Dispute Resolution and Arbitration Commons^™

Anchoring, Information, Expertise, And Negotiation: New Insights From Meta-Analysis, Chris Guthrie, Dan Orr

Vanderbilt Law School Faculty Publications

In this article, we conduct a meta-analysis of studies of simulated negotiations to explore the impact of an initial "anchor," typically an opening demand or offer, on negotiation outcomes. We find that anchoring has a significant impact on the deals that negotiators reach. We also explore whether negotiator experience and the information environment mitigate the influence of anchoring. We conclude by offering prescriptive advice, both "offensive" and "defensive," to negotiators.

Investor-State Dispute Settlement Between Developed Countries, William S. Dodge

Vanderbilt Journal of Transnational Law

Free trade agreements between developed countries now frequently contain provisions on investor protection, but the resolution of disputes remains problematic. Chapter 11 of the North American Free Trade Agreement (NAFTA) allows investors to bring direct claims against a host state before an international tribunal without exhausting domestic remedies. This has resulted in a number of claims against the United States by Canadian investors and against Canada by U.S.investors. Chapter 11 of the Australia-United States Free Trade Agreement (AUSFTA) does not permit direct claims, relying instead on a state-to-state dispute resolution mechanism.

This Article reviews the evolution of investment-dispute resolution from …

Demand For A Jury Trial And The Selection Of Cases For Trial, Joni Hersch

Vanderbilt Law School Faculty Publications

This paper uses a unique data set to examine how parties in civil litigation choose whether to demand a jury trial or to waive this right and whether trial forum influences the probability of trial versus settlement. Plaintiffs are more likely to demand trial by jury when juries are relativety more favorable to plaintiffs in similar cases and jury trials are relatively less costly than bench trials. Cases in which jury trials are demanded are 5.5 percentage points more ikely to settle without a trial than cases in which jury trials are waived. This differential settlement rate by potential trial …

The Impact Of The Impact Bias On Negotiation, Chris Guthrie, David Sally

Vanderbilt Law School Faculty Publications

The theory of principled or problem-solving negotiation assumes that negotiators are able to identify their interests (or what they really want) in a negotiation. Recent research on effective forecasting calls this assumption into question. In this paper, which will appear in a forthcoming symposium issue of the Marquette Law Review devoted to the Emerging Interdisciplinary Canon of Negotiation, we explore the impact of this research on negotiation and lawyering.

Understanding Settlement In Damages (And Beyond), Chris Guthrie

Vanderbilt Law School Faculty Publications

For all of the ways in which the Sabia case is extraordinary, its outcome--settlement--is decidedly ordinary. In most civil litigation, as in the Sabias' litigation against Dr. Maryellen Humes and Norwalk Hospital, "[s]ettlement is where the action is." Roughly two-thirds of all cases settle (and most of the rest are resolved through motions). Why do most cases settle? Given the costs, delay, and unpleasantness of the litigation process, why do any cases go to trial? To address these questions--that is, to explain why most cases settle as well as why some cases "fail" to settle and result in trial--legal academics …

Principles Of Influence In Negotiation, Chris Guthrie

Vanderbilt Law School Faculty Publications

Negotiation is often viewed as an alternative to adjudication. In fact, however, negotiation and adjudication may be more alike than different because each is a process of persuasion. Both in the courtroom and at the bargaining table, the lawyer's primary task is to persuade someone other than her own client that her client's positions, interests, and perspectives should be honored. Despite this apparent similarity, persuasion operates differently in adjudication and negotiation because the lawyer seeks to influence a different party in each process. In adjudication, the lawyer seeks primarily to persuade the judge or jury hearing the case. The judge …

Insights From Cognitive Psychology, Chris Guthrie

Vanderbilt Law School Faculty Publications

My goal in this paper is to explore cognitive psychology's place in the dispute resolution field. To do so, I first look back and then look forward. Looking back, I identify the five insights from cognitive psychology that have had the biggest impact on my own dispute resolution teaching and scholarship. Looking forward, I identify my five hopes for the future of cognitive psychology in the dispute resolution field.

Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Chris Guthrie

Vanderbilt Law School Faculty Publications

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …

Panacea Or Pandora's Box?: The Costs Of Options In Negotiation, Chris Guthrie

Vanderbilt Law School Faculty Publications

The prescriptive literature on negotiation advises negotiators to generate, evaluate, and select from multiple options at the bargaining table. At first glance, this "option-generation prescription" seems unassailable. After all, negotiators can include in their agreements only those options that they actually consider, so the more options they consider, the more likely it seems they will reach an agreement that maximizes their preferences. Upon closer inspection, however, the option-generation prescription begins to appear vulnerable, for it rests on a questionable premise about negotiator behavior. The option-generation prescription assumes that negotiators will make rational decisions when selecting from multiple options; regardless of …

Globalization Of Arbitral Procedure, Gabrielle Kaufmann-Kohler

Vanderbilt Journal of Transnational Law

Imagine attending hearings in three different arbitrations: one in Geneva, one in New York, and one in Hong Kong. All three hearings will likely involve the same hotel conference rooms, the same court reporters, the same language--English, the same types of oral submissions, witness examinations, expert presentations, and procedural arguments, and often even the same people. Does this mean that arbitral procedure is globalized '--that an arbitration is conducted in a uniform manner wherever it takes place, whatever national law governs? Does national law govern at all? This paper will discuss these issues.

Renegotiation And Adaptation Of International Investment Contracts, Klaus P. Berger

Vanderbilt Journal of Transnational Law

In modern-day international investment practice, especially in connection with the exploitation of natural resources, Production Sharing Agreements have come to take over the role of the classic concession agreement. Like their predecessors, these contracts are particularly vulnerable to disturbances in the commercial balance agreed to, or assumed by, the parties at the conclusion of the contract. This vulnerability has three primary causes.

First, these are classic examples of long term contracts. In the petroleum industry, the commitment of significant capital for exploration, particularly in development, and the assumption of considerable risk, particularly in exploration, require contracts covering up to and …

The Exercise Of Contract Freedom In The Making Of Arbitration Agreements, Thomas E. Carbonneau

Vanderbilt Journal of Transnational Law

The privatization and contractualization of arbitration, while they empower parties and unburden public institutions, should not eliminate completely the basis for the public regulation of the process. The string of "one-off' arbitrations, gathered together, has consequences upon the public interest in the orderly administration of adjudicative relations in both domestic and international law. The use of arbitration does have a bearing upon the substantive content of legal rights. Judicial vigilance should not only ward off the flagrant abuses of process and procedure in arbitration, but it should also establish an "interests of justice" limitation upon the operation of the process …

The Problem With Arbitration Agreements, Stephen J. Choi

Vanderbilt Journal of Transnational Law

Arbitration procedures today have become highly standardized. Institutions such as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the American Arbitration Association Center for International Dispute Resolution (AAA) each have detailed provisions for administering arbitration proceedings (often involving parties of different nationalities). Parties entering into arbitration can expect to have limited discovery, a hearing, and the ability to bring attorneys to the proceedings. While typically providing less process than formal court proceedings, the standardized nature of arbitration can lead parties to view arbitration much like court proceedings--a fixed, pre-determined process to settle disputes. Thomas …

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Vanderbilt Journal of Transnational Law

Arbitration by its nature is polycentric: one might more accurately speak of arbitrations in the plural. A wide variety of disputes are included in one category, implicating differences related to the sophistication of the parties, the character of the disputes, and the public interests at stake. The current legal framework for arbitration conducted in the United States attempts to squeeze all types of arbitration into the Procrustean bed of a single set of standards for judicial review.

The United States should seriously consider eliminating judicial discretion to review the substantive merits of awards in international cases. The domestically nourished doctrine …

Punitive Damages: How Jurors Fail To Promote Efficiency, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Evidence of corporate risk-cost balancing often leads to inefficient punitive damages awards, suggesting that jurors fail to base their decision making on principles of economic efficiency. In this Article, Professor Viscusi presents the results of two experiments regarding jury behavior and punitive damages. In the first experiment, Professor Viscusi found that mock jurors punish companies for balancing risk against cost, although award levels vary depending on how the economic analysis is presented at trial. The results of the second experiment suggested that mock jurors are unwilling or unable to follow a set of model jury instructions designed to generate efficient …

Procedural Justice Research And The Paucity Of Trials, Chris Guthrie

Vanderbilt Law School Faculty Publications

Professor Deborah Hensler tells an important cautionary tale about mandatory mediation in her thoughtful and provocative contribution to this volume. In Suppose It's Not True: Challenging Mediation Ideology, Hensler observes that courts are now requiring litigants to mediate civil cases "on the grounds that litigants prefer [mediation] to traditional litigation," yet there is "a long line of social psychological research on individuals' evaluations of different dispute resolution procedures" consistent with the "idea that litigants might prefer adversarial litigation and adjudication" to mediation.' Hensler acknowledges that "some experimental research has found that subjects prefer mediation," but she argues that "the empirical …

