Dispute Resolution and Arbitration Commons^™

Stories Of Experience: Economic Inequality In Mediation, Robert Rubinson

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No abstract provided.

Realizing Dispute Resolution: Meeting The Challenges Of Legal Realism Through Mediation, Robert Rubinson

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No abstract provided.

Of Grids And Gatekeepers: The Socioeconomics Of Mediation, Robert Rubinson

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Mediation scholars have long debated which mediator “style” or “model” is correct. The origin of the debate arises from a foundational piece of scholarship by Leonard Riskin. Riskin proposed a “grid” of mediator orientations comprised of what came to be known as “facilitative mediation” and “evaluative mediation.” A more recent addition to the grid—and one that is almost universally recognized as a distinct model—is “transformative mediation.” These three models are so embedded in the literature of mediation that they have been called “the big three.” The influence of Riskin’s work cannot be overstated. It has resonated within the community of …

Moving Family Dispute Resolution From The Court System To The Community, Jane C. Murphy, Jana B. Singer

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Over the past three decades, there has been a significant shift in the way the legal system approaches and resolves family disputes. Mediation, collaboration, and other non-adversarial processes have replaced a traditional, law-oriented adversarial regime. Until recently, however, reformers have focused largely on the court system as the setting for innovations in family dispute resolution. But our research suggests that courts may not be the best places for families to resolve disputes, particularly disputes involving children. Moreover, attempting to turn family courts into multi-door dispute resolution centers may detract from their essential role as adjudicators of last resort and forums …

Decriminalizing Violence: A Critique Of Restorative Justice And Proposal For Diversionary Mediation, M. Eve Hanan

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The movement to reduce over-prosecution and mass incarceration has focused almost exclusively on non-violent offenders despite data showing that over half of all prisoners incarcerated within the United States are sentenced for crimes of violence. As a consequence of the focus on nonviolent offenses, the majority of current and future defendants will not benefit from initiatives offering alternatives to criminal prosecution and incarceration.

A discussion of alternatives to the criminal justice system in cases of violent crime must begin by acknowledging that violent crime is not monolithic. Many incidents meet the statutory elements of a violent crime, that is, the …

Two Models Of Interest Arbitration, Martin H. Malin

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Most states prohibit public employees from striking and the federal government makes a strike by a federal employee a felony. Many public employee labor relations acts give organized employees a right to arbitrate when their union and employer are unable to reach agreement on the terms of a contract. Much discussion of such interest arbitration schemes has focused on whether the process inhibits bargaining (the chilling effect) or is habit forming (the narcotic effect). These discussions contrast the use of traditional interest arbitration, where the arbitrator may award any outcome that falls between the parties’ final offers, with final offer …

The Arbitration Fairness Act: It Need Not And Should Not Be An All Or Nothing Proposition, Martin H. Malin

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The proposed Arbitration Fairness Act (AFA) would prohibit all pre-dispute agreements to arbitrate in employment, consumer and franchise contracts. Although changes in the ideological composition of Congress mean that the AFA has little chance of enactment in the foreseeable future, mini-AFAs have been enacted banning pre-dispute arbitration agreements as applied to sexual harassment claims by employees of defense contractors and whistleblower claims by employees in the securities and commodities industries. This article charts a middle ground between those who would ban pre-dispute arbitration mandates in employment contracts completely and those who would leave them unregulated. After surveying the empirical evidence …

Law – Made In Germany: Global Standort Or Global Standard?, James Maxeiner

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Earlier this year the Federal Ministry of Justice released the second edition of the brochure, Law - Made in Germany. For those readers who do not know the brochure, it is the product of an umbrella group of German professional organizations known as the Bündnis für das deutsche Recht. A purpose of the Bündnis, as stated at its founding in 2008, and of the brochure, is to improve the position of German law in the ― "international competition of legal systems" (internationalen Wettbewerb der Rechtsordnungen). Catalyst for founding of the Bündnis and for publication of Law - Made in Germany …

The Dispute On The Horizon: Contracting For Effective Dispute Resolution In International Business Transactions A U.S. Perspective, William P. Johnson

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This Article offers a view, from a U.S. perspective but for a non-U.S. readership, on the significant aspects of planning for dispute resolution in the context of cross-border business transactions involving U.S. and non-U.S. parties. Specifically, this Article identifies the issues that parties who are located in Brazil or in other jurisdictions throughout the Americas should consider at the time of drafting, negotiating, and finalizing business contracts with U.S. counterparties, as well as business contracts that are entered into in connection with other cross-border arrangements that could involve U.S. law even when there is no U.S. counterparty, to prepare for …

The Evolving Schizophrenic Nature Of Labor Arbitration, Martin H. Malin

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No abstract provided.

Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

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This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication.

