Dispute Resolution and Arbitration Commons^™

Mediation Ethics: An Exploration Of Four Seminal Texts, Barbara Wilson

Cardozo Journal of Conflict Resolution

The subject of mediator ethics is often conflated with discussions about standards of practice, the appropriate wording of codes of conduct, or forms of practitioner regulation. These discussions sometimes also extend to debates about practice dilemmas, such as conflicts of interest, voluntariness, confidentiality and stakeholder issues. The main purpose of this paper is instead to discuss the importance and problems of the differing ethical principles which, I argue, underlie four seminal and popular Alternative Dispute Resolution (ADR) books. These texts are in current circulation, although some have been republished as later editions since first appearing. They are often used-either separately …

The High Cost Of Mandatory Arbitration, Martha Nimmer

Cardozo Journal of Conflict Resolution

This Note traces the development of voluntary and mandatory arbitration in the United States, including the reasons for the rise in arbitration and the implications for Americans' civil rights. In voluntary arbitration, an employee agrees to arbitrate a workplace dispute instead of litigating a claim. Mandatory arbitration, in contrast, "requires an employee, as a condition of employment, to forego all access to a jury trial and use arbitration in place of a judicial forum for resolving statutory and contractual claims." The use of mandatory arbitration, particularly in employment disputes arising under Title VII, has increased dramatically since 1991 as a …

Restoring Human Trafficking Victims Through Victim-Offender Dialogue, Carina Patritti

Cardozo Journal of Conflict Resolution

This Note will explore the pros and cons of using victim-offender dialogue in cases of human trafficking. In the first part of the Note, a background on human trafficking will be provided, including current statistics on human trafficking cases and the effects on victims. Restorative justice will be discussed in the second part of the note, with specific emphasis on VOD. The third part of the Note will explore how the criminal system has used VOD, beginning with low-level crimes and then exploring how VOD has been applied to serious and violent crimes. This Note will then propose the application …

Online Dispute Resolution With China: Advantageous, But At What Cost?, Jennifer Sackin

Cardozo Journal of Conflict Resolution

This Note will discuss the use of Online Dispute Resolution (ODR) between businesses and consumers in the United States (U.S.) and their counterparts in the People's Republic of China (P.R.C.). ODR is a growing, highly attractive, and arguably necessary phenomenon in the e-commerce world. It is an accommodating and useful process in that it employs online technology to provide traditional alternative dispute resolution (ADR) mechanisms via the Internet.

Expanding The Brand: The Case For Greater Enforcement Of Mandatory Mediation In Trademark Disputes, Max Vilenchik

Cardozo Journal of Conflict Resolution

Currently, far too many trademark disputes that could have been settled outside of court end up in litigation. While alternative dispute resolution (ADR) has become more prevalent in other areas of the law, many trademark attorneys and their clients do not regularly consider ADR processes, such as mediation, as one of their options because these processes are still relatively new to the trademark law area. This Note will propose that mandatory trademark mediation programs be expanded to ensure that trademark cases that are well suited for mediation end up in mediation rather than in mounting court dockets.

In Section I, …

Keep Arbitration Alive: Why The Fairness In Nursing Home Arbitration Act Should Not Be Passed, Margaret Baumer

Cardozo Journal of Conflict Resolution

Like it or not, arbitration agreements are part of our lives. Most cell phone and credit card companies include arbitration agreements in their customer contracts. Furthermore, many consumer complaints regarding trades through the National Association of Securities Dealers (NASD) are resolved through arbitration. However, despite their pervasiveness, consumers generally remain ignorant of arbitration agreements until a dispute arises, whereupon they discover that they must submit to arbitration proceedings, rather than sue sellers. Often, arbitration carries with it the added disappointment of high fees and perceived arbitrator bias in favor of the business entity. The same is true of a nursing …

Child Custody: Don't Worry, A Bet Din Can Get It Right, Jeffrey Haberman

Cardozo Journal of Conflict Resolution

This Note aims to explore the reasoning behind the state's reluctance to accept arbitration, including that of the bet din, as a means of resolving child custody disputes. The Note highlights the advantages of arbitration, both in general and when used to determine child custody. The Note examines the arguments proffered by the courts to justify the view that they, and not outside arbitrators, best resolve child custody battles. This Note argues that when two parties agree to arbitrate their divorce settlement before a bet din, the award should be given the same deference as a bet din's resolution of …

The Federal Arbitration Act After Alafabco: A Case Analysis, Benjamin D. Tievsky

Cardozo Journal of Conflict Resolution

In late 2009, a divided Supreme Court of Washington held in Satomi Owners Ass'n v. Satomi, L.L.C. that the arbitration provision in a warranty addendum to a sales contract between a condominium developer and an owners' association was enforceable. Specifically, the court held that the provision was within the reach of the Federal Arbitration Act, and that a Washington state statute preserving the parties' right to litigate with regard to the warranty addendum was therefore preempted. This Note will explore the potential importance of this decision for defining the contours of the applicability of the Federal Arbitration Act (at least …

