Law Commons^™

Rescuing Arbitration In The Developing World: The Extraordinary Case Of Georgia, Steven Austermiller

Steven Austermiller

The country of Georgia has a long and interesting history with arbitration. From “telephone justice” to the criminal underworld to legitimacy, Georgian arbitration has survived many iterations. Now, as Georgia begins the EU accession process, it has a new arbitration law that incorporates international norms. This article analyzes the law, explores how arbitration has been implemented thus far, and discusses some of the challenges that remain. Drawing on his U.S. practice experience in arbitration and his work managing legal reform programs in Georgia and other countries, the author recommends some important changes to Georgia’s new arbitration regime. A particular area …

„Zuerst Schlichten, Dann Richten“: O Modelo Suíço De Solução De Litígios Pré-Processual É Adequado Para O Brasil?, Nelson Rodrigues Netto

Nelson Rodrigues Netto

Dieser Aufsatz analysiert die Schlichtung und die Mediation in der Schweizerische Zivilprozessordnung.

At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson

Lisa Tripp

The Supreme Court’s 2011 decision in AT&T v. Concepcion is the first case where the Supreme Court explores the interplay between state law unconscionability doctrine and the vast preemptive power of the Federal Arbitration Act (FAA). Although it is considered by many to be a landmark decision which has the potential for greatly expanding the already impressive preemptive power of the FAA, something is amiss with Concepcion.

AT&T v. Concepcion is ostensibly a 5-4 majority decision with a concurring opinion. However, the differences in the majority and concurring opinions are so profound that it appears that Justice Thomas actually …

Regole Procedurali E Poteri Decisori Dell'arbitro Bancario Finanziario, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

The Revolution In Family Law Dispute Resolution, John Lande

John Lande

In the past fifty years, the revolution in American family law led to a revolution in family law dispute resolution. Virtually every aspect of divorce law has been transformed since the Mad Men era, including grounds for divorce, characterization of marital property, child custody presumptions, and alimony and child support rules. Marriage is not assumed to be a lifelong commitment. Fault generally is not legally relevant. Gender equality is a fundamental principle. In this period, family courts struggled with an increased volume of cases and ambiguous rules. They found that the tools of litigation were poorly suited to handle most …

Escaping The Appellate Litigation Straitjacket: Incorporating An Alternative Dispute Resolution Simulation Into A First-Year Legal Writing Class, Mary Dunnewold, Mary Trevor

Mary L Dunnewold

This article discusses the incorporation of a mediation exercise into the first semester of a legal research and writing course. At the author’s institution, we have been including this exercise in our curriculum for sixteen years. In the article, we first briefly review the historical underpinnings for incorporating ADR into non-ADR law school classes. We then examine the current pedagogical theories supporting such incorporation. We next discuss why the exercise fits well within the LRW curriculum. Finally, we address the nuts-and-bolts of the exercise and offer our observations and conclusions about the exercise, including discussion of student feedback obtained through …

Arbitration Agreements Used By Nursing Homes: An Empirical Study And Critique Of At&T Mobility V. Concepcion, Lisa Tripp

Lisa Tripp

Although the health care industry had historically been one of the fields that had not embraced pre-dispute binding arbitration agreements, that reluctance appears to be changing in at least one sector of the health care field. An examination of admission contracts used by North Carolina nursing homes and telephone survey of North Carolina nursing homes revealed that 43 percent of nursing homes now incorporate pre-dispute binding arbitration provisions into their admission contracts. All of the major nursing home chains operating in North Carolina use pre-dispute binding arbitration agreements in at least some of their facilities, while smaller operators use them …

Games, Dystopia, And Adr, Jennifer W. Reynolds

Jennifer W. Reynolds

What’s the difference between litigation and alternative dispute resolution (ADR)? Litigation is war. ADR is kumbaya by the campfire. Litigation favors the strong over the weak. ADR gives everyone a voice. Litigation is about competition and gameplay. ADR is about cooperation and problem solving. Litigation is coercive. ADR is consensual. Litigation brings out the worst in people. ADR brings out the best. In short, litigation is dystopian, and ADR is utopian. This sanguine conception of ADR has been popular for decades but is hopelessly inadequate. Although a utopian-dystopian dynamic does indeed fuel much ADR scholarship, this dichotomy is not as …

