Dispute Resolution and Arbitration Commons^™

Methodology In Action: On Consistency, Accuracy And Proficiency In Mediation, Ran Kuttner

Cardozo Journal of Conflict Resolution

Over seventeen years have passed since the first edition of Bush & Folger's The Promise of Mediation. Edited by Bush and Folger together with Dorothy Della Noce, Transformative Mediation: A Sourcebook - Resources for Conflict Intervention Practitioners and Programs offers a new and important contribution to our understanding of the promise of mediation, this time not necessarily because of the particular ideology of the transformative approach, but because of the manner in which this volume demonstrates how mediation scholarship can further develop mediation proficiency. The promise of mediation and the future of its institutionalization as a respected, distinct profession …

Courageous Conversations: Aligning The Occupy Wall Street And The Mediation Movements, Raymond Shonholtz

Cardozo Journal of Conflict Resolution

Originally prepared as a speech for the Oregon Mediation Conference, November 2011, the following has been modified for a wider audience concerned about the role of mediators and the mediation movement in relation to the Occupy Wall Street Movement ("OWS"). The author's intent is to provide a context for supporting the "courageous conversations" (theme of the Oregon Mediation Association Conference) of OWS by mediation and change management experts. The following was written a month after the Oregon Mediation Association speech and reflects comments made to the author to elaborate on the mediating modalities that might be useful to both OWS …

Mismatch.Com: Online Dispute Resolution And Divorce, Rebecca Brennan

Cardozo Journal of Conflict Resolution

This Note proposes that online dispute resolution (ODR) is a particularly therapeutic method of negotiating and settling a divorce, and in some circumstances may be a more appropriate method than traditional face-to-face mediation sessions. Part I will discuss divorce and its psychological and emotional consequences. Part II will discuss therapeutic jurisprudence and why it is especially beneficial as applied to the dissolution of marriages. Part III will discuss ODR in general, its development, and its application to a variety of legal fields. Part IV will discuss the advantages and disadvantages of ODR, particularly with regards to therapeutic jurisprudence and divorce …

A Solution To Holdouts In The National Football League: How Salary Arbitration Can Limit A Growing Problem, Roger Quiles

Cardozo Journal of Conflict Resolution

This Note will explore the intricacies of Major League Baseball's salary arbitration system, as established in the league's CBA with the MLB Players' Association (hereinafter, "MLBPA"), in order to create a suitable and similar forum for the NFL. The MLB salary arbitration model is not perfectly transposed to the NFL, but can be slightly modified to reflect the differences between the sports. The primary difference is that the NFL establishes a salary cap that a team's payroll may not exceed, whereas MLB teams can carry as big of a payroll as they want. Though the salary cap raises several questions …

Red Card Racism: Using The Court Of Arbitration For Sport (Cas) To Prevent And Punish Racist Conduct Perpetrated By Fans Attending European Soccer Games, Alexander Wynn

Cardozo Journal of Conflict Resolution

This Note proceeds in three sections. Part I describes the extent to which racism infects European soccer, the processes by which Uefa addresses violations of the Uefa Statutes and CAS' contributions to sports mediation and arbitration. Part II contextualizes Uefa's governing authority within statutory and case law from the E.U. and the United Kingdom [hereinafter "U.K."] as legal frameworks through which to explore possible reasons why Uefa rarely imposes substantial sanctions on member associations or teams whose fans perpetrate racist acts. Finally, Part III explores the reasons why CAS is better able to address and punish racism in European soccer …

Music To Everyone's Ears: Binding Mediation In Music Rights Disputes, Matthew H. Ormsbee

Cardozo Journal of Conflict Resolution

Litigation has been the mainstay of copyright disputes since America's earliest copyright statute first permitted a cause of action for copyright infringement in 1790. While alternative dispute resolution ("ADR") has become more prevalent in other areas of the law, many copyright attorneys and their clients do not typically consider ADR processes a viable option because these processes are still relatively new to copyright law.

