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Articles 1 - 30 of 64
Full-Text Articles in Law
Alternative Dispute Resolution, L. Randolph Lowry
Alternative Dispute Resolution, L. Randolph Lowry
Pepperdine Law Review
No abstract provided.
Preemption: The United States Arbitration Act, The Manifest Disregard Of The Law Test For Vacating An Arbitration Award, And State Courts, Paul Turner
Pepperdine Law Review
No abstract provided.
Access To Consumer Remedies In The Squeaky Wheel System , Amy J. Schmitz
Access To Consumer Remedies In The Squeaky Wheel System , Amy J. Schmitz
Pepperdine Law Review
This article explores the “Squeaky Wheel System” (“SWS”) in business-to-consumer (“B2C”) contexts, referring to merchants’ reservation of purchase remedies and other contract benefits for only the relatively few “squeaky wheel” consumers who have the requisite information and resources to persistently seek assistance. The article uncovers how this system fosters contractual discrimination and hinders consumers’ awareness and access with respect to contract remedies. It also adds empirical insights from my recent e-survey, and offers suggestions for using the internet to empower consumers of all economic and status levels with efficient and accessible means for learning about their purchase rights and asserting …
Construction Partnering: Can These Protocols Build A Stronger Labor-Management Community?, Jim Stott, Juan Carlos Gonzalez
Construction Partnering: Can These Protocols Build A Stronger Labor-Management Community?, Jim Stott, Juan Carlos Gonzalez
Pepperdine Dispute Resolution Law Journal
In an expansive marketplace where large organizations in the construction, manufacturing, service and union industries are facing increased global competition, collaborative labor relations are essential to maximizing efficiency and productivity. It is for this reason that developing collaboration between labor and management is highly researched and consulted by academics and professionals throughout the world. Although various models of collaboration have been developed, none have been found to clearly overcome that insidious conflict and paradigm of "Labor vs. Management." The purpose of this paper is to provide academics and consultants (mediators/facilitators) an additional perspective for designing, developing and implementing the best …
Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody
Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody
Pepperdine Dispute Resolution Law Journal
As more employers include mandatory arbitration provisions in their employment contracts, policy-makers are becoming concerned that employees are being forced to trade their civil and statutory rights for their jobs. The California Legislature is considering legislation designed to combat this tendency and to provide legal protection for employees who might otherwise be forced to waive the right for redress of grievances, legal protections against discrimination, and other rights. Although the legislation was designed to protect the constitutional rights of employees, there are legal considerations and policy concerns that challenge the viability of this type of legislation. The primary question is …
Judicial Policing Of Consumer Arbitration , Edward A. Dauer
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, …
Medical Malpractice Arbitration In The New Millennium: Much Ado About Nothing ?, Ann H. Nevers
Medical Malpractice Arbitration In The New Millennium: Much Ado About Nothing ?, Ann H. Nevers
Pepperdine Dispute Resolution Law Journal
This paper reviews the constitutional issues surrounding medical malpractice arbitration clauses and the implementation of arbitration contracts, and the existing medical malpractice process. Federal preemption issues under the Federal Arbitration Act, enterprise liability and ERISA preemption, and cybermalpractice will be discussed. Finally, dispute resolution industry standards implemented by the American Arbitration Association and American Health Lawyers Association will be reviewed as well as current medical malpractice mediation practices in industry. While the past has shown that arbitration has not been used a great deal future trends may increase use. Emerging medical malpractice arbitration issues arising in the new millennium include …
Images Of Justice , Lela P. Love
Images Of Justice , Lela P. Love
Pepperdine Dispute Resolution Law Journal
This Essay crystallizes core elements of the major dispute resolution processes: litigation, arbitration and mediation. The purpose is both to clarify essential characteristics of and the role of the neutral in each process and to identify the relation of those characteristics and that role to a conception of "justice." The piece explores whether certain shifts in process characteristics or the neutral's role (for example, arbitration that is not voluntary or a mediator adopting an evaluative orientation) so fundamentally change the particular process as to compromise its relation to a compelling conception of fairness and justice.
Alternative Dispute Resolution In The New Millennium , Journal Editors
Alternative Dispute Resolution In The New Millennium , Journal Editors
Pepperdine Dispute Resolution Law Journal
Introduction to the inaugural issue of the Pepperdine Dispute Resolution Law Journal
The Future Of Adr, Edward A. Dauer
The Future Of Adr, Edward A. Dauer
Pepperdine Dispute Resolution Law Journal
This article addresses the use of alternative dispute resolution in health care.The article provides a historical analysis of medical malpractice and traces the development of ADR in healthcare. The article discusses the benefits that ADR can and will bring to health care in the future.