Legitimacy And International Adjudicative Bodies, Nienke Grossman

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This article proposes a theory of legitimacy tailored to international courts and tribunals. In Part II of this paper, the article defines an "international adjudicative body" as a dispute resolution mechanism - also called a "court" or "tribunal" - which decides disputes between litigants, at least one of whom must be a state, and comments on this definitional choice. The analysis in this article is limited only to adjudicative bodies where states are involved as litigants because a different set of legitimacy-influencing factors may be present when only private parties are involved. Next, it lays out a theory of legitimacy …

Revisiting The Meltzer-Howlett Debate On External Law In Labor Arbitration: Is It Time For Courts To Declare Howlett The Winner?, Martin H. Malin

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No abstract provided.

Due Process In Employment Arbitration: The State Of The Law And The Need For Self-Regulation, Martin H. Malin

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No abstract provided.

No Longer Just Company Men: The Flexible Workforce And Employment Discrimination, Review Essay On 'From Widgets To Digits Employment Regulation For The Changing Workplace', By Katherine V.W. Stone (2004), Miriam A. Cherry

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In her new book, From Widgets to Digits, Professor Katherine V.W. Stone reviews and analyzes the dramatic changes, both technological and demographic, that have transformed work in America during the last thirty years. The book broadly documents the shift from an economy that primarily relies on the production and consumption of goods to one in which learning and the transmittal of knowledge is central to the creation of wealth. Professor Stone describes how in the past, workers may have expected job security and long-term employment, but that recent economic, social, and technological change have led to a more temporary and …

It's About The Relationship: Collaborative Law In The Employment Context, Marcia L. Mccormick

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Work is central to American life and drives us in fundamental ways. And the workplace, as a result, dominates our lives. We are spending ever greater amounts of time in the workplace and less time in civic and social engagements. As a consequence, our relationships at work have become so significant that they are nearly as important to us as our family relationships. In fact, the employment relationship is similar to the family relationship in the emotional support from coworkers it can provide and in the financial support it provides. Because the employment relationship is so common and psychologically so …

The Evolving Role Of The Labor Arbitrator (With J. Vonhof), Martin H. Malin

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No abstract provided.

Objecting To Court Ordered Mediation, Jane C. Murphy

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Maryland judges have wide discretion to refer parties to mediate a variety of civil matters. Title 17 of the Maryland Rules, enacted in 1998, governs mediation of civil cases in the circuit courts. These rules are supplemented by Maryland Rule 9-205, which addresses mediation of child custody and visitation disputes. Although these rules define mediation and address mediator qualifications in some detail, they say very little about either a party's right to object to mediation or the court's authority to compel participation in mediation.

Given that the mediation rules are relatively new and mediation orders would generally be considered interlocutory, …

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N.C. Smalkin

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Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary's loss of focus on the core function of trying jury cases; the business community's loss of interest in jury adjudication (opting out of the legal system altogether in favor of arbitration); Congress's marginalizing the district court judiciary; and the …

Client Counseling, Mediation, And Alternative Narratives Of Dispute Resolution, Robert Rubinson

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This article examines how litigation and mediation have distinct narrative structures and what these narratives say about counseling clients about mediation. In the narrative of litigation, parties struggle against one another in order to convince a decision maker of the truth of "what happened." This struggle is about more than designating liability; it is about enabling the decision-maker to restore social order and vindicate morality. In contrast, the narrative of mediation does not call upon the mediator to designate "truth" or "right" and "wrong." Rather, the mediator acts to enable parties to overcome and transform conflict through collaboration. In the …

Ethical Concerns In Drafting Employment Arbitration Agreements After Circuit City And Green Tree, Martin H. Malin

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No abstract provided.

Privatizing Justice But By How Much? Questions Gilmer Did Not Answer, Martin H. Malin

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No abstract provided.

El Impacto Del Arbitraje En Los Patrones Huelgarios De Puerto Rico, 1956-1995, César F. Rosado Marzán

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No abstract provided.

Dispute Resolution In Cyberspace: Demand For New Forms Of Adr, Henry H. Perritt Jr.

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No abstract provided.

Confidentiality In Mediation, Jaime Alison Lee, Carl Giesler

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As mediation has become a more widely practiced method of dispute resolution, many jurisdictions have enacted rules forbidding participants to divulge information discussed during the mediation. Two recent cases, Paranzino v. Barnett Bank and Bernard v. Galen Group, are among the first to deal with the enforcement of such rules by judicial sanction. In both cases, participants in judicially required mediations were severely sanctioned for breaching confidentiality in violation of mediation rules and/or court orders.

Arbitrating Statutory Employment Claims In The Aftermath Of Gilmer, Martin H. Malin

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No abstract provided.

Privatizing Justice: A Jurisprudential Perspective On Labor And Employment Arbitration From The Steelworkers Trilogy To Gilmer (With R. Ladenson), Martin H. Malin

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No abstract provided.

Affirmative Action Issues And The Role Of External Law In Labor Arbitration (With L. Stallworth) (Symposium), Martin H. Malin

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No abstract provided.

Foreword: Labor Arbitration Thirty Years After The Steelworkers Trilogy, (Symposium Editor), Martin H. Malin

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No abstract provided.

The Legal Status Of Union Security Fee Arbitration After Chicago Teachers Union V. Hudson, Martin H. Malin

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No abstract provided.