Dispute Resolution and Arbitration Commons^™

The Merger Of Law And Mediation: Lessons From Equity Jurisprudence And Roscoe Pound, Jacqueline M. Nolan-Haley

Cardozo Journal of Conflict Resolution

Almost one hundred years ago, Roscoe Pound' warned about the decline of equity jurisprudence in the American legal system. He called this phenomenon the "decadence of equity."' Though Pound offered several causes for this decline, what we know today as "institutionalization" in the court system was the primary suspect. "The very thing that made equity a system must, in the end, prove fatal to it. In the very act of becoming a system, it becomes legalized, and in becoming merely a competing system of law insures its ultimate downfall." While Pound acknowledged that he saw some good from the "refinements" …

Maybe Not The Best Solution, But A Solution: The German Foundation Agreement, Jolie Bell

Cardozo Journal of Conflict Resolution

This note will question whether the processes devised by the Agreement really favor survivors, helping them to realize some form of compensation for their insurance polices. Despite the efforts of the Agreement to prevent litigation of such insurance claims, there are still cases being filed, and legislation being proposed, to try to facilitate compensatory actions at a faster pace. While the Agreement on its face seems to be a welcome solution to the vast amount of litigation, it may be that the Agreement was a convenient way for Germany to dispose of the hundreds of thousands of life insurance policy …

Association For Conflict Resolution Annual Conference 2003 - The World Of Conflict Resolution: A Mosaic Of Possibilities Session On Justice In Mediation

Cardozo Journal of Conflict Resolution

On October 15 - 18, 2003, the Association for Conflict Resolution ("ACR") held its Annual Conference in Orlando, Florida. The Conference was entitled The World of Conflict Resolution: A Mosaic of Possibilities. This article tracks Session No. 4.08, entitled Justice in Mediation. The Cardozo Journal of Conflict Resolution ("the Journal") would like to thank ACR for its permission to reprint an edited transcript of this session. In addition, the Journal would like to extend its deepest appreciation to Sangita Sigdyal, ACR's Chief Operating Officer, for her assistance during this project.

Something's Rotten In The State Of Party-Appointed Arbitration: Healing Adr's Black Eye That Is "Nonneutral Neutrals", Seth H. Lieberman

Cardozo Journal of Conflict Resolution

This Note will first explore the history of arbitration, particularly within the United States. It will predominantly examine the traditional definitions of arbitrators and any consistencies throughout the various differences of arbitrator definitions. Second, this Note will investigate the traditional definitions of and roles played by advocates in traditional litigation and alternative dispute resolution. It will contrast advocates with party-appointed arbitrators, particularly focusing on their history, reasons for their creation, and their intended purpose.

Third, this Note will investigate the characteristics of modern party-appointed arbitrators, focusing on what scholars and parties regard as their expected behavior in a tripartite arbitration. …

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 6 (2004-05)

Cardozo Journal of Conflict Resolution

No abstract provided.

The Promise And Perils Of "Our" Justice: Psychological, Critical And Economic Perspectives On Communities And Prejudices In Mediation, Clark Freshman

Cardozo Journal of Conflict Resolution

Looking for justice in mediation often depends on the lens. Critics of mediation often measure mediation against an idealized court system and find mediation lacking. Many proponents of mediation, including many contributors to the Cardozo Symposium on Mediation and Justice, argue mediation promotes justice by promoting different values from alternatives like the courts: it may promote the autonomy of the parties by letting them make choices, it may lead to more creative settlements; it may lead to greater satisfaction; it might be less expensive.

Swimming In The Deep End: Dealing With Justice In Mediation, Jonathan M. Hyman

Cardozo Journal of Conflict Resolution

Justice is a troublesome issue for mediators. It is not their role to decide who was right and who was wrong. Mediators have no authority to determine if a resolution is fair or just. That role and that authority are reserved for judges, juries, and arbitrators. But if mediators should not decide what is fair and just, why should they even think about those matters? Even learning only what the parties deem fair or unfair about past actions, or what is just or unjust about pending settlement proposals, without trying to impose any "correct" outcome, would leave the mediator with …

Adr Of Patent Disputes: A Customized Prescription, Not An Over-The-Counter Remedy, Marion M. Lim

Cardozo Journal of Conflict Resolution

Eureka! DoubleMe Corporation just discovered "Clone-IT." Believing "Clone-IT" to be the first invention of its kind, DoubleMe invested a great deal of resources into its inventive efforts and kept its research and experiments top secret. After DoubleMe completed the necessary paperwork and paid the requisite fees, the United States Patent and Trademark Office issued it a patent for "Clone-IT."