The End Of The Affair? Anti-Dueling Laws And Social Norms In Antebellum America, C.A. Harwell Wells

Vanderbilt Law Review

Jonathan Cilley and William Graves fought their duel in the early afternoon of February 23, 1838. The two faced off near the Anacostia River bridge leading out of Washington, D.C., having agreed in advance to duel with rifles at a distance of eighty paces. Shortly before three o'clock, they stood opposite one another, and at the signal, they exchanged shots, Cilley firing first. Both men missed. The men who accompanied them to the duel-their seconds-tried to work out the disagreement that led the men to the dueling-ground, but to no avail. For a second time, both stood and exchanged fire; …

The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie

Vanderbilt Law School Faculty Publications

Riskin's categorization of mediation has engendered much debate among academics and practitioners. Although most in the mediation community accept Riskin's positive assertion that mediation as currently practiced includes both facilitation and evaluation, a vocal group of purist critics rejects Riskin's pluralist view of mediation on normative grounds. These purist critics -- including such prominent mediator-scholars as Professors Kim Kovach, Lela Love," and Josh Stulberg -- argue that mediation is in fact, and should be, solely a facilitative process "designed to capture the parties' insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes." For …

Using Bargaining For Advantage In Law School Negotiation Courses, Chris Guthrie

Vanderbilt Law School Faculty Publications

Options, options, options ....The Negotiation literature-at least the "problem-solving" or "interestbased" or "principled" negotiation literature'repeats this mantra over and over and over. It seems self-evident that having lots of options is a good idea because more options means more to choose from. The more options there are to choose from, however, the more difficult choosing can be. Options, in short, may increase the likelihood that one will make an optimal decision, but they impose added "decision costs" on the decision maker. Law professors now face this happy dilemma when choosing materials for their Negotiation courses. Options abound-including the negotiation chapters …

Setting Arbitrators' Fees: An International Survey, John Y. Gotanda

Vanderbilt Journal of Transnational Law

This Article examines the compensation policies of international arbitrators. Specifically, the Article details the results of a survey of individuals who practice in the area of international arbitration.

Initially, the Article describes the different methods of calculating the fees of the arbitral tribunal, discussing the relative advantages and disadvantages of each method. The study concludes that most arbitrators calculate their fees using a time-based method, except when the arbitral institution requires that their fees be determined under the ad valorem method.

Next, the Article examines arbitrators' policies regarding cancellation and commitment fees. Survey results highlighted confusion about whether arbitrators were …

Framing Frivolous Litigation: A Psychological Theory, Chris Guthrie

Vanderbilt Law School Faculty Publications

This Article uses an often-overlooked component of prospect theory to develop a positive theory of frivolous or low-probability litigation. The proposed Frivolous Framing Theory posits that the decision frame in frivolous litigation induces risk-seeking behavior in plaintiffs and risk averse behavior in defendants. Because plaintiffs in frivolous litigation have a greater tolerance for risk than the defendants they have sued, plaintiffs in frivolous litigation have "psychological leverage" in settlement negotiations, which is likely to lead to plaintiff-friendly settlements or bargaining impasse. This in turn, suggests that reformers concerned about frivolous litigation should target reform efforts at plaintiffs' decisionmaking in frivolous …

Better Settle Than Sorry: The Regret Aversion Theory Of Litigation Behavior, Chris Guthrie

Vanderbilt Law School Faculty Publications

Legal scholars have developed two dominant theories of litigation behavior: the Economic Theory of Suit and Settlement,which is based on expected utility theory, and the Framing Theory of Litigation, which is based on prospect theory. While Professor Guthrie acknowledges the explanatory power of these theories, he argues that they are flawed because they portray litigants solely as calculating creatures. These theories disregard any role emotion might play in litigation decision making. Guthrie proposes a mplementary theory-the Regret Aversion Theory of Litigation Behavior-that views litigants as both calculating and emotional creatures. With roots in economics, cognitive psychology, and social psychology, the …

Where's The Beef? Mad Cows And The Blight Of The Sps Agreement, Ryan D. Thomas

Vanderbilt Journal of Transnational Law

This Note will first outline the SPS Agreement itself--specifically, Part II attempts to present the relevant articles in a manner providing the necessary background for understanding the WTO dispute panel and Appellate Body decisions. Next, Part III discuss and critique, the dispute panel and Appellate Body decisions, specifically, noting the shortcomings of these decisions in the context of the SPS Agreement and its utility as a precedent of international dispute resolution in the area of international regulation of drugs and feedstuffs. Next, I will addresses the likely effect of these decisions upon a possible WTO resolution of the SRM dispute …

Introduction: Current Issues In Arbitration, Shannon E. Pinkston

Vanderbilt Law Review

"[An incompetent attorney can delay a case for years, while a competent attorney can delay it for even longer."'

