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Dispute Resolution and Arbitration Commons™

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University of Missouri School of Law

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Articles 901 - 930 of 1321

Full-Text Articles in Dispute Resolution and Arbitration

Silent Treatment: Removing The Class Action From The Plaintiff's Toolbox Without Ever Saying A Word - Bazzle V. Green Tree Fin. Corp., The, Andrea Lockridge Jan 2003

Silent Treatment: Removing The Class Action From The Plaintiff's Toolbox Without Ever Saying A Word - Bazzle V. Green Tree Fin. Corp., The, Andrea Lockridge

Journal of Dispute Resolution

A motion for class certification is often a pivotal point in a lawsuit, playing a determinative role throughout the course of the litigation. Plaintiffs use the class action as a tool to consolidate common claims against a defendant, bypassing the expensive process of bringing suit individually. 2 Defendants hotly contest certification of the class, seeking to avoid the ramifications of a judgment which reflects the cumulative losses of the multitude. This casenote addresses the effects of allowing an arbitration clause that is silent as to class-wide arbitration to preclude the plaintiffs' option to bring suit as a class, and the …

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Pre-Dispute Mandatory Arbitration Agreements And Title Vii: Promoting Efficiency While Protecting Employee Rights - Eeoc V. Luce, Forward, Hamilton & (And) Scripps, Steven S. Poindexter Jan 2003

Pre-Dispute Mandatory Arbitration Agreements And Title Vii: Promoting Efficiency While Protecting Employee Rights - Eeoc V. Luce, Forward, Hamilton & (And) Scripps, Steven S. Poindexter

Journal of Dispute Resolution

While the United States Supreme Court has repeatedly held that claims based on statutory rights may be vindicated by arbitration, the Court has yet to determine the validity of a pre-dispute mandatory arbitration agreement ("MAA") that covers Title VII of the Civil Rights Act of 1964 ("Title VII"). The United States Court of Appeals for the Ninth Circuit, contrary to every other district court of appeals to have considered the matter, has held that Title VII claims may not be subjected to arbitration under an MAA. The instant case once again addresses the question of whether the Ninth Circuit will …

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Uniform Mediation Act And Official Comments Jan 2003

Uniform Mediation Act And Official Comments

Journal of Dispute Resolution

The provisions in this Act reflect the intent of the Drafters to further these public policies. The Drafters intend for the Act to be applied and construed in a way to promote uniformity, as stated in Section, and also in such manner as to: promote candor of parties through confidentiality of the mediation process, subject only to the need for disclosure to accommodate specific and compelling social interests, encourage the policy of fostering prompt, economical, and amicable resolution of disputes in accordance with principles of integrity of the mediation process, active party involvement, and informed self-determination by the parties, and …

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Evaluation Of The Effect Of Court-Ordered Mediation And Proactive Case Management On The Pace Of Civil Tort Litigation In Lake County, Indiana, An, Jeffrey J. Dywan Jan 2003

Evaluation Of The Effect Of Court-Ordered Mediation And Proactive Case Management On The Pace Of Civil Tort Litigation In Lake County, Indiana, An, Jeffrey J. Dywan

Journal of Dispute Resolution

This author conducted a survey of mediators working with the courts in Lake County, Indiana in 1993-1994. At that time, thirty-four civil mediators were listed with the court administrator's office. The mediators were asked to track mediation cases for six months and to record the number of cases that had been referred to them for mediation, the number of cases actually mediated, the number settled, and the time to settlement after the referral to mediation

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Book Review: Bennett Explains Arbitration Fundamentals, Without The Legalese, Amy J. Schmitz Oct 2002

Book Review: Bennett Explains Arbitration Fundamentals, Without The Legalese, Amy J. Schmitz

Faculty Publications

At the outset of the book, Steven Bennett expresses "fervent hope that this book will be of use to lawyers, law students and business people interested in learning the fundamentals of arbitration law." The book therefore focuses on fundamental, or basic, arbitration concepts and norms. It does not purport to provide in-depth discussion and analysis of arbitration law, but instead serves as a shelf reference or primer that promises to achieve Bennett's goal.

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Oh, Ye Of Little (Good) Faith: Questions, Concerns And Commentary On Efforts To Regulate Participant Conduct In Mediations, Roger L. Carter Jul 2002

Oh, Ye Of Little (Good) Faith: Questions, Concerns And Commentary On Efforts To Regulate Participant Conduct In Mediations, Roger L. Carter

Journal of Dispute Resolution

There are many types of mediation. This article focuses exclusively on mediations within Professor Lande's "liti-mediation culture" - those dealing with disputes that are or may become the subject of litigation. I address both court-connected and private mediations as I believe that the potential for bad faith exists in both. Following this Introduction, in Part II, I examine definitions of "good faith" in mediation, I then review commentary and case law on good faith requirements. In Part III, I argue that certain objectively determinable behavior ought to be proscribed. By contrast, some good faith standards adopted by courts or advocated …

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Ashcroft Sends Signal Of Support For Adr In Justice Dept., Richard C. Reuben, Kevin R. Kemper Jul 2002

Ashcroft Sends Signal Of Support For Adr In Justice Dept., Richard C. Reuben, Kevin R. Kemper

Faculty Publications

In his first public comments on the issue, U.S. Attorney General John Ashcroft signaled his support for the Justice Department's longstanding commitment to the use of alternative dispute resolution options.