Resolving Financial Disputes In The Context Of Global Civil Justice Reform, Shahla F. Ali

Shahla F. Ali

In recent years, many countries have increased their use of alternative mechanisms of dispute resolution to resolve a growing number of financial and commercial disputes. This trend has been supported by civil justice reforms including those within the United Kingdom, Hong Kong, Australia, and Canada. The United States, while a common law jurisdiction, nevertheless has seen the growth of appellate mediation programs based on Rule 33 of the Federal Rules of Appellate Procedure. Such reforms have aimed at encouraging cost effective, expeditious and amicable case handling within the civil justice system. Drawing on comparative cross-jurisdictional analysis, this paper reviews the …

The Future Of Financial Dispute Resolution In Hong Kong: Promoting A Comprehensive “Multi-Tier Dispute Resolution System” With Reference To The “Lehman Brothers Mediation Scheme”, Shahla F. Ali, John Koon Wang Kwok

Shahla F. Ali

Recent global financial dislocation has provided an impetus for examining effective avenues for the resolution of financial disputes. Hong Kong, like many financial centers throughout the world, has been directly affected by the collapse of Lehman Brothers. Its response to the collapse has included a creative mix of regulatory strengthening and government sponsored mediation and arbitration. Each of these alternative mechanisms of resolution provides a useful case study of the prospects of the use of ADR in response to financial crises. The efficacy of such interventions will be reviewed and options for the future development of a multi-tier dispute resolution …

Teaching Negotiation To A Globally Diverse Audience: Ethics, Morality And Cultural Differences, David Allen Larson, Vanessa Seyman

David Allen Larson

"Teaching Negotiation to a Globally Diverse Audience: Ethics, Morality, and Cultural Differences" (by David Allen Larson and Vanessa Seyman) This is a short article discussing the challenges of teaching negotiation, and also the challenge of actually negotiating, in a globally diverse environment. Issues of ethics, morality and culture can surface quite quickly when teaching and negotiating in a multicultural environment. The article builds upon our recent experiences as participants in the Second Generation Global Negotiation conference held Istanbul, Turkey. The article provides examples of how cultural and language differences can impact both actual negotiations and negotiation teaching and provides suggestions …

Women, Decision Making And Sustainability: Exploring The Experience Of The Badi Foundation In China, Shahla F. Ali, Lori M. Noguchi

Shahla F. Ali

Beginning in 1994, international conventions such as the Convention on Biological Diversity have increasingly encouraged the use of collaborative processes at the local level to manage and protect community resources. Participation on the part of women in particular, in such decision making processes has been advanced and supported by the International Conference on Population and Development (1994), the Beijing Declaration and Platform for Action (1995), the World Summit on Sustainable Development (2002), and the 2005 World Summit. While such international conventions do not have binding legal effect, such instruments provide a moral force acknowledging the pivotal role women play in …

Multi-Stakeholder Dispute Resolution: Building Social Capital Through Access To Justice At The Community Level, Shahla F. Ali, William E. Davis, Joanna Lee

Shahla F. Ali

The development of systems of multi-stakeholder dispute resolution is increasingly recognized as an objective of good governance by international organizations such as the United Nations Development Program (UNDP). Such objectives arise out of insights based on the dynamics of social capital that community based initiatives cannot succeed where trust is absent and mechanisms for collective decision making do not exist. Yet localized decision making can take many forms – whether distributional, competitive or collaborative. This paper will examine, in particular the impact of collaborative systems of decision making on building social capital through access to justice in local communities. It …

