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University of Missouri School of Law

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Articles 1141 - 1170 of 1321

Full-Text Articles in Dispute Resolution and Arbitration

Recent Developments: The Uniform Arbitration Act, Dan Coughlin, Laura Kintz, John Moore, Melissa Morrow Jul 1993

Recent Developments: The Uniform Arbitration Act, Dan Coughlin, Laura Kintz, John Moore, Melissa Morrow

Journal of Dispute Resolution

This annual Article2 has been prepared since 1983 as a survey of recent developments in the case law interpreting and analyzing various versions of the Uniform Arbitration Act (U.A.A.). 3 Currently, thirty-four states and the District of Columbia have adopted arbitration statutes patterned after the U.A.N 4 The purpose of this analysis is to promote uniformity in interpreting the U.A.A. by explaining the underlying policies and rationales that have developed from recent court decisions.

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Connecticut's Trail By Lawyer: Contract Disputes And The Attorney Fact-Finder - Beizer V. Goepfert, Craig R. Heidemann Jul 1993

Connecticut's Trail By Lawyer: Contract Disputes And The Attorney Fact-Finder - Beizer V. Goepfert, Craig R. Heidemann

Journal of Dispute Resolution

The rules of professional conduct in most states require attorneys to enter into written agreements with their clients when contracting on a contingent fee basis.2 In so doing, the parties define the existence and limits of their attorney-client relationship. In the present case, an attorney and his client agreed to a ten percent contingent fee; however, the lawyer transferred to a new firm prior to the conclusion of the case.4 Subsequently, the client signed a new, identical agreement provided by the attorney's new firm.5 In the contract, the attorney used the previously agreed-upon fee percentage instead of the standard office …

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Internal Dispute Resolution: The Transformation Of Civil Rights In The Workplace, John M. Lande, Lauren B. Edelman, Howard S. Erlanger Jan 1993

Internal Dispute Resolution: The Transformation Of Civil Rights In The Workplace, John M. Lande, Lauren B. Edelman, Howard S. Erlanger

Faculty Publications

Many employers create internal procedures for the resolution of discrimination complaints. We examine internal complaint handlers' conceptions of civil rights law and the implications of those conceptions for their approach to dispute resolution. Drawing on interview data, we find that complaint handlers tend to subsume legal rights under managerial interests. They construct civil rights law as a diffuse standard of fairness, consistent with general norms of good management. Although they seek to resolve complaints to restore smooth employment relations, they tend to recast discrimination claims as typical managerial problems. While the assimilation of law into the management realm may extend …

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Table Of Contents - Issue 1 Jan 1993

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

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Table Of Contents - Issue 2 Jan 1993

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

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Appellate Settlement Conference Programs: A Case Study, Susan A. Fitzgibbon Jan 1993

Appellate Settlement Conference Programs: A Case Study, Susan A. Fitzgibbon

Journal of Dispute Resolution

The 1990s may be the decade in which the courts bring alternative dispute resolution "in house." Professor Owen Fiss' nightmare that private settlement will rob courts of cases for the dispensation of justice and the furtherance of societal goals3 has become Professor Carrie Menkel-Meadow's foreboding that the courts will "co-opt" and drain the life from true alternative dispute resolution (ADR) processes.4 It may be argued that appellate court-sponsored settlement programs dodge both of these criticisms because parties have had a day in court, the process is a form of mediation, and the settlement is thus final only if the parties …

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Transforming At-Will Employment Disputes Into Wrongful Discharge Claims: Fertile Ground For Adr, Mary A. Bedikian Jan 1993

Transforming At-Will Employment Disputes Into Wrongful Discharge Claims: Fertile Ground For Adr, Mary A. Bedikian

Journal of Dispute Resolution

This Article begins by reviewing the historical evolution of the at-will rule and examining the common law wrongful dismissal theories. Next, it describes the recent trend of arbitrating wrongful discharge disputes, a trend which the author suggests provides a practical, sound forum for the resolution of employment claims.' 3 Finally, since arbitration is in derogation of the common law, this Article discusses the constitutional and pragmatic barriers to full-scale reform and use of arbitration. The author concludes that fragmentation of interests, political motivations, and the reluctance of the United States Supreme Court to confront an indispensable provision of the Federal …

