach the "Understanding-Based Model" of mediation. The book develops twelve mediation cases, in which Gary served as mediator and which, with commentary, serve to transmit our approach to mediation. Each case focuses on a different aspect of …


State Legislative Update, Melissa Blair, Michael Benton, Jessica Gunder, David Lefevre Jul 2006

State Legislative Update, Melissa Blair, Michael Benton, Jessica Gunder, David Lefevre

Journal of Dispute Resolution

As of December 1, 2006, twenty-eight states have enacted some type of right to cure legislation. On April, 28, 2006, Georgia, one of the twenty-eight, amended its construction defect dispute resolution procedures to clarify the responsibilities of the parties. Pennsylvania attempted to become the twenty-ninth, the bill having passed both houses of the legislature, but the Governor vetoed the bill on March 17. Right to cure legislation was considered in South Dakota, but it was deferred to the 36th Legislative Day on February 8, 2006.


Mediator As Peacemaker: The Case For Activist Transformative-Narrative Mediation, Christopher Harper Jul 2006

Mediator As Peacemaker: The Case For Activist Transformative-Narrative Mediation, Christopher Harper

Journal of Dispute Resolution

This article proposes an approach to mediation encompassing aspects of both of these takes on mediation, something one might loosely think of as "activist transformative-narrative mediation." Essentially, this approach assumes the aspirations and ideology of Professor Gunning's "activist" take on transformative mediation and achieves those aspirations using techniques from narrative mediation. By employing this approach, mediators can actively assist parties to identify and achieve reconciliation, peace, and justice.


Faa Preemption By Choice-Of-Law Provisions: Enforceable Or Unenforceable, Ross Ball Jul 2006

Faa Preemption By Choice-Of-Law Provisions: Enforceable Or Unenforceable, Ross Ball

Journal of Dispute Resolution

Generally, choice-of-law provisions allow corporations that do business in several states or countries to draft their agreements and conduct their business in accordance with the law they choose. When the choice-of-law provision is contained in a contract that does not have an agreement to arbitrate, courts generally have no qualms about enforcing them. However, when the contract does contain an agreement to arbitrate, courts are reluctant to enforce the choice-of-law provision as to the arbitration agreement because the Federal Arbitration Act (FAA) governs arbitration agreements. This issue has been the source of much confusion and litigation in the field of …


Courts Have The Final Say: Does The Doctrine Of Manifest Disregard Promote Lawful Arbitral Awards Or Disguise Unlawful Judicial Review, Lindsay Biesterfeld Jul 2006

Courts Have The Final Say: Does The Doctrine Of Manifest Disregard Promote Lawful Arbitral Awards Or Disguise Unlawful Judicial Review, Lindsay Biesterfeld

Journal of Dispute Resolution

In exchange for a speedy, economical dispute resolution process, parties that submit to binding arbitration assume the risk that an arbitrator might misapply the law. United States Supreme Court precedent and federal law favor agreements to arbitrate by limiting judicial review of arbitral awards and requiring courts to "rigorously enforce arbitration agreements." These judicial constraints support the arbitral goals of efficiency and finality by reducing the risk that arbitral awards will be vacated on appeal. To balance the risk that arbitrators may abuse this standard of review, courts have supplemented restricted judicial review with a doctrine that allows an arbitral …


No Do-Overs For Parties Who Agree To Limit Review Of An Arbitrator's Decision, Patrick Gill Jul 2006

No Do-Overs For Parties Who Agree To Limit Review Of An Arbitrator's Decision, Patrick Gill

Journal of Dispute Resolution

Under the FAA, review of arbitration awards is limited to specific circumstances. However, in many instances, these default rules can be modified by contractual provisions including increasing or decreasing the level of review of arbitration awards. Although a broader scope of review is contrary to the main purposes of arbitration, courts have held that a contractual provision expanding judicial review is permissible. Furthermore, in some limited circumstances, courts have held that a contractual limitation on judicial review is permitted by the FAA where the restriction is clearly manifested in the contract and the process will not become unfair as a …


Closing The Door, But Opening A Window: The Supreme Court's Reaffirmation Of Applying The Federal Arbitration Act To The States, Caroline Kornelis Jul 2006

Closing The Door, But Opening A Window: The Supreme Court's Reaffirmation Of Applying The Federal Arbitration Act To The States, Caroline Kornelis

Journal of Dispute Resolution

The instant case reinforces two key Supreme Court cases regarding the enforcement of arbitration agreements, and the requirement that when parties disagree about the validity of a contract which contains an arbitration clause, the dispute should go directly to an arbitrator, and not be determined by a court. While this case adds no new law to the arbitration landscape per se, it does reaffirm the Supreme Court's, as well as Congress's, firm stance on promoting arbitration. At first glance, the opinion seems to be a cut and dry reaffirmation of principles that have been present in Unites States Supreme Court …


Judicial Intervention In International Arbitration: A Comparative Study Of The Scope Of The New York Convention In U.S. And Chinese Courts, Jian Zhou Jun 2006

Judicial Intervention In International Arbitration: A Comparative Study Of The Scope Of The New York Convention In U.S. And Chinese Courts, Jian Zhou

Washington International Law Journal

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards has been praised as one of the most efficient and powerful multilateral legal instruments in promoting international commercial arbitration. The implementation of the Convention, however, depends heavily on the domestic legal mechanisms of contracting states. By strategically adjusting its scope, local courts may expand or limit the benefits of the Convention in a significant way. The comparison between the practices of United States and Chinese courts present two extreme examples of this scope issue. There is considerable room to improve the domestic implementation of the Convention in …


China International Economic Trade Arbitration Commission In 2006: New Rules, Same Results?, Benjamin O. Kostrzewa Jun 2006