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Cookie Cutter Syndrome: Legal Reform Assistance Under Post-Communist Democratization Programs, The, Cynthia Alkon Jul 2002

Cookie Cutter Syndrome: Legal Reform Assistance Under Post-Communist Democratization Programs, The, Cynthia Alkon

Journal of Dispute Resolution

This article begins with a brief background of ADR, democratization programs, and legal reform programs. Section Three describes the Cookie Cutter Syndrome and examines the assumptions that shape legal reform efforts and that impact if and how ADR is used. Section Four examines how legal and judicial reform programs could look more broadly at using various forms of ADR to more effectively change the legal cultures in post-communist societies. The article concludes that legal reform assistance needs to further individualize programs for the conditions in specific countries, and that assistance programs should more fully integrate ADR. I do not recommend …

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Cyberspace And Domain Name Disputes: A Look At The Forums And Remedies Available To Trademark Holders In Cyberspace, J. Kyle Mccurry Jul 2002

Cyberspace And Domain Name Disputes: A Look At The Forums And Remedies Available To Trademark Holders In Cyberspace, J. Kyle Mccurry

Journal of Dispute Resolution

The purpose of this Comment is to define the scope and advantages of using both the UDRP and the ACPA. In the same regard, this Comment looks at the limitations of the UDRP and the ACPA and the problems which have arisen in the arbitrations and cases that have come under both.

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To Sever Or To Destroy: The Eighth Circuit Allows Invalid Provisions To Be Served From Otherwise Enforceable Arbitration Agreements, Michael K. Daming Jul 2002

To Sever Or To Destroy: The Eighth Circuit Allows Invalid Provisions To Be Served From Otherwise Enforceable Arbitration Agreements, Michael K. Daming

Journal of Dispute Resolution

The Federal Arbitration Act ("FAA") allows for arbitration to be a medium by which parties may settle disputes more expeditiously than litigation. The FAA declares specifically that written agreements to resolve disputes through arbitration are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.,' 2

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Does An Employee's Binding Arbitration Agreement Limit The Enforcement Of Powers Of The Eeoc: The Supreme Court Rules That It Does Not - Equal Employment Opportunity Comm. V. Waffle House, Adam W. Graves Jul 2002

Does An Employee's Binding Arbitration Agreement Limit The Enforcement Of Powers Of The Eeoc: The Supreme Court Rules That It Does Not - Equal Employment Opportunity Comm. V. Waffle House, Adam W. Graves

Journal of Dispute Resolution

The friction between the FAA and Title VII arises when an injured employee has signed an arbitration agreement with an employer and subsequently experiences discrimination in some fashion in the workplace. The FAA would require that the employee take the action to arbitration, whereas if the EEOC found probable cause, it could file in its own name and avoid the arbitration agreement. So, should the EEOC be allowed to recover on the behalf of an employee who has signed an arbitration agreement? A circuit split on this issue prompted the Supreme Court to grant certiorari in EEOC v. Waffle House."

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Retaining Bargained-For Finality And Judicial Review In Labor Arbitration Decisions: Dual Interests Preserved In Major League Baseball Players Association V. Garvey - Major League Baseball Players Assn. V. Garvey, Emily J. Huitsing Jul 2002

Retaining Bargained-For Finality And Judicial Review In Labor Arbitration Decisions: Dual Interests Preserved In Major League Baseball Players Association V. Garvey - Major League Baseball Players Assn. V. Garvey, Emily J. Huitsing

Journal of Dispute Resolution

Arbitration has for years been the principal means of labor dispute resolution. As a part of labor contracts, workers agree to arbitrate disputes with their employers, bargaining for this forum as their choice method of dispute resolution. Occasionally, however, the decision of an arbitrator strays far from what a court believes the outcome of the dispute between employer and employee should be. In these cases, a conflict arises between the finality and stability of the bargained-for arbitrator's decision and the need for judicial upset of clearly errant arbitral decisions

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Uniform Arbitration Act Update - Foreword, The, Timoth J. Heinsz Jul 2002

Uniform Arbitration Act Update - Foreword, The, Timoth J. Heinsz

Journal of Dispute Resolution

The standard for review of arbitrator awards remains a hotly litigated topic. Pelc v. Petoskey, Hough v. State Farm Insurance, and Hart v. McChristian are examples of the limited review even when arbitral awards are challenged for errors of law or of fact. The student project covers these and many other cases decided under the UAA. All attorneys handling cases under the UAA, scholars writing on issues relating to the Act, and judges determining cases involving the statute should consider this comprehensive and high quality case analysis.