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Efficient Injustice: The Demise Of Teh Substantial Injustice Exception To Arbitral Finality - Moncharsh V. Heily & (And) Blase, Michael J. Smith Jan 1993

Efficient Injustice: The Demise Of Teh Substantial Injustice Exception To Arbitral Finality - Moncharsh V. Heily & (And) Blase, Michael J. Smith

Journal of Dispute Resolution

Judicial review of an arbitrator's decision has been a point of much controversy and discussion among jurisdictions. Many state legislatures have enacted arbitration statutes that list the grounds for review of an arbitrator's decision. However, over time, the courts have also developed some common law grounds for judicial review. Conflict often arose when a state's statute did not provide for review on the same grounds as common law. This Note examines how the California Supreme Court dealt with the difference in the statutory and common law grounds for judicial review of an arbitrator's decision.

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Arbitration - Sure, But Only On Our Terms: Escape Clauses In Uninsured Motorist Policies - Schaefer V. Allstate Ins. Co., Steven R. Leppard Jan 1993

Arbitration - Sure, But Only On Our Terms: Escape Clauses In Uninsured Motorist Policies - Schaefer V. Allstate Ins. Co., Steven R. Leppard

Journal of Dispute Resolution

Historically, the insurance industry has widely used arbitration to resolve disputes.2 Insurance companies have increasingly included "escape clauses" in their policies.' These clauses allow an insurance company to ignore an arbitrator's award and have a claim directly heard in a trial court if the award exceeds a pre-determined amount.' The Ohio Supreme Court in Schaefer v. Allstate Insurance Co. addressed this issue and decided that the escape clause was unenforceable due to public policy.'

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Giving Competency Its Day In Court - In Re Fellman, Michael C. Kirkham Jan 1993

Giving Competency Its Day In Court - In Re Fellman, Michael C. Kirkham

Journal of Dispute Resolution

This Note will examine the decision in In re Fellman,4 where the Superior Court of Pennsylvania determined that the issue of competency was a matter for the courts, not arbitration, to determine.5 Furthermore, this Note will explain how Fellman is consistent with cases concerning different issues, but which similarly denied arbitrators authority based upon similar reasoning.

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Post-Conviction Mediation Of Rape Cases: Working Within The Criminal Justice System To Achieve Well-Rounded Justice, Matthew J. Sauter Jan 1993

Post-Conviction Mediation Of Rape Cases: Working Within The Criminal Justice System To Achieve Well-Rounded Justice, Matthew J. Sauter

Journal of Dispute Resolution

This Comment will focus on the steps that can be taken within our criminal justice system to help change the attitudes of police, prosecutors, judges, jurors, and legislators toward the crime of rape. It will particularly focus on how mediation can be used concurrently with the criminal courts system in order to achieve justice for all parties involved, victims as well as offenders

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Compulsory Alternative Dispute Resolution And Voluntarism: Two-Headed Monster Or Two Sides Of The Coin , Lucy V. Katz Jan 1993

Compulsory Alternative Dispute Resolution And Voluntarism: Two-Headed Monster Or Two Sides Of The Coin , Lucy V. Katz

Journal of Dispute Resolution

This Article broadly defines compulsory ADR3 to include any process in which the parties experience a lack of free choice about their participation, other than a civil or criminal trial with full due process protections. Thus, it includes not only court-ordered ADR4 (or alternatives mandated by statute), but also judicial mediation, settlement conferences, non-mandatory summary jury trials, and other techniques5 in which there is pressure on litigants to forgo trials, at least temporarily, and to utilize alternatives to bring about settlement.6

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Class Action Settlement Bars, Cross Claims, And Co-Defendants: The Search For A Uniform Standard - In Re U.S. Oil & (And) Gas Litigation, Craig Richard Heidemann, Jan 1993

Class Action Settlement Bars, Cross Claims, And Co-Defendants: The Search For A Uniform Standard - In Re U.S. Oil & (And) Gas Litigation, Craig Richard Heidemann,

Journal of Dispute Resolution

Prior to the U.S. Oil & Gas decision, the federal courts had only considered settlement bars as related to non-settling defendants. In the U.S. Oil & Gas case, all of the defendants sought to settle with the plaintiff. 2 Only one settling defendant chose to contest the entry of the bar order. 3 In U.S. Oil & Gas, the Eleventh Circuit Court of Appeals was faced with a defendant who settled with the plaintiff but opposed an order barring its seemingly independent claims against the third-party defendant who also settled. For this reason it was a case of first impression. …

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Title Page Jan 1993

Title Page

Journal of Dispute Resolution

No abstract provided.

