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- Journal of Dispute Resolution (27)
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Articles 1 - 30 of 62
Full-Text Articles in Law
Financial Services In The United States And United Kingdom: Comparative Approaches To Securities Regulation And Dispute Resolution, Cory Alpert
Brigham Young University International Law & Management Review
No abstract provided.
From Court-Surrogate To Regulatory Tool: Re-Framing The Empirical Study Of Employment Arbitration, W. Mark C. Weidemaier
From Court-Surrogate To Regulatory Tool: Re-Framing The Empirical Study Of Employment Arbitration, W. Mark C. Weidemaier
University of Michigan Journal of Law Reform
A growing body of empirical research explores the use of arbitration to resolve employment disputes, typically by comparing arbitration to litigation using relatively traditional outcome measures: who wins, how much, and how quickly. On the whole, this research suggests that employees fare reasonably well in arbitration. Yet there remain sizeable gaps in our knowledge. This Article explores these gaps with two goals in mind. The first and narrower goal is to explain why it remains exceedingly difficult to assess the relative fairness of arbitration and litigation. The outcome research does not account for a variety of 'filtering" mechanisms that influence …
Arbitration Costs And Forum Accessibility: Empirical Evidence, Christopher R. Drahozal
Arbitration Costs And Forum Accessibility: Empirical Evidence, Christopher R. Drahozal
University of Michigan Journal of Law Reform
In this Article, written for this symposium issue on "Empirical Studies of Mandatory Arbitration," I examine the available empirical evidence on these two questions. I take "mandatory arbitration" to refer to pre-dispute arbitration clauses in consumer and employment (and maybe franchise) contracts. Accordingly, I limit my consideration of the empirical evidence to those types of contracts. I do not discuss empirical studies of international arbitrations, which almost always arise out of agreements between commercial entities. Nor do I discuss empirical studies of court-annexed arbitrations, which may not derive from party agreement and do not ordinarily proceed to a binding award.
Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin
Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin
University of Michigan Journal of Law Reform
We provide the first study of varying use of arbitration clauses across contracts within the same firms. Using a sample of 26 consumer contracts and 164 nonconsumer contracts from large public corporations, we compared the use of arbitration clauses in firms' consumer and nonconsumer contracts. Over three-quarters of the consumer agreements provided for mandatory arbitration but less than 10% of the firms' material nonconsumer, nonemployment contracts included arbitration clauses. The absence of arbitration provisions in the vast majority of material contracts suggests that, ex ante, many firms value, even prefer, litigation over arbitration to resolve disputes with peers. Our data …
State Legislative Update, Gregory Cassens, Matthew D. Decker, Carly Duvall, Claire Mcguire
State Legislative Update, Gregory Cassens, Matthew D. Decker, Carly Duvall, Claire Mcguire
Journal of Dispute Resolution
The purpose of this Bill is to provide an alternative approach for individuals with a cause of action against a municipality.' Rather than the costly and time-consuming traditional method of hiring an attorney and filing a lawsuit, House Bill 2631 offers individuals an opportunity for Alternative Dispute Resolution ("ADR") in the form of arbitration. The Bill would allow any individual with a claim in contract or tort against a municipality to require the municipality to submit to the arbitration of the claim. The purpose of House Bill 2631 is to facilitate the resolution of individual claims against a city. However, …
How Bad Are Mandatory Arbitration Terms?, Omri Ben-Shahar
How Bad Are Mandatory Arbitration Terms?, Omri Ben-Shahar
University of Michigan Journal of Law Reform
This symposium was presented in the 2008 Annual Meeting of the Contracts Section of the American Association of Law Schools. Indeed, studying the unconscionability of arbitration terms has become a standard feature of first-year contracts courses. This is perhaps one of the hotter topics in today's contract law and policy. Contractual rights, as they are enforced by contract law, might have substantially different values depending on the venue through which they can be vindicated. It is hard to predict how these values differ, but hopefully this symposium will inform some of these predictions.
