Dispute Resolution and Arbitration Commons^™

Activist Investors And Mediation, Juliana Bleiberg

Cardozo Journal of Conflict Resolution

Activist investors have the capacity to play a commanding role in a company after they invest in it. Sometimes, these investors are dissatisfied with some aspect of the company, from its structuring, to its earnings, or future expansion or investment plans. In very few instances does an activist approach a company and have the opportunity to be heard by the board in a non-confrontational setting. More commonly, the activist will wage a proxy battle to be acknowledged. The goal of this battle usually aims at removing current board members and replacing them with individuals of the investor's choice, who will …

Utilizing Alternative Dispute Resolution To Foster Comprehensive Traumatic Brain Injury Research, Michael Meyers

Cardozo Journal of Conflict Resolution

ADR, and more specifically mediation, could increase funding towards TBI prevention and recovery research. Section II explores the TBI Reauthorization Act in an effort to highlight its many successes and some of its shortcomings. Following the assessment of the national legislation, it is appropriate to examine efforts being made at the state-level. Next, because professional and collegiate sports leagues control a great deal of revenue, it is important to assess the initiatives set forth through their official league policies and rules, public relations efforts, and scientific contributions. This calls for an extensive examination of the NFL, NHL, NCAA, and FIFA's …

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 19 (2017–18)

Cardozo Journal of Conflict Resolution

No abstract provided.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 19, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Litigation Risk Assessment: A Tool To Enhance Negotiation, Michaela Keet

Cardozo Journal of Conflict Resolution

This paper begins with a discussion of how "good" and "bad" predictions about litigation risk can affect a negotiation process. It explores how thorough predictions are often missing in the way that lawyers and clients prepare for, and navigate through, their negotiations. Drawing on a recent study of lawyers and law students, this paper summarizes a simple framework for conducting a thorough risk assessment, and then examines the way that it can be used to support the pursuit of settlement. Two conclusions emerge from the study, and in particular from the observation of how law students negotiated a hypothetical civil …

Why Arbitration Clauses May Make Sense In Cyber Insurance Policies, Andrew Nadolna, Adrienne Publicover, Daniel Garrie

Cardozo Journal of Conflict Resolution

In this Article, we will argue that policyholders should ask for an arbitration clause in their cyber policies and negotiate over the terms. We will also argue that insurers should offer more options in this space. In this regard, modular arbitration clauses can prove useful for both sides and lead to an effective dispute resolution mechanism for dealing with what may turn out to be a flood of cyber coverage disputes.

We will start with a discussion of the principal objections policyholders often have to mandatory arbitration clauses. Then we will discuss why some of these objections may cut differently …

Mediation Ethics: A Camp Courthouse Colloquy, United States Court Of Appeals For The Second Circuit, Robert Katzmann, Kathleen M. Scanlon, John Feerick

Cardozo Journal of Conflict Resolution

On January 18, 2017, the United States Court of Appeals for the Second Circuit held its first Court Appeals Mediation Program "Courthouse Colloquy." The subject of the colloquy was mediation and ethics. What follows is a transcript of the discussions.

Seventeenth Annual International Advocate For Peace Award Honoring Dr. Rajiv Shah, Rajiv Shah, Melanie Leslie, Lela P. Love, Benjamin Dynkin

Cardozo Journal of Conflict Resolution

On April 6, 2017, the Cardozo Journal of Conflict Resolution presented the Seventeenth Annual International Advocate for Peace Award to Dr. Rajiv Shah. What follows is a transcription of the award ceremony, including Dr. Shah's acceptance speech.

