Dispute Resolution and Arbitration Commons^™

The Emergence Of Mediation In Korean Communities, Peter Robinson, J. Youngjin Lee, J. Kwang Ho Lim, Ryul Kim

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Lightening The Load Or Losing Potential? Adr And The Courts Of Appeal, Paul Thies

Pepperdine Dispute Resolution Law Journal

No abstract provided.

What We Know (And Need To Know) About Court-Annexed Dispute Resolution, Deborah Thompson Eisenberg

Faculty Scholarship

Mediation and other alternative dispute resolution (ADR) processes are now well integrated into the United States judicial system, in both civil and criminal cases. This white paper, drafted for the American Bar Association Commission on the Future of Legal Services, summarizes empirical evidence about the costs and benefits of court-annexed ADR. The first-generation of ADR research found that mediation and other ADR processes resulted in high party satisfaction rates, high settlement rates, cost savings and efficiency, increased long-term cooperation among the parties, and higher compliance rates with the outcome. The paper then examines a ground-breaking study conducted by the Maryland …

Regional International Criminal Courts: An Idea Whose Time Has Come?, Firew Kebede Tiba

Cardozo Journal of Conflict Resolution

Regionalism in international relations is a fact of life. Regional judicial implementation of international norms is relatively common in the fields of international human rights, international investment, and trade laws. There are attempts to break ground in the realm of international criminal law by creating a regional international criminal court, such as the proposed addition of the criminal jurisdiction to the African Court of Justice and Human Rights. Although there was momentum in creating a universal permanent international criminal court, the enthusiasm for the tribunal's exercise of jurisdiction has not continued. The International Criminal Court ("ICC") will remain short of …

Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, Alan Scott Rau, George Bermann

Faculty Scholarship

What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 27, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium …

A Survey Of Beliefs And Priorities About Access To Justice Of Family Law: The Search For A Multidisciplinary Perspective, Peter Salem, Michael Saini

Cardozo Journal of Conflict Resolution

Within the last decade, the term "Access to Justice" has grown in popularity among legal commentators, scholars, family justice reformers, government policy makers, and the media. But with all of this new attention, there remains no common understanding or definition of Access to Justice and its potential implications for children and families in domestic relation courts. The purpose of this cross-sectional online survey was to explore the meaning of Access to Justice according to legal, mental health, and dispute resolution professionals in various countries. The sample included 442 respondents (e.g., judges, lawyers, custody evaluators, mediators, family court services, court administrators, …

Multicultural Adr And Family Law: A Brief Introduction To The Complexities Of Religious Arbitration, Michael J. Broyde

Cardozo Journal of Conflict Resolution

Recent polls indicate that the U.S. population is getting less religious and more secular. This seems to mirror the nation'sand its laws'-movement away from reflecting certain traditional values. While these movements have left some members of the religious population in a precarious situation, surrounded by a society whose values are changing before their eyes, it has also caused the religious to cling tighter to their respective faiths and become more entrenched in the values they assert.

Resolving Multicultural Family Disputes In New York: A Clash Of Courts And Cultures, Alla Roytberg

Cardozo Journal of Conflict Resolution

In this Article, I will discuss my experiences with litigated cases involving multi-cultural families. I will then analyze how issues of cultural sensitivity can be addressed and honored during a mediation between the parties, with the help of an experienced, culturally sensitive mediator.

Taiwan's Path To Independence: Resolving The "One China" Dispute, Kristine Yeh Koopman

Cardozo Journal of Conflict Resolution

This Note discusses the historical and legal contexts within which Taiwan is arguably its own state, and advances the notion that members of the international community must finally take a definitive stance as to whether Taiwan is its own sovereign state in order to resolve the "one China" dispute, rather than choosing to remain supposedly impartial. Section II of this Note provides an overview of Taiwan's path to statehood, democracy, and independence. Section III then examines the status of Taiwan in international settings and legal contexts, and highlights Taiwan's claims of independence, as well as China's claims for reunification. Lastly, …

The Hopes And Fears Of All The Years: 30 Years Behind And The Road Ahead For The Widespread Use Of Mediation, Lela P. Love, Ellen A. Waldman

Articles

Looking through the windshield in 1985, the dispute resolution community was enthusiastic about mediation's promise: the promise of a radically different paradigm premised on party-driven resolution and collaborative decision-making. Peering ahead, mediation's pioneers anticipated a quiet revolution in conflict management toward more therapeutic and democratic processes. What do events in the last three decades tell us about the high and low points — the successes and failures — in the journey of that endeavor? Looking forward, how might we best align reality with our highest aspirations and avoid the disappointing troughs we encountered in those past decades? This article addresses …