Uncitral, Its Workings In International Arbitration And A New Model Conciliation Law, William K. Slate Ii, Seth H. Lieberman, Joseph R. Weiner, Marko Micanovic

Cardozo Journal of Conflict Resolution

"The [UNCITRAL] was created by the General Assembly in 1966 to enable the United Nations to play a more active role in reducing or removing legal obstacles to the flow of international trade." The U.N. recognized that various economic and legal differences existed between States. These differences were the source of many of the problems that hindered the advancement of an integrated international trade system. "The General Assembly considered it desirable that the process of harmonization and unification of the law of international trade be substantially coordinated, systemized, accelerated, and that a broader participation by States be secured."

Commentary By Professor Frank Emmert, Frank Emmert

Cardozo Journal of Conflict Resolution

No abstract provided.

Commentary By Professor Hans Smit, Hans Smit

Cardozo Journal of Conflict Resolution

No abstract provided.

Arbitrating Corporate Malfeasance

Cardozo Journal of Conflict Resolution

With the Sarbanes-Oxley Act as a backdrop, this symposium explored the ramifications of the SarbanesOxley Act on the securities industry and how regulatory organizations address corporate malfeasance. Participants discussed how securities firms comply with Sarbanes-Oxley, including the effects of the attorney disclosure rules recently adopted by the Securities and Exchange Commission. The discussion addressed recent enforcement actions that resulted from Sarbanes-Oxley and the types of civil disputes that are arising. Finally, the participants described how dispute resolution mechanisms such as arbitration and mediation are being utilized for investor and employment cases arising on the heels of the enforcement cases.

Negotiating With Terrorists And Non-State Actors: The Journey To World Peace

Cardozo Journal of Conflict Resolution

Panelists and participants explored the use of alternative dispute resolution processes in resolving international conflicts. The panelists addressed: (1) Who are terrorists according to traditional definitions (non-state actors and freedom fighters), prevailing attitudes (fundamentalists), and recent regulations, (2) Does negotiation with terrorists work, and what are the benefits, disadvantages, and alternatives, (3) Whether there is a need for international law and policy reformation.

Commentary By Angelina Khaminwa, Angelina Khaminwa

Cardozo Journal of Conflict Resolution

There is an organization in England called the Conciliation Resources and they put together a publication called The Court on a regular basis. They put together a special series in 1999 that reflected on the peace process in Northern Ireland. One of the authors of the article, Klem McCarthney, wrote a piece from which I will quote: "many who did not support a predominant system of sectarian politics found their sphere of activism in the trade unions, churches and neighborhoods, but they had little impact on the overall political situation. Most sectarianism society including the churches, were themselves divided about …

Commentary By Michael J. Wildes, Michael J. Wildes

Cardozo Journal of Conflict Resolution

No abstract provided.

International Advocate For Peace Award 2003, Desmond Tutu

Cardozo Journal of Conflict Resolution

No abstract provided.

Annotations

Cardozo Journal of Conflict Resolution

No abstract provided.

Reason Over Rhetoric: The Case For Enforcing Predispute Agreements To Arbitrate Employment Discrimination Claims, Craig Hanlon

Cardozo Journal of Conflict Resolution

Part I of this article will briefly outline the relevant federal statutes to provide the necessary foundation for understanding the issue involved in Waffle House . Specifically, this paper will discuss Title VII of the Civil Rights Act of 1964 (“Title VII”), the Equal Employment Opportunity Act of 1972 (“EEOC Act”), the Civil Rights Act of 1991 (“1991 Act”), the Federal Arbitration Act (“FAA”), and the Americans with Disabilities Act (“ ADA ”). Part II will examine the development of the relevant case law that set the parameters for the current debate, including the conflicting decisions in three Courts of …

Commentary By Richard Horowitz, Richard Horowitz

Cardozo Journal of Conflict Resolution

No abstract provided.

Peer Mediation Programs: An End To School Violence?, Alixandra Blitz

Cardozo Journal of Conflict Resolution

This note focuses on the ineffectiveness of PMPs to combat higher-levels of school violence. Part I discusses school violence, both past and present. Part II explores the shift from traditional methods of discipline to more proactive and education-based methods that are used in many schools today. Part III addresses the fundamentals of peer mediation including what it is and how it is implemented. Part IV examines which students PMPs should be targeting and why PMPs fail to prevent them from committing violent acts on their schools. Finally, the conclusion recommends ways to reduce conflict in schools.

