Dispute Resolution and Arbitration Commons^™

The Legitimacy Crisis And The Future Of Courts, Orna Rabinovich-Einy

Cardozo Journal of Conflict Resolution

There is an overall legitimacy crisis in courts. The sources of this crisis have, to a large extent, been misconstrued. While there has been significant writing depicting the diminished quality, effectiveness, and fairness of courts, these phenomena have, for the most part, been viewed as distinct problems that warrant discrete solutions. This article shows that these problems are all manifestations of an overall legitimacy crisis that stems from the blurring of the originally stark distinctions between courts and alternatives. Traditionally, formal and informal dispute resolution processes had their own sources of legitimacy, each grounded in their respective distinctive (often opposing) …

Dispute Resolution Clauses In International Sponsored Research Contracts, Dennis Lazarev

Cardozo Journal of Conflict Resolution

Pharmaceutical companies are the greatest non-governmental sponsors of biomedical research in academia. Increasingly they sponsor foreign entities, typically universities or non-commercial research institutions. Another type of cross-border sponsorship occurs when two research institutions engage in a collaborative research effort. In either case disputes may arise. The most common types of disputes are the rights to the intellectual property developed in the course of sponsored research, and the scope of research activities that an agreement covers. Parties to these cross-border sponsorship arrangements have rarely incorporated dispute resolution clause in their contracts. This Article will argue that arbitrationis an approach far superior …

"Commercial Peacemaking"-The New Role Of The International Commercial Arbitration Legal Order, Tamar Meshel

Cardozo Journal of Conflict Resolution

International commercial arbitration (ICA) has risen to prominence over the past several decades as the most efficient and effective mechanism for resolving cross-border disputes between commercial entities, and has long been considered by the international business community as "the normal means of settling disputes arising from international transactions." ICA offers disputing parties an accessible, neutral, and private mechanism that is distinct from any specific national legal system; a "kind of social jurisdiction, opposed to State jurisdiction." It has thus been considered by some to constitute a specialized international regime, a form of "transnational" or "global" governance, or an autonomous legal …

The Mediation Coma: Purposeful Or Problematic, Kimberlee K. Kovach

Cardozo Journal of Conflict Resolution

While many books, articles and speeches are quick to note (and even applaud) the growth and expansion of mediation, others have more recently questioned whether mediation has fulfilled its promise. An initial issue to consider is its promise of what. Many might say of use-that mediation has not been utilized in the vast majority of disputes, small or large, locally or internationally. This was the primary impetus in bringing us together for this Symposium. Another issue explored throughout this Symposium is exactly what the use of mediation may or should be. And no doubt many different views exist, as the …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 17, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Reclaiming Mediation's Future: Re-Focusing On Party Self-Determination, Robert A. Baruch Bush, Joseph P. Folger

Cardozo Journal of Conflict Resolution

The premise of the Symposium that occasioned this Issue was that mediation is presently underutilized almost everywhere, and that the reason for this phenomenon is that the public simply doesn't grasp the great value of the process due to inadequate outreach and education efforts about mediation as an alternative to the legal system. Some suggest that greater use of mandatory mediation policies is called for as a response, rather than continuing the fruitless effort to explain mediation's value to an apparently unreceptive public. We disagree about both the cause and the solution for lack of public interest in mediation. We …

Trusting Strangers: Dispute Resolution In The Crowd, Anjanette H. Raymond, Abbey Stemler

Cardozo Journal of Conflict Resolution

Hoping to be the next Pebble, entrepreneurs and businesses have flocked to various crowdfunding platforms to contribute dollars to fund initial launches of products and other investments. As readers are undoubtedly aware, Kickstarter was the first and bestknown crowdfunding website, having helped to launch more than 95,000 projects to date. On March 3, 2014, Kickstarter reported that it passed $1 billion in pledges with over 5.7 million people donating to creative projects. There are currently over 800 crowdfunding platforms, with the bulk of dollars contributed going to social campaigns. Of course, as donations grew and the number of backers surged, …

No More Click? Click In Here: E-Mediation In Divorce Disputes-The Reality And The Desirable, Dafna Lavi

Cardozo Journal of Conflict Resolution

This Article deals with the relatively innovative field of e-Mediation (also known as "online mediation" or "cyber mediation") as used for the resolution of divorce disputes. The first part of the Article surveys the framework and background of the development of eMediation, its implementation, its advantages and disadvantages, focusing on the field of divorce disputes. It includes insights regarding the proven need for the development of alternative dispute resolution processes for such disputes, and the great potential inherent in the model of e-Mediation to address many of the problems typically accompanying such disputes.