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Culture Change - A Tale Of Two Cities And Mandatory Court-Connected Mediation, Julie Macfarlane Jul 2002

Culture Change - A Tale Of Two Cities And Mandatory Court-Connected Mediation, Julie Macfarlane

Journal of Dispute Resolution

This is the first study to ask Canadian lawyers to describe in depth what they really think about mediation and the impact it has had on their litigation practices.'3 Their responses are rich, reflective and diverse. Many different understandings of mediation goals within litigation are present in the legal profession itself, and this lack of consensus is reflected in the results of this study. Before explaining the methodology of the study, it is useful to first set out its theoretical premises and to relate these to previous research on the legal profession which offer important insights relevant to the development …

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Recent Developments: The Uniform Arbitration Act, Jamie Hansen, Daniel L. Massey, Dustin C. Read, Natalie A. Voris Jul 2002

Recent Developments: The Uniform Arbitration Act, Jamie Hansen, Daniel L. Massey, Dustin C. Read, Natalie A. Voris

Journal of Dispute Resolution

Since 1983, this annual Article 2 has been prepared to provide a survey of recent developments in the case law interpreting and applying the various state versions of the Uniform Arbitration Act3. The purpose is to promote uniformity in the interpretation of the U.A.A. by developing and explaining the underlying principles and rationales courts have applied in recent cases.4

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Ending A Mud Bowl: Defining Arbitration’S Finality Through Functional Analysis, Amy J. Schmitz Jan 2002

Ending A Mud Bowl: Defining Arbitration’S Finality Through Functional Analysis, Amy J. Schmitz

Faculty Publications

The Federal Arbitration Act (FAA) and Uniform Arbitration Act (UAA), on the state level, prescribe a nearly identical procedural and remedial scheme for promoting independent, self-contained arbitration. To that end, both acts curtail courts' review of arbitration awards, by limiting the grounds for vacating awards to those aimed at ensuring only basic procedural fairness. Nonetheless, seemingly "pro-arbitration" impulses have driven some courts' eager application, or misapplication, of the FAA/UAA statutory scheme to enforce dispute resolution agreements that reject the acts' limited review prescriptions. This Article tackles this arguable abuse of the FAA/UAA scheme, by proposing a functional analysis for defining …

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Using Dispute System Design Methods To Promote Good-Faith Participation In Court-Connected Mediation Programs, John M. Lande Jan 2002

Using Dispute System Design Methods To Promote Good-Faith Participation In Court-Connected Mediation Programs, John M. Lande

Faculty Publications

This article discusses what can be done to promote productive behavior in mediation and reduce bad conduct. Although most participants do not abuse the mediation process, some people use mediation to drag out litigation, gain leverage for later negotiations, and generally wear down the opposition. Rules requiring good-faith participation are likely to be ineffective and possibly counterproductive. This article proposes using dispute system design principles to develop policies satisfying the interests of stakeholders in court-connected mediation programs. After outlining important interests of key stakeholder groups, including litigants, attorneys, courts, and mediators, the Article describes specific policies that could satisfy their …

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Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler Jan 2002

Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler

Journal of Dispute Resolution

Across the country, people who file lawsuits are being diverted from adjudication to mediation. Whereas once mediation was seen as the preferred means of resolving family disputes (especially those involving child custody), now it is mandated for a broad range of civil disputes. Whereas once citizens were called upon to volunteer as mediators in community justice centers outside the courts, now mediation is a line of business for lawyers whose customers are sent to them by the courts. Whereas once dispute resolution theorists called on courts to provide a variety of procedural choices for civil disputants, now courts order litigants …

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Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh Jan 2002

Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh

Journal of Dispute Resolution

Such a uniform commitment to procedural justice might seem natural for the courts. However, the procedural due process jurisprudence indicates that the courts' appreciation of procedural justice is unlikely to translate easily to processes in which the disputants, not the courts, are deemed to exercise control over outcomes. Given the current state of procedural due process jurisprudence, courts may lack both the desire and the ability to demand procedural justice in third party processes that are classified as "consensual." Ironically then, disputants' decision control, which is meaningful to mediation advocates and the courts but a rather hollow promise for disputants, …

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Arbitration Agreements In Labor And Employment Contracts: Well Within The Reach Of The Faa - Circuit City Stores, Inc. V. Adams, Lisa M. Eaton Jan 2002

Arbitration Agreements In Labor And Employment Contracts: Well Within The Reach Of The Faa - Circuit City Stores, Inc. V. Adams, Lisa M. Eaton

Journal of Dispute Resolution

Despite a series of decisions where the Supreme Court has upheld the use of arbitration in the employment context, the Court has never clearly stated that arbitration agreements contained in employment contracts fall under the Federal Arbitration Act (FAA). This omission has led to a split in the Circuits as to the scope of the FAA coverage ad exemption provisions. The controversy centers on whether the FAA covers all employment contracts except those of employees who transport people or goods in interstate commerce or whether the FAA exempts all employment contracts.