This Note proposes greater use of binding mediation, a specialized ADR process, in music rights disputes, which are fundamentally copyright infringement disputes. Section I discusses the background of copyright litigation and modern application of ADR in …

East Meets West: Introducing Sharia Into The Rules Governing International Arbitrations At The Bcdr-Aaa, Elana Levi-Tawil

Cardozo Journal of Conflict Resolution

As the size and complexity of international commercial transactions grow, parties to international commercial transactions are increasingly utilizing Alternative Dispute Resolution ("ADR") methods, specifically international commercial arbitration, to resolve the disputes that arise. However, since international commercial players first began to use international commercial arbitration to resolve these disputes, transnational recognition and enforcement of foreign arbitral awards has been a major issue. Since 1958, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"), an agreement executed by the United Nation's General Assembly, has vastly expanded the recognition and enforcement of foreign arbitral …

Japan's Business Revitalization Adr: An Economic Savior Or A Convenient Excuse To Avoid Bankruptcy?, Naoko Okamoto

Cardozo Journal of Conflict Resolution

This Note analyzes Japan's newly enacted "Business Revitalization Alternative Dispute Resolution" (ADR) and its effectiveness in revitalizing the Japanese economy. Due to ADR's economic and procedural ease, Business Revitalization ADR has been employed by companies undergoing revitalization processes and negotiating with creditors in extending debt payments. Nonetheless, ADR proceedings, specifically mediation between creditors and debtors, create only short-term economic value. Because of cultural characteristics of mediation and the nature of mediation in the business context in Japan, Business Revitalization ADR may be subject to abuse by companies that should have gone bankrupt. In fact, many companies may save themselves from …

A Lesson From The Holocaust Restitution Movement For Armenians: Generate Momentum To Secure Restitution, Vartges Saroyan

Cardozo Journal of Conflict Resolution

This Note proceeds in five parts. Part I provides a historical background of the events prior to and during the Armenian Genocide, and the claims arising out of the Genocide. Part II discusses the status of Genocide restitution and the roadblocks that continue to prevent widespread recovery. Part III explains the timeline of the Holocaust restitution movement and how advocates for restitution were finally able to have some success. Part IV proposes that Genocide-era claims be sought not only by filing lawsuits, but also by creating momentum through negotiation and other principles of ADR. Part V concludes by reiterating the …

The Adventures Of 'Superman': A Narrative Worth Mediating, Jeffrey Zeman

Cardozo Journal of Conflict Resolution

Summer, 2013. The world will believe, again, a man can fly. Most likely, anyway. Maybe. Fingers crossed.

The rights to Superman and his stories are the subject of a long-developing and heated dispute between publisher DC Comics ("DC") and the estate of Jerry Siegel, co-creator of the iconic character. While a much-talked-about reboot of the movie franchise enters preproduction, the latest round of lawsuits involves DC suing the Siegel family's attorney. The publisher claims attorney Marc Toberoff has wrongfully interfered with "contractual rights and other interests" by advising the families of Siegel and his cocreator, Joe Schuster, to reclaim the …

After The Ecj's West Tankers: The Clash Of Civilizations On The Issue Of An Anti-Suit Injunction, Grace Gunah Kim

Cardozo Journal of Conflict Resolution

This Note argues that the ECJ's West Tankers decision to ban an anti-suit injunction in Europe, coupled with the recent European Commission's reform proposals to govern arbitration within the jurisdictional framework of the Brussels Regulation No. 44/ 2001 ("Brussels Regulation"), directly clash with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") and practically amount to a blanket rule that bars English courts from upholding arbitration agreements.

Equitable Estoppel To Compel Arbitration In New York: A Doctrine To Prevent Inequity, Matthew Berg

Cardozo Journal of Conflict Resolution

Arbitration, as a favored alternative to court systems, finds its validity in both state and federal law. The Federal Arbitration Act ("FAA") was enacted in 1925 unopposed, reflecting a strong favored alternative by the federal government to the Article III courts. This presumption was established in Section 2 of the FAA, which provides that contracts that include an arbitration clause "shall be valid, irrevocable, and enforceable" unless a court finds "grounds as exist at law or in equity for the revocation of any contract [or clause]."

Navigating The Murky Waters Of Untruth In Negotiation: Lessons For Ethical Lawyers, Deborah Schmedemann

Cardozo Journal of Conflict Resolution

Verbena Gardens had been working for months on its new product in its offices at Kost Properties' Southwest Suites when the burglary occurred, sometime between 8:00 and 10:00 at night. The case was never solved; Verbena's property was never recovered. While the burglary pushed the project back by months, the market moved on, and the promising new product was scuttled.