This oft-repeated joke illustrates the public perception of the delays and expense that accompany courtroom litigation. Indeed, growing frustration with crowded courts and exorbitant legal costs fuels the widespread Alternative Dispute Resolution ("ADR") movement. Notwithstanding the dramatic increase in its use, ADR, defined as "procedures for settling disputes by means other than litigation," is not a novel idea. In fact, ADR was present in America as early as the seventeenth century. In certain parts of colonial America, voluntary arbitration was a …

A "Party Satisfaction" Perspective On A Comprehensive Mediation Statute, Chris Guthrie, James Levine

Vanderbilt Law School Faculty Publications

During the past fifteen years, the alternative dispute resolution movement has greatly altered the legal landscape. Courts, legislatures and administrative agencies have enacted more than 2000 laws dealing with mediation and other dispute resolution processes. The National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Bar Association Section of Dispute Resolution have recently formed a unique partnership to assess whether a model or uniform mediation statute might remedy some of the problems caused by the current patchwork of often confusing and conflicting mediation laws. The task of drafting a comprehensive mediation statute poses many challenges. The drafters …

Thinking Of Mediation As A Complex Adaptive System, J.B. A. Ruhl

Vanderbilt Law School Faculty Publications

This article uses my work on complex adaptive systems to think about how litigation and mediation differ in terms of adaptive qualities, suggesting that mediation is indeed a more adaptive mode of dispute resolution in certain contexts.

Peace And The Press: Media Rules During U.N. Peacekeeping Operations, Jennifer Lee

Vanderbilt Journal of Transnational Law

In recent years, U.N. peacekeeping operations have become an increasing focus of international military action and media coverage. While the military and the media have maintained a precarious balance in the United States between the military's objective of operational success and the media's call for uncensored reporting, the evolution and growing importance of U.N. peacekeeping offers new considerations to this balance. This Note examines the ability of the United Nations to affect the balance between the military and the media through the implementation of U.N. media rules during peacekeeping operations. This Note begins by reviewing the history of media coverage …

The Limits Of Economic Power: Section 301 And The World Trade Organization Dispute Settlement System, C. O'Neal Taylor

Vanderbilt Journal of Transnational Law

Since World War 1I, the United States has sought trade liberalization through the use of multilateral and unilateral actions under the General Agreement on Tariffs and Trade (GATT) and Section 301 of the Trade Act of 1974, respectively. Unilateralism by the United States has involved the forceful opening of foreign markets by the threat of sanctions, such as blocking access to the U.S. market. Such unilateral actions led the world trading system into the most recent multilateral negotiations, the Uruguay Round. As a result, the United States conceded to an effort to achieve trade liberalization through the expansion of GATT …

Psychology, Economics, And Settlement: A New Look At The Role Of The Lawyer, Chris Guthrie, Russell Korobkin

Vanderbilt Law School Faculty Publications

Law and economics models of litigation settlement, based on the behavioral assumptions of rational choice theory, ignore the many psychological reasons that settlement negotiations can fail, yet they accurately predict that vast majority of lawsuits will settle short of formal adjudication. What explains this? We present experimental data that suggests lawyers might evaluate the settlement vs. adjudication decision from a perspective more closely akin to "rational choice theory" than will non-lawyers and, consequently, increase the observed level of settlement. We then evaluate whether the hypothesized difference between lawyers and non-lawyers is likely to lead to more efficient dispute resolution, concluding …

American Conflicts Scholarship And The New Law Merchant, Friedrich K. Juenger

Vanderbilt Journal of Transnational Law

Professor Juenger argues that both the unilateralist and the multilateralist schools of thought share a fixation on the idea that law must emanate from the power of a sovereign state. The author points out that such a view of law is a historic; that, in the past, merchants relied on a substantive body of supranational rules that transcended national borders. This Article discusses the contemporary significance of the law merchant for law professors, law students, and practitioners.

The author explains how the practices of contemporary transnational commercial enterprises, as well as the opinions of contemporary scholars , support the idea …