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Articles 1231 - 1260 of 1304
Full-Text Articles in Dispute Resolution and Arbitration
Sour Lemon: Federal Preemption Of Lemon Law Regulations Of Informal Dispute Settlement Mechanisms - Motor Vehicle Manufacturers Association V. Abrams, A, David P. Hiatt
Journal of Dispute Resolution
Federal preemption of state "lemon laws" is a relatively recent development in the battle between federal and state law for control of regulation in the consumer protection area. Although preemption is the key issue upon which Motor Vehicle Manufacturers Association v. Abrams 2 was decided, the outcome affects the continued viability of manufacturers to establish workable settlement mechanisms to handle the resolution of disputes with consumers. The court, in holding the New York "Lemon Law"3 preempted by the Magnuson-Moss Warranty Act4 , determined that the federal policy of encouraging manufacturers to voluntarily establish dispute resolution mechanisms outweighed New York's efforts …
Setting The Standard For Overturning An Arbitrator's Award That Violates Public Policy - United Paperworkers International V. Misco, Inc., Brian Darling
Journal of Dispute Resolution
For over forty years, the United States Supreme Court has recognized the principle that great deference is to be given by the courts to the decisions of arbitrators.2 The Court has applied this same deferential standard in reviewing arbitration awards which are challenged on the basis of being in violation of public policy.3 The well settled rule is that a court must enforce the award unless it violates a well defined, explicit public policy that is ascertained "by reference to the laws and legal precedents and not from general considerations of supposed public interest."4 Recently, the Supreme Court reaffirmed this …
Recent Developments: The Uniform Arbitration Act
Recent Developments: The Uniform Arbitration Act
Journal of Dispute Resolution
The U.A.A. provides that "[a] written agreement to submit any existing controversy to arbitration . . . is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. "5 Courts and legislatures alike routinely state the policies promoting arbitration. Because most states favor the settlement of disputes through arbitration, there is a tendency for courts to find a valid arbitration agreement
Negotiated Investment Strategy, Carl M. Moore
Negotiated Investment Strategy, Carl M. Moore
Journal of Dispute Resolution
The Negotiated Investment Strategy (NIS) was created by the urban affairs program at the Kettering Foundation as a vehicle for cities to shape their own future. The creators of the NIS, in the late 1970's, observed that while most major cities needed help, such help was hard to come by. Three reasons account for this. First, the assistance that was available to cities, particularly from the federal government, was often in the form of categorical grants, and it was difficult to tailor the assistance to the particular needs of the city. Second, there was a great deal of duplication of …
Malpractice Review Panels: Efficiency Or Judicial Death - Colton V. Riccobono, Janis L. Prewitt
Malpractice Review Panels: Efficiency Or Judicial Death - Colton V. Riccobono, Janis L. Prewitt
Journal of Dispute Resolution
The constitutionality of state statutes requiring review of medical malpractice claims by a malpractice panel as a condition precedent to trial has been the source of much litigation.' These acts (hereinafter "panel acts") were motivated by the so-called medical malpractice "crisis."' In the mid-1970's, health care providers and other interested citizens became concerned that many malpractice claims were frivolous and requested unrealistic damages.4 State legislators responded by trying to find a means to limit malpractice filings to those cases which might have merit,5 thereby reducing the economic consequences to health care seekers.' This note discusses the constitutionality of these statutes …
Mediation Of Victim Offender Conflict , Mark S. Umbreit
Mediation Of Victim Offender Conflict , Mark S. Umbreit
Journal of Dispute Resolution
This article will attempt to not only describe the process of applying mediation techniques in victim offender conflict, but to also examine the extent to which it may be similar to other applications of mediation. Specific areas to be addressed in this article include: an overview of the victim offender mediation process; client satisfaction with a victim offender mediation program in Minnesota; the meaning of fairness to victims in mediation; and a comparison with the traditional definition of mediation.