First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic
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, …
The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney
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. …
Pre-Hearing Techniques To Promote Speed And Cost-Effectiveness--Some Thoughts Concerning Arbitral Process Design , Jack J. Coe Jr.
Pre-Hearing Techniques To Promote Speed And Cost-Effectiveness--Some Thoughts Concerning Arbitral Process Design , Jack J. Coe Jr.
Pepperdine Dispute Resolution Law Journal
This essay considers factors and pre-hearing techniques that bear on international arbitration hearings by attempting to answer this question: "What can be done to promote speed and efficiency in the hearing process?" First, it offers general observations, including the goals and by-products of efficiency, issues related to defining terms and frames of reference, the flexibility of arbitration practice techniques, and the role of technology in arbitration proceedings. Then, it discusses specific factors that influence the expeditiousness of arbitration, especially the arbitration clause and its use to define critical elements of the proceedings, such as situs, number of arbitrators, and time …
Institutionalizing Mediation: The Role Of Lawyers And Bar Associations , Ronald R. Volkmer
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 …
Internet Dispute Resolution (Idr): Bringing Adr Into The 21st Century , Richard Michael Victorio
Internet Dispute Resolution (Idr): Bringing Adr Into The 21st Century , Richard Michael Victorio
Pepperdine Dispute Resolution Law Journal
It was only a matter of time before ADR hit the Interet. The Internet has sweepingly transformed society just as ADR has wrought tremendous change in our society, by enabling the swift and economical settlement of disputes, and unclogging the legal system in the process. The application of alternative dispute resolution methods to the Internet, termed "iDR" in this comment, has the potential to impact the landscape of both traditional ADR and the Internet itself. It brings the communication technology of the Internet to the practice of traditional, non-virtual, "real world" ADR, reducing costs and speeding up the exchange of …
Mediation And Jury Trials As Means Of Resolving Will Contests , Ronald Chester
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.
Mediation Of Probate Matters: Leaving A Valuable Legacy , Lela Porter Love
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 …
Public Sector Dispute Resolution In Local Governments: Lessons From The Scag Project , Alana Knaster, Gregory L. Ogden, Peter Robinson
Public Sector Dispute Resolution In Local Governments: Lessons From The Scag Project , Alana Knaster, Gregory L. Ogden, Peter Robinson
Pepperdine Dispute Resolution Law Journal
This article seeks to share lessons from an ongoing six-year project to overcome the barriers to the use of facilitation and mediation (ADR) processes for addressing regional and interjurisdictional planning disputes throughout Southern California. The participants in this effort originally assumed that the successful use of mediation in high profile disputes would lead to greater acceptance of ADR processes by governmental officials. After several failed attempts, project leaders concluded that it would be appropriate to refocus the original methodology and strategy for promoting the use of ADR. The new strategy focuses on the establishment of mediation services for community-based disputes …
Mediation Of Proposition 187: Creative Solution To An Old Problem? Or Quiet Death For Initiatives?, Nicole E. Lucy
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 It Work At Work: Mediation's Impact On Employee/Employer Relationships And Mediator Neutrality , Allison Balc
Making It Work At Work: Mediation's Impact On Employee/Employer Relationships And Mediator Neutrality , Allison Balc
Pepperdine Dispute Resolution Law Journal
This Comment discusses the ADR process of mediation in the employment setting, specifically addressing its benefits and effects on the employer/employee relationship and the potential for a non-neutral mediator who is paid by, or has some previous tie to, one of the parties. Section IA examines judicial and legislative views of ADR and mediation. IB discusses mediation's effectiveness in the workplace. Section II discusses the mediation process in an employment dispute. Section III discusses the effects of mediation on the employer and employee, empirical studies, the neutrality of mediators, and potential remedies. Section IV discusses neutrality in the mediation process. …
Charge Me, Pay Me, But Don't Even Think Of Litigating Me: The Dominance Of Arbitration In Truth-In-Lending Claims , M. Susan Hale
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
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 …
Substituting Mediation For Arbitration: The Growing Market For Evaluative Mediation, And What It Means For The Adr Field , Robert A. Baruch Bush
Substituting Mediation For Arbitration: The Growing Market For Evaluative Mediation, And What It Means For The Adr Field , Robert A. Baruch Bush
Pepperdine Dispute Resolution Law Journal
The past decade has seen significant expansion in the acceptance and use of mediation as a process for handling disputes. Indeed, old hands in the ADR field observe that mediation has begun to replace arbitration as the "process of choice" in the ADR (Alternative Dispute Resolution) "market," including institutional users like courts and major private consumers of ADR like businesses. All this is seen by some as part of the "mainstreaming" of mediation discussed by Joseph Folger's lead article in this Symposium. The primary question examined in this essay is: How do we best understand and interpret this development in …
"Mediation Goes Mainstream" - Taking The Conference Theme Challenge , Joseph P. Folger
"Mediation Goes Mainstream" - Taking The Conference Theme Challenge , Joseph P. Folger
Pepperdine Dispute Resolution Law Journal
Introduction to the Southern California Mediators Assiciation's meeting, including a comment on the conference theme, "mediation goes mainstream."