Rwanda And The Kigali International Arbitration Centre: The Future Faces Of East African Arbitration And Growth, Jeremy Cantor

Cardozo Journal of Conflict Resolution

Part I is a brief introduction to the Note. Part II is a brief background of Rwandan history and the country's push for economic growth. Furthermore, Part II elaborates on the history, the current status of Rwanda's judicial system, and on the KIAC. Part III explains why arbitration is fitting for Africa as a whole and why it is more fitting for East Africa specifically. In particular, the Note explains why Kigali is the proper choice of seat6 and KIAC the proper institution, and analyzes certain problems preventing the growth of African arbitration. Lastly, Part IV proposes how to effectuate …

Early Non-Military Intervention To Prevent Atrocity Crimes, Sarah Lesser

Cardozo Journal of Conflict Resolution

This Note explores the possibility of victim-offender mediation or negotiation as a means of early non-military intervention for atrocity crimes, in situations in which indicators from Risk Factor 7 of the U.N. Framework of Analysis are present, and argues that the international community should turn to such forms of mediation and negotiation more often in order to prevent atrocities. Section II provides a brief history of atrocity prevention, and explores other proposals for early warning and non-military intervention. This section also highlights the shortcomings of existing atrocity prevention models. Section III evaluates situations in which victim-offender mediation and negotiation have …

Independent Contractors Or Employees? Why Mediation Should Be Utilized By Uber And Its Drivers To Solve The Mystery Of How To Define Working Individuals In A Sharing Economy Business Model, Ethan Rubin

Cardozo Journal of Conflict Resolution

In an effort to do so, each section of this Note will address a different issue of the ongoing disputes between Uber and its drivers and suggest potential solutions for both parties. Section II focuses on the differences between Uber and its drivers' points of view on whether Uber drivers should be considered employees or independent contractors via National Labor Relations Board ("NLRB") terminology. Section III discusses why it is difficult to label Uber and its drivers under traditional employment law terminology, as well as failures to do so through negotiation, litigation, and arbitration. Section IV proposes that with an …

Developing Improved Tactics For Advance Pricing Agreements To Decrease Negotiation Lead Time, Ryan Vines

Cardozo Journal of Conflict Resolution

This Note seeks to investigate the inefficiencies of the Advance Pricing Agreement negotiation process and how inequitable negotiations adversely affect the American taxpaying community, and small and medium sized corporations. The results of this investigation point to the necessity for the IRS to collect data and perform trend analyses. Although marginal improvements have been made by the Advance Pricing and Mutual Agreement ("APMA") Office, the data show that the real issues of Advance Pricing Agreement negotiations have yet to be resolved. The current practices and procedures of a typical Advance Pricing Agreement negotiation does not promote horizontal equity among taxpayers. …

Can't We All Get What We Want?: The Use Of Tiered Dispute Resolution As A Means Of Sustaining Free Market Channel-Sharing Arrangements Resulting From The Fcc's 2016 Incentive Auction, Daniel Spencer

Cardozo Journal of Conflict Resolution

This Note will first discuss the history of the FCC's regulatory authority, including its prior allocations of spectrum and the power under which it has the authority to repurpose the 600 MHz spectrum band. Next, this Note will detail the procedures that will be used in the upcoming Incentive Auction, and explore the options posed to broadcasters. In particular, it will emphasize the viability of one option-the ability to channel share-as the most economically efficient use of spectrum in certain cases. This Note will then propose the inclusion of tiered dispute resolution clauses within channel-sharing arrangements to help preemptively resolve …

Suspended Sentence Contingent Upon Participation In Victim Offender Mediation For Juveniles Who Commit Violent Crimes, Lindsay Goldbrum

Cardozo Journal of Conflict Resolution

This Note discusses the potential benefits of implementing a system of suspended sentences for juveniles convicted of violent crimes contingent upon participation in victim offender mediation. Section II discusses the background of mediation, restorative justice, and victim offender mediation. Section III discusses the need for reform and shortcomings of the current juvenile justice system. Section IV proposes the system of suspended sentences for juveniles convicted of violent crimes contingent upon participation in victim offender mediation, and discusses the various benefits to be achieved through victim offender mediation.