In view of the urgency of the …

Fitting The Forum To The Pernicious Fuss: A Dispute System Design To Address Implicit Bias And 'Isms In The Workplace, Elayne E. Greenberg

Cardozo Journal of Conflict Resolution

This paper proposes a dispute system design to address workplace discrimination caused by implicit biases so that employees and employers involved in such disputes can secure a more responsive justice than existing legal processes are able to provide. Workplace discrimination caused by implicit bias continues to contaminate our work environment despite our focused legal efforts to combat such overt "isms" as sexism, racism, ageism, and ableism. Although overt expressions of bias have significantly decreased in recent years, expressions of implicit bias, the primary cause of workplace discrimination, persist.

This discussion takes place in three parts. Part One describes implicit bias, …

Barnacles, Aristocracy And Truth Denial: Three Not So Beautiful Aspects Of Contemporary Mediation, James R. Coben

Cardozo Journal of Conflict Resolution

Like any fairy tale, the Sleeping Beauty story has many variations. Most are far more complicated and sinister than the Disneyesque version that the public is familiar with. The same is true with mediation. On the surface, it is a beautiful story-self-determination, mediator neutrality, and party empowerment. In practice, especially in litigated cases, something else quite dark is actually transpiring: parties are literally locked away from one another. Mediators routinely testify and often actively "assist parties" to see the world as the mediators and the parties' lawyers do. Settlement is a prime directive and driving force. Institutionalization through statute and …

Death By Discovery, Delay, And Disempowerment: Legal Authority For Arbitrators To Provide A Cost-Effective And Expeditious Process, Tracey B. Frisch

Cardozo Journal of Conflict Resolution

Whether warranted or not, despite statistics to the contrary, arbitration in recent years has become a punching bag for criticism that it has begun to mirror the type of scorched earth discovery practices and delays seen in litigation. Why is this? Is it because parties are not actively participating in the arbitration process and instead have allowed their outside counsels to use the litigationstyle discovery and delay tactics with which counsel feel most comfortable? Maybe. Do parties themselves want protracted discovery and a drawn out arbitration process? Some, perhaps. Has arbitration become a victim of its own success, attracting more …

Mediation: The Best And Worst Of Times, Jacqueline Nolan-Haley

Cardozo Journal of Conflict Resolution

At this period in the evolution of dispute resolution, mediation is in a unique time zone, similar to what Dickens described in a Tale of Two Cities, as the best and worst of times, the seasons of Light and Darkness. It is the best of times, the season of Light and a time of joy in honoring human connections, as mediation is widely embraced in the public and private sectors. From government agencies and courts to corporations and United Nations peacemaking units, mediation offers a vision of hope in the midst of drowning bureaucracies, clogged dockets, corporate scandals and …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 16, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Judges As Gatekeepers To Mediation: The Russian Case, Kathryn Hendley

Cardozo Journal of Conflict Resolution

In this Article, I investigate the role of judges in mediation in Russia. Using a mixed-methods approach that draws on my fieldwork in Russian courts as well as a 2013 survey of Russian judges, I explore their attitudes towards mediation and their willingness to recommend it to litigants. I use the survey data to inquire into the factors that tend to predict both their attitudes and behavior vis-avis mediation. The analysis reveals a remarkable division between judges' attitudes and their behavior. The surveyed judges are generally enthusiastic about the introduction of mediation, but this enthusiasm is not always reflected in …

Reorienting Restorative Justice: Initiating A New Dialogue Of Rights Consciousness, Community Empowerment And Politicization, Thalia González

Cardozo Journal of Conflict Resolution

For the last three decades scholars have explored the practice of restorative justice as a crime control mechanism in a multitude of settings. Much of the discourse has focused on restorative justice as an alternative to traditional punitive and retributive criminal justice processes. Whether restorative or punitive, criminal justice processes that seek to address harm are not apart, above, or outside social, cultural and political relations. This Article seeks to initiate a new dialogue of justice and argues that the ontology of restorative justice should to be viewed to include a liberatory moment of politicization focused on promoting equality and …

Quintessential Intractability: Attractors And Barriers In The Palestinian-Israeli Conflict, Samuel (Muli) Peleg

