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Dispute Resolution and Arbitration Commons™
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Articles 31 - 60 of 1013
Full-Text Articles in Dispute Resolution and Arbitration
The Gender Sidelining Trap In Mediator Selection, Erin E. Gleason Alvarez
The Gender Sidelining Trap In Mediator Selection, Erin E. Gleason Alvarez
Journal of Dispute Resolution
One of the greatest advantages of commercial mediation is the parties’ ability to construct the process to fit their needs. In mediation, parties are free to make decisions about how the conversation will be structured—whether in person or online, joint session or not, whether negotiations will take place over a few hours or days, and so forth. Here, parties are also uniquely empowered to design what their settlement will ultimately look like—or decide if settlement is even appropriate. Perhaps most importantly, parties decide who will serve as the mediator, the person they trust to facilitate their discussions and negotiations, and …
Revolutionizing The System: Designing A Safe Order Of Protection Mediation Program, Sabrina Saint-Marc
Revolutionizing The System: Designing A Safe Order Of Protection Mediation Program, Sabrina Saint-Marc
Journal of Dispute Resolution
Consider a situation where an African American man, Tony, residing in a rural southern jurisdiction, holds an order of protection against his partner, John, who is also an African American man. Furthermore, the presiding judge, an elderly white man, was known for denying orders of protection even when sought by white women, which creates an atmosphere where seeking court intervention might result in embarrassment and judgment for the client. This embarrassment and judgment stems from the stereotypes that mostly people who have engaged in criminal behavior belong in court; additionally, survivors experience shame about why they are appearing before a …
Participant Actions And Intermediate Outcomes In Initial Joint Sessions And Initial Caucuses, Roselle L. Wissler, Art Hinshaw
Participant Actions And Intermediate Outcomes In Initial Joint Sessions And Initial Caucuses, Roselle L. Wissler, Art Hinshaw
Journal of Dispute Resolution
Historically, the initial mediation session usually was a joint session where the mediator and the disputants met together to exchange information and discuss the substance of the dispute. Accordingly, the main components of the initial mediation session and the informational and communication benefits they were thought to provide were discussed in the context of the disputants being together and speaking directly. Today, however, many actions that traditionally took place during the initial joint session, including the discussion of substantive matters and exchanges between the parties, are less likely to occur during initial joint sessions than they did historically and are …
The Eviction Crisis Is Rampaging: Time To Implement Diversion Programs, Rachel Elliott
The Eviction Crisis Is Rampaging: Time To Implement Diversion Programs, Rachel Elliott
Journal of Dispute Resolution
More than 7.6 million renters face the threat of eviction annually.1 In early February 2023, Ivy Hany was at risk of being part of this statistic again.2 Years ago, when Ivy was 19, she and her siblings were forced out of their home into a homeless shelter.3 Now, at 53, she was terrified of becoming homeless again.4 Ivy owed her landlord $2,184.75; she would be evicted if she did not pay.5 Fortunately, Ivy had the option of mediation
Extended Reality For Alternative Dispute Resolution, Ryan Gallagher
Extended Reality For Alternative Dispute Resolution, Ryan Gallagher
Journal of Dispute Resolution
“What is real? How do you define ‘real’? If you’re talking about what you can feel, what you can smell, what you can taste and see, then ‘real’ is simply electrical signals interpreted by your brain.” As technology continues to advance, its effects will be felt in all aspects of our lives, and the world of Alternative Dispute Resolution (“ADR”) will be no different. Dispute resolution processes must adapt to the needs of their users. These users are increasingly in different parts of the world as the global economy expands. Inevitably, globalization leads to more conflicts that require resolution. Technology …
Time To Redress® Hazing: Changing The Way Universities Deal With Hazing Claims And Allegations, Katie Miles
Time To Redress® Hazing: Changing The Way Universities Deal With Hazing Claims And Allegations, Katie Miles
Journal of Dispute Resolution
Every year, excited eighteen-year-olds step foot on a college campus ready to start a new chapter. Ready to try new things, these students join various organizations eager to make new friends and connections. Daniel Santulli was no different. He was an excited nineteen-year-old freshman at the University of Missouri in the fall of 2021. Santulli decided to join the Phi Gamma Delta fraternity and was ready to make lifelong friendships. However, on October 20, 2021, Santulli suffered a life-altering injury due to an alcohol-related hazing incident. Santulli was “marched, shirtless and blindfolded, into the basement of the Phi Gamma Delta …