Assimilative, Autonomous, Or Synergistic Visions: How Mediation Programs In Florida Address The Dilemma Of Court Connection , Dorothy J. Della Noce, Joseph P. Folger, James R. Antes
Assimilative, Autonomous, Or Synergistic Visions: How Mediation Programs In Florida Address The Dilemma Of Court Connection , Dorothy J. Della Noce, Joseph P. Folger, James R. Antes
Pepperdine Dispute Resolution Law Journal
Over the past twenty-five years, the state of Florida has been recognized across the United States as a leader in the development of court-connected alternative dispute resolution programs. Mediation, in particular, has flourished across the state, with one hundred eleven programs in place in family, civil, community, and dependency sectors. Administrative support and oversight for court-connected mediation programs are provided by The Florida Dispute Resolution Center (DRC) - the administrative arm of the Florida Supreme Court - housed within the Office of the State Courts Administrator. In collaboration with the DRC, we designed and conducted a benchmarking study of seven …
Uncitral Model Law On International Commercial Conciliation: From A Topic Of Possible Discussion To Approval By The General Assembly , Robert N. Dobbins
Uncitral Model Law On International Commercial Conciliation: From A Topic Of Possible Discussion To Approval By The General Assembly , Robert N. Dobbins
Pepperdine Dispute Resolution Law Journal
By no means a Pulitzer Prize winner, for those interested enough to inquire, the story of the creation of the Model Law is remarkable. The purpose of this Note is to give a snapshot of how, what began in the shadow of Arbitration as a "possible work topic considered by the Commission . . . Conciliation," in the space of two and one-half years became the Model Law. As a secondary and intentional focus of this note, this author (conceding his own bias) hopes to allow the Secretariat of UNCITRAL to enjoy its well-deserved moment in the spotlight for its …
Contracting Around Ruaa: Default Rules, Mandatory Rules, And Judicial Review Of Arbitral Awards, Christopher R. Drahozal
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 …
Uniformity In Adr: Thoughts On The Uniform Arbitration Act And Uniform Mediation Act, John M. Mccabe
Uniformity In Adr: Thoughts On The Uniform Arbitration Act And Uniform Mediation Act, John M. Mccabe
Pepperdine Dispute Resolution Law Journal
Private resolution of disputes, now thought of as alternate dispute resolution, has a lengthy history in American law. The National Conference of Commissioners on Uniform States Laws (NCCUSL) has been a contributor to that history for about as long as there has been a history, promulgating the first uniform law on arbitration in 1925. Today the Conference continues its commitment to private dispute resolution with a new momentum, having recently completed its most comprehensive revision of the Uniform Arbitration Act, and having completed its first Uniform Mediation Act. Both acts are important to the way that American law is being …
Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law , Roger Alford
Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law , Roger Alford
Pepperdine Dispute Resolution Law Journal
In this Article, Professor Alford discusses a report by the Law Revision Commission recommending that certain changes be made to arbitration law in California. It begins by outlining the history of arbitration in California, from its 1961 adoption of the Uniform Arbitration Act, to the 1988 enactment of an international arbitration statute modeled on the UNCITRAL Model Law, to the 1989 enactment of Section 1281.8, which allowed courts to grants provisions remedies to parties involved in arbitration proceedings. It also provides a general overview of the purpose and practice of arbitration law. Then, it provides a chapter-by-chapter analysis the Law …
Collaborative Family Law - The Big Picture, Kim David Kurodason, Donna Beck Weaver, David Kuroda
Collaborative Family Law - The Big Picture, Kim David Kurodason, Donna Beck Weaver, David Kuroda
Pepperdine Dispute Resolution Law Journal
Collaborative family law is an innovative intervention designed to bring legal, psychological and financial expertise to assist couples who face divorce. It's non-adversarial and problem-solving setting facilitates the transition to a healthy, post-divorce life for the family. Not surprisingly, clients are very satisfied. How does this all work and should you consider collaborative family law in your practice? Following presentation was made on February 20, 2004 at the Association of Family and Conciliation Courts California Chapter Conference and provides an introduction to the fundamentals of collaborative family law, the fastest growing practice area in family law.