Cardozo Journal of Conflict Resolution

Intractable conflicts are those that linger despite the parties' understanding that they would be better off resolving their disagreements in negotiation. The obvious ensuing question is why these conflicts persist when rational considerations indicate they should cease. A valuable way to examine this ostensible paradox is through the lens of Dynamical Systems Theory ("DST") and specifically by applying the concept of conflict attractors, which are "patterns of thinking, feeling and acting ... pulling ... toward a negative, destructive state that becomes self-organizing and selfperpetuating." The DST frame is particularly useful to observe intractable conflicts since it focuses on nonlinear, multi-dimensional …

Beginning With Yes: A Review Essay On Michael Wheeler's The Art Of Negotiation: How To Improvise Agreement In A Chaotic World, Leonard L. Riskin

Cardozo Journal of Conflict Resolution

This Review Essay describes the book, introduces a new system for understanding models of negotiation, and uses it to explain and expand upon some of the ideas in The Art of Negotiation. Then it suggests a different title for Wheeler's book, and describes recent efforts to connect improv with negotiation and mediation training and practice. I mean to honor Wheeler's important work by extending it.

"It Doesn't Seem Very Fair, Because We Were Here First": Resolving The Sioux Nation Black Hills Land Dispute And The Potential For Restorative Justice To Facilitate Government-To-Government Negotiations, Rita Lenane

Cardozo Journal of Conflict Resolution

Part II of this Note outlines the historical background of the Black Hills land claim. Part III describes the legal avenues taken by the Sioux in the past and those currently open to them, examining the different ways that Native Americans can pursue land claims and the potential each branch of government has to resolve the conflict. Part IV discusses President Barack Obama's unique relationship to the Indian community, and explores the ideals and goals of restorative justice, proposing that these ideas can usefully be incorporated into a comprehensive negotiation between the federal government and the Sioux, comparing the positive …

The Bomb Keeps The Lights On: The Use Of Final-Offer Arbitration In Failed Retransmission Consent Negotiations, Daniel J. Weiss

Cardozo Journal of Conflict Resolution

This Note will consider the imposition of binding arbitration in instances of failed retransmission consent negotiations between broadcasters and cable companies. It will first consider the FCC's authority to do so under the Communication Act of 1934 and the ADRA. Central to this discussion will be the debate and legislative history surrounding the 1992 Act and the way that mandatory binding arbitration has been used other contexts by the Commission. Further, this Note will explore the specific type of arbitration to be employed by the FCC in event the Commission finds they have the authority to mandate such a procedure. …

Sleeping? Comatose? Only Mandatory Consideration Of Mediation Can Awake Sleeping Beauty In The European Union, Giuseppe De Palo, Romina Canessa

Cardozo Journal of Conflict Resolution

A 2014 European Parliament-commissioned study, "Rebooting the Mediation Directive: Assessing the Limited Impact of Its Implementation and Proposing Legislative and Non-Legislative Measures to Increase the Number of Mediations in the EU," ("Rebooting Study") has initiated a much needed review and debate on effective mediation policy. The Rebooting Study, which recommended mandatory mediation for EU litigants with an ability to opt-out and enforcement of the 2008 EU Mediation Directive's Balanced Relationship Target Number ("BRTN") concluded, among other findings, that despite increased awareness of mediation and numerous studies and assessments, which have proved its benefits, mediation still remains largely under-utilized as a …

Mediator Misunderstanding Of Bargaining Basics: Heading In An Ugly Direction, Joseph B. Stulberg

Cardozo Journal of Conflict Resolution

A mediator facilitates bargaining conduct among negotiating parties. She conducts the session in a way that is designed to improve everyone's understanding of the situation, promote thoughtful problem solving, and develop settlement terms acceptable to all. When performing her tasks, a mediator must prefer or promote a particular bargaining approach by and among the parties. The only question is: which bargaining theory and approach should she privilege?

The Mediation Witches, Eric R. Galton

Cardozo Journal of Conflict Resolution

At first, the relationship probably seemed like a good idea. The law, bellicose, arrogant, and generally unloved, needed a kinder, gentler, more humanistic side. Mediation, the lah-di-dah flower child of peace rallies and community centers, needed a more serious and credible business angle if it was to continue its gettingpeople-together endeavors.