When Perception Changes Reality: An Empirical Study Of Investors' Views Of The Fairness Of Securities Arbitration, Jill I. Gross, Barbara Black
When Perception Changes Reality: An Empirical Study Of Investors' Views Of The Fairness Of Securities Arbitration, Jill I. Gross, Barbara Black
Journal of Dispute Resolution
Arbitration in securities industry-sponsored forums is the primary mechanism to resolve disputes between investors and their brokerage firms. Because it is mandatory, participants debate its fairness, and Congress has introduced legislation to ban pre-dispute arbitration clauses in customer agreements. Missing from the debate has been empirical research of perceptions of fairness by the participants, especially investors. To fill that gap, we mailed 25,000 surveys to participants in recent securities arbitrations involving customers to learn their views of the process. The article first details the survey's background, explains the importance of surveying perceptions of fairness, and describes our methodologies, procedures, and …
Philippine Community Mediation, Katarungang Pambarangay, Gill Marvel P. Tabucanon, James A. Wall Jr., Wan Yan
Philippine Community Mediation, Katarungang Pambarangay, Gill Marvel P. Tabucanon, James A. Wall Jr., Wan Yan
Journal of Dispute Resolution
First, we present a brief overview of the process, followed by a delineation of the history, purpose, operational structure, jurisdiction, venue, procedure, and time frame for this mediation approach. Finally, we report on interviews we conducted with mediators who have served on these panels. Their accounts reveal intriguing details as to how the mediation process unfolds and the benefits of this dispute resolution process. Our goals in this article are threefold: (1) to describe this grassroots mediation approach; (2) to expand our knowledge about mediation; and (3) to reflect on the advantages of this approach so as to improve mediation …
On Becoming A Collaborative Professional: From Paradigm Shifting To Transformative Learning Through Critical Reflection And Dialogue, Richard W. Shields
On Becoming A Collaborative Professional: From Paradigm Shifting To Transformative Learning Through Critical Reflection And Dialogue, Richard W. Shields
Journal of Dispute Resolution
In Part II, I provide a brief overview of CL and its underlying assumptions. A description of CL training and learning objectives follows in Parts III and IV. In Parts V and VI, I review the paradigm shifting and transformative learning literature. I provide an overview of the study in Part VII, followed by my analysis of the data in Parts VIII and IX. In Part X, I conclude with a discussion of critical reflection and dialogue in a CL training context.
From Kneecappings Toward Peace: The Use Of Intra-Community Dispute Resolution In Northern Ireland, Patrick Cody
From Kneecappings Toward Peace: The Use Of Intra-Community Dispute Resolution In Northern Ireland, Patrick Cody
Journal of Dispute Resolution
Violence has been a way of life in Northern Ireland for many years as communities were divided by separate warring paramilitary factions. Each side believed that it existed for the benefit and protection of the local community against the forces on the other side. The Irish Republican Army ("IRA") pledged itself to the defense of Northern Irish Catholics from persecution by those loyal to the British government. Similarly, groups such as the Ulster Volunteer Force ("UVF") and the Ulster Defense Association ("UDA") formed to defend Protestant citizens against IRA attacks. Policing of local neighborhoods fell largely to these groups. Enforcement …
Elevator Company Goes Down: Mandatory Arbitration Provisions As Applied To Pending Civil Rights Claims In The Employment Context, Miranda Fleschert
Elevator Company Goes Down: Mandatory Arbitration Provisions As Applied To Pending Civil Rights Claims In The Employment Context, Miranda Fleschert
Journal of Dispute Resolution
In Goldsmith v. Bagby Elevator Company, the Eleventh Circuit Court of Appeals carved a distinction in the employment context between mandatory predispute arbitration agreements and compulsory arbitration agreements as applied to pending claims of discrimination. In doing so, the court warns employers that any effort to terminate an employee's rights with respect to a pending Equal Employment Opportunity Commission ("EEOC") claim by instituting a mandatory arbitration provision will be seen as impermissibly retaliatory. Amid the backdrop of a case in which supervisors routinely called black employees "monkeys," "slaves," and "niggers," the court makes a well-meaning attempt at preserving employees' statutorily …
No Exceptions: How The Legitimate Business Justification For Unconscionability Only Further Demonstrates California Courts' Disdain For Arbitration Agreements, Thomas H. Riske
Journal of Dispute Resolution
