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Journal of Dispute Resolution

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Administrative Law And Culture For The U.S. Collaborative Governance State, David H. Rosenbloomn, Mei Jen Hung Jul 2009

Administrative Law And Culture For The U.S. Collaborative Governance State, David H. Rosenbloomn, Mei Jen Hung

Journal of Dispute Resolution

During the 1980s and 1990s, collaborative governance emerged as a potentially new global paradigm for public administration. It comes in many forms. However, its essence is governmental reliance on nongovernmental entities for the delivery of public services and constraints. Simply put, collaborative governance calls on government to focus on "steering" while relying on third parties to do the "rowing." In the United States, collaborative government is not new in kind-the federal government relied on contractors to convey the mail from the early days of the republic. Rather it is new in scope, accounting for billions of dollars and millions of …

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Unexcused Absence: A Review Of The Need, Costs, And (Lack Of) State Support For Peer Mediation Programs In U.S. Schools, Matthew D. Decker Jul 2009

Unexcused Absence: A Review Of The Need, Costs, And (Lack Of) State Support For Peer Mediation Programs In U.S. Schools, Matthew D. Decker

Journal of Dispute Resolution

You might not have heard about peer mediation lately. You might not have heard about it at all. That's a problem. Peer mediation, though grossly underutilized, could be the potent and cost-effective answer to many of the problems facing U.S. schools.

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Table Of Contents - Issue 2 Jul 2009

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

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Collaborative Governance: Emerging Practices And The Incomplete Legal Framework For Public And Stakeholder Voice, Lisa Blomgran Bingham Jul 2009

Collaborative Governance: Emerging Practices And The Incomplete Legal Framework For Public And Stakeholder Voice, Lisa Blomgran Bingham

Journal of Dispute Resolution

This article describes the broad range of processes through which citizens and stakeholders collaborate to make, implement, and enforce public policy. First, it briefly reviews collaborative and new governance. Second, it describes deliberative democracy; collaborative public or network management; and appropriate dispute resolution in the policy process. These three separate fields are part of a single phenomenon, namely the changing nature of citizen and stakeholder voice in governance. Third, it describes how these new forms of participation operate across the policy continuum. Fourth, it briefly reviews existing legal infrastructure for collaborative governance primarily from the perspective of federal administrative law. …

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Some Thoughts On Judicial Review And Collaborative Governance, Michael Herz Jul 2009

Some Thoughts On Judicial Review And Collaborative Governance, Michael Herz

Journal of Dispute Resolution

A, perhaps the, central and never-to-be-resolved debate in American administrative law concerns this: to what extent should agencies be left to their own devices? Were the answer "completely," then there would be no such thing as administrative law. There would be administrative lore, and administrative practice, and administrative culture, and administrative functions. But administrative law consists of the doctrines, statutes, and regulations that limit agency discretion and subject agencies to various forms of oversight.

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Participation In Governance From A Comparative Perspective: Citizen Involvement In Telecommunications And Electricity In The United Kingdom, France And Sweden, Dorit Rabinstein Reiss Jul 2009

Participation In Governance From A Comparative Perspective: Citizen Involvement In Telecommunications And Electricity In The United Kingdom, France And Sweden, Dorit Rabinstein Reiss

Journal of Dispute Resolution

Since the goal is to compare the European experiments with those adopted in the United States, the paper is structured around that comparison. This part introduces the issues and the methodology. Part II provides a brief description of the case studies, addressing similarities and differences among the European countries. Part III then discusses several mechanisms considered necessary to participation in the United States that have been rejected by the agencies in the European countries. Part IV describes the parallels, though it also points out differences between the countries individually, as well as between them and the United States collectively. Part …

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Collaboration: The Future Of Governance, Philip J. Harter Jul 2009