Competition Is For The Ring, Not The Court, Cameron Shields
Competition Is For The Ring, Not The Court, Cameron Shields
Journal of Dispute Resolution
Dolph Ziggler and JD McDonagh performed in a ring in front of a crowd of 20,000 people. Their match was broadcast worldwide. Ziggler placed everything on the line in a match where he wagered his entire career with World Wrestling Entertainment (WWE) for the Intercontinental Championship. Back and forth the two fought. Ziggler brought an early onslaught against McDonagh. Punches and kicks rained down. McDonagh, in a turn of luck, slipped through the ropes and reversed the onslaught onto Ziggler. After the pummeling, McDonagh threw Ziggler over the ropes onto the cement floor. The referee started counting down . . …
I Like My Litigation How I Like My Pie: Whole, Alexandra (Allie) Widick
I Like My Litigation How I Like My Pie: Whole, Alexandra (Allie) Widick
Journal of Dispute Resolution
There is a huge problem with the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”): it contains major ambiguities. The Act was signed into law by President Biden in 2022, and it has the potential to affect many Americans. It has been estimated that about 60 million workers—over half of the non-unionized private workforce—are subject to mandatory arbitration agreements as part of their employment. The Act states in relevant part that no arbitration agreement “shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the …
Bargaining In The Shadow Of The Efaa, Samuel R. Cole
Bargaining In The Shadow Of The Efaa, Samuel R. Cole
Journal of Dispute Resolution
Labor unions are having something of a moment. In the past few years, high profile unionization efforts like those at Starbucks and successful strikes like SAGAFTRA have generated headlines. Even as labor activists celebrate these wins, American unions face ongoing obstacles. Union membership continues to decrease, and union participation remains at an all-time low. And now courts, perhaps unwittingly, are adding to their woes. In one example, particularly relevant here, courts have overlooked the distinction between arbitration agreements contained in collective bargaining agreements and arbitration agreements contained in contracts between employers and at-will employees. The result has been to entwine …
Legislative Update, Mckayla Bogda, Karen Crouch, Matthew Hellmann, Brett Newberry, William Rodman
Legislative Update, Mckayla Bogda, Karen Crouch, Matthew Hellmann, Brett Newberry, William Rodman
Journal of Dispute Resolution
The Legislative Update tracks legislation related to alternate dispute resolution that has been proposed and passed in state legislatures nationwide. With guidance from the Associate Editor-in-Chief, Associate Members of the Journal of Dispute Resolution wrote this update. This update includes articles focusing on specific bills and trends across legislation from various states that the authors found most interesting and impactful.
Ombuds Programs: How Alternative Dispute Resolution Improves The Lives Of Native Long-Term Care Residents, Brett Newberry
Ombuds Programs: How Alternative Dispute Resolution Improves The Lives Of Native Long-Term Care Residents, Brett Newberry
Journal of Dispute Resolution
Many Americans will spend at least some time in a long-term care facility. During their stay, every resident should receive competent care and maintain the highest possible quality of life. Long-term care ombuds programs exist to help achieve these goals. Long-term care ombuds (“LTCOs”) advocate for individuals living in long-term care facilities and for improvements to the long-term care system. Tribal long-term care ombuds are a subset of LTCOs who connect with and advocate for Native residents living in long-term care facilities. LTCOs help facilitate dispute resolution between residents, facilities, and family members, and work to improve resident care. The …
The Copyright Infringement Threat To X: How X (Formerly Twitter) Could Benefit From Licensing Agreements With Arbitration Clauses, Mary Claire Rose
The Copyright Infringement Threat To X: How X (Formerly Twitter) Could Benefit From Licensing Agreements With Arbitration Clauses, Mary Claire Rose
Journal of Dispute Resolution
Copyright infringement on social media platforms is an ever increasing threat to society today. As social media platforms have grown, music publishers and movie studios have become more outspoken in criticizing the inadequacies in handing copyright infringement on these platforms. On June 14, 2023 a civil complaint was brought by Concord Music Group Inc. along with many other music publishers against X Corp. (“X”), formerly Twitter, for copyright infringement. The complaint alleges that X has infringed the copyright of more than 1,700 songs and the plaintiffs are seeking more than $250 million in damages. However, one can argue this was …
