Dispute Resolution and Arbitration Commons^™

Adr Without Borders, Theodore J. St. Antoine

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My task is to assess the ways in which alternative dispute resolution procedures may be adapted to deal with international labor disputes. ADR refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without involving the decision-making power of the state or other sanction-imposing body. Both mediation and arbitration are included. In mediation the neutral seeks to get the parties to agree on a mutually acceptable solution. In arbitration the neutral imposes a solution after presentations by the contending parties. A third term, conciliation, is sometimes used and generally connotes a …

David E. Feller: The Happy Warrior, Theodore J. St. Antoine

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Dave Feller and I first became acquainted when we were both union lawyers in Washington, D.C. Dave was the ultimate happy warrior. He went joyous into combat, and years later he could recount, joyously, objectively, and without rancor toward old foes, the exact details of the many triumphs and the few defeats. A favorite story came from his Supreme Court clerkship. Dave was already seven years out of Harvard Law School, with experience in university teaching, Army intelligence, and the Justice Department, and he didn't hesitate to tell Chief Justice Vinson he should vote for certiorari in a case close …

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

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The editors have asked us to be quite personal in our ruminations on the future of comparative labor law and policy. For me, over the past several years, the focus has been on China. My first visit to China in 1994, purely as a tourist, was 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 oneterm course in American law as a visiting professor at Cambridge University …

If Portia Were A Mediator: An Inquiry Into Justice In Mediation, Jonathan M. Hyman, Lela P. Love

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Icann's "Uniform Dispute Resolution Policy"- Causes And (Partial) Cures, A. Michael Froomkin

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Twenty-Five Years Later With Promises To Keep: Legal Education In Dispute Resolution And Training Of Mediators, Lela P. Love

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Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

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Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

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A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …

Mediation Of Probate Matters: Leaving A Valuable Legacy, Lela P. Love

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Can Informed Consent Preserve The Integrity Of Mediation?, Maureen Laflin

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Preserving The Integrity Of Mediation Through The Adoption Of Ethical Rules For Lawyer-Mediators, Maureen Laflin

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A Problem Of Process In Wto Jurisprudence: Identifying Disputed Issues In Panels And Consultations, Glenn R. Butterton

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Contract Reading' In Labor Arbitration, Theodore J. St. Antoine

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A quarter century ago, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. This phrase has almost invariable been misunderstood to refer to reading or interpreting the contract. When I spoke of the "contract reader," it was in the context of judicial review of an award. My point was this: When a court has before it an arbitrator's award applying a collective bargaining agreement, it is as if the employer and the union had signed a stipulation stating: "What the arbitrator says this contract means is exactly what we meant …

Images Of Justice, Lela P. Love

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Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P. Love, Kimberlee K. Kovach

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When mediators try to resolve a controversy by providing their analysis of the legal – or other – merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral’s judgment, award or opinion to determine or jump-start a resolution. This article urges that this add-on activity to mediation should be called by its proper name. The essay highlights the advantages of calling "mediation plus evaluation" a mixed process and discusses the advantages of having an eclectic and diverse mix of processes from which parties and counsel can choose to promote party …

A Dangerous Supplement? Longshot Claims And Private Securities Litigation, Charles M. Yablon

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A Tribute To James B. Boskey, Lela P. Love

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Letters To The Editor, Lela P. Love

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In Slip-Sliding Into Mediation: Can Lawyers Mediate Their Clients' Problems? [5 CLIN. L. REV. 47 (1998)], Jonathan Hyman argues that lawyers can mediate their clients' problems or transform themselves from a client's legal counselor and advocate to a neutral mediator. Professor Hyman points out that such a transformation can occur if (1) both clients give their informed consent; and (2) the lawyerturned-mediator does not offer evaluations of the case or subsequently represent either party. While Professor Hyman himself is quick to point out the many problems with this thesis, he nonetheless propounds it. I would argue that a partisan lawyer, …

Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine

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One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace disputes. Typically, an employer will make it a condition of employment that employees must agree to arbitrate any claims arising out of the job, including claims based on statutory rights against discrimination, instead of going to court. On the face of it, this is a brazen affront to public policy. Citizens are being deprived of the forum provided them by law. And indeed numerous scholars and public and private bodies have condemned the use of mandatory arbitration. Yet the insight of that …

Integrating Alternative Dispute Resolution (Adr) Into The Curriculum At The University Of Washington School Of Law: A Report And Reflections, Lea B. Vaughn

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The essay is framed in two basic parts. In the first part, it describes the program of integration that was undertaken at the University of Washington during the 1995-1997 period of the Fund for the Improvement of Post-Secondary Education (FIPSE) grant. After describing the context in which these curricular changes were made, it describes the changes in years one and two of the grant program. Additional changes that have occurred subsequent to the final grant report in October 1997 also will be summarized. One of the lessons that emerges from our experience is that change will be an incremental, long …

Mapping Mediation: The Risks Of Riskin's Grid, Kimberlee K. Kovach, Lela P. Love

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We use maps for orientation and guidance. A topographical map and compass guide us through unmarked terrain. To pass a bar exam, law students follow a course carefully mapped out by BAR/ BRI. To understand political configurations, we study maps of the world, indicating countries and states and their boundaries. Maps are important. They create paradigms or "boxes" within which to operate safely and efficiently. The universe a map depicts-what is put in and what is left out-must have an internal cohesion, logic, and accuracy. If not, maps misguide their users.

