Dispute Resolution and Arbitration Commons^™

Dangerous Or Benign Legal Fictions, Cognitive Biases, And Consent In Contract Law, Chunlin Leonhard

St. John's Law Review

(Excerpt)

Building on existing scholarship on legal fictions and empirical psychological research about human decision making processes, this Article offers a systematic approach to distinguishing a dangerous legal fiction from a benign one.

This Article begins by summarizing scholarly discussions about legal fictions in general, courts’ typical uses of legal fiction, and more general concerns with legal fictions. Part II of the Article summarizes scientific findings about how humans think and what our common cognitive biases are. It then explains how findings regarding the human decision-making process may shed light on why certain legal fictions can be dangerous. This Section …

The Peace Vs. Justice Puzzle And The Syrian Crisis, Paul R. Williams, Lisa K. Dicker, C. Danae Paterson

Faculty Publications

(Excerpt)

Those involved in peace negotiations often face the dilemma of balancing demands for justice with the imperative of stopping the conflict as quickly as possible. There are abiding ethical and moral debates surrounding this tension between peace and justice. In Syria—where the death toll has exceeded 470,000, 11 million have been displaced, and there are over 14,000 documented cases of death by torture—the peace versus justice puzzle is a living dilemma with which those involved in the peace process grapple with on a daily basis.

Is it morally permissible to allow conflict (and the attendant human suffering) to continue, …

Ethics Meets The “O” In Dr, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Lawyers, the menu of justice options available to resolve your clients’ legal disputes has now expanded to include online dispute resolution processes. Online dispute resolution (ODR) is an umbrella term that may be used to describe the use of technology to help expedite legal case management, replicate existing dispute resolution processes online, such as by utilizing video conferencing for arbitration and mediation (“replication ODR”); or to help streamline or even resolve legal claims through the use of algorithms (“algorithm ODR” or “algorithm- based ODR”). Even though ODR is fast becoming a regular part of legal practice, generally, and dispute …

Arbitration Law Update: 2017-2018, Teresa J. Verges, Elissa Germaine

Faculty Publications

(Excerpt)

This article summarizes the leading federal and state arbitration cases during the last year that are of particular relevance to the securities arbitration practitioner. In its sole arbitration decision during the 2017-18 term, the U.S. Supreme Court held in Epic Systems Corp. v. Lewis that employers could require their employees to waive their right to class actions and collective arbitration. Courts also addressed a host of novel issues, including whether investors can force a non-FINRA member and municipal bond indentured trustee to arbitrate before FINRA, the arbitrability of claims against a cryptocurrency exchange, and the applicability of a state's …

Acts Like A Lawyer, Talks Like A Lawyer…Non-Lawyer Advocates Representing Parties In Dispute Resolution, Elayne E. Greenberg

Faculty Publications

(Excerpt)

What are the ethical implications for lawyer mediators, arbitrators and dispute resolution providers when the lines between the roles of lawyers and the non-lawyers who are representing clients in dispute resolution become blurry? Traditionally, non-lawyer advocates (hereinafter NARs) have represented clients in the negotiations, mediation and arbitration of legal matters without cause for concern. Yes, labor union representatives, sports agents, and special education advocates are three familiar examples of non-lawyers who represent clients in negotiations, mediations and arbitrations, informing clients of their legal rights. Routinely, the lawyers and neutrals presiding over the dispute resolution procedure have warmly welcomed these …

... Because "Yes" Actually Means "No": A Personalized Prescriptive To Reactualize Informed Consent In Dispute Resolution, Elayne E. Greenberg

Faculty Publications

This paper proposes a radical departure from the status quo approach to securing a client’s informed consent about settlement options and refocuses informed consent practice back to what informed consent is about, the client. As it exists today, the status quo approach to securing a client’s informed consent about whether or not to use an alternative dispute resolution procedure to resolve the client’s case is inadequate. It thwarts a client’s right to exercise party self- determination and stymies a client’s ability to make informed justice choices. Lawyers, courts, ADR providers and neutrals routinely provide litigants with generic information about the …

Alternative Dispute Resolution, Patrick Crowley

The Catholic Lawyer

No abstract provided.

Alternative Dispute Resolution, Jessie Clayton Dye

The Catholic Lawyer

No abstract provided.

