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Cardozo Journal of Conflict Resolution

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Articles 631 - 660 of 704

Full-Text Articles in Dispute Resolution and Arbitration

The Dispute Resolution Profession Should Not Celebrate The Vanishing Trial, Bruce E. Meyerson Jan 2005

The Dispute Resolution Profession Should Not Celebrate The Vanishing Trial, Bruce E. Meyerson

Cardozo Journal of Conflict Resolution

Many mediators and arbitrators are celebrating the vanishing trial and the increasing use ADR, viewing this as a vindication of ADR over litigation. I suggest that those of us of who make a living as neutrals should not take out the champagne; but rather, we should help improve the quality of our litigation system. Why?

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Fitting The Forum To The Fuss With Sticky Defaults: Failure In The Market For Dispute Resolution Services?, Maurits Barendrecht, Berend R. De Vries Jan 2005

Fitting The Forum To The Fuss With Sticky Defaults: Failure In The Market For Dispute Resolution Services?, Maurits Barendrecht, Berend R. De Vries

Cardozo Journal of Conflict Resolution

"Fitting the forum to the fuss" - i.e., finding the optimal way to deal with every dispute - is an appealing slogan of proponents of alternative dispute resolution ("ADR"). The phrase also summarizes the contract one would expect rational disputants to make once they are embroiled in a conflict they cannot resolve together. Disputants can "buy" dispute resolution services, such as various forms of court intervention, mediation, or arbitration. Agreeing to a contract to buy such services together with an opponent, however, is likely to be difficult. These difficulties are assessed in this article. The barriers to dispute resolution are …

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Mediation And Justice: What Standards Govern?, Joseph B. Stulberg Jan 2005

Mediation And Justice: What Standards Govern?, Joseph B. Stulberg

Cardozo Journal of Conflict Resolution

I find it challenging to write about mediation and justice for several perplexing reasons. The concept of justice is constitutionally ambiguous; trying to analyze it concretely is a challenging task for both writer and reader. Despite the concept's ambiguity, however, each of us can readily describe situations that instantly appall us for reasons that we intuitively identify as constituting acts or occasions of injustice. The irony then, and hence the challenge, is that we know that the concept of justice is an important phenomenon to address, yet we have difficulty saying something constructive or useful about it.

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The Myth Of The Gladiator And Law Students' Negotiation Styles, Melissa L. Nelken Jan 2005

The Myth Of The Gladiator And Law Students' Negotiation Styles, Melissa L. Nelken

Cardozo Journal of Conflict Resolution

"Shark." "Hired gun." The popular view is that lawyers are, by and large, cut-throat competitors who take the ethical obligation of zealous advocacy on behalf of their clients to the extreme, heedless of the cost to others or to society as a whole. The adversarial system (with its winners and losers), law school teaching, and the portrayal of lawyers in popular media, all feed this stereotype. The focus on litigation promotes misperceptions about what most lawyers actually do. Lawyers make deals and resolve virtually all litigated matters short of trial, often through negotiation. Studies of lawyers' behavior in negotiation over …

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Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John Lande Jan 2005

Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John Lande

Cardozo Journal of Conflict Resolution

To say that "The Vanishing Trial" is a myth is not to suggest that the facts or analysis in Professor Galanter's report are fictional or inaccurate. Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts. The report documents an apparent paradox: the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the number of cases filed, and the amount …

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Masthead, Cardozo Journal Of Conflict Resolution, Vol. 7 (2005-06) Jan 2005

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 7 (2005-06)

Cardozo Journal of Conflict Resolution

No abstract provided.

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Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 6, Iss. 2 Jan 2005

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 6, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

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Recipient Of The 2004 International Advocate For Peace Award, Eve Ensler Jan 2005

Recipient Of The 2004 International Advocate For Peace Award, Eve Ensler

Cardozo Journal of Conflict Resolution

No abstract provided.