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Punitive Damages In Securites Arbitration: The Interplay Of State And Federal Law (Or A Smaller Bite Of The Big Apple), Marilyn B. Cane Jan 1993

Punitive Damages In Securites Arbitration: The Interplay Of State And Federal Law (Or A Smaller Bite Of The Big Apple), Marilyn B. Cane

Journal of Dispute Resolution

As the United States Supreme Court has observed, the Federal Arbitration Act (FAA) 2 "is something of an anomaly in the field of federal-court jurisdiction. It creates a body of federal substantive law establishing and regulating the duty to honor an agreement to arbitrate, yet it does not create any independent federal-question jurisdiction."' The parameters and effect of state law under the FAA are continually being refined by the courts. Since the FAA is silent regarding the award of punitive damages, the role state law plays with respect to this issue is unsettled.

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Arbitration Clauses In Retainer Agreements: A Lawyer's License To Exploit The Client - Haynes V. Kuder, Mark G. Anderson Jul 1992

Arbitration Clauses In Retainer Agreements: A Lawyer's License To Exploit The Client - Haynes V. Kuder, Mark G. Anderson

Journal of Dispute Resolution

An attorney is in an influential and superior position to the client when negotiating fee contracts. Because of this position, an attorney has the opportunity to exploit his or her client. Consequently, courts view agreements between a lawyer and client rather suspiciously and apply a higher standard to these agreements. Furthermore, a lawyer is subject to ethical rules which require a lawyer to meet certain duties, including the duty to inform the client about matters regarding the representation! Because of the higher obligations imposed on an attorney when dealing with a client, any benefit of the doubt should go to …

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Mediation Of Environmental Enforcement: Overcoming Inertia, Bruce Stiftel, Neil G. Sipe Jul 1992

Mediation Of Environmental Enforcement: Overcoming Inertia, Bruce Stiftel, Neil G. Sipe

Journal of Dispute Resolution

This Article aims to examine the claims for the usefulness of environmental mediation in the context of enforcement through consideration of two environmental enforcement cases processed by the Florida Department of Environmental Regulation (DER) during 1990-1991. Specifically outlined is a pilot mediation program designed to improve the resolution of the cases. Next, two DER cases are described and compared, in detail; the two cases are quite similar except that one underwent mediation and one did not. Finally, this Article draws conclusions about environmental enforcement dispute resolution processes. Particularly examined is the success of mediation at overcoming the reluctance of environmental …

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Twenty Years Later...Contractual Arbitration As Medical Malpractice Tort Reform, Maureen Dulen Jul 1992

Twenty Years Later...Contractual Arbitration As Medical Malpractice Tort Reform, Maureen Dulen

Journal of Dispute Resolution

Although there is minimal empirical data to support many of the conclusions, 4 the purported advantages and disadvantages of using private tort reform such as contractual arbitration are popular subjects of debate." This Comment will examine both the acceptance of and the use of private contract arbitration clauses in the medical malpractice legal arena.

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Leading Horses To Water: May Courts Which Have The Power To Order Attendance At Mediation Also Require Good-Faith Negotiation - Decker V. Lindsay, Charles J. Mcpheeters Jul 1992

Leading Horses To Water: May Courts Which Have The Power To Order Attendance At Mediation Also Require Good-Faith Negotiation - Decker V. Lindsay, Charles J. Mcpheeters

Journal of Dispute Resolution

Settlement is a favorite of the law,4 and courts encourage it as a social good which may even outweigh other important policy considerations.5 Reasons for this favoritism include a desire to avoid the time-consuming uncertainty and cost of litigation,6 settlement's contributions to the efficient use of the court system,7 and a general wish for peaceful resolution of controversies.