Alternative Dispute Resolution, Sister Donna Mikula

The Catholic Lawyer

No abstract provided.

Alternative Dispute Resolution, Santiago Feliciano, Jr.

The Catholic Lawyer

No abstract provided.

Clergy Arbitrator Liability: A Potential Pitfall Of Alternative Dispute Resolution In The Church, Lee Tarte

The Catholic Lawyer

No abstract provided.

When Worldviews Collide—Strategic Advocacy V. A Mediator’S Ethical Obligations, Elayne E. Greenberg

Faculty Publications

(Excerpt)

The provocative headline “Judge Orders Preservation of Mediation Notes In Gender Bias Suit Against Proskauer” sparks the topic of this Ethical Compass discussion. What should be done when a lawyer’s litigation strategy collides with a mediator’s ethical standards of practice? There is growing concern by dispute professionals, including this author, that this collision is diluting the benefits of mediation and re-shaping mediation into quasi-adjudicative dispute resolution procedure. Others hear this as a clarion call from litigators to the mediation community to realize that mediation ideals are just that, and will not deflate litigation advocacy strategies. These polarized perspectives present …

When The Empty Adr Chair Is Occupied By A Litigation Funder, Elayne E. Greenberg

Faculty Publications

(Excerpt)

The discussion about the $140 million jury verdict against Gawker media for posting a sex video of Terry Bollea, professionally known as Hulk Hogan, having sex with his best friend’s wife, quickly shifted to a conversation about the ethics of litigation funding when it was finally disclosed that Peter Thiel had funded Bollea’s litigation. The backstory reveals that Gawker outed Thiel, revealing his homosexuality ten years earlier in a more conservative time when such a revelation might have impacted Thiel’s earning capacity. Thiel, an icon in Silicone Valley and a co-founder of PayPal, promised revenge. Thiel got his revenge, …

Investor's Guide To Security Industry Disputes: How To Prevent And Resolve Disputes With Your Broker, Jill Gross, Elissa Germaine

Faculty Publications

(Excerpt)

The Pace Investor Rights Clinic produced this Guide to Securities Industry Disputes for the individual investor who hopes to prevent or may already have a dispute with his or her securities broker. Our goal is for investors to learn more about their legal rights and best practices for responsible investing, before a dispute arises, and to gain an understanding of their options in case a dispute does arise. We hope that informed investors will be better able to prevent disputes with their broker as well as identify and resolve legitimate grievances.

The first section of this Guide covers investors’ …

...Because It’S Not Just About Money, Elayne E. Greenberg

Faculty Publications

(Excerpt)

When lawyers represent their clients in party-decided dispute resolution processes such as negotiation or mediation, lawyers have a unique opportunity to work with their clients to help shape a comprehensive settlement beyond just a monetary settlement. This is an opportunity to address the client’s human and core concerns and to help their client secure their personalized sense of justice. However, lawyers and mediators who myopically seek to resolve every legal conflict by just monetary resolution are akin to the carpenter who sees everything as a nail because the only tool available is a hammer. This column invites you to …

The Power Of Empathy, Elayne E. Greenberg

Faculty Publications

(Excerpt)

As colleagues in the dispute resolution field, we have likely participated in the ongoing, often heated debate about the role, if any, of empathy in dispute resolution. There are those colleagues who believe that empathy will only muck up what is really important, the bottom-line number and your evaluation about how to get there. On the other side of this controversy, there are seasoned colleagues who regularly use empathy as dispute resolution currency, often at the risk of being marginalized as “touchy feely” by those who don’t understand its value. To help us get past each other’s anecdotal justifications …

The Smith Case: Is The Glass Half Full?, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Many in our ADR community have already chosen to side with one of the choruses of polarized voices that are either supportive of or critical of the recent judicial decision In re Cody W. Smith. In that decision, Chief United States Bankruptcy Judge Jeff Bohm disallowed the trustee’s appointment of a mediator, because, inter alia, the trustee didn’t first secure the approval of the presiding bankruptcy judge. A cursory read of Judge Bohm’s decision mistakenly leads us to believe that the case is just about a bankruptcy trustee’s obligation to follow section 327(a) of the Bankruptcy Code, …