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The Unguided Use Of Internal Adr Programs To Resolve Sexual Harassment Controversies In The Workplace, Jessica Oser Jan 2005

The Unguided Use Of Internal Adr Programs To Resolve Sexual Harassment Controversies In The Workplace, Jessica Oser

Cardozo Journal of Conflict Resolution

This Note will explore some of the concerns raised by the use of mandatory IDR mechanisms in the workplace, particularly in the context of resolving sexual harassment disputes. As previously noted, the use of IDR in the workplace can be highly effective and beneficial for both the employee and the employer. However, just as the Food and Drug Administration approves drugs that have potentially harmful side effects, the public and the U.S. government should approve of the use of IDR mechanisms despite the potential for abuse. In both circumstances, the public deserves to be warned about the possible dangers. This …

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Is Alternative Dispute Resolution Really An Alternative For Federal Employees?: Possible Suggestions For Encouraging Federal Employees To Participate In Adr Programs, Lisa Pell Jan 2005

Is Alternative Dispute Resolution Really An Alternative For Federal Employees?: Possible Suggestions For Encouraging Federal Employees To Participate In Adr Programs, Lisa Pell

Cardozo Journal of Conflict Resolution

This Note will examine the various dispute resolution programs employed by the federal government. Part One of this Note will look at the different federal programs and determine their usefulness. Part Two will establish that ADR is not being used to its potential. Part Three will discuss the reasons for the low ADR usage. Part Four will suggest options for increasing ADR usage in federally implemented programs. Finally, Part Five will conclude that if the federal agencies took advantage of their own programs, the possibilities for change are great.

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Mindfulness Meditation, The Cultivation Of Awareness, Mediator Neutrality, And The Possibility Of Justice, Evan M. Rock Jan 2005

Mindfulness Meditation, The Cultivation Of Awareness, Mediator Neutrality, And The Possibility Of Justice, Evan M. Rock

Cardozo Journal of Conflict Resolution

This Note argues that the cultivation of awareness through meditation enhances a mediator's ability to be neutral, thereby increasing the possibility of just outcomes from mediation sessions. Part I introduces and explains the basic practice of mindfulness meditation. Part II examines the necessity of neutrality for just outcomes in mediation, the classical view of neutrality as impartiality, and the importance of a mediator's awareness of his biases and preferences for maintaining neutrality. Part III examines the use of procedure in maintaining neutrality during a mediation session, and how a mediator's awareness of his thoughts and emotions can be helpful in …

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The Vanishing Trial: Land Mine On The Mediation Landscape Or Opportunity For Evolution: Ruminations On The Future Of Mediation Practice, Kimberlee K. Kovach Jan 2005

The Vanishing Trial: Land Mine On The Mediation Landscape Or Opportunity For Evolution: Ruminations On The Future Of Mediation Practice, Kimberlee K. Kovach

Cardozo Journal of Conflict Resolution

Several decades ago, mediation developed as an alternative to the use of courts for resolving disputes. Over the years, the use of mediation to resolve lawsuits has greatly increased. The reasons for this evolution are numerous, and the primary underlying impetus for the use of mediation has, in many cases, impacted just how the process is conducted. For example, some view mediation as a process which provides individuals or groups engaged in a dispute or conflict with a collaborative and flexible process for dispute resolution. This view of the process also encourages party participation and empowerment, which often allows relationships …

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A Case For Mediating Trademark Disputes In The Age Of Expanding Brands, David Allen Bernstein Jan 2005

A Case For Mediating Trademark Disputes In The Age Of Expanding Brands, David Allen Bernstein

Cardozo Journal of Conflict Resolution

This Note proposes that there is an alternative method that ensures the viability of brand names while avoiding litigation. Companies must be willing to enter a process which will explore the possibility of a mutually beneficial solution, perhaps in the form of a settlement agreement allowing both parties to use the mark or brand name. The process best suited to guide such parties and achieve such a result is mediation.

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The New Iraq: Resolving Public And Private Obligations Incurred Under Saddam Hussein's Rule In The Context Of International Arbitration, Darius Adam Marzec Jan 2005

The New Iraq: Resolving Public And Private Obligations Incurred Under Saddam Hussein's Rule In The Context Of International Arbitration, Darius Adam Marzec

Cardozo Journal of Conflict Resolution

Saddam Hussein's rule in Iraq collapsed on April 9, 2003, after an American-led coalition invasion. The coalition quickly deposed the Iraqi dictator and began the process of turning the nation away from authoritarian rule, murder, and death, to civility. While Saddam Hussein is gone, and no government-supported oppression of people exists, another form of tyranny persists: Iraq's modern economy is burdened with $383 billion in public debt and judgments. Adding insult to injury, after the coalition troops drove up to Baghdad through the desert, Iraq's banking system turned out to be insolvent.