A Tale Of Two Cities: Day Labor And Conflict Resolution For Communities In Crisis, Lela P. Love, Cheryl B. Mcdonald

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Through the lens of Glen Cove and Agoura Hills, two cities facing social crisis revolving around a shaping point, this article addresses the importance of government and key interest groups developing approaches to conflict that will best move society forward while limiting the danger and costs of discord. This "tale of two cities" describes two remarkably similar situations involving day laborers and argues that one community’s choice of mediation after the commencement of litigation resulted in outcomes that addressed and satisfied a wider range of constituency interests than those realized by the community that chose litigation alone.

The Top Ten Reasons Why Mediators Should Not Evaluate, Lela P. Love

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The ten reasons outlined in this article demonstrate that a mediator’s giving advice, making assessments and stating opinions — particularly where the mediator presses parties to accept a particular opinion, outcome or assessment — are inconsistent with the role of a mediator.

Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine

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Would employees-including union employees-be better off with mandatory arbitration, even of statutory employment claims? The answer to this important question should depend less on abstract notions about the importance of statutory claims and the sanctity of the right to a jury trial, and more on a pragmatic assessment of what is likely to be best for the great majority of workers. Employing this type of analysis, which would take into account an overworked, underfunded Equal Employment Opportunity Commission, backlogged court dockets and other practical problems, my view is that most employees might well be better off with mandatory arbitration, provided …

Practice Guidelines For Co-Mediation: Making Certain That “Two Heads Are Better Than One”, Lela P. Love, Joseph B. Stulberg

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Co-mediation can either enhance or diminish the effectiveness of the mediation process. This article outlines advantages and disadvantages of comediation and proposes guidelines for co-mediators to enable maximizing the potential of a co-mediation team.

"Evaluative" Mediation Is An Oxymoron, Kimberlee K. Kovach, Lela P. Love

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An essential characteristic of mediation is facilitated negotiation wherein the mediator remains neutral throughout the process. Inconsistent with this role is an evaluative mediator who assesses the strengths and weaknesses of legal claims, proposes settlement terms, pushes parties to accept a particular settlement, and predicts court outcomes or the impact of not settling. A mediator’s assessment invariably favors one side over the other and jeopardizes neutrality. This article argues that mediation should stand as a distinct and clear-cut alternative to the evaluative and frequently highly-adversarial adjudicatory processes and that mediators should not evaluate.

Globalisation Of Contract Law: Rules For Commercial Contracts In The 21st Century, Whitmore Gray

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This is a paper given at the Asia-Pacific Lawyers Association meeting held in Bangkok in November 1995. The author describes the principles of international commercial contracts published in 1994 by the International Institute for the Unification of Private Law. Professor Gray sees a new era of harmonisation of contract law. An appendix gives an abstract of a contract law decision given by an Austrian Court in 1994.

Standards Of Professional Conduct In Alternative Dispute Resolution, John Feerick, Carol Izumi, Kimberlee Kovach, Lela Love, Robert Moberly, Leonard Riskin, Edward Sherman

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The Alternative Dispute Resolution Section of the Association of American Law Schools presented a program, at a 1995 AALS Conference, on current ethical issues that arise in mediation and how these issues should be addressed by the standards of professional conduct. The panel for the program was composed of leading mediation scholars and practitioners from throughout the country. The program was organized by Professor Edward Sherman who also acted as the panel moderator and provided the following introduction.

Divergent Strategies: Union Organizing And Alternative Dispute Resolution, Theodore J. St. Antoine

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The Commission on the Future of Worker-Management Relations, the so-called "Dunlop Commission," is focusing on three principal subjects: (1) union organizing, (2) worker participation in management decision making, and (3) alternative dispute resolution (ADR). I am going to concentrate on the last, but first I would like to say a few words about union organizing. After all, unionization and collective bargaining - and for that matter, worker participation as well - can fairly be viewed as special forms of alternative dispute resolution.

Caesar Would Have Arbitrated, Hugh D. Spitzer

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With the recent increase in mandatory arbitration for small civil disputes and voluntary arbitration for much larger cases, it is easy to suppose that dispute resolution by someone other than a government- appointed judge is a novel, imaginative creation of the modern legal system.

But for the Romans who lived in Julius Caesar's time, indeed from several hundred years B.C. to at least 300 A.D., most civil matters never went to an official "judge." Instead, almost all such disputes were resolved by a lay arbitrator under a remarkably flexible and enduring system of civil procedure that worked as effectively as …