Exempting The Fmla From Forced Arbitration: The Need For Special Consideration Of Pregnant And Working Mothers To Achieve Gender Equality In The Workplace, Taylor Trefger
Journal of Dispute Resolution
Pregnant and working mothers face a multitude of challenges when making decisions that pertain to their health, children, and their livelihoods. Historically, women have encountered numerous barriers regarding their entrance and treatment in the United States labor force as a result of gender discrimination that promotes the idea that women, in their inherent ability to become mothers, renders them inadequate or inferior workers in comparison to men. Unfortunately, such archaic notions of gender roles persist still; today, the reality is that women are more likely to be employed part-time, occupy lower-paid roles, and are less likely to take on managerial …
Mandatory Mediation In England And Wales: A Paradigm Shift In Dispute Resolution, Mckayla Bogda
Mandatory Mediation In England And Wales: A Paradigm Shift In Dispute Resolution, Mckayla Bogda
Journal of Dispute Resolution
In May of 2023, Tribunals in England and Wales had a backlog of nearly 144,000 cases. In a press release issued on July 25, 2023, the Ministry of Justice (MoJ) unveiled a significant policy change to combat this backlog. Under its new directive, individuals or entities wishing to pursue debt recovery claims of £10,000 or less are required to engage in mediation proceedings prior to their case’s adjudication in the small claims courts of England and Wales. This transformative shift signifies a departure from the traditional adversarial litigation model of both of these countries’ judicial systems.
Alternative Dispute Resolution In Agency Administrative Programs, Kristen Blankley, Kathleen Claussen, Judith Starr
Alternative Dispute Resolution In Agency Administrative Programs, Kristen Blankley, Kathleen Claussen, Judith Starr
Journal of Dispute Resolution
This Article studies how federal agencies use and might better use different types of alternative dispute resolution (ADR)—including mediation, conciliation, facilitation, factfinding, minitrials, arbitration, and the use of ombuds—in the programs Congress has entrusted them to administer. The use of ADR by the executive branch of the federal government to resolve disputes with or among private actors has deep historical roots. ADR related to managerial agency matters such as employment or procurement is well-established across the government and performed under a uniform set of laws. Much less has been known, however, about the scope and reach of ADR in the …
How Can Courts–Practically For Free–Help Parties Prepare For Mediation Sessions?, John Lande
How Can Courts–Practically For Free–Help Parties Prepare For Mediation Sessions?, John Lande
Journal of Dispute Resolution
Consider two hypothetical scenarios of mediations of a personal injury lawsuit. In one scenario, Kenji, the plaintiff, arrived at the mediation session feeling anxious because his attorney hadn’t told him much about the process and he didn’t know what to expect. He didn’t understand the factual and legal issues, how the mediation would unfold, or how he might participate in the process. He felt demoralized because he didn’t know enough to feel confident and assertive about making decisions in his case. In the mediation session, he spent a lot of time alternately hearing the mediator explain why he couldn’t get …
Arbitration And The Mandatory Law Problem: A Mixed Mode Adr Approach, Hossein Fazilatfar
Arbitration And The Mandatory Law Problem: A Mixed Mode Adr Approach, Hossein Fazilatfar
Journal of Dispute Resolution
Rigorous scholarly debate has shaped the discussion on the application of mandatory laws and public policy in arbitration, which has led to an array of legal solutions to the mandatory law problem. The determination of the applicable law in arbitration is a dilemma due to arbitrators’ contractual source of authority and commitments to the parties, their mandate to issue an enforceable award, and the imperative nature of mandatory laws at stake. Proposed solutions thus far have primarily been suggestions that are based on either contractual concerns of the parties, jurisdictional (mandatory law) concerns of states involved, or a mix of …
We’Re Getting Sued??? *Emotional* *With Proof*: Using Alternative Dispute Resolution In Child Influencer Disputes, Werthen Gass
We’Re Getting Sued??? *Emotional* *With Proof*: Using Alternative Dispute Resolution In Child Influencer Disputes, Werthen Gass
Journal of Dispute Resolution