China International Economic Trade Arbitration Commission In 2006: New Rules, Same Results?, Benjamin O. Kostrzewa

Washington International Law Journal

In May of 2005, the China International Economic Trade Arbitration Commission (“CIETAC”) was updated with new rules designed to bring it into conformity with international arbitration standards. The rules were the most recent efforts by the Chinese government to provide foreign companies with an alternative to the Chinese judiciary, which is often considered parochial, unsophisticated, and unable to handle modern business conflicts. The new rules cure many of the problems associated with arbitration in China and have created a predominantly fair and professional dispute resolution forum. Currently, CIETAC suffers more from award collection problems rather than problems in its rules …


The Effects Of Alternative Dispute Resolution On Access To Justice In Utah, James R. Holbrook Jun 2006

The Effects Of Alternative Dispute Resolution On Access To Justice In Utah, James R. Holbrook

Utah Law Review

Thousands of cases are resolved every year in Utah by private and court sponsored mediation and other ADR programs, and ADR utilization trends are moving up every year. Since 1990, over 3600 lawyers and non-lawyers have received mediator training in Utah. Clearly, ADR has a growing positive impact on access to justice in this state. However, it is just as clear that ADR by itself does not satisfy the huge and growing unmet needs of moderate-income, low-income, and poor people for dispute resolution services in this state.


Equal Justice From A New Perspective: The Need For A First-Year Clinical Course On Public Interest Mediation, David Dominguez Jun 2006

Equal Justice From A New Perspective: The Need For A First-Year Clinical Course On Public Interest Mediation, David Dominguez

Utah Law Review

It really is possible to deliver enough no-cost or low-cost legal problem solving services to provide equal justice. To get there, however, we need to experiment with new strategies and methods to achieve the goal, including the new skill of PIM. My hunch is that if first-year law students can prove to themselves in a clinical setting that public service lawyering can produce a multiplier effect for the greater public good, a new commitment to equal justice will emerge in the legal profession.


Circumventing The Supremacy Clause? Understanding The Constitutional Implications Of The United States' Treatment Of Treaty Obligations Through An Analysis Of The New York Convention, Amber A. Ward May 2006

Circumventing The Supremacy Clause? Understanding The Constitutional Implications Of The United States' Treatment Of Treaty Obligations Through An Analysis Of The New York Convention, Amber A. Ward

San Diego International Law Journal

The United States participation in treaties and other international agreements is becoming more necessary and an increasingly prevalent occurrence as a result of globalization. The rapid pace of technological innovation and more effective means of transportation have caused our world to shrink, making countries even more interconnected. The corresponding explosion of international business and commercial transactions has resulted in high levels of risk and uncertainty due to a complex mix of laws, monetary factors, politics and cultures that vary across countries. For global players, it has become essential to have international agreements that can mitigate the risks inherent in international …


Arbitration Costs And Contingent Fee Contracts, Christopher R. Drahozal Apr 2006

Arbitration Costs And Contingent Fee Contracts, Christopher R. Drahozal

Vanderbilt Law Review

A common criticism of arbitration is that its upfront costs (arbitrators' fees and administrative costs) may preclude consumers and employees from asserting their claims. Some commentators have argued further that arbitration costs undercut the benefits to consumers and employees of contingent fee contracts, which permit the claimants to defer payment of attorneys' fees and litigation expenses until they prevail in the case (and if they do not prevail, avoid such costs altogether). This paper argues that this criticism has it exactly backwards. Rather than arbitration costs interfering with the workings of contingent fee contracts, the contingent fee mechanism provides a …


The Importance Of Using Alternative Dispute Resolution Techniques And Processes In The Ethical And Informed Representation Of Children, Kelly Browe Olson Mar 2006

The Importance Of Using Alternative Dispute Resolution Techniques And Processes In The Ethical And Informed Representation Of Children, Kelly Browe Olson

Nevada Law Journal

No abstract provided.


The Role Of Medicare In Medical Malpractice Reform, William M. Sage Jan 2006

The Role Of Medicare In Medical Malpractice Reform, William M. Sage

Journal of Health Care Law and Policy

No abstract provided.


Creating Positive Facts On The Ground: A Viable Palestinian State Overview, Byron Bland, Lee Ross, Walid Salem Jan 2006

Creating Positive Facts On The Ground: A Viable Palestinian State Overview, Byron Bland, Lee Ross, Walid Salem

Nevada Law Journal

No abstract provided.


How Much Justice Can We Afford: Defining The Courts' Roles And Deciding The Appropriate Number Of Trials, Settlement Signals, And Other Elements Needed To Administer Justice, John Lande Jan 2006

How Much Justice Can We Afford: Defining The Courts' Roles And Deciding The Appropriate Number Of Trials, Settlement Signals, And Other Elements Needed To Administer Justice, John Lande

Journal of Dispute Resolution

This article discusses how the court system can function optimally given declining trial rates and the limited resources available. It does not provide a detailed analysis of court financing but rather discusses broad issues relating to the role of trials in the legal system.


Exploring The Link Between Domestic Conflicts And Negotiation Failure In The Middle East, Russell Korobkin Jan 2006

Exploring The Link Between Domestic Conflicts And Negotiation Failure In The Middle East, Russell Korobkin

Nevada Law Journal

No abstract provided.


Barriers To Progress At The Negotiation Table: Internal Conflicts Among Israelis And Among Palestinians, Robert H. Mnookin, Ehud Eiran, Sreemati Mitter Jan 2006

Barriers To Progress At The Negotiation Table: Internal Conflicts Among Israelis And Among Palestinians, Robert H. Mnookin, Ehud Eiran, Sreemati Mitter

Nevada Law Journal

No abstract provided.