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Negotiating In Good Faith: Management's Obligation To Maintain The Status Quo During Collective Bargaining Under The Railway Labor Act - International Ass'n Of Machinists & Aerospace Workers V. Transportes Aereos Mercantiles Pan Americandos, S.A., Jay M. Dade Jul 1992

Negotiating In Good Faith: Management's Obligation To Maintain The Status Quo During Collective Bargaining Under The Railway Labor Act - International Ass'n Of Machinists & Aerospace Workers V. Transportes Aereos Mercantiles Pan Americandos, S.A., Jay M. Dade

Journal of Dispute Resolution

When an employer and employee-representative union engage in collective bargaining negotiations, their negotiating activities are covered under the auspices of the Railway Labor Act.2 The Act, particularly applicable today in the tumultuous airline industry, established a rather elaborate mechanism for negotiation, mediation, voluntary arbitration, and conciliation to avoid interruptions to interstate commerce, to protect employees' freedom of association with respect to labor unions, and to provide prompt and orderly dispute settlements. 3 Indispensable to this scheme, Section 152, First of the Act imposes a statutory obligation upon the parties to such negotiations to bargain in good faith.4 In International Ass …

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Book Review Jul 1992

Book Review

Journal of Dispute Resolution

Getting Past No is an important companion to a previous book co-authored by William Ury. In 1981, Ury collaborated with Roger Fisher on a book entitled Getting to Yes, 3 which has sold more than two million copies and has become one of the most influential works on the subject of negotiation. Getting to Yes is a lucid, step-by-step guide for negotiating mutually satisfactory agreements. The authors labeled their approach "principled negotiation" and boiled it down to the following points: separate the people from the problem; focus on interests, not positions; generate a variety of possibilities before deciding what to …

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Recent Developments: The Uniform Arbitration Act, Angela C. Cole, Nicole J. Cress, Kevin L. Fritz, Lori L. Green Jul 1992

Recent Developments: The Uniform Arbitration Act, Angela C. Cole, Nicole J. Cress, Kevin L. Fritz, Lori L. Green

Journal of Dispute Resolution

Arbitration, once viewed as an undesirable alternative to litigation, has become widely accepted as a viable and often superior cost-effective approach to resolving disputes. In 1955, the national Conference of Commissioners on Uniform State Laws proposed a Uniform Arbitration Act.' Currently, 35 jurisdictions have arbitration statutes patterned after the U. A.A..' What began as an article in the Missouri Law Review entitled Recent Developments: The Uniform Arbitration Act, has evolved into an annual survey of recent developments in case law interpreting state versions of the U.A.A.' This detailed update monitors the underlying principles and rationales that develop from recent decisions. …

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Mediation And Joke Design: Resolving The Incongruities , John M. Cooley Jul 1992

Mediation And Joke Design: Resolving The Incongruities , John M. Cooley

Journal of Dispute Resolution

The purposes of this Article are: (1) to highlight some of these new discoveries; (2) to discuss their implications for mediators generally, particularly toward achieving super-optimum resolutions of conflict; (3) to explore the relationship of these discoveries to the brain's bilateral functions, creativity, and the process of humor and joke design; (4) to suggest techniques, based on joke design, for altering conflict frames of disputants; and (5) to suggest directions for further experimentation and research. Although the interrelationships among the separate topics presented here may not be immediately discernible, the seeming incongruities will be resolved in Part VIII

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Punitive Damages In New York Arbitration: Who Is Really Being Punished - Barbier V. Shearson Lehman Hutton, Inc. , Brian R. Hajicek Jul 1992

Punitive Damages In New York Arbitration: Who Is Really Being Punished - Barbier V. Shearson Lehman Hutton, Inc. , Brian R. Hajicek

Journal of Dispute Resolution

Promotion of settlement to reduce litigation is a well-established policy goal in our federal court system.2 However, when parties cannot resolve all of their disputes in alternative dispute resolution, this policy goal is undermined. In arbitration governed by the law of the state of New York, parties are generally unable to resolve all of their disputes in arbitration when punitive damages would be warranted. In most cases, the parties' dispute cannot be fully resolved where punitive damages would be available because an arbiter is not free to award punitive damages in arbitration under New York law. This is particularly troublesome …

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Table Of Contents - Issue 2 Jan 1992

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

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Congress, The Executive Brand And The Dispute Resolution Process, Charles E. Grassley, Charles Pou Jr. Jan 1992

Congress, The Executive Brand And The Dispute Resolution Process, Charles E. Grassley, Charles Pou Jr.