The Repeat Player Effect In Child Protection Mediation: Dangers Of And Protections Against Second-Class Justice For Marginalized Parties, Donna Erez-Navot

Cardozo Journal of Conflict Resolution

This Article will be structured as follows: Part I of this Article will introduce some of the basic and problematic phenomenon including the repeat player effect, cooptation and others that arise in the legal system. In Part II, there will be specific attention to these phenomenon applied in various well-researched dispute resolution areas including criminal, child protection, employment and arbitration contexts. Part III of this Article gives a broad introduction into court annexed mediation and child protection mediation in general. Part IV of this Article will focus on the specific effects of repeat player, cooptation, and others in Family Court …

Fourteenth Annual International Advocate For Peace Award Honoring Judge Daniel Weinstein, Matthew Diller, Lela Love, Paula Shulman, David Carden, Daniel Weinstein, Laila Ollapally, Hagit Shaked-Gvili, Sherif Elnegahy, Ihsanullah Khan, Andrew W. Lee, Ximena Bustamante, Farshad Ghodoosi

Cardozo Journal of Conflict Resolution

On March 16, 2015, the Cardozo Journal of Conflict Resolution presented its annual International Advocate for Peace Award to the Honorable Daniel Weinstein (ret.). What follows is a transcription of his public address at the Benjamin N. Cardozo School of Law.

Judicial Conflict Resolution (Jcr): A New Jurisprudence For An Emerging Judicial Practice, Michal Alberstein

Cardozo Journal of Conflict Resolution

In the past few decades, the role of judges has changed dramatically, yet its nature has remained largely unexplored. To date, most cases settle or reach plea-bargaining, and the greater part of judges' time is spent on managing cases and encouraging parties to reach consensual solutions. Adjudication based on formal rules is a rare phenomenon which judges mostly avoid. This Article argues that the various Conflict Resolution methods, which are used outside the courtroom, as alternatives to adjudication, could have a strong and positive influence, both theoretical and practical, on judicial activities inside the courts. Theoretically, the Article develops a …

Copyright Alert System: Six-Strikes And Forced Arbitration Might Not Be The Answer, Brett Schiff

Cardozo Journal of Conflict Resolution

Ongoing technological advancements are imminent and new forms of media will increasingly be created further broadening one's ability to share both his or her own intellectual property and the intellectual property of others almost instantaneously. Rising piracy and the growing use of peer-to-peer ("P2P") file-sharing resulted in representatives from the Motion Picture Association of America ("MPAA"), the Recording Industry Association of America ("RIAA"), and the nation's five largest Internet Service Providers ("ISPs")-AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon-joining forces. The Copyright Alert System ("CAS"), similar to foreign copyright enforcement graduated response systems, is the privatized, contractual United States graduated …

Welcome To The Jungle, Where The Rent Is Too Damn High: Using Rent Regulation In New York City To Maintain An Affordable Housing Stock, Gabrielle Denaro

Cardozo Journal of Conflict Resolution

First, this Note describes and explains the difference between rent control and rent stabilization in New York City. Then, the history of rent control and rent stabilization laws is discussed, followed by an analysis of the arguments of those both for and against the preservation of rent regulation. Further, this Note discusses the issue of gentrification. Finally, this Note proposes an idea for an arbitration forum, and explains the logistics of how it would work and how it could benefit the system overall.

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 17 (2015-16)

Cardozo Journal of Conflict Resolution

No abstract provided.

How To Conduct Effective Telephone And E-Mail Negotiations, Charles B. Craver

Cardozo Journal of Conflict Resolution

In this article, we will explore the ways in which negotiators use telephone and e-mail exchanges to consummate deals. Which factors should they consider when they talk on the telephone? What issues do cell phones raise that are not associated with traditional landlines? How do e-mail interactions differ from in-person and telephonic dealings? What can individuals do to optimize their use of these bargaining channels?

Jury Glasses: Wearable Technology And Its Role In Crowdsourcing Justice, Anjanette H. Raymond, Scott J. Shackelford

Cardozo Journal of Conflict Resolution

This Article explores the growing development of wearables and immersive technology within the field of dispute resolution. It provides a hypothetical example of how these existing technologies could be used in combination with data gathering, analytics, and artificial intelligence to transform the justice system. The Article then explores the age-old limitations and biases that exist within the justice system and suggests the use of the newest technology could lessen the impact of these limitations and biases. Finally, the Article suggests a marriage of technology, dispute resolution, and the crowd that may produce outcomes that should be supported by the judiciary …