In Davis v. O'Melveny & Myers, the Ninth Circuit Court of Appeals considered whether an arbitration agreement adopted by a law firm and distributed to its employees was enforceable. When interpreting an arbitration agreement, how the contract doctrine of unconscionability should be applied by state courts, is an essential element of this case. While the Federal Arbitration Act ("FAA") has been interpreted to preempt any state law in conflict with it, state laws governing the necessary foundation to revoke a contract remain unaffected. In considering these principles, state courts have applied the doctrine of unconscionability to arbitration agreements in the …
Expanding The Use Of Collaborative Law: Consideration Of Its Use In A Legal Aid Program For Resolving Family Law Disputes, Lawrence P. Mclellan
Expanding The Use Of Collaborative Law: Consideration Of Its Use In A Legal Aid Program For Resolving Family Law Disputes, Lawrence P. Mclellan
Journal of Dispute Resolution
From Perry Mason and Law & Order to Judge Judy, many American consumers believe that legal conflict is resolved by trial--exciting, antagonistic, adversarial fights between lawyers. Yet common experience and research demonstrate that most legal conflict is not resolved between gladiators in the courtroom.' Many consumers come to the legal process with this Hollywood portrayal as their only knowledge of the process. Those engaged in the legal process know that there are alternatives to the courtroom for resolving dispute. Finding alternatives to litigation is especially important for legal aid programs, as the increased time and expense of litigation reduces the …
Knowing And Voluntary Standard: Is The Sixth Circuit's Test Enough To Level The Playing Field In Mandatory Employment Arbitration, The, Christina Semmer
Knowing And Voluntary Standard: Is The Sixth Circuit's Test Enough To Level The Playing Field In Mandatory Employment Arbitration, The, Christina Semmer
Journal of Dispute Resolution
Most courts require that for an individual to waive her Seventh Amendment right to trial by jury, she must knowingly and voluntarily waive that right. This heightened requirement for waiver exists because the United States Supreme Court has found that "[tlhe trial by jury is justly dear to the American people... and every encroachment upon it has been watched with great jealousy." Seemingly this standard should apply to mandatory employment arbitration agreements, as shifting the venue from the courts to the arbitral tribunal implicitly means waiving the right to trial by jury. However, because the Federal Arbitration Act ("FAA") requires …
Untimely Death Of Wrongful Death Claims: Ohio Removes Decedent-Employee Wrongful Death Claims From The Arbitral Forum, An, Christopher D. Vanderbeek
Untimely Death Of Wrongful Death Claims: Ohio Removes Decedent-Employee Wrongful Death Claims From The Arbitral Forum, An, Christopher D. Vanderbeek
Journal of Dispute Resolution
When Bob dies, Bob's representative could file either action in order that his estate (in survival) or beneficiaries (in wrongful death) be compensated for losses stemming from his injuries or death. But in Peters v. Columbus Steel Castings Company, a more complex issue arose-what if Bob signed an agreement to arbitrate all of his claims against his employer? Would that bind Bob's representative to arbitrate an action in survival? In wrongful death? Both? The Ohio Supreme Court answered that Bob's representative would be compelled to arbitrate the survival claim, but not the wrongful death claim, as the latter is independent …
Thoughts About Spiritual Fatigue: Sustaining Our Energy By Staying Centered, Wayne D. Brazil
Thoughts About Spiritual Fatigue: Sustaining Our Energy By Staying Centered, Wayne D. Brazil
Journal of Dispute Resolution
Spiritual fatigue can afflict seasoned mediators and judges who have hosted many settlement conferences.' It can sap the energy we need to do our work well. It can reduce our patience, shorten our anger fuses, and impair our ability to listen to and to connect with the people we are trying to help. Worse, it can lead us into procedural or ethical temptation-inviting us to cut comers and compromise values we hold dear. If it persists too long, it can drive us away from this field. Thus, for those of us who experience it, spiritual fatigue can pose a serious …
Arbitration And Article Iii, Peter B. Rutledge
Arbitration And Article Iii, Peter B. Rutledge
Vanderbilt Law Review
Arbitration implicates serious constitutional concerns that have not received adequate attention in case law or commentary. Recent litigation in the D.C. Circuit over the constitutionality of the North American Free Trade Agreement ("NAFTA") represents the most recent, high-profile example. A centerpiece of NAFTA and its implementing legislation is an arbitration mechanism that divests Article III courts of virtually all jurisdiction over countervailing duty and anti-dumping claims and invests that authority in panels of Associate Professor of Law, Columbus School of Law, Catholic University of America. Arbitration implicates serious constitutional concerns that have not received adequate attention in case law or …
On Perfect Storms And Sacred Cows Of Collaboration, Comments On Bradley Karkkainen, Getting To "Let's Talk": Legal And Natural Destabilzations And The Future Of Regional Collaboration, Kirk Emerson
Nevada Law Journal
No abstract provided.