Transcending Cultural Nationalist And Internationalist Tendencies: The Case For Mutually Beneficial Repatriation Agreements, Joshua S. Wolkoff

Cardozo Journal of Conflict Resolution

This Note will proffer a critical evaluation of the Italian government's current tactics for reclaiming its patrimony and argue that MBRAs are the most desired framework for resolving repatriation disputes, as they give rise to lasting collaborative relationships between source nations and cultural institutions and strive to keep valued works in the "public trust" without diminishing traditionally insular cultural identities. Thus, successful negotiations must account for competing interests including, inter alia: (i) the emotional currency of the object as assessed from the perspective of the source nation; (ii) the institution's desire to keep disputed works within the public sphere; (iii) …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 10, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

International Advocate For Peace Award Acceptance Speech, Amira Dotan

Cardozo Journal of Conflict Resolution

The Ninth International Peace Award Recipient

Arguments In Favor Of The Triumph Of Arbitration, Thomas E. Carbonneau

Cardozo Journal of Conflict Resolution

Organized discussions among legal scholars rarely instigate roiling controversies. Truth be told, it is generally deemed an achievement to maintain a wakeful state during these enclaves. The Cardozo Journal of Conflict Resolution Conference gauging the future of arbitration was exceptional in a number of respects. The topics and presentations were invigorating. Several practitioners, in particular, delivered outstanding papers. The sponsoring student journal demonstrated nimble managerial skills. No stone of accommodation or convenience was left unturned for the participants. I was also very impressed with the young academic lawyers who are active in the area of arbitration. Their contribution and commentary …

The Jurisprudence Of Mediation: Between Formalism, Feminism And Identity Conversations, Michal Alberstein

Cardozo Journal of Conflict Resolution

The paper explores the ties between schools of mediation and schools of law through an examination of their theoretical foundations. By weaving together discussions of rights, the rule of law, and formalism, with elements of dispute resolution as it is studied today, this article will demonstrate the importance of Alternative Dispute Resolution ("ADR") and mediation as a form of social order. It will also demonstrate the influence of philosophical jurisprudential debates on the development of mediation programs. The paper begins by exploring the ties between different jurisprudential traditions and evolving models of mediation. Scholars portray mediation models as incorporating diverse …

An Anthropologist's Approach To Mediation, Rebecca Golbert

Cardozo Journal of Conflict Resolution

On October 31, 2008, the Dispute Resolution Section of the American Bar Association, in collaboration with AAA International Centre for Dispute Resolution, ACB Group-Netherlands, ADR Center-Rome, CEDR, CMAP, International Academy of Mediators, International Institute for Conflict Prevention & Resolution ("CPR"), JAMS, Netherlands Mediation Institute, and the International Mediation Institute, held its first International Mediation Leadership Summit. The Summit's setting-the Peace Palace in The Hague in the Netherlands-was both breathtakingly beautiful and evocative. The Summit's goals-guided by the leadership and vision of Section Chair Lela Love and former Chair Bruce Meyerson, as well as international partners Manon Schonewille and Giuseppe de …

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 10 (2008-09), Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Nonconsensual + Nonbinding = Nonsensical? Reconsidering Court-Connected Arbitration Programs, Amy J. Schmitz

Cardozo Journal of Conflict Resolution

Policymakers have adopted programs mandating parties to submit their disputes to court-connected arbitration hoping to garner efficiency benefits commonly associated with contractual Federal Arbitration Act (FAA) arbitration. Mandatory nonbinding arbitration, however, is ill-equipped for this task because it lacks the consensual core and finality of FAA arbitration. Instead, it often adds an inefficient layer to the litigation process and may harm those least able to protect themselves from coerced settlements or burdens of protracted litigation.

Class Action Arbitration, William H. Baker

Cardozo Journal of Conflict Resolution

Class action arbitrations are a relatively recent phenomenon in the United States, but the number of such arbitrations is expanding at a rapid rate. As of August 2008, the American Arbitration Association ("AAA") has administered 246 class action arbitrations and Judicial Arbitration and Mediation Services, Inc. ("JAMS"), another major U.S. arbitral institution, has also administered a substantial number of class arbitrations.

Challenging Class Action Bans In Mandatory Arbitration Clauses, F. Paul Bland Jr., Claire Prestel

Cardozo Journal of Conflict Resolution

After a brief summary of relevant Supreme Court doctrine, this article sets out the argument that exculpatory class action bans violate many states' generally applicable contract law and responds to several common corporate defenses offered in support of such bans.

Building The Latin America We Want: Supplementing Representative Democracies With Consensus-Building, Mariana Hernández Crespo

Cardozo Journal of Conflict Resolution

This article is about using consensus-building to create channels for meaningful participation in public decision-making, in order to supplement representative democracies in Latin America. I argue that the addition of a consensus-building mechanism into the legislative process will create the necessary forum for stakeholders to contribute to the framing and resolution of issues of public concern. Furthermore, as Susskind has argued, allowing citizens to participate at the beginning of decision-making processes will make legislative outcomes more legitimate and decrease the level of political dissatisfaction.