Intersections Of Business And Legal Dispute Resolution: Decision Analytic Modeling Of Litigation Investment Decisions, George J. Siedel
Intersections Of Business And Legal Dispute Resolution: Decision Analytic Modeling Of Litigation Investment Decisions, George J. Siedel
Journal of Dispute Resolution
The relationship between law school and business school approaches to dispute resolution has not, to date, been clearly articulated and discussed. This is unfortunate because increased awareness of the differences in perspective would enrich dispute resolution theory and practice. The purpose of this paper is twofold. First, a dispute resolution taxonomy will be used to provide an overview of the linkage between law school-type ADR concepts and the business school interest in power theory and conflict intervention. Second, to illustrate the benefits that can arise from interaction between legal and business research, a specific technique--the use of decision tree analysis …
Finding A Common Ground For Canada And The United States To Resolve Acid Rain Disputes, Susan C. Cagann
Finding A Common Ground For Canada And The United States To Resolve Acid Rain Disputes, Susan C. Cagann
Journal of Dispute Resolution
On a clear day in Columbia, Missouri, a pedestrian may wonder why he suddenly senses an acrid taste in his mouth, or why his eyes begin to tear or sting. A car owner may notice paint coming off her car as she washes spots off its surface. The local effects of acid deposition on Missourians are relatively minor at the moment. Dr. Gray Henderson, a University of Missouri Professor in Forestry, Fish and Wildlife, attributes this to the geological composition of the state; limestone, a natural buffer to the effects of acid deposition, underlies vast portions of Missouri.' As a …
To Arbitrate Or Not To Arbitrate - The Protection Of Rights Under The Age Discrimination In Employment Act - Steck V. Smith Barney, Harris Upham & (And) Co., Thomas D. Rodenberg
To Arbitrate Or Not To Arbitrate - The Protection Of Rights Under The Age Discrimination In Employment Act - Steck V. Smith Barney, Harris Upham & (And) Co., Thomas D. Rodenberg
Journal of Dispute Resolution
The attempt to compel arbitration in a dispute involving federal statutory rights given judicial protection brings into tension two firmly established national policies. On one side, there is the national policy as set forth in the Federal Arbitration Act' (hereinafter Arbitration Act) which strongly favors arbitration agreements.' On the other side, there is the national policy of providing broad access to the courts as the means of enforcing certain statutorily granted rights.' The tension is created when an individual bound by an arbitration agreement raises a claim based on a federal statutory right which is judicially protected. This is precisely …
Effective Lawyering In Judicially Hosted Settlement Conferences, Wayne D. Brazil
Effective Lawyering In Judicially Hosted Settlement Conferences, Wayne D. Brazil
Journal of Dispute Resolution
The purpose of this article is to describe in detail the most effective approaches and techniques that I have seen lawyers use in settlement conferences. Having hosted hundreds of negotiations, I have seen many different lawyering styles. In the pages that follow, I share with interested litigators my ideas (unconfirmed by scientific tests) about what works in the settlement dynamic and what does not. I write informally; the "you" that I address so often are the litigators I hope to reach.
Quality Of Settlements, The, Marc Galanter
Quality Of Settlements, The, Marc Galanter
Journal of Dispute Resolution
When I was a law student, some 30 years ago, I don't recall hearing much about settlement. I am sure that my teachers knew there were a lot of settlements, but they were not worthy of much attention. They were part of the realm of practical nuts and bolts detail that lay outside learning about the law; law school was about cases that were adjudicated.
Judge's Role In Settlement: Opinions From Missouri Judges And Attorneys, The, James A. Wall Jr., Dale E. Rude
Judge's Role In Settlement: Opinions From Missouri Judges And Attorneys, The, James A. Wall Jr., Dale E. Rude
Journal of Dispute Resolution
This study investigates judges' involvement in settlement, and the opinions that Missouri judges and attorneys hold toward that involvement. In a survey of 1,100 judges and 1,550 attorneys, we found that Missouri judges differ significantly from Missouri attorneys. Specifically, Missouri judges prefer less judicial involvement in settlement and they, in the cases sent to them, were less aggressive in facilitating settlement. Finally, judges and attorneys from Missouri's metropolitan areas were found to favor stronger involvement in settlement than were their counterparts from the non-metropolitan areas.