Using Crisis Negotiation Team Methods To Decrease Violence In Prisons, Emily Katz

Cardozo Journal of Conflict Resolution

Part I of this Note introduces the Crisis Negotiation Teams and explains when, how, and why they were formed. Part I also discusses what factors ultimately lead teams to successful and safe negotiations. Part II discusses the current structure in place in today's prisons and the consequences prison experiences have on the inmates. Additionally, Part II discusses prison guard training, as well as the effects this training is having on both inmates and guards alike. Part III offers some suggestions on how to fix issues within prisons, specifically the guard and inmate relationship, by using procedures currently in use by …

One Country, Two Systems: Hong Kong's Unique Status And The Development And Growth Of Arbitration In China, Jiali (Keli) Huang

Cardozo Journal of Conflict Resolution

This Note evaluates the future of arbitration in China and Hong Kong as the two approach their twentieth year working toward reunification under the implications of the "one country, two systems" model, which was implemented in Hong Kong when Hong Kong's sovereignty was transferred back to China in 1997. First, this Note explains Hong Kong's unique identity, the factors that triggered the Umbrella Movement and the Fishball Revolution, and Hong Kong's current relationship with China. Second, this Note provides a broad overview of the development of arbitration in China. Third, this Note describes the arbitral history between China and Hong …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 18, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

"Sense Of Access To Justice" As A Framework For Civil Procedure Justice Reform: An Empirical Assessment Of Judicial Settlement Conferences In Quebec (Canada), Jean-François Roberge

Cardozo Journal of Conflict Resolution

An emerging worldwide civil procedure justice reform trend takes the user's point of view into account in order to promote access-tojustice and support for the rule of law. In the Canadian context, the Quebec civil law province has taken the lead to renew its legal culture towards a participatory justice, rooted in fair-minded processes that encourage the persons involved to play an active role. In an effort to monitor such ambitions, carried by the civil procedure code reforms of 2003 and 2014, our paper offers an empirical evaluation through the lens of litigant's "Sense of Access to Justice" ("SA"). We …

Regional International Criminal Courts: An Idea Whose Time Has Come?, Firew Kebede Tiba

Cardozo Journal of Conflict Resolution

Regionalism in international relations is a fact of life. Regional judicial implementation of international norms is relatively common in the fields of international human rights, international investment, and trade laws. There are attempts to break ground in the realm of international criminal law by creating a regional international criminal court, such as the proposed addition of the criminal jurisdiction to the African Court of Justice and Human Rights. Although there was momentum in creating a universal permanent international criminal court, the enthusiasm for the tribunal's exercise of jurisdiction has not continued. The International Criminal Court ("ICC") will remain short of …

Introduction, Forrest S. Mosten

Cardozo Journal of Conflict Resolution

This special edition of the Cardozo Journal of Conflict Resolution reflects the current exciting state of the Family Dispute Resolution field, inside and outside of the law school academy. The articles selected for this portion of the issue carry on the vibrant dialogue that took place at the Cardozo Journal of Conflict Resolution's Annual Symposium "All in the Family: Intimate Parties, Intimate Issues and ADR". This Symposium, hosted at the Benjamin N. Cardozo School of Law on October 19, 2015, engaged scholars, practitioners, and students from across the country.

Bargaining In The Shadow Of Children's Voices In Divorce Custody Disputes: Comparative Analysis Of Japan And The U.S., Hiroharu Saito

Cardozo Journal of Conflict Resolution

This paper discusses the social impact of hearing children's wishes in judicial procedures for divorce custody disputes by comparing the different legal systems in Japan and the U.S. In particular, through a plain law and economics approach with the analytical framework of "Bargaining in the Shadow of the Law" suggested by Mnookin and Kornhauser (1979), this paper discusses the backlash to parents' bargaining outside the court by empowering children to be heard in court.

There has been a child advocacy movement in Japan to empower children's participation right in the judicial procedures in accordance with the UN Convention on the …

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 18 (2016–17)

Cardozo Journal of Conflict Resolution

No abstract provided.