Slides: Wrapping Up The Big Horn Adjudication: Lessons After 38 Years And 20,000 Claims, Ramsey L. Kropf

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Ramsey L. Kropf, Deputy Solicitor for Water Resources, Office of the Solicitor, U.S. Department of the Interior

34 slides

La Vida Es Un Conflicto, Pero Hay Que Llevar Soluciones: La Resolución De Conflicto En Comunidades Rurales De San Ramón Nicaragua A Través De Facilitadores Judiciales Rurales Y Mediación, Marlee Raible

Independent Study Project (ISP) Collection

In rural parts of Nicaragua historically there has not been a lot of access to the justice system. Conflicts have been going unresolved for years leading to a high amount of violence as people take justice into their own hands. The recent implementation of the Rural Judicial Facilitators Program (RJFP) is an effort to provide access to justice directly in rural communities. These facilitators are trained to use mediation as their principal method to resolve conflict.

This study exposes perceptions of mediation and the RJFP from community members, facilitators, and judiciaries. It discusses the key role of the facilitator in …

Product Liability Law In Japan: An Introduction To A Developing Area Of Law, Younghee Jin Ottley, Bruce L. Ottley

Georgia Journal of International & Comparative Law

No abstract provided.

The Legitimacy Crisis And The Future Of Courts, Orna Rabinovich-Einy

Cardozo Journal of Conflict Resolution

There is an overall legitimacy crisis in courts. The sources of this crisis have, to a large extent, been misconstrued. While there has been significant writing depicting the diminished quality, effectiveness, and fairness of courts, these phenomena have, for the most part, been viewed as distinct problems that warrant discrete solutions. This article shows that these problems are all manifestations of an overall legitimacy crisis that stems from the blurring of the originally stark distinctions between courts and alternatives. Traditionally, formal and informal dispute resolution processes had their own sources of legitimacy, each grounded in their respective distinctive (often opposing) …

Standards Of Legitimacy In Criminal Negotiations, Wesley Macneil Oliver, Rishi Batra

Faculty Articles

Scholarship on negotiation theory and practice is rich and well developed. Almost no work has been done, however, to translate to the criminal context the lessons learned about negotiation from extensive empirical study using the disciplines of economics, game theory, and psychology. This Article suggests that defense lawyers in criminal negotiations can employ tools frequently useful to negotiators in other arenas: neutral criteria as a standard of legitimacy. Judges sometimes exercise a type of discretion analogous to prosecutorial discretion. When they do so, they offer an independent, reasoned, and publicly available assessment of the factors that a prosecutor ought to …

Death By Discovery, Delay, And Disempowerment: Legal Authority For Arbitrators To Provide A Cost-Effective And Expeditious Process, Tracey B. Frisch

Cardozo Journal of Conflict Resolution

Whether warranted or not, despite statistics to the contrary, arbitration in recent years has become a punching bag for criticism that it has begun to mirror the type of scorched earth discovery practices and delays seen in litigation. Why is this? Is it because parties are not actively participating in the arbitration process and instead have allowed their outside counsels to use the litigationstyle discovery and delay tactics with which counsel feel most comfortable? Maybe. Do parties themselves want protracted discovery and a drawn out arbitration process? Some, perhaps. Has arbitration become a victim of its own success, attracting more …

Mediation: The Best And Worst Of Times, Jacqueline Nolan-Haley

Cardozo Journal of Conflict Resolution

At this period in the evolution of dispute resolution, mediation is in a unique time zone, similar to what Dickens described in a Tale of Two Cities, as the best and worst of times, the seasons of Light and Darkness. It is the best of times, the season of Light and a time of joy in honoring human connections, as mediation is widely embraced in the public and private sectors. From government agencies and courts to corporations and United Nations peacemaking units, mediation offers a vision of hope in the midst of drowning bureaucracies, clogged dockets, corporate scandals and …

Disappearing Claims And The Erosion Of Substantive Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. Because privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. Here, I argue that the Court’s recent arbitration jurisprudence undermines the substantive law itself.

While this shift from dispute resolution in courts—the …

Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra

Faculty Articles

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …

Involved, Empowered And Inspired: How Mediating Halakhic Prenuptial Agreements Honors Jewish And American Law And Builds Happy Families, Lara Traum

Cardozo Journal of Conflict Resolution

This Note discusses the pitfalls of existing halakhic prenuptial protocols and advances the use of mediation in the prenuptial drafting process. Section II of this Note provides a history of Jewish marital and divorce law, explaining the significance of halakhic legal documents and religious arbitration units. Section III examines the unresolved relationship between Jewish and American systems, discusses the advent of American prenuptial agreements, and highlights the shortcomings of existing prenuptial agreements in the Orthodox Jewish community. Section IV proposes that prenuptial mediation best honors halakha, American law, and individual interests.

