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Pepperdine University

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Articles 481 - 510 of 531

Full-Text Articles in Dispute Resolution and Arbitration

Foreword, Carey J. Prill Feb 2012

Foreword, Carey J. Prill

Pepperdine Dispute Resolution Law Journal

The Symposium entitled Arbitrating Sports: Reflections on USADA/Landis, the Olympic Games, and the Future of International Sports Dispute Resolution was held at Pepperdine University School of Law on February 27, 2009, under the joint sponsorship of the Straus Institute for Dispute Resolution and the Pepperdine Dispute Resolution Law Journal. It brought together a distinguished panel of speakers, comprised of arbitrators, lawyers, scholars, and members of the press. This special symposium issue of the Journal is comprised of several papers and lectures presented at the event, which reflect important issues in sports arbitration.

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Ten Essential Elements Of An Effective Dispute Resolution Program , Stephen F. Gates Feb 2012

Ten Essential Elements Of An Effective Dispute Resolution Program , Stephen F. Gates

Pepperdine Dispute Resolution Law Journal

For an organization with a significant number of outstanding lawsuits and pre-litigation claims, it is important to have a comprehensive and disciplined program of managing disputes to produce optimal outcomes with consistency, effectiveness and cost efficiency. Based on my experience at large, complex industrial companies with well over 2,000 litigation matters outstanding at any time, the effective management of the dispute portfolio requires that each matter be managed effectively and that more matters be resolved each year than the number of new matters that arise. The focus of this article is corporate law departments, but the concepts are applicable to …

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Cultural Dimension Interests, The Dance Of Negotiation, And Weather Forecasting: A Perspective On Cross-Cultural Negotiation And Dispute Resolution , John Barkai Feb 2012

Cultural Dimension Interests, The Dance Of Negotiation, And Weather Forecasting: A Perspective On Cross-Cultural Negotiation And Dispute Resolution , John Barkai

Pepperdine Dispute Resolution Law Journal

This article will argue that effective cross-cultural negotiations and dispute resolution requires an understanding of Cultural Dimension Interests (CDI). The article will review many of the cultural interests that impact negotiation and dispute resolution by: 1) specifically reviewing the cultural theories of Edward T. Hall, Geert Hofstede, Fons Trompenaars and Charles M. Hampden-Turner, and Richard D. Lewis, 2) considering country specific anecdotal accounts of national negotiating behaviors, and 3) reviewing some specific beliefs, behaviors, and practices that impact national negotiation styles and approaches. This article will focus mainly on cross-cultural differences between American and Asian negotiation styles and behaviors.

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The Strategic Relationship Between Ethics And Dispute Resolution: What Every Ceo Should Know, Mary L. Walker, R. Philip Deavel Feb 2012

The Strategic Relationship Between Ethics And Dispute Resolution: What Every Ceo Should Know, Mary L. Walker, R. Philip Deavel

Pepperdine Dispute Resolution Law Journal

This article advocates that there is a dynamic relationship between a values-based ethics program and a commitment to dispute resolution that can revolutionize the way we think about both. The United States Air Force is a global organization with many relationships, including those with other governments, other federal agencies, corporate contractors and its members and employees. Hence, these concepts are not academic to us-they are the lifeblood that allows us to successfully accomplish our mission. But they also have implications for our corporate partners. Why would we have an interest in how private corporations approach the subjects of ethics and …

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Why We Still Litigate, Phillip M. Armstrong Feb 2012

Why We Still Litigate, Phillip M. Armstrong

Pepperdine Dispute Resolution Law Journal

The benefits of Alternative Dispute Resolution ("ADR"), particularly mediation, are well documented and often touted. Some of these benefits are: cost savings, confidentiality, preservation of business relationships, finality, better outcomes, and more control. The list goes on, and rightfully so. The Comell/PERC study and the more recent BTI study, among others, have made it clear that corporate America has embraced ADR, particularly mediation, as a preferred means of resolving many disputes. As a long-time member of an in-house law department, I have watched our own management of commercial litigation and claims evolve from a typical "winner takes all" approach to …

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Negotiating A Deal In Korea: Reflections Of A Battle-Scarred Veteran, Michael E. Zacharia Feb 2012

