Dispute Resolution and Arbitration Commons^™

The Moral Dimension Of Employment Dispute Resolution, Theodore J. St. Antoine

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Dispute resolution may be viewed from the perspective of economics or negotiation or contract law or game theory or even military strategy. In this Article, I should like to consider employment dispute resolution in particular from the perspective of morality. I do not necessarily mean "morality" in any religious sense. By "morality" here I mean a concern about the inherent dignity and worth of every human being and the way each one should be treated by society. Some persons who best exemplify that attitude would style themselves secular humanists. Nonetheless, over the centuries religions across the globe have played a …

Tribal Rituals Of The Mdl: A Comment On Williams, Lee, And Borden, Repeat Players In Multidistrict Litigation, Myriam E. Gilles

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What Role For “Women,” “Men,” And Transpeople/Intersex People In Gender Equality: A Commentary, Edward D. Stein

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This has been a very rich opening panel to what promises to be a terrific conference. The panelists' comments go in such varied directions that it is a challenge to be both a commentator and summarizer, especially when I have just a few minutes to speak. What I plan to do is say a little bit to draw together some of the themes that the panelists have been talking about that are connected to a couple of topics I have been working on while at the same time trying to look forward to some of the things I hope we …

Structural Obstacles To Settlement Of Land Use Disputes, Stewart E. Sterk

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In many states, legal doctrine discourages settlement of land use litigation by requiring that any settlement undergo the same review process as the decision that led to the litigation in the first place. The problem is exacerbated by broad standing rules that allow a variety of parties to challenge the settlement. As a result, municipalities and developers often have an incentive to litigate to judgment, even though both parties would prefer a negotiated or mediated solution.

On the other hand, permitting developers and municipalities to settle litigation behind closed doors could impair both the quality and the legitimacy of the …

Trick Or Treat: The Ethics Of Mediator Manipulation, Jim Coben, Lela P. Love

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Much of what good mediators do can be characterized as “helpful interventions” that assist the parties towards legitimate goals such as a better understanding, a platform for developing options, and (where the parties choose) an agreement or settlement. However, all such “helpful interventions” are inevitably "manipulative," in the sense that the mediator is, often unilaterally, making “moves” with profound impact on the parties’ bargaining. To evaluate the ethics of any individual move, the authors propose asking two questions: 1) does the move further or help a legitimate party or process goal that advances party self-determination in decision-making; and 2) is …

Adr In Labor And Employment Law During The Past Quarter Century, Theodore J. St. Antoine

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Two events can serve as bookends for alternative dispute resolution (ADR) in labor and employment law during the past quarter century. The first was the 1991 U.S. Supreme Court decision in Gilmer v. Interstate/Johnson Lane Corp. The Court approved so-called "mandatory arbitration" by holding that an individual stockbroker was bound by a contract with the New York Stock Exchange to arbitrate a claim of age discrimination against his employer, rather than take the case to court. The second event, or set of events, is the current consideration by Congress of the proposed Employee Free Choice Act (EFCA) and Arbitration Fairness …

Attorneys As Arbitrators, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch

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We study the role of attorneys as arbitrators in securities arbitration. We find that arbitrators who also represent brokerage firms or brokers in other arbitrations award significantly less compensation to investor-claimants than do other arbitrators. We find no significant effect for attorney-arbitrators who represent investors or both investors and brokerage firms. The relation between representing brokerage firms and arbitration awards remains significant even when we control for political outlook. Arbitrators who donate money to Democratic political candidates award greater compensation than do arbitrators who donate to Republican can-didates. We also study the dynamics of panel interaction. We find that the …

Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine

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President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …

The Wisdom Of Crowds? Groupthink And Nonprofit Governance, Melanie B. Leslie

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Scandals involving nonprofit boards and conflicts of interest continue to receive considerable public attention. Earlier this year, for example, musician Wyclef Jean's Yele Haiti charity became the target of intense criticism after the charity disclosed that it had regularly transacted business with Jean and entities controlled by Jean and other directors. Although scandals caused by self-dealing undermine public confidence in the charitable sector, they continue to erupt. Why do charitable boards sanction transactions with insiders?