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Table Of Contents - Issue 2 Jan 2002

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

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Procedural Justice Research And The Paucity Of Trials, Chris Guthrie Jan 2002

Procedural Justice Research And The Paucity Of Trials, Chris Guthrie

Journal of Dispute Resolution

Likewise, I do not mean to criticize Hensler's contribution to this volume. Although she is a prominent procedural justice researcher herself, she is certainly not responsible for the inattention given to the questions I have identified, and her measured conclusions about what might be inferred from the existing research are certainly appropriate. Indeed, I take Hensler' s broader point to be that courts should not mandate mediation simply because they believe as a matter of faith that mediation is a "better" process than others." Rather, courts should base their decisions, to the extent possible, on empirical evidence about the relative …

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Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler Jan 2002

Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler

Journal of Dispute Resolution

In this article, we first use existing research evidence to contextualize more clearly the place of civil case mediation in the litigation process. When we understand civil mediation as part of adversarial litigation - rather than as distinct from it - we see the importance of comparing mediation and unassisted negotiation. Next, we discuss research and commentary on the barriers to negotiation and the ways in which mediation might help overcome them. This work provides a more pragmatic and empirically grounded perspective on the potential value of mediation than does "mediation ideology" and suggests a wide range of "hypotheses" to …

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Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips Jan 2002

Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips

Journal of Dispute Resolution

This experience stands in stark contrast to the thesis of Professor Deborah Hensler in her article, Suppose It's Not True: Challenging Mediation Ideology. Therein, Professor Hensler attempts to link social psychological research that she interprets as showing dissatisfaction with the use of mediation compared to adjudication, which, in turn, leads her to conclude that clients should prefer counsel who ordinarily can resolve cases successfully without the help of mediation.7 The fallacy of Professor Hensler's argument is evident in several respects. For one, she relies far too heavily on her own intuition and previous empirical research of marginal relevance, and on …

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Mediating Preferences: Litigant Preferences For Process And Judicial Preferences For Settlement, Judith Resnik Jan 2002

Mediating Preferences: Litigant Preferences For Process And Judicial Preferences For Settlement, Judith Resnik

Journal of Dispute Resolution

In the 1980s, as a consultant to RAND's Institute for Civil Justice, I joined Deborah Hensler, Allan Lind, Robert MacCoun, William Felstiner, Tom Tyler, and Patricia Ebener in seeking to learn how litigants viewed their experiences with courtbased processes. We surveyed litigants whose cases had been resolved through trials, court-annexed arbitrations, judge-run settlement conferences, and bi-lateral negotiations between lawyers.' We found that litigants cared about process: they reported less satisfaction with processes in which they took no part and more satisfaction with processes in which they could participate. Contrary to some lore that litigants were alienated by trial-like procedures, the …

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Table Of Contents - Issue 1 Jan 2002

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

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Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, The, Clark Freshman, Adele Hayes, Greg Feldman Jan 2002

Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, The, Clark Freshman, Adele Hayes, Greg Feldman

Journal of Dispute Resolution

This article explores two related questions: First, does mood7 shape how well lawyers succeed at negotiation?" Second, can lawyers succeed better at negotiation by understanding and managing the role of mood? We begin by exploring what scientific evidence we currently have about how mild changes in mood are associated with significant differences in success at negotiation. Ultimately, we argue that existing scientific evidence shows mood plays a far more complicated role than negotiators and negotiation scholars usually imagine, but that further research needs to address more carefully exactly how mood works and how it affects lawyers and legal negotiation. We …

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Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham Jan 2002

Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham

Journal of Dispute Resolution

In this commentary, I suggest that we can get a broader picture of the research agenda to address these policy issues by refining our notions of self-determination. In addition to self-determination over process and outcome in the individual case, we need to start examining who has control over design of the dispute system as a whole. First, this commentary addresses the difference between self-determination at the case level and self-determination in dispute system design and how these two separate dimensions of self-determination can help us distinguish among different uses of mediation and arbitration. Second, using this framework, I attempt to …

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Title Page Jan 2002

Title Page

Journal of Dispute Resolution

No abstract provided.

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Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey Jan 2002

Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey

Journal of Dispute Resolution

The Emperor's New Clothes is a very modem tale about carving out market niches, about generating and feeding unreasonable desires, and about the power of conformity within emergent occupations and powerful professions.

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