Negotiating A Deal In Korea: Reflections Of A Battle-Scarred Veteran, Michael E. Zacharia

Pepperdine Dispute Resolution Law Journal

In 1996, for an international widget company focused on selling to the Japanese tourist and looking to expand its business, Korea was the Promised Land. Korea had a widget business well in excess of (U.S.) $500 million, and was the second most popular Japanese tourist destination. No foreign companies were in the market, and my client BWC (a world-renowned widget company), sought to change that. They did, for a while. This paper analyzes select aspects of the twelve months of Round One negotiations that led to the triumphant signing of a Joint Venture Agreement with SY, a leading Korean widget …

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Foreword, Thomas J. Stipanowich Feb 2012

Foreword, Thomas J. Stipanowich

Pepperdine Dispute Resolution Law Journal

The Symposium entitled Negotiating, Mediating and Managing Conflict: Evolution in a Global Society was held at Pepperdine University School of Law in April, 2008 under the joint sponsorship of the Straus Institute for Dispute Resolution and the Pepperdine Dispute Resolution Law Journal. This special symposium edition of the Journal is comprised of several papers presented at that event, all of which reflect important trends in the evolution of conflict management.

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Using Adr Principles To Resolve Environmental Disputes: How Mediated Settlements Have Helped Struggling Cercla Survive , Jamie R. Adams Feb 2012

Using Adr Principles To Resolve Environmental Disputes: How Mediated Settlements Have Helped Struggling Cercla Survive , Jamie R. Adams

Pepperdine Dispute Resolution Law Journal

The goal of this article is to show that the use of Alternative Dispute Resolution ("ADR") principles has made the remediation of numerous hazardous waste sites possible, and has thus enabled the struggling program to continue benefiting Americans everywhere. First, this article provides background information regarding the enactment of the Comprehensive Environmental Clean-up and Liability Act ("CERCLA") and its successor, the Superfund Amendments Reauthorization Act ("SARA"). Second, it explains why using ADR principles, instead of litigation, are vital methods of resolving CERCLA disputes. Third, three examples of major Superfund sites that were successfully cleaned up due to the use of …

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To Certify, Or Not To Certify: A Comparison Of Australia And The U.S. In Achieving National Mediator Certification, Mandy Zhang Feb 2012

To Certify, Or Not To Certify: A Comparison Of Australia And The U.S. In Achieving National Mediator Certification, Mandy Zhang

Pepperdine Dispute Resolution Law Journal

This article aims to trace the progress of establishing mediation accreditation in Australia and the United States. Part II briefly describes how each country came to the decision of exploring the necessity of national mediator certification, and also illustrates the proposed designs for the Australian certification program and U.S. certification program recommended by the ACR. Part III suggests possible reasons for why the U.S. has failed to implement the mediator certification program proposed by the ACR while Australia is moving forward to establish their system. Part IV concludes with why the U.S. should continue to push for national mediator accreditation …

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Just Say No: Minimizing Limited Authority Negotiating In Court-Mandated Mediation, Don Peters Feb 2012

Just Say No: Minimizing Limited Authority Negotiating In Court-Mandated Mediation, Don Peters

Pepperdine Dispute Resolution Law Journal

This article contends that requiring mediation participants to refrain from claiming limited negotiating authority and to just say no when they lack authorization, particularly regarding dollar issues, is more likely to encourage full preparation to negotiate the economic aspects of disputes that litigation invariably generates. It suggests that encouraging attorneys to comprehensively prepare the dollar dimensions of claims and defenses may help them anticipate and gather sufficient authority to handle potential decisions if conversations move to agreement options beyond economics. It concludes by defending its proposals against concerns that they will undercut important mediation policies regarding confidentiality and mediator impartiality.