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Military Spying In The United States: When It Is Not Your Neighbor Knocking At Your Door, Where Do You Turn?, Miriam Schneider Jan 2005

Military Spying In The United States: When It Is Not Your Neighbor Knocking At Your Door, Where Do You Turn?, Miriam Schneider

Cardozo Journal of Conflict Resolution

This Note will describe the role of the military in the United States and its relationship to privacy rights. Part I of this Note will describe the historical underpinnings that led to a limited role for the military within the United States territory, beyond defending against attack. Part II will describe the expectations by the courts and legislature for the military. In addition, it will illustrate instances where the military, along with numerous federal agencies, overstepped its traditional, constitutional and legal bounds. Part III will offer the legislature's response to, and its subsequent regulation of, the military and other federal …

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The Concept Of Justice In Mediation: A Psychobiography, Ellen Waldman Jan 2005

The Concept Of Justice In Mediation: A Psychobiography, Ellen Waldman

Cardozo Journal of Conflict Resolution

Discussions of what justice means in mediation have a dialectical quality to them. At various points in the field's history, the notion that justice in mediation consists of fully maximized disputant self-determination holds sway. At other historical moments, a tentative consensus appears to recognize that justice in mediation requires normative content independent of the disputants' beliefs and values.

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Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 7, Iss. 1 Jan 2005

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 7, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

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Dispute Resolution And Legal Education: A Bibliography, Trevor C.W. Farrow Jan 2005

Dispute Resolution And Legal Education: A Bibliography, Trevor C.W. Farrow

Cardozo Journal of Conflict Resolution

This selected bibliography is designed to act as a resource to assist in the ongoing, collaborative development of dispute resolution initiatives and programs in legal education and research in North America and abroad. Further, the particular focus of this bibliography, in addition to the teaching and research of dispute resolution generally, is the emphasis that law reform initiatives are putting on dispute resolution processes as potentially useful tools for increasing access to systems of civil justice around the common law world.

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Gollum, Meet Sméagol: A Schizophrenic Rumination On Mediator Values Beyond Self-Determination And Neutrality, James R. Coben Jan 2004

Gollum, Meet Sméagol: A Schizophrenic Rumination On Mediator Values Beyond Self-Determination And Neutrality, James R. Coben

Cardozo Journal of Conflict Resolution

Let me begin by declaring my biases. First, I am a dissatisfied consumer of mediation services, having represented both employment discrimination and family law clients in mediations. The mediators' rapid retreat to caucus, their tendency to incorrectly evaluate my clients' cases, and their strong push for particular settlement structures while simultaneously proclaiming process neutrality, all too frequently have left me (and my clients) disappointed and disillusioned. Second, I am a chronicler of "mediation car wrecks" - a voyeur, if you will, of those times when mediations go so badly that the parties end up disputing about them in court. Third, …

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Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 5, Iss. 2 Jan 2004

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 5, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

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Remembrance Of Things Past? The Relationship Of Past To Future In Pursuing Justice In Mediation, Carrie J. Menkel-Meadow Jan 2004

Remembrance Of Things Past? The Relationship Of Past To Future In Pursuing Justice In Mediation, Carrie J. Menkel-Meadow

Cardozo Journal of Conflict Resolution

What must be remembered and acknowledged before we can move forward to create a future together, whether individually or collectively? Or, as Avishai Margalit has recently put it, is there an ethics of memory - must some things be remembered; what can be forgiven or forgotten in a moral sense? I have long been worried about the emphasis in mediation to focus on the future, to seek ''solutions" to problems in which the parties are guided to "move forward," even while "reorienting the parties to each other," in crafting a more productive relationship. With the growing use and adaptation of …

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Know Justice, Know Peace: Further Reflections On Justice, Equality And Impartiality In Settlement Oriented And Transformative Mediations, Isabelle R. Gunning Jan 2004

Know Justice, Know Peace: Further Reflections On Justice, Equality And Impartiality In Settlement Oriented And Transformative Mediations, Isabelle R. Gunning

Cardozo Journal of Conflict Resolution

In the conversation (or debate) on mediator responsibilities and justice, this Article argues that as mediators we should have a concern for the justness of the outcome of the mediations in which we serve. I have high hopes and expectations for mediation as one important aspect of what I see as a larger and increasingly essential project of peacemaking. But last summer, when I was teaching a basic mediation training course, and I asked my students if they understood themselves to be "peacemakers," they were almost uniformly resistant to the notion. They saw peacemakers as almost "spineless," certainly "wishy-washy," and …

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San Diego Moveable Feast: Competition In Cooperation-Building, Christopher Honeyman, Ellen A. Waldman Jan 2004

San Diego Moveable Feast: Competition In Cooperation-Building, Christopher Honeyman, Ellen A. Waldman

Cardozo Journal of Conflict Resolution

Local boosters refer to San Diego as "America's Finest City." This, of course, is an invitation to skepticism. Likewise, the strong culture of dispute resolution created by San Diego invites a closer look.