Victim-Offender Mediation And Violent Crimes: On The Way To Justice, Ilyssa Wellikoff

Cardozo Journal of Conflict Resolution

This Note will discuss the need for an alternative method within the criminal justice system, such as victimoffender mediation, and will discuss the benefits and implications of extending victim-offender mediation to serious and violent crimes. The first part of this Note will explain the premise and purpose of victim-offender mediation. The Note will detail victim-offender mediation’s roots in restorative justice and the various types of victim-offender mediation programs currently in place. The second part of this Note will address the efficacy of victim-offender mediation programs, highlighting the program’s overall benefits and shortcomings. The Note will then address the criminal judicial …

A Uniform National System Of Mediation In The United States: Requiring National Training Standards And Guidelines For Mediators And State Mediation Programs, Brien Wassner

Cardozo Journal of Conflict Resolution

The necessity for establishing a uniform system of mediation training for mediators in the United States is evidenced by the inconsistencies in both the training of mediators throughout the country and the roles assumed by mediators during mediation. The more formal conception of mediation can be traced back to the 1976 Pound Conference, however mediation in general is much older than twenty-six years, and has since continuously evolved. Moreover, the concept of mediation, as defined by statute, training, and thereafter, licensing, varies amongst the states as well. Mediation provides a viable alternative to the rigid state and federal judicial systems’ …

Alternative Dispute Resolution In The Entertainment Industry

Cardozo Journal of Conflict Resolution

No abstract provided.

Development Of China’S Legal System Will Strengthen Its Mediation Programs, Deborah Chow

Cardozo Journal of Conflict Resolution

China’s mediation system would improve in overall fairness and effectiveness, if it developed a more just and predictable legal system. This system should be one in which its citizens and foreign businesses could confidently pursue enforcement of their rights under various Chinese laws, international norms, and international treaties. This paper will examine: (1) the roots of China’s mediation program, including discussions about the strong Confucian, Maoist, and legal influences; (2) China’s modern mediation systems; (3) weaknesses of the current mediation system; (4) the benefits for mediation through the development of China’s legal system; and (5) possible methods to aid the …

Third Party Visitation Statutes: Society’S Changing Views About What Constitutes A Family Must Be Formally Recognized By Statute, Beth Sherman

Cardozo Journal of Conflict Resolution

This Note begins by introducing the strong historical support for a parent’s fundamental liberty interest, protected by the Fourteenth Amendment’s Due Process Clause, to control the upbringing of his or her own child. It also examines the limitations placed on that right. Section two illustrates the need to balance these two perspectives when analyzing the current debate over nonparental visitation statutes. Section three addresses how the case of Troxel v. Granville reached the United States Supreme Court and the implications of the Court’s decision. Section four focuses on New York State by considering its nonparental visitation statutes, the effect of …

Using Alternative Dispute Resolution In Intellectual Property Cases

Cardozo Journal of Conflict Resolution

No abstract provided.

Mandatory Fee Arbitration Under New York’S Matrimonial Rules, Lester Brickman

Cardozo Journal of Conflict Resolution

In recent decades, public dissatisfaction with lawyers has mounted ceaselessly. A significant portion of that dissatisfaction is attributable to concerns about lawyers’ integrity and fees. Indeed, “[n]o single issue between lawyer and client arises more frequently or generates more public resentment than fee problems.” Despite the near ubiquity of fee disputes, client complaints to disciplinary agencies about excessive fees are almost always rejected because most disciplinary boards do not accept jurisdiction over claims of excessive fees.

The Ada Mediation Guidelines: A Community Collaboration Moves The Field Forward, Judith Cohen

Cardozo Journal of Conflict Resolution

The purpose of this article is to describe the various issues – such as accessible process and informed consent – faced by a group of twelve mediators and how they resolved these issues. This group, known as the ADA Mediation Guidelines Work Group (“WG”), evolved from informal discussions regarding the lack of standards in ADA mediations and the need to address the quality of the process. The WG raised the following questions, among others, in its internal discussions: What constitutes effective ADA mediator training? Are ADA disputes issues of private concern between the parties, public policy concerns, or both? How …

The Young Cybersquatter’S Handbook: A Comparative Analysis Of The Icann Dispute, Kevin J. Heller

Cardozo Journal of Conflict Resolution

This article will examine how the UDRP and the ACPA are implemented to enjoin the use of trademarks and service marks as Internet domain names in the United States and throughout the world. Part I of this paper provides background information regarding ICANN and its role in Internet domain name governance and an analysis of the UDRP. Part II will discuss the background of the ACPA, how it has expanded prior trademark law, and how it is currently applied. Finally, Part III will discuss the pros and cons of the UDRP and the ACPA, with regard to jurisdictional issues and …

Addressing The “Redress”: A Discussion Of The Status Of The United States Postal Service’S Transformative Mediation Program

Cardozo Journal of Conflict Resolution

No abstract provided.