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Joining Forces In Search For Answers: The Use Of Therapeutic Jurisprudence In The Realm Of Mediation Ethics , Omer Shapira Feb 2012

Joining Forces In Search For Answers: The Use Of Therapeutic Jurisprudence In The Realm Of Mediation Ethics , Omer Shapira

Pepperdine Dispute Resolution Law Journal

The Mediation process is part of the Alternative Dispute Resolution movement (ADR) whose modern history begins at the end of the 1970s. Therapeutic Jurisprudence (TJ) is a younger movement which has started to gain recognition in the 1990s. The two schools of thought share similarities, a fact which makes their study beneficial for both. This article explores some of those similarities in order to evaluate the possible contribution of TJ to mediation ethics. What is sought is a normative reading of the mediation process with the aid of the therapeutic lens. Such reading suggests, so it is argued, behavioral guidelines …

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Guardians Ad Litem Do Not Belong In Family Mediations , Suzanne J. Schmitz Feb 2012

Guardians Ad Litem Do Not Belong In Family Mediations , Suzanne J. Schmitz

Pepperdine Dispute Resolution Law Journal

A Guardiam Ad Litem (GAL) is valuable to the resolution of custody disputes because the GAL evaluates the facts concerning the dispute and recommends to the court what are the best interests of the child.5 Mediation is valuable because parents can determine their own decisions regarding their children. However, where appointing a GAL threatens the value of mediation, there is a risk to mediation. A simple solution to avoid this threat is to refrain from appointing a GAL until after mediation has been attempted or, if one is appointed prior to mediation, to excuse the GAL from mediation. This article …

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A Reflection On American Justice At A Crossroads: A Public And Private Crisis, Maureen A. Weston Feb 2012

A Reflection On American Justice At A Crossroads: A Public And Private Crisis, Maureen A. Weston

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

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American Justice At A Crossroads: Remarks Of Thomas J. Stipanowich, Thomas J. Stipanowich Feb 2012

American Justice At A Crossroads: Remarks Of Thomas J. Stipanowich, Thomas J. Stipanowich

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

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American Justice At A Crossroads: Remarks Of Kathleen Bryan, Kathleen Bryan Feb 2012

American Justice At A Crossroads: Remarks Of Kathleen Bryan, Kathleen Bryan

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

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American Justice At A Crossroads: Opening Remarks, Kenneth Starr Feb 2012

American Justice At A Crossroads: Opening Remarks, Kenneth Starr

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

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Economical Litigation Agreements: The "Civil Litigation Prenup" Need, Basis, And Enforceability , Daniel B. Winslow, Alexandra Bedell-Healy Feb 2012

Economical Litigation Agreements: The "Civil Litigation Prenup" Need, Basis, And Enforceability , Daniel B. Winslow, Alexandra Bedell-Healy

Pepperdine Dispute Resolution Law Journal

This article identifies the basis and limits of the parties' abilities to define and enforce discovery in an ex ante contract. Despite the deficiencies of litigation, the free, public dispute resolution forum of the civil justice system provides significant value in commercial disputes. That value can be used to maximum mutual advantage only if parties replace the infinite discovery permitted in conventional litigation with the finite discovery contracted in Economical Litigation Agreement (ELA) litigation. This article will help parties to understand the benefit and enforceability of the ELA.

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Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases, Bejamin F. Tennille, Lee Applebaum, Anne Tucker Nees Feb 2012

Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases, Bejamin F. Tennille, Lee Applebaum, Anne Tucker Nees

Pepperdine Dispute Resolution Law Journal

The assumed compatibility between ADR and specialized courts is largely unexamined. Without being able to statistically validate the motivations and preferences of individual disputants in a manner to draw generalized conclusions, this article examines the relationship between ADR and specialized business courts by looking at how the two are structurally intertwined through existing procedural rules and implementation practices. Part I of this article describes the foundational structures and concepts behind both ADR and specialized business courts, as well as the similarities and differences between them. Part II explores the existing formal structural relationship between ADR and specialized courts by examining …

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Keynote Address: Civil Justice At A Crossroads , Rebecca Love Kourlis Feb 2012

Keynote Address: Civil Justice At A Crossroads , Rebecca Love Kourlis

Pepperdine Dispute Resolution Law Journal

I really do believe that, as your title suggests, the civil justice system is at a crossroads and that, as a result, we all have new opportunities and old responsibilities. Four years ago, concerns about skyrocketing costs, unprofessional gamesmanship, and long delays in civil litigation were the stuff of grousing and shoulder shrugs. We all had a level of fatalism or cynicism about our inability to change any of those factors. Now, that is not true. There is a window of opportunity that has opened-a convergence of various forces resulting in a willingness of decision-makers to consider change. As a …

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Foreword, Jeffrey D. Hoyle Feb 2012

Foreword, Jeffrey D. Hoyle

Pepperdine Dispute Resolution Law Journal

The Symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law on April 15, 2010, under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR). It brought together a distinguished group of speakers and panelists to discuss dissatisfaction with the American justice system caused by increased delays, rising litigation costs, and decreased access to justice; and creative ways being used to address these concerns.