When Disciplines Collide: Polygamy And The Social Sciences On Trial, Jodi Lazare

Articles, Book Chapters, & Popular Press

This article draws on the Supreme Court of British Columbia's Reference re: Section 293 of the Criminal Code of Canada [the Polygamy Reference] as a concrete example of the benefits and limitations of intense judicial reliance on social science evidence in the adjudication of constitutional rights and freedoms at the trial level. By examining the evidence tendered, I suggest that the current adversarial model of adjudication is illsuited to combining the legal and the social scientific endeavours. The divergent values, methodologies and objectives of the legal and scientific enterprises severely limit the benefits that the former can yield, thus compromising …

Law As An Ally Or Enemy In The War On Cyberbullying: Exploring The Contested Terrain Of Privacy And Other Legal Concepts In The Age Of Technology And Social Media, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

This article focuses on the role and limits of law as a response to cyberbullying. The problem of cyberbullying engages many of our most fundamental legal concepts and provides an interesting case study. Even when there is general agreement that the problem merits a legal response, there are significant debates about what that response should be. Which level and what branch of government can and should best respond? What is the most appropriate legal process for pursuing cyberbullies—traditional legal avenues or more creative restorative approaches? How should the rights and responsibilities of perpetrators, victims and even bystanders be balanced? Among …

Hryniak: Two Years Later: The Multiple Applications Of ‘That Summary Judgment Case’ From The Supreme Court Of Canada, Jessica Fullerton, Suzie Dunn

Articles, Book Chapters, & Popular Press

In January 2014, the Supreme Court of Canada released its decision in Hryniak v Mauldin2 and called for a “culture shift” in the approach to summary judgment and the civil justice system more generally. With the ambitious goal of reducing protracted, costly litigation that undermines access to justice – all the while ensuring the fair and just adjudication of disputes – it is surprising that Hryniak has not garnered more attention.

Or has it? It has been nearly two years since the Supreme Court’s call for change was levied. Since that time, Hryniak has been cited more than 800 times …

American And Other National Variations On The Theme Of International Commercial Arbitration, Thomas E. Carbonneau

Georgia Journal of International & Comparative Law

No abstract provided.

Growing Pains And Coming-Of-Age: The State Of International Arbitration In India, Jory Canfield

Pepperdine Dispute Resolution Law Journal

The article offers information on the history, development and significance of international arbitration in India. It analyzes the decision of the Indian Supreme Court in the case of Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., which marks the era of major changes in Indian law regarding international arbitration. It mentions that development of Indian arbitration law enhances global standards and attitudes toward international dispute resolution in India.

The Use Of Mediation To Settle Prisoner Grievances In Federal Court, Michelle Burns

Pepperdine Dispute Resolution Law Journal

This article discusses the importance of mediation and mediation-like alternative dispute resolution (ADR) methods used by the U.S. federal district courts to settle prisoner litigation claims. Topics discussed include laws made for the prisoners for filing their claims in the Federal District Courts under Section 1983, the role of ADR in resolving prisoner grievances and the role of ADR in settling the disputes related to prisoner civil rights.

Divorce Involving Domestic Violence: Is Med-Arb Likely To Be The Solution?, Dafna Lavi

Pepperdine Dispute Resolution Law Journal

After an introduction in chapter one, the second chapter of this article presents statistics regarding the phenomenon of domestic violence and presents the definition of “violence” (with its attendant difficulties). The third chapter presents the existing problems regarding the judicial handling of divorce cases in general and those involving violence in particular. The fourth chapter analyzes the academic discourse regarding the issue of mediation of divorce cases involving violence (the position of the proponents and the opponents, as well as the problems of the current situation). The fifth chapter proposes med-arb as addressing the issue of divorce mediation in the …

Foreign Precedents In The Federal Judiciary: The Case Of The World Trade Organization's Dsb Decisions, James Thuo Gathii

Georgia Journal of International & Comparative Law

No abstract provided.

All In The Family: The Influence Of Social Networks On Dispute Processing (A Case Study Of A Developing Economy), Manuel A. Gómez

Georgia Journal of International & Comparative Law

No abstract provided.

Moving All-In With The World Trade Organization: Ignoring Adverse Rulings And Gambling With The Future Of The Wto, Paul Rothstein

Georgia Journal of International & Comparative Law

No abstract provided.