Business Courts And The Future Of Arbitration, Christopher R. Drahozal

Cardozo Journal of Conflict Resolution

This article examines the extent to which competition from business courts is likely to impact the future of arbitration. Part II provides a brief overview of the growth of business courts in recent years. Part III sets out a structural comparison of arbitration with business courts, highlighting the similarities and differences between the two. Part IV provides empirical evidence on the relationship between the availability of business courts and the use of arbitration clauses. Overall, the evidence provides little indication that parties are switching from arbitration to business courts. The evidence is far from definitive, however, and highlights the need …

Arbitration Reform: What We Know And What We Need To Know, Peter B. Rutledge

Cardozo Journal of Conflict Resolution

The future of commercial arbitration has become a centerpiece of the domestic congressional agenda. According to one estimate, ten different bills introduced in the 110th Congress would chip away at the enforceability of pre-dispute arbitration agreements. By far the most significant bill, the Arbitration Fairness Act, would retroactively invalidate arbitration agreements in all employment, consumer, securities and franchise contracts. An especially vague provision in a prior version of the bill would invalidate agreements involving claims under statutes intended to protect civil rights or designed to regulate transactions between parties of unequal bargaining power. Are these wise moves?

State Regulation Of Arbitration Proceedings: Judicial Review Of Arbitration Awards By State Courts, Stephen K. Huber

Cardozo Journal of Conflict Resolution

The thesis of this Article can be stated simply and concisely: States possess the power to adopt standards for the conduct of arbitration proceedings and review of arbitration awards that are significantly different from federal law standards. The major objective of this Article is to explore the most important possibilities for reform of arbitration law and practice at the state level. State law standards will be of increasing importance in the reformation of arbitration practice. This Article focuses on the standards of review of arbitration awards employed by state courts, because the power to vacate an arbitration award is the …

Racing For The Arctic? Better Bring A Flag, Jordan Hellman

Cardozo Journal of Conflict Resolution

This Note will explore the current dispute over Arctic seabed resources surrounding the North Pole, evaluate methods for resolving this conflict, and finally suggest particular Alternative Dispute Resolution ("ADR") methods which would be best suited to resolve the conflict peacefully and equitably. Part II will introduce the appropriate statutory law and discuss its relative effects on the disputing countries. Further, as with most conflicts, it is important to understand how the history of the area impacts the involved countries. This will be assessed in Part III. In Part IV, this Note will show how this particular conflict is better suited …

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 11 (2009-10), Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 11, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Multijurisdictional Adr Practice: Lessons For Litigators, Kristen M. Blankley, Emily E. Root, John Minter

Cardozo Journal of Conflict Resolution

This article attempts to give an overview of the problem facing litigators in their increasingly global practice, as well as the steps that litigators can take to act in compliance with legal and ethical guidelines. Accordingly, this article is divided into two broad areas. First, this article will discuss what activities constitute the practice of law and which jurisdiction's law should govern, focusing on whether ADR practices constitute the practice of law. Second, if the litigator is engaged in the practice of law, this article considers what actions the litigator should take in order to comply with the applicable ethical …

Private Military Companies & International Law: Building New Ladders Of Legal Accountability & Responsibility, Jackson Nyamuya Maogoto, Benedict Sheehy

Cardozo Journal of Conflict Resolution

The Private Military Company ("PMC") is a relatively new and growing phenomenon. An urgent and ongoing problem facing courts and policy makers is the accountability of PMCs. This article proposes new approaches to developing accountability by examining the potential of two well-established doctrines: command responsibility and state responsibility.

Bad Medicine: On Disciplining Physician Felons, Milton Heumann, Brian Pinaire, Simon Burger

Cardozo Journal of Conflict Resolution

Perhaps it is the white coat or the degrees encased and mounted on the wall. Perhaps it is the Hippocratic Oath that new physicians recite and that established physicians have putatively internalized over time, or perhaps it is the title, "Doctor," which conjures up images of a stethoscope, a black bag, house calls, nurture, and trust. When we are sick, we head to the doctor. Young children are urged to become doctors. When we watch television or go to the movies doctors are, with certain recent exceptions, portrayed in a positive light as compared to lawyers or politicians. In this …

Opening Remarks, Jack Himmelstein

Cardozo Journal of Conflict Resolution

No abstract provided.

Yada, Yada, Yada: Seinfeld, The Law And Mediation, Paul Devendorf

Cardozo Journal of Conflict Resolution

This Note will first explore the popularity of Seinfeld and discuss the influence of Seinfeld on legal culture. Part III details cultivation theory and explores the possible influences Seinfeld may have in shaping its viewers' impressions of formal law. Specific instances in-which Seinfeld has ridiculed formal legal practices and offered social criticisms of the legal profession are analyzed in Part IV. Part V describes a specific episode of Seinfeld and illustrates the consequences of parties' refusal to reach mutually satisfactory resolutions, the need for mediation to resolve highly contentious disputes, and the inadequacy of the legal system to provide an …