The "Nature" Of Legal Dispute Bargaining, Robert J. Condlin

Cardozo Journal of Conflict Resolution

The longstanding debate over the relative merits of adversarial and communitarian theories of legal dispute bargaining has been in somewhat of a holding pattern for several years, but recent research in the field of cognitive neuroscience may break this logjam. Laboratory experiments and case studies in that field have shown how dispositions and capacities for social cooperation inherited from natural selection and evolution predispose humans to configure disputing as a mixture of argument over factual reality, disagreement over the interpretation of normative standards, and a search for impartial resolutions that protect the interests of everyone involved equally. This neurobiological inheritance …

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Cardozo Journal of Conflict Resolution

If Donald Trump, in kicking off his campaign for the White House, was saying "what everyone is thinking" about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales-some as old as The Flood. This article reconsiders news stories-and the storytelling …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 17, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Mediating Discovery Disputes: When "Meet And Confer" Alone Is Not Enough, Marian Riedy, Nancy Greenwald

Cardozo Journal of Conflict Resolution

It is universally agreed that mediation can be a very effective tool for resolving a civil lawsuit. For this reason, to save the parties' time and expense, and to conserve judicial resources, a large majority of jurisdictions require the parties to participate in mediation or another ADR technique before proceeding to trial. Mediation is not commonly employed, however, as a method of resolving discovery disputes. This article proposes that mediation, properly adjusted to account for the differences between the "endgame" and the discovery phase, can and should be used more widely as an efficient and cost-effective alternative to court orders …

The Psychology And Neurobiology Of Mediation, Elizabeth E. Bader

Cardozo Journal of Conflict Resolution

This article grew out of a moment in mediation when a party became furious with me after receiving the opening offer from the other side. As I tried to understand what was happening, I suddenly realized it was not about the offer at all. It was about him. He feared a loss of "face" in front of the other parties.

A Genesis Of Conflict: The Zero-Sum Mindset, Jonathan R. Cohen

Cardozo Journal of Conflict Resolution

Parties in conflict often operate under the assumption that for one party to win, the other party must lose. This concept, known as the "zero-sum mindset, " can lead to undesirable results, both because it can make disputes harder to resolve and because people holding such beliefs are more likely to get into conflicts to begin with. Over the past several decades, legal educators specializing in dispute resolution have worked hard to challenge that mindset. This task is not simple, for framing conflict in zero-sum terms has very deep cultural roots tracing back at least to the Biblical stories in …

Saving Mr. Banks And Other Interest-Based Negotiations, Michael Rogers

Cardozo Journal of Conflict Resolution

The goal of this article is to encourage the use of interestbased negotiations. Some of the stories included will be familiar; others will be fresh. In Getting to Yes, Fisher and Ury identify four principles of negotiation ("principled negotiation") that can be employed effectively in almost any type of dispute resolution: (1) Separate the people from the problem; (2) Focus on interests rather than positions; (3) Invent options for mutual gain; and (4) Insist on using objective criteria. Because focusing on interests is the second step identified in Getting to Yes, and inventing options for mutual gain is the …

The War On American Diplomacy: Isis, Al-Qaeda, And Taliban's Sustained Attacks On Peaceful U.S. Missions Abroad, Justus Reid Weiner

Cardozo Journal of Conflict Resolution

According to the American Foreign Service Association, seventy-six U.S. diplomats were killed between the years of 1973 and 2013 during peaceful missions abroad, amounting to over forty deaths. These diplomats were beacons of peace in their respective regions, maintaining peaceful relations amongst each other's countries and mitigating conflict without the use of violence. Continued attacks on diplomats are a demonstration of violence not only against them as individuals, but against peace around the globe. The most obvious way to resolve this conflict is to acknowledge the innumerous terror attacks that have taken place and take active steps to resolve the …