This Article argues that much of the blame lies with the law itself. Because fiduciary duty law is currently structured as a set of fuzzy …

From The Chair, Lela P. Love

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From The Chair, Lela P. Love

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Dreamers And Visionaries: The History Of Adr In Idaho, Maureen Laflin

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Plenary Session Panel: The Sixth John A. Speziale Alternative Dispute Resolution Symposium, Lela P. Love

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From The Chair, Lela P. Love

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From The Chair, Lela P. Love

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The Mediator As Fugu Chef: Preserving Protections Without Poisoning The Process, Maureen Laflin

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Condominium Arrangements In International Practice: Reviving An Abandoned Concept Of Boundary Dispute Resolution, Joel H. Samuels

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Resolving Conflict In Non-Ideal, Complex Systems: Solutions For The Law-Science Breakdown In Environmental And Natural Resource Law, Barbara Cosens

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In 2006, the U.S. Supreme Court decided a consolidated case concerning the scope of the U.S. Army Corps of Engineers' jurisdiction to require permits for dredge and fill of wetlands under section 404 of the Clean Water Act, issuing a plurality, two concurrences, and two dissents. Each opinion has a solid legal foundation, yet none truly makes sense if the science of the resource in question is considered. The opinions in Rapanos v. United States illuminate the struggle at the law-science interface. The problem is not due to either a failure in legal reasoning or a failure in scientific methodology …

Leaving More Than Money: Mediation Clauses In Estate Planning Documents, Lela P. Love, Stewart E. Sterk

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When probate disputes arise, an increasing number of courts have been referring those disputes to mediation. Estate planners, however, have been less proactive about drafting wills to include mediation clauses that would anticipate estate disputes and channel them away from litigation. When a will mandates mediation, the will provides a dispute resolution mechanism designed to preserve family harmony, conserve estate assets, and avoid airing the family's "dirty laundry "-objectives common to many testator. Mediation clauses in wills are no panacea. They are of little value to testators who exalt control over estate assets above all other concerns, and they are …

Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine

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"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …

A Response To Professor Laycock, Marci A. Hamilton

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A Tribute To Louis Sohn - Is The Dispute Settlement System Under The Law Of The Sea Convention Working?, Bernard H. Oxman

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Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

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My first visit to China, in 1994, was purely as a tourist, and came about almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October I was scheduled to begin teaching a one-term course in American law as a visiting professor at Cambridge University in England. Despite my hazy notions of geography, I realized it made no sense to return to the United States for the intervening week. The obvious solution was to continue flying …

Privatizing Due Process, Paul R. Verkuil

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The article explores the concept of "private due process," arguing that while traditional due process protections under the Constitution require state action, privatization of government functions creates gaps in procedural safeguards. It examines how state laws, federal regulations, and alternative dispute resolution (ADR) mechanisms can fill these gaps and proposes a "Private Administrative Procedure Act" (PAPA) to ensure procedural fairness when government functions are delegated to private entities.

Remarks On Case-Management Criminal Mediation, Maureen Laflin

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University Of Idaho College Of Law's 8th Annual Northwest Institute For Dispute Resolution, May 17-21, 2004, Maureen Laflin

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Case-Management Criminal Mediation Offers Promise But Requires Caution, Maureen Laflin

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Gacaca Courts: The Hope For Reconciliation In The Aftermath Of The Rwandan Genocide, Maureen Laflin

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University Of Idaho College Of Law's Seventh Annual Northwest Institute For Dispute Resolution Scheduled For May 19-23, 2003, Maureen Laflin

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Water Dispute Resolution In The West: Process Elements For The Modern Era In Basin-Wide Problem Solving, Barbara Cosens

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Growing urban water demand, recent recognition of tribal water rights, and needs for critical aquatic habitat in the face of the archaic law governing water allocation are driving people in the western United States to seek alternative methods to resolve water allocation disputes. The current ad hoc and locally driven approach to negotiation of basin-wide water issues runs the risk of overlooking broader interests. Whereas water use is local and rives local economies, the continued viability of our water resources and the legacy we leave to future generations in water infrastructure, social stability, an environmental amenities is national in scope. …