Journal of Dispute Resolution

This rapid, recent expansion in administrative proceedings and related litigation is not, of course, a unique or isolated phenomenon. It is part of a greatly increased reliance on our judiciary to decide all manner of social, political, and economic issues. Much of this litigation may be an inexorable result of complicated social and economic interactions, heightened resort to regulatory schemes to deal with environmental, health and safety, civil rights and welfare concerns, and other historical factors. However, the point has been reached where much of it is unnecessary, unproductive, and less than ideally suited for many of the conflicts involved. …

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Demise Of The Faa's Contract Of Employment Exception - Gilmer V. Interstate/Johnson Lane Corp., The, Michael G. Holcomb Jan 1992

Demise Of The Faa's Contract Of Employment Exception - Gilmer V. Interstate/Johnson Lane Corp., The, Michael G. Holcomb

Journal of Dispute Resolution

The recent trend in the federal courts is to expand the scope of the Federal Arbitration Act2 (FAA) to include statutory claims. 3 Gilmer v. Interstate/Johnson Lane Corp. illustrates this trend by compelling claims under the Age Discrimination in Employment Act of 19674 (ADEA) to arbitration pursuant to an arbitration clause in an employment contract' But does this trend neglect the rights of the individual employee vis-a-vis his employer and does it undermine the purpose of the "contract of employment" exception in the FAA?' This Note will examine the Gilmer case and its adherence to the current trend of expanding …

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Comsumer Dispute Resolution In Missouri: Missouri's Need For A True Consumer Ombudsman Jan 1992

Comsumer Dispute Resolution In Missouri: Missouri's Need For A True Consumer Ombudsman

Journal of Dispute Resolution

The purpose of this Article is to explore the practicality of such a "modest proposal." In determining whether Missouri really needs a consumer ombudsman, the first order of business must be to comprehend how consumer protection developed in Missouri. Once established, this framework sheds lights upon how complaints are processed and what remedies are available to Missouri consumers. Only after we know the extent of the typical consumer's helplessness can we start to appreciate the need for an alternative dispute resolution device in Missouri. Finally, this article concludes by proposing a viable solution to Missouri's consumer crisis-the Consumer Ombudsman.

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Continuing Power Of Cultural Tradition And Socialist Ideology: Cross-Cultural Negotiations Involving Chinese, Korean, And American Negotiators, The, Richard W. Downing Jan 1992

Continuing Power Of Cultural Tradition And Socialist Ideology: Cross-Cultural Negotiations Involving Chinese, Korean, And American Negotiators, The, Richard W. Downing

Journal of Dispute Resolution

This Comment approaches the issue of "cultural" factors in international negotiations by examining cross-cultural negotiation in which the People's Republic of China (PRC) and Korea (North and South) have dealt with Western nations. First, the cultural heritage of these nations appears important. Confucian ideals, for example, have had a tremendous impact on China for thousands of years,7 and they continue to influence modern societies. Second, more recent political tradition, namely the "ideology" of Marx, Lenin, and Mao, has also had an impact on the conduct and goals of conflict resolution today. As one scholar states, the "Chinese view of negotiation, …

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Settlement In Securities Fraud: Is Settlement Promoting Litigation - In Re Jiffy Lube Securities Litigation, Brian R. Hajicek Jan 1992

Settlement In Securities Fraud: Is Settlement Promoting Litigation - In Re Jiffy Lube Securities Litigation, Brian R. Hajicek

Journal of Dispute Resolution

In the complex securities fraud arena, partial pretrial settlement in cases involving multiple defendants would appear to reduce litigation in the dispute. However, conflict over the proper method of allocating responsibility for a damage award among settling and non-settling defendants can in fact increase litigation. Federal courts disagree as to which method most fairly and equitably apportions damage liability. In re Jiffy Lube Securities Litigation is the most recent case that touches upon the issue of damage allocation among settling and non-settling defendants. This Note will address competing policy considerations which drive courts to choose different allocative methods.

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