When “Yes” May Actually Mean “No”: Rethinking Informed Consent To Adr Processes, Elayne E. Greenberg

Faculty Publications

(Excerpt)

It is time for us to rethink how to achieve meaningful party consent to ADR processes such as mediation and arbitration. I, along with my colleagues Professors Jeff Sovern, Paul F. Kirgis and Yuxiang Liu, recently contributed to the growing body of research finding that a party’s consent to use an ADR process rather than utilizing a court to resolve the dispute is too often neither informed nor consensual. In our empirical study “’Whimsy Little Contracts’ With Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements,” we found a paucity of consumer awareness and understanding of arbitration …

Federal Civil Litigation At The Crossroads: Reshaping The Role Of The Federal Courts In Twenty-First Century Dispute Resolution, Edward D. Cavanagh

Faculty Publications

The Federal Rules of Civil Procedure were promulgated in 1938 to provide the “just, speedy, and inexpensive determination” of all civil actions. The underlying theme of the Federal Rules is that meritorious litigants should have their day in court. To that end, the Federal Rules eliminated procedural pitfalls, including highly technical forms of action inherited from common law, that rewarded mastery of pleading techniques over the substantive merits of claims. The Federal Rules also introduced a simplified pleading system, commonly denominated as “notice pleading,” thereby easing the heavy burden imposed on the parties. The factual details of the case could …

When The Price Of Settlement Is Ethically Prohibitive: Non-Disparagement Clauses That Apply To Lawyers, Elayne E. Greenberg

Faculty Publications

(Excerpt)

At last! You have lived with this case for many years, and you are now on the verge of finalizing the terms of a settlement agreement. All the contentious issues have finally been resolved, so you thought, when the defendant leans over the table and says, “Just one more thing. We want you and your client to sign a non-disparagement clause as part of the settlement.” Yes, non-disparagement clauses have been frequently used as a controversial reputational shield in high-conflict divorces, sensitive employee terminations and contentious consumer actions. However, barely discussed is whether lawyers are ethically able to suggest …

The Cheater’S “High”— Harmonize Ethics, Research And Negation Behavior, Elayne E. Greenberg

Faculty Publications

(Excerpt)

In the context of negotiations, how does “cheater’s high” influence our ethical behavior, decision-making and negotiation strategy? “Cheater’s high” is the term coined by behavioral ethics researchers to describe the positive feeling we experience when we cheat. Rather than feel guilty for these ethical transgressions as was previously believed, those who cheat actually experience a positive effect that further incentivizes the unethical behavior to continue. Even though some who are perched on their ivory tower may feel immune from “cheater’s high,” social scientists remind us that at times we all cheat to varying degrees. This cheating reality is problematic …

Has Expungement Broken Brokercheck?, Christine Lazaro

Faculty Publications

Stockbrokers are subject to one of the most comprehensive public disclosure regimes. They must disclose substantial information about their backgrounds, their employment history, and their disciplinary history. FINRA, the self-regulatory organization that regulates the brokerage industry, also requires that brokers disclose customer complaints and makes much of this information available to the public through an online database called BrokerCheck. The allegations of wrongdoing remain on the broker’s record permanently, unless the broker succeeds at having customer dispute information expunged. The broker is able to accomplish this by requesting that the arbitration panel that hears the customer dispute grant expungement, and …

What Sally Soprano Teaches Lawyers About Hitting The Right Ethical Note In Adr Advocacy, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Paradoxically, when lawyers opt to mediate or arbitrate, lawyers may still wind up selecting, shaping and advocating in these dispute resolution processes to resemble the very litigation process they have sought to avoid. After all, litigation likely comports with the lawyer’s own conflict style, comfort level and concepts of justice. As a consequence of this litigation bias, we see that the metaphorical doors of a multi-door courthouse that once offered a menu of dispute resolution choices are increasingly leading us back to one choice: a variation of the litigation door. Even though the Model Rules of Professional Conduct confirm …