The Next Generation Of Online Dispute Resolution: The Significance Of Holography To Enhance And Transform Dispute Resolution, Susan Nauss Exon

Cardozo Journal of Conflict Resolution

Many scholars have written about the use of various technologies used to enhance or transform face-to-face alternative dispute resolution (ADR) processes. Whether termed online dispute resolution (ODR), cybermediation, also known as online mediation, cybercourt, electronic courthouse, virtual courtroom, virtual ADR, video conferencing, or telepresence, each of these technological advances revolves around the use of the Internet or some form of technology to facilitate long-distance, virtual communication without the necessity of physical travel or face-to-face contact. Most scholars have ignored holography, which is the next generation of technology, or perhaps we can more aptly refer to it as a current, unsung …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 11, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 12 (2010-11), Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

International Advocate For Peace Award Acceptance Speech, Stuart E. Eizenstat

Cardozo Journal of Conflict Resolution

I feel very much at home here because I was here three or four year ago at a symposium at the law school-a panel with Adam Durshowitz and Erwin Cogler, who was then Administer of Justice of Canada, and others. I have also received an honorary doctorate from Yeshiva University, and I feel very much at home here. I just met Dean Dillard and Professor Love, but I have some longtime friends here: Professor Weisberg, who I will talk about in a moment, is one of the heroes of this whole episode; Eric Pan, your professor of Commercial and International …

Deconstructing Dispute Classifications: Avoiding The Shadow Of The Law In Dispute System Design In Healthcare, Orna Rabinovich-Einy

Cardozo Journal of Conflict Resolution

The paper opens with an analysis of dispute classification under ADR theory, and highlights the ways in which the "shadow of the law" has shaped the design of systems for addressing conflict. One significant byproduct of the shadow of the law has been the motivation of dispute system designers to target legal disputes at the expense of other complaints, which do not constitute a legal cause of action. This development is ironic because in the case of non-litigable disputes, alternatives constitute the only available avenues for redress. The article then proceeds to define and characterize non-litigable disputes in Part II.A. …

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 11 (2009-10), Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

For Business Dispute Solutions, Process Matters, David C. Albalah, Jesse D. Steele

Cardozo Journal of Conflict Resolution

Business mediation should be common sense, but it is all too often corrupted by nonsensical rules and practices. The ground rules that serve as a foundation for the mediation come from an antithetical adversary system, so the traditional mediation process has been adulterated with counterproductive adversarial practices. To consistently reach mutually beneficial mediated settlements, that are exponentially better than anything attainable through traditional mediation, both the structure of mediation ground rules and the practices utilized throughout the mediation process need to be changed and refocused on the ultimate purpose: enabling business decision makers to address the underlying business interests in …

Negotiating Implementation Of A Peace Agreement: Lessons Learned From Five Years At The Negotiating Table, Amos N. Guiora

Cardozo Journal of Conflict Resolution

For five years (1994-1999), I directly negotiated on-theground implementation of the Oslo Peace Process in the Gaza Strip. In my capacity as the Judge Advocate General's ("JAG") Corps Legal Advisor to the Israel Defense Forces ("IDF") Commander, Gaza Strip (1994-1997), I had primary responsibility for both interpretation and negotiation, first for the Gaza-Jericho Agreement and subsequently for the Interim Agreement as it applied to the Gaza Strip.

Alternative Dispute Resolution In Real Estate Matters: The New York Experience, Gerald Lebovits, Lucero Ramirez Hidalgo

Cardozo Journal of Conflict Resolution

This article is intended to provide an overview of the available ADR options in New York for individuals and those in the real estate industry and the advantages and disadvantages as compared to litigation. The first section examines the different forms of ADR available to the real estate consumer. The second notes the general advantages and disadvantages of these ADR processes. The third looks at the particular advantages of ADR in real estate cases. The fourth presents an overview of different ADR programs promoted in New York to resolve real estate disputes.

Mediation Starts From The First Phone Call-Practice Pointers And Helpful Hints For Lawyers Going To Mediation, Robin Gise, Jed Melnick, Vivien Shelanski, John Wilkinson

Cardozo Journal of Conflict Resolution

Mediation has changed. The cases being mediated are larger and more complex, and the lawyers are more sophisticated and experienced in the mediation process. The authors of this article attempt to summarize some of the practice pointers and helpful hints they have gleaned from mediating thousands of complex commercial disputes.