Setback For The Public Policy Of Encouraging Settlements - Bank Of America National Trust & (And) Savings Association V. Hotel Rittenhouse Associates, A, Cynthia A. Deiters
Setback For The Public Policy Of Encouraging Settlements - Bank Of America National Trust & (And) Savings Association V. Hotel Rittenhouse Associates, A, Cynthia A. Deiters
Journal of Dispute Resolution
The advent of the "litigation explosion" has caused the legal community to adopt an alternative dispute-resolving policy of encouraging settlement negotiations. The Federal Rules of Evidence reflect this policy by expressly making evidence of settlement negotiations inadmissible at trial in an attempt to encourage frank discussion during settlement negotiations., In Bank of America National Trust & Savings Association v. Hotel Rittenhouse Associates,3 a majority decision by the Court of Appeals for the Third Circuit dealt this policy a crippling blow. The court held that the long-standing common law right of access to judicial records overcame this policy of encouraging settlements.' …
Constitutionality Of Mandatory Farmer-Lender Mediation: The Minnesota Plan - Laue V. Production Credit Association, The, Jeffrey L. Dawson
Constitutionality Of Mandatory Farmer-Lender Mediation: The Minnesota Plan - Laue V. Production Credit Association, The, Jeffrey L. Dawson
Journal of Dispute Resolution
In March of 1986, the Minnesota legislature adopted an omnibus farm bill. A principal part of this bill was the "Farmer-Lender Mediation Act" s (hereinafter Act). The Act requires mandatory mediation notice in the case of any debt foreclosure proceedings brought against farm debtors.8 The Act was scrutinized by the Minnesota Court of Appeals in a case of first impression in Laue v. Production Credit Association.
Book Review , Nanette K. Laughrey
Book Review , Nanette K. Laughrey
Journal of Dispute Resolution
As the practice of divorce mediation continues to grow, more and more professionals need training and literature to develop skills and perspective. A welcome addition to their libraries will be Divorce Mediation: Theory and Practice, edited by Jay Folberg and Ann Milne. In the preface, the editors explain that the purpose of the book is to examine divorce mediation from an interdisciplinary perspective. They achieve this goal with a series of articles written by professionals from such diverse fields as anthropology, sociology, psychology, law, and social work. Each article examines a different aspect of divorce mediation and provides the special …
Recent Developments: The Uniform Arbitration Act
Recent Developments: The Uniform Arbitration Act
Journal of Dispute Resolution
The National Conference of Commissioners on Uniform State Laws in 1955 proposed the Uniform Arbitration Act [hereinafter U.A.A.] A large number of states have adopted arbitration statutes based upon the U.A.A. 8 The purpose of this survey is to explain the principles underlying recent court decisions interpreting the U.A.A. and provide a framework for analyzing future cases.'
Peacemakers: Biblical Conflict Resolution And Reconciliation As A Model Alternative To Litigation, The, Judith M. Keegan
Peacemakers: Biblical Conflict Resolution And Reconciliation As A Model Alternative To Litigation, The, Judith M. Keegan
Journal of Dispute Resolution
The purpose of this article is to examine Biblical conflict resolution as a model or method for dispute resolution: (1) to determine its development, purpose and goals, theoretical basis, and procedure or process; (2) to evaluate Biblical conflict resolution as an alternative to the legal system; and (3) to establish the contemporary value and validity of Biblical conflict resolution.