Confidentiality: The Illusion And The Reality— Affirmative Steps For Lawyers And Mediators To Help Safeguard Their Mediation Communications, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Confidentiality is one promise of mediation that is increasingly broken, even though judges, lawyers and mediators frequently extol the sacredness of mediation confidentiality as a primary benefit for considering mediation as a settlement forum. We observe that legal challenges to any aspect of the mediation have caused judges to scrutinize mediation communications in a way that renders mediation confidentiality vulnerable at a minimum and violated at the worst. We are finding it a chronic challenge to decipher the precise and appropriate boundaries of mediation confidentiality. Moreover, we are increasingly discomforted to see that even unsuccessful legal challenges to mediation …

Show Me The Money: Part One, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Until now, the discussion of how to ethically monetize “the value added” that settlement savvy attorneys bring to the client has been one of the few remaining taboos that is rarely, candidly discussed among lawyers. How should settlement-proficient lawyers calculate the value of efficient, quality outcomes? How does a lawyer who bills by the hour ethically deal with the inherent conflict of interest between his desire to make as much money as he can and the economic disincentive to be settlement proficient? What are some creative billing incentives to more closely align the clients’ desire for contained legal costs …

Show Me The Money: Part Two, Monetizing The “Value Added” Of Attorneys Who Serve As Mediators And Arbitrators, Elayne E. Greenberg

Faculty Publications

(Excerpt)

In the oft-told fable “The Emperor’s New Clothes,” the candid, uncensored observations of a young child that the Emperor’s “new clothes” weren’t clothes at all but actually the emperor’s nudity, freed the rest of the townspeople to finally acknowledge the jarring reality that their the emperor was naked. And so, “The Emperor’s New Clothes” has become a metaphor for having the courage to see things as they actually are, not for what we are incorrectly told they are. In Part One of this column, I began the discussion of how settlement-savvy lawyers might realistically use alternative fee paradigms instead …

Overcoming Our Global Disability In The Workforce: Mediating The Dream, Elayne E. Greenberg

Faculty Publications

The unparalleled global support for the 2008 United Nations Convention on the Rights of Persons with Disabilities ("CRPD") highlights the global schism between the public extolling of human rights for individuals with disabilities and the private castigating of such individuals in their daily lives and in the workforce. The CRPD explicitly mandates that work is a right accorded to individuals with disabilities, and global employers are now being challenged to implement that right. Yet, in order to ensure meaningful, universal compliance with its directives, the CRPD imposes affirmative duties on Supporting States to develop a customized, workable plan that effectively …

It’S A Small World After All: Cultural Competence For Advocates In Dispute Resolution Processes, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Cultural competence has become an ethical mandate for all neutrals and advocates who use dispute resolution. Even though conflict is a universal phenomenon, our expression and choice of how to resolve conflict is culture specific. As our world becomes increasingly smaller, and flatter, and our law practices become globalized, ethically responsible attorneys are recalibrating their ethical compass and replacing their ethnocentric lens with a culturally relative lens. Yes, even if you are a New York attorney who disavows any international practice and remains steadfastly tethered to the N.Y. Rules of Professional Conduct, you still need to be culturally competent. …

Give Peace A Chance: A Guide To Mediating Child Welfare Cases, Jennifer Baum

Faculty Publications

(Excerpt)

Would you like to speed up your cases, achieve more satisfying results for your clients, and cut back on needlessly polarizing motion practice? Since its introduction in the 1980s, child welfare mediation has helped attorneys do just that by facilitating resolutions in child protective disputes more quickly, less contentiously, and with more acceptance from stakeholders than its courtroom alternative, adversarial litigation.

If you've handled dependency cases for any length of time, you are already familiar with the crushing caseloads, emotional volatility, and high-stakes decision-making that are the hallmarks of child welfare litigation. In a growing number of jurisdictions, attorneys …

The Globalized Practice Of Law: Part Two - It’S A Small World After All: Cultural Competence With Your International Brethren, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Globalization is a “force majeure” that is growing and shaping the practice of law. As increasing numbers of New York lawyers represent clients in transnational and cross-border matters, many New York attorneys are welcoming the enriching perspectives that their international brethren bring to deal making and dispute resolution. However, culturally competent lawyers are also cognizant of how the different and sometimes disparate ethical obligations and values held by their colleagues from civil law countries are influencing and, at times, complicating their dispute resolution efforts. In the previous column, I discussed how our perceptions, communications and preferential modes for resolving …