We sort our comments chronologically: before, during and after the mediation. While by no means exhaustive, our thoughts should provide both the new and experienced practitioner with some insights into the mediation process.

Mandatory Mediation: An Oxymoron? Examining The Feasibility Of Implementing A Court-Mandated Mediation Program, Dorcas Quek

Cardozo Journal of Conflict Resolution

The introduction of the "multi-door courthouse" concept at the Pound Conference is said to have ushered in a modern era of dispute resolution within the United States. This watershed event in the history of Alternative Dispute Resolution ("ADR") spawned greater involvement by the courts in ADR. Court-annexed ADR programs were set up throughout the U.S. and legislation was enacted to encourage the use of ADR. In 1983, Rule 16 of the Federal Rules of Civil Procedure was amended to exhort courts to consider the "possibility of settlement" or "the use of extrajudicial procedures to resolve the dispute" at pre-trial conferences. …

Recommendations Regarding Establishment Of A Mediation Clinic, Cynthia A. Savage

Cardozo Journal of Conflict Resolution

This article proposes utilizing consistent terminology and goals and recommends methods and approaches for effective design and implementation of supervised, hands-on, mediation training programs within conflict resolution graduate programs. Although law school programs are not addressed directly in this article and might differ in some respects as to their goals, effective methods and approaches will be much the same regardless of the setting.

Part I of this article will discuss terminology and propose a consistent clinic definition and clinic goals, and Part II will explore and make recommendations concerning clinic design. Part III will outline additional recommendations. Part IV provides …

Enhancing The Effectiveness Of Mediation In Korean-American Family Disputes: Cultural Sensitivity Training For Mediators And Co-Mediation Teams, Giyang An

Cardozo Journal of Conflict Resolution

This Note focuses primarily on first generation KoreanAmerican women who remain loyal to community values that follow traditional Korean norms, especially when it comes to gender and family roles. To demonstrate the effects of these social values, this Note will analyze conflicts stemming from the various roles and identities (e.g., as a wife or mother) of Korean-American women. In addition, this Note will discuss the different ways Koreans and Americans view the legal systems in their respective countries, and how Koreans generally have a more favorable view of mediation than the confrontational model of litigation. This Note will focus on …

Gentrification And Mediation: Where A Single Pronunciation And Differing Perceptions Converge, Tiffany Ansley

Cardozo Journal of Conflict Resolution

This Note seeks to establish that mediation, when gentrification is involved, is the most suitable form of dispute resolution. Mediation, a form of Alternative Dispute Resolution ("ADR"), is the most well equipped method of dispute resolution to handle the emotional, legal, and community-based issues that arise as a result of gentrification. I argue in this Note that the effects of gentrification can be significantly reduced or remedied through mediation. The sources from which I draw to support my argument are research on case law dealing specifically with gentrification, research on the perspectives of persons negatively affected by gentrification, commentary and …

Fulfilling The Washington Principles: A Proposal For Arbitration Panels To Resolve Holocaust-Era Art Claims, Jessica Mullery

Cardozo Journal of Conflict Resolution

This Note highlights increased efforts to foster the restitution of Nazi-looted art, particularly on the U.S. front, during the 1990s, with emphasis on the Washington Conference in 1998. It is then contended that the Washington Principles have ultimately failed to result in the adoption of ADR mechanisms to deal with continuing Holocaust-era art claims in both the United States and abroad. The lack of both United States and international efforts subsequent to the Washington Conference, especially in failing to establish ADR mechanisms, is stressed in order to demonstrate the inadequacy of the Washington Principles. Ongoing cases and emerging litigation within …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 12, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

The Inherent Tension Between Value Creation And Value Claiming During Bargaining Interactions, Charles B. Craver

Cardozo Journal of Conflict Resolution

This article will discuss the inherent tension present in almost all legal and commercial negotiations between value creation and value claiming. How should interactants use integrative techniques to discover areas for potential joint gains, and how should they determine the actual value of the gains achieved? The article will then explore the way in which proficient negotiators employ distributive tactics to claim a greater share of the surplus for themselves. Before we examine those issues, however, we must consider different negotiator styles and the ways in which those styles influence value creation and value claiming.