Recent Developments - The Uniform Arbitration Act
Recent Developments - The Uniform Arbitration Act
Journal of Dispute Resolution
The Uniform Arbitration Act [hereinafter UAA] was proposed by the National Conference of Commissioners on Uniform State Laws in 1955.2 At present, well over half of the states have enacted arbitration statutes based upon the UAA.3 The purpose of this survey is to explain the principles underlying recent court decisions interpreting the UAA, and provide a framework for analyzing future cases.4
Camping Is On The Rise: A Survey Of Judicially-Implemented Pre-Argument Conference Programs In The United States Circuit Courts Of Appeal, Teresa A. Generous, Katherine D. Knocke
Camping Is On The Rise: A Survey Of Judicially-Implemented Pre-Argument Conference Programs In The United States Circuit Courts Of Appeal, Teresa A. Generous, Katherine D. Knocke
Journal of Dispute Resolution
In April of 1974, Chief Judge Irving R. Kaufman initiated a Civil Appeals Management Plan (hereinafter "CAMP") in the Second Circuit. Over the next thirteen years, pre-argument conference programs were implemented in several other circuits. To date, there are currently five circuits with such a program in effect. These programs possess some common characteristics as well as some distinguishing features. The purpose of this article is to present an overview of the use of the pre-argument conference program in federal appellate courts
Moving Negotiations From Idle To Forward: The Commitment To Flexibility, Peter Contuzzi
Moving Negotiations From Idle To Forward: The Commitment To Flexibility, Peter Contuzzi
Journal of Dispute Resolution
The beginning of any mediation is obviously a good time to clarify procedures and roles. But it also offers the mediator a special opportunity to elicit a commitment from the negotiating parties which can prove quite useful later on: a commitment to flexibility. This article examines some advantages of seeking this commitment from the parties at the outset of negotiations and contrasts the commitment to flexibility with the more traditional one to negotiate in good faith.
Why We Teach Law Students To Mediate, Kathleen W. Marcel, Patrick Wiseman
Why We Teach Law Students To Mediate, Kathleen W. Marcel, Patrick Wiseman
Journal of Dispute Resolution
It has become fashionable, if it was not always, to find fault with the legal system and those who operate it. For people seeking alternatives to, or substitutes for, the traditional system of justice, mediation and other nonlitigation processes are appealing.' As a general proposition, we are neither advocates for nor opponents of mediation as a process for handling and resolving disputes. Our experiences in observing mediations and in mediating have led us to conclude that there are appropriate and inappropriate uses of mediation as there are appropriate and inappropriate uses of other processes including litigation. Indeed, one of our …
Deciding Arbitrability: At&(And)T Technologies, Inc. V. Communications Workers Of America, Sondra B. Morgan
Deciding Arbitrability: At&(And)T Technologies, Inc. V. Communications Workers Of America, Sondra B. Morgan
Journal of Dispute Resolution
Who decides arbitrability-the courts or the arbitrator? The United States Supreme Court recently addressed this issue in the case of AT&T Technologies, Inc. v. Communications Workers of America.2 The Court in AT&T reaffirmed its earlier holding from United Steelworkers v. Warrior & Gulf Navigation Co.,3 where it held that arbitrability is a matter for judicial determination. 4
Trial By Ambush Or Avalanche - The Discovery Debacle, Walter E. Oberer
Trial By Ambush Or Avalanche - The Discovery Debacle, Walter E. Oberer
Journal of Dispute Resolution
I fell in love with the law in 1946, during my first week in law school. It has been a torrid affair ever since. "Ever since" has entailed seven years of law practice followed by thirty-two years of law professing, eight of these as a dean. Against this backdrop of fealty, I had occasion recently to encounter the legal process as it presently, honest-to-God, exists. This encounter was not as a lawyer, not as a law professor, not as a consultant, not, that is, as a professional impersonally involved, but as the father of the mother in a child-custody case. …
Mediating With A Powerful/Competitive Couple: Michael And Debbie, John M. Haynes
Mediating With A Powerful/Competitive Couple: Michael And Debbie, John M. Haynes
Journal of Dispute Resolution
The behavior of the mediator is situational. That is, s/he not only uses specific strategies that are appropriate to each situation during the mediation, s/he also behaves differently depending on the overall dynamics of the parties. If both parties are equally powerful and competitive, the mediator tends to be more controlling and engage in direct control activities that are not explained to the parties. If the parties appear to be fragile and/or depressed, the mediator will be less controlling, seek to gain their permission for strategies to empower them, and move more slowly through the process.
Grievance Mediation Of Contracual Disputes In Public Education, Sylvia Skratek
Grievance Mediation Of Contracual Disputes In Public Education, Sylvia Skratek
Journal of Dispute Resolution
This summary provides an overview of the findings of the study. There are, of course, many findings in the body of the report which are not summarized here, and interested readers are encouraged to examine the full report for these details.