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Preface To The Justice In Mediation Symposium, Lela Love Jan 2004

Preface To The Justice In Mediation Symposium, Lela Love

Cardozo Journal of Conflict Resolution

On March 12, 2004, the Benjamin N. Cardozo School of Law held a symposium on Justice in Mediation. The papers below represent the first group of articles emanating from that event. More articles will follow in the next issue of the Cardozo Journal of Conflict Resolution.

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The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh Jan 2004

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Cardozo Journal of Conflict Resolution

This Article will consider mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article will outline how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation's citizens as "justice." The Article will then highlight particular aspects of the changing picture of the American civil justice system to suggest that today's sprawling and multitiered structure is increasingly disengaged from its democratic roots. Finally, the Article …

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Moveable Feasts: An Introduction, Christopher Honeyman Jan 2004

Moveable Feasts: An Introduction, Christopher Honeyman

Cardozo Journal of Conflict Resolution

In many circles, dispute resolution is still frequently referred to as a movement. Elsewhere, it is increasingly thought of as a business, or a set of professional practices in legal, government, and nonprofit organizations. There are also signs that dispute resolution is beginning to be seen as an integrated academic discipline. But in all of these overlapping senses of the field, there is an implicit assumption that it is appropriate to think of dispute resolution on a national, or even transnational, basis. But how true is that imagery? We know that "all politics is local." Is it possible that this …

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New York Moveable Feast: Boundaries To Practice, Christopher Honeyman, Lela Love Jan 2004

New York Moveable Feast: Boundaries To Practice, Christopher Honeyman, Lela Love

Cardozo Journal of Conflict Resolution

Following the first flush of enthusiasm, it is becoming apparent that the dispute resolution field, like its predecessor professional fields, is vulnerable to the incentive structures and practice barriers built into both academic and practice careers. Also, what many of us think of as a national (or international) movement may be increasingly affected by local cultures. In collaboration with scholars and practitioners in a variety of cities, the Broad Field Project6 ("Broad Field") has been convening a number of dialogues about related issues, including a small series particularly focused on the local cultures of dispute resolution.

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Washington, D.C. Moveable Feast: The Odds On Leviathan - Dispute Resolution And Washington, D.C.'S Culture, Christopher Honeyman, Carrie J. Menkel-Meadow Jan 2004

Washington, D.C. Moveable Feast: The Odds On Leviathan - Dispute Resolution And Washington, D.C.'S Culture, Christopher Honeyman, Carrie J. Menkel-Meadow

Cardozo Journal of Conflict Resolution

The field of dispute resolution has benefited enormously from a great wave of enthusiasm during its first two decades. But "youth's a stuff will not endure," and the first flush of ardor is an uncertain basis for confidence in the long term. Now, there is reason to believe that our field, like its predecessor professional fields, is vulnerable to the incentive structures built in to both academic and practice careers. At the same time, what we think of as a national (or larger) movement may be increasingly affected by local cultures.

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The Munich Pact Of 1938: Adr Strategies For Our Time?, Lionel D. Warshauer Jan 2004

The Munich Pact Of 1938: Adr Strategies For Our Time?, Lionel D. Warshauer

Cardozo Journal of Conflict Resolution

This Note will focus on the Munich Pact in five parts. Part I will discuss and analyze the seemingly legitimate aspects of the Munich Negotiations. However, the positive aspects that can be drawn from Part I are sharply contrasted with the unprincipled elements from the Munich Negotiations in Part II. Part III will contrast Mussolini's role as a "mediator" at Munich with President Jimmy Carter's role as a mediator at Camp David. Part IV will focus on why the various forms of ADR that led to the Munich Pact-both negotiation and mediation-did not help achieve a lasting and fair settlement, …

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Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 6, Iss. 1 Jan 2004

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 6, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

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