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An Unnecessary Consternation: An Analysis Of The Future Of Eu Arbitration In The Wake Of The West Tankers Decision, Mark G. Materna Feb 2012

An Unnecessary Consternation: An Analysis Of The Future Of Eu Arbitration In The Wake Of The West Tankers Decision, Mark G. Materna

Pepperdine Dispute Resolution Law Journal

This article proposes that, despite the West Tankers decision, parties are still not free to breach the terms of an arbitration agreement. On the contrary, there has been a strong trend by English courts to find ways of preventing parties from breaching such agreements. In short, this article serves to quell the panic and elucidate that the West Tankers decision is not a nail in the coffin, but rather a mechanism to reiterate European courts' dedication to ensuring that arbitration provisions remain a potent force against economic infidelity. Part II of this article will provide a brief background of anti-suit …

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A Call To Action: A Client-Centered Evaluation Of Collaborative Law, Alexandria Zylstra Feb 2012

A Call To Action: A Client-Centered Evaluation Of Collaborative Law, Alexandria Zylstra

Pepperdine Dispute Resolution Law Journal

This paper will first examine the process of collaborative law, from deciding to hire a collaborative lawyer to the disqualification agreement, as well as identifying potential dangers for the client, including an analysis of collaborative law utilizing the negotiation theory of Roger Fisher and William Ury's book Getting to Yes. The second part of the paper will examine how collaborative law literature evaluates and critiques the costs and benefits of collaborative law. This paper ultimately finds that the cost-benefit analysis either stems from small, non-controlled studies or personal anecdotes, or discussions of whether collaborative law complies with ethics rules, …

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"El Agua No Se Vende: Water Is Not For Sale!" The Latin American Water Tribunal As A Model For Advancing Access To Water, Mikita A. Weaver Feb 2012

"El Agua No Se Vende: Water Is Not For Sale!" The Latin American Water Tribunal As A Model For Advancing Access To Water, Mikita A. Weaver

Pepperdine Dispute Resolution Law Journal

At the international level, water is now understood to be a basic human right. However, conflict continues to intensify surrounding indigenous people's access to water as the resource becomes scarcer. In particular, this paper will examine the struggle of indigenous people in Latin America and the creation of the Latin American Water Tribunal (LAWT) as a solution. Section II will describe the LAWT, including the formation of the tribunal, case selection, and the structure of the public hearing. Section III will discuss both how the LAWT overcomes problems with the current legal system and the success of the tribunal as …

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The Disempowering Relationship Between Mediator Neutrality And Judicial Impartiality: Toward A New Mediation Ethic, Ronit Zamir Feb 2012

The Disempowering Relationship Between Mediator Neutrality And Judicial Impartiality: Toward A New Mediation Ethic, Ronit Zamir

Pepperdine Dispute Resolution Law Journal

The issue I shall discuss in this article is whether the concept of mediator neutrality advances the empowering and effective participation of parties from disadvantaged groups. Section II will deal with the relationship between the concept of neutrality in the adversarial legal process, in the mediation process, and the concept of procedural justice. I shall then present the meanings ascribed to the concept of mediator neutrality in the two prevailing models of mediation: the problem-solving model and the transformative model. The affinity between these meanings and the concept of judicial impartiality will be discussed and critiqued. Finally, I shall suggest …

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Stumbling Down The Courthouse Steps: Mediators' Perceptions Of The Stumbling Blocks To Successful Mandated Mediation In Child Custody And Visitation , Sandra J. Perry, Tanya M. Marcum, Charles R. Stoner Feb 2012

Stumbling Down The Courthouse Steps: Mediators' Perceptions Of The Stumbling Blocks To Successful Mandated Mediation In Child Custody And Visitation , Sandra J. Perry, Tanya M. Marcum, Charles R. Stoner

Pepperdine Dispute Resolution Law Journal

Although many concerns and criticisms about the efficacy of family law mediation have been made by attorneys, judges, and psychologists, we seldom hear from the mediators themselves about how the process works. In this study, we examine the mediators' perceptions of the stumbling blocks to success in mandatory child custody mediation and make some recommendations about how the process might be improved.