Getting To "Let's Talk": Comments On Collaborative Environmental Dispute Resolution Processes, Carrie Menkel-Meadow
Getting To "Let's Talk": Comments On Collaborative Environmental Dispute Resolution Processes, Carrie Menkel-Meadow
Nevada Law Journal
No abstract provided.
Collaborative Solutions To Colorado River Water Shortages: The Basin States' Proposal And Beyond, Douglas L. Grant
Collaborative Solutions To Colorado River Water Shortages: The Basin States' Proposal And Beyond, Douglas L. Grant
Nevada Law Journal
No abstract provided.
Séances, Ciénegas, And Slop: Can Collaboration Save The Delta?, Bret C. Birdsong
Séances, Ciénegas, And Slop: Can Collaboration Save The Delta?, Bret C. Birdsong
Nevada Law Journal
No abstract provided.
Getting To "Let's Talk": Legal And Natural Destabilizations And The Future Of Regional Collaboration, Bradley C. Karkkainen
Getting To "Let's Talk": Legal And Natural Destabilizations And The Future Of Regional Collaboration, Bradley C. Karkkainen
Nevada Law Journal
No abstract provided.
Collaboration And The Colorado River Compact, Patricia Mulroy
Collaboration And The Colorado River Compact, Patricia Mulroy
Nevada Law Journal
No abstract provided.
Collaborative Management Of The Glen Canyon Dam: The Elevation Of Social Engineering Over Law, Joseph M. Feller
Collaborative Management Of The Glen Canyon Dam: The Elevation Of Social Engineering Over Law, Joseph M. Feller
Nevada Law Journal
No abstract provided.
An Ecosystem Perspective On Collaboration For The Colorado River, Robert W. Adler
An Ecosystem Perspective On Collaboration For The Colorado River, Robert W. Adler
Nevada Law Journal
No abstract provided.
Beyond Conjecture: Learning About Ecosystem Management From The Glen Canyon Dam Experiment, Alejandro E. Camacho
Beyond Conjecture: Learning About Ecosystem Management From The Glen Canyon Dam Experiment, Alejandro E. Camacho
Nevada Law Journal
No abstract provided.
The Anti-Speculation Doctrine And Its Implications For Collaborative Water Management, Sandra Zellmer
The Anti-Speculation Doctrine And Its Implications For Collaborative Water Management, Sandra Zellmer
Nevada Law Journal
No abstract provided.
Collaboration In Mexico: Renewed Hope For The Colorado River Delta, Francisco Zamora-Arroyo, Osvel Hinojosa-Huerta, Edith Santiago, Emily Brott, Peter Culp
Collaboration In Mexico: Renewed Hope For The Colorado River Delta, Francisco Zamora-Arroyo, Osvel Hinojosa-Huerta, Edith Santiago, Emily Brott, Peter Culp
Nevada Law Journal
No abstract provided.
The Necessity Of An "Opt-In" Approach To Class Arbitration, Kirk D. Knutson
The Necessity Of An "Opt-In" Approach To Class Arbitration, Kirk D. Knutson
Journal of Law and Practice
No abstract provided.
Life With Hoyt: Avoiding Misrepresentation Claims In Negotiating Settlement Agreements, Eric J. Magnuson, Daniel J. Supalla
Life With Hoyt: Avoiding Misrepresentation Claims In Negotiating Settlement Agreements, Eric J. Magnuson, Daniel J. Supalla
Journal of Law and Practice
No abstract provided.