Measuring Success In Devolved Collaboration, Shahla F. Ali

Shahla F. Ali

In recent times, legislatures and domestic courts are increasingly requiring the use of “devolved collaboration” to manage and protect community resources. As a result, a growing emphasis on participatory mechanisms of resource-based decision making emphasizing “place-based” collaborative processes has emerged in many countries. Such processes involve stakeholders from the public and private sectors who consult together in order to arrive at shared goals regarding resource use and planning. Such collaborative processes arise from a growing dissatisfaction with top-down centralized “announce and defend” decision making policies. Yet, devolved collaboration is not without its challenges Scholars have identified that devolved collaborative processes …

Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical Malpractice Claims In Florida, Mirya R. Holman, Neil Vidmar

Mirya R Holman

The public image of medical malpractice cases is one of a courtroom, with an injured plaintiff, lawyers, and a judge. However, the reality of malpractice claims is very different. Approaching the study of alternative dispute resolution methods for medical malpractice claims with an eye towards identifying those contexts by which the claims are resolved, this article focuses on the institutional and informal processes of resolving disputes. These processes include both statutory procedural requirements and informal settlements, many of which occur prior to the filing of a lawsuit. A profile of medical malpractice claims in Florida from 1990 through 2008, indicates …

State-Led Rural Justice In Bangladesh, Zahidul Islam Biswas

Dr. Zahidul Islam

The first phase of my ongoing research on ‘State-led Rural Justice in Bangladesh’ is complete. The research exposes the state of state-led rural justice system in Bangladesh, detects the strengths and weaknesses of the system, and recommends for improvement of the same. Here is the executive summary of the research report entitled ‘Access to Justice through State-led Rural Justice System in Bangladesh: A Case Study in Kansat Union Parishad’. The report is submitted to the Research Initiatives Bangladesh, who funded it, and yet to be published However, for a soft copy of the research report, you may please contact: Research …

Access To Justice, Andrew J. Cannon

Andrew J Cannon

An overview of the ways that access to justice is rationed and ways to improve then

Why Arbitrate? The Questionable Quest For Efficiency In Hallstreet Street Associates, Llc V. Mattel, Inc., David K. Kessler

David K Kessler

The Federal Arbitration Act (“FAA”) makes arbitration agreements between private parties legally enforceable. The policy favoring arbitration underlying the FAA has been justified as serving two ends: it protects freedom of contract, and it creates an efficient alternative dispute resolution system. Previous decisions by the Court have indicated a belief that, when those two goals come into conflict, the result that preserves freedom of contract should prevail. In Hallstreet Associates, L.L.C. v. Mattel, Inc., however, a recent case involving the Federal Arbitration Act, the Court’s decision preserved perceived efficiency at the expense of freedom of contract. The Court held that …

The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John Lande

John Lande

This article identifies early case handling (ECH) as an important general phenomenon in dispute system design theory and practice, catalogs the major ECH processes, and urges practitioners and policymakers to encourage use of and experimentation with ECH processes when appropriate. The key element of ECH is that people intentionally exercise responsibility for handling the case from the outset. ECH processes in courts include early case management procedures, differentiated case management systems, early neutral evaluation, and other early alternative dispute resolution (ADR) processes. ECH in the private sector includes ADR pledges and contract clauses, early case assessment and ADR screening protocols, …

Adr Approach To Environmental Litigation, Krishna Kumari Areti

Krishna Kumari Areti prof

Though in the beginning ADR was restricted to civil litigation slowly it has entered in to the sphere of criminal law. With the changing times, we have to introduce ADR to other areas also, where there is more litigation and where the traditional courts would take time in resolving the issues. One such area is environmental litigation. The nature of the litigation in the environmental sphere is not complex. In case mediation is used as a tool of dispute resolution rather than litigation in the traditional courts, the results would be more fruitful. The unique characteristics of environmental litigation require …

A Proposed Model Rule For Collaborative Law, Christopher M. Fairman

Christopher M Fairman

No abstract provided.

Ethics And Collaborative Lawyering: Why Put Old Hats On New Heads?, Christopher M. Fairman

Christopher M Fairman

No abstract provided.