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The Case Against Maritime Class Arbitration: A Brief Policy Argument, Landon R. Schwob Feb 2012

The Case Against Maritime Class Arbitration: A Brief Policy Argument, Landon R. Schwob

Pepperdine Dispute Resolution Law Journal

On April 27, 2010, the United States Supreme Court decided a case that will have far-reaching implications for virtually all sectors within the arbitration industry, including the subject of this article-maritime arbitration. The question presented in Stolt-Nielsen v. AnimalFeeds International Corp. dealt with class arbitration and whether its imposition on parties whose arbitration clauses are silent on that issue is consistent with the Federal Arbitration Act (FAA). This article will primarily examine the history and viability of class arbitration-and arbitration in general-in the far more narrow context of maritime and the admiralty. Stolt-Nielsen provides an excellent backdrop against which to …

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The Truth Shall Set You Free: A Distinctively Christian Approach To Deception In The Negotiation Process, Al Sturgeon Feb 2012

The Truth Shall Set You Free: A Distinctively Christian Approach To Deception In The Negotiation Process, Al Sturgeon

Pepperdine Dispute Resolution Law Journal

This paper examines whether the Christian religion offers a distinct position on the use of deception in the negotiation process. It is expected to be of primary interest to Christian negotiators, but combining the popularly understood theorem that "everyone negotiates on some level" with the fact that there are over 173 million Christian adherents in the United States alone, the topic may be of general interest to anyone who negotiates. There is apparently neither an official nor a widespread recognition of a distinct Christian position on the use of deception in negotiation at present. It is this article's proposal, however, …

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Adr And A Smile: Neocolonialism And The West's Newest Export In Africa, Anthony P. Greco Feb 2012

Adr And A Smile: Neocolonialism And The West's Newest Export In Africa, Anthony P. Greco

Pepperdine Dispute Resolution Law Journal

While the ills of the West's corporatization of the world have long been debated and catalogued, often neglected is the role the law plays in empowering the rich, disenfranchising the poor, and serving as the "handmaiden to empire." Since what has been termed the "rule of law revival," which saw its genesis sometime in the late 1980s, the adoption of Western legal frameworks to help developing and Third World nations transition and gain access to the ever growing global market has become commonplace. With the coming of the Alternative Dispute Resolution (ADR) revolution during the last few decades, the West …

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For Heaven's Sake, Give The Child A Voice: An Adr Approach To Interfaith Child Custody Disputes , Charlee Lane Feb 2012

For Heaven's Sake, Give The Child A Voice: An Adr Approach To Interfaith Child Custody Disputes , Charlee Lane

Pepperdine Dispute Resolution Law Journal

There has been ample study devoted to the problems that arise when courts are faced with custody disputes intertwined with issues of religion. Unfortunately, many of those studies conclude without proposing an effective solution or by suggesting an alternative without defining what that alternative might be. A solution must be employed that allows religious consideration in a forum more suitable to facilitating a resolution in the complete best interest of the child and parents. Mediation provides this forum by facilitating a negotiation in which parents are allowed to develop their own collaborative solutions to interfaith child custody disputes. Through techniques …

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Arbitration Hurdles Facing Foreign Investors In Russia: Analysis Of Present Issues And Implications, Elliot Glusker Feb 2012

Arbitration Hurdles Facing Foreign Investors In Russia: Analysis Of Present Issues And Implications, Elliot Glusker

Pepperdine Dispute Resolution Law Journal

Russia has come a long way since the collapse of the Soviet Union in 1991, but there are still some structural reforms that need to take place in order to increase investor confidence. In 2007, one hundred billion dollars was invested in Russia from overseas, which represents a record for a developing market economy. However, direct foreign investment in Russia is still low compared to other European nations. Foreign investment is one of Russia's main strategies for improving the long-term health of the economy. There is a lot of promise for future economic growth, but some recent actions by the …

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