Thanks to a new Illinois law, alternative dispute resolution could play an important role in fighting mommy-vlogger clickbait in the coming years. It could allow us all to escape outrageous videos of exploitative parents crying on kitchen floors with titles such as “We’re getting SUED by our OWN CHILD?? *emotional* *with proof*”. On August 11, 2023, the governor of Illinois signed Illinois Public Act 103-0556 (“the Act”) into law, amending the current child labor laws in Illinois and adding a provision specifically pertaining to payment of child influencers. Essentially, the new law, which will go into effect on July 1, …
Filling The Enforcement Gap: Alternative Dispute Resolution As An Approach To Solving "Copyright" Disputes For Ai-Generated Content, Aly Rezek
Journal of Dispute Resolution
On August 12, 2019, the United States Copyright Office (“the Copyright Office”) sent Stephen Thaler a rejection letter stating it would not issue him federal copyright protection for artwork generated by a computer program he owned. After countless appeals to the Copyright Office and the Federal District Court under various legal theories, one thing was made clear: The U.S. Copyright system would not protect works created by non-human authors. This principle presents a problem. Artificial intelligence (“AI”) is a rapidly developing tool in business and a rapidly developing issue in the law. Courts have routinely held that to be copyrightable, …
Sunny Days Ahead: Using Adr To Fuel The Future Of Green Energy, Matthew Graham
Sunny Days Ahead: Using Adr To Fuel The Future Of Green Energy, Matthew Graham
Journal of Dispute Resolution
The energy landscape in the United States (“U.S.”) has undergone significant changes in the last few centuries. Energy consumption has increased dramatically as more energy sources have been developed. As one of the world’s leading energy consumers, the U.S. has a large incentive to develop energy solutions that are both sustainable, dependable, and independent of foreign powers. For these reasons, Congress has spent the last few decades passing numerous pieces of legislation encouraging investment in energy solutions that will benefit the U.S. for centuries. With the enactment of the Inflation Reduction Act (“IRA”) of 2022, the U.S. has made its …
Why Removing Institutional Discretion And Applying Restorative Justice To Mediation Could Prove Beneficial To Title Ix Dispute Resolution, Clare Hensley
Journal of Dispute Resolution
University students have often voiced concern that their institution did not do enough in addressing sexual assaults on campus. There is a perception among students and potential victims that there is a culture of ignoring and underreacting to sexual violence on campus. As many as one in five female undergraduate students experience sexual violence during college, but few feel confident enough to report it.
Legislative Update, Katherine Albers, Lauren Bean, Dillon Dewey, Hannah Jackson, Victoria Mantel
Legislative Update, Katherine Albers, Lauren Bean, Dillon Dewey, Hannah Jackson, Victoria Mantel
Journal of Dispute Resolution
The Legislative Update is compiled and written annually by the Journal of Dispute Resolution’s Associate Members under the direction of the Associate Editor in Chief. It is designed to provide readers with a listing of pertinent legislation affecting the field of alternative dispute resolution (“ADR”) and a more detailed look at certain bills because of their importance or novelty within the field.
Ending The Epidemic Of Accidental Personality Disorder Discrimination By Well-Meaning Mediators, Dan Berstein, Hannah Diamond, Philip T. Yanos
Ending The Epidemic Of Accidental Personality Disorder Discrimination By Well-Meaning Mediators, Dan Berstein, Hannah Diamond, Philip T. Yanos
Journal of Dispute Resolution
People who have or appear to have mental disorders encounter rampant bias and stigma, including from mediators. This article focuses on some of the most heavily stigmatized mental health problems - personality disorders - and how some mediators discriminate against parties based on their guesses and assumptions that those parties may have these conditions.
Odd One Out: Inconsistency In The Federal Arbitration Act’S Jurisdictional Language, Joshua Long
Odd One Out: Inconsistency In The Federal Arbitration Act’S Jurisdictional Language, Joshua Long
Journal of Dispute Resolution
After almost a century, the Federal Arbitration Act (FAA) continues to guide and change the arbitration landscape. While greater focus has been placed on the FAA’s substantive merits and evolution, the act’s procedural role in outlining the relationship between arbitration and the federal court system plays an equally important role in alternate dispute resolution. Notably, recent concerns regarding inconsistencies in the act’s jurisdictional language may undermine the FAA’s ability to provide a clear, efficient, and fair process for arbitration.