Collaboration: The Future Of Governance, Philip J. Harter

Journal of Dispute Resolution

The thesis of this paper is that collaboration-the public and private spheres working together while recognizing the legitimate role of each-should play a major role in making these important decisions. Can collaboration diminish the rancor? Certainly not on its own, but it can lead people to recognize that others are listening and trying to reach appropriate decisions. That alone has powerful political consequences.' Should the procedures described here be used for all public decisions? Of course not. But they should be considered for major ones precisely because they are effective, and a form of collaboration-a recognition that others have important …

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Collaborative Governance Meets Presidential Regulatory Review, Donald R. Arbuckle Jul 2009

Collaborative Governance Meets Presidential Regulatory Review, Donald R. Arbuckle

Journal of Dispute Resolution

As I will discuss below, White House decision-making and OIRA regulatory review have a hierarchical component that is at odds with the horizontal nature of collaboration. The President's constitutional duties to manage the executive branch and OIRA's role as his agent in regulatory review require strong oversight of agency regulatory activity. Rulemaking is one means by which the executive branch implements not only statutory mandates, but also presidential policy; any sitting President would be loathe to delegate his authority to a collaborative panel. Nonetheless, the benefits of collaboration can be substantial, and the President could use his authority to encourage …

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State Legislative Update, Ashley Brittain, Sean Dolan, Alicia Hammond, Meghan Prideaux Jul 2009

State Legislative Update, Ashley Brittain, Sean Dolan, Alicia Hammond, Meghan Prideaux

Journal of Dispute Resolution

The purpose of this Bill is to provide notice to owners of residential real property owners that mediation with the mortgagee is an option at the onset of foreclosure proceedings. The Bill changes the mechanism by which borrowers are notified of foreclosures; instead of receiving a writ and summons, borrowers receive a notice of mediation, a foreclosure mediation certificate, and a blank appearance form. Borrowers still receive the writ, summons, and complaint, however. The lender must appear at the mediation with the authority to approve a proposed settlement in order to receive a remedy, and no attorney's fees will be …

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When Precedent Wears Thin: The Missouri Supreme Court Clarifies An Issue Of Ambiguity Affecting The Arbitrability Of Wrongful Death Claims, Ashley Brittain Jul 2009

When Precedent Wears Thin: The Missouri Supreme Court Clarifies An Issue Of Ambiguity Affecting The Arbitrability Of Wrongful Death Claims, Ashley Brittain

Journal of Dispute Resolution

The issue before the Missouri Supreme Court in Lawrence H was whether an arbitration agreement signed on behalf of a nursing home resident is binding on plaintiffs in a wrongful death action against the nursing home. Beverly Manor argued that the court's decision in Burns "undercut" the cases holding that a wrongful death claim is a new and independent cause of action. However, the court disagreed that the Burns decision overturned such precedent. The court admitted that the language of Burns may seem to create ambiguity about whether wrongful death is a derivative claim but clarified that the Burns holding …

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Consistent With Inconsistency: The Sixth Circuit Keeps Manifest Disregard After Hall Street, John C. Steffens Jul 2009

Consistent With Inconsistency: The Sixth Circuit Keeps Manifest Disregard After Hall Street, John C. Steffens

Journal of Dispute Resolution

For over half a century, courts have used the doctrine of manifest disregard as a ground for vacating arbitration awards. However, the Supreme Court's ruling in Hall Street Associates. v. Mattel raised questions among lower courts regarding the viability of the doctrine after the Hall Street decision. Today, many lower courts differ in their application of the doctrine. Some courts claim that the Hall Street decision has ended the viability of manifest disregard. Others claim that the doctrine lives on as an interpretation of section 10 of the Federal Arbitration Act (FAA),5 despite the Supreme Court's ruling in Hall Street.

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Failure To Object: Tribal Waiver Of Immunity By Participation In Arbitration, Christopher Mcmillin Jul 2009

Failure To Object: Tribal Waiver Of Immunity By Participation In Arbitration, Christopher Mcmillin

Journal of Dispute Resolution

In Oglala Sioux Tribe v. C & W Enterprises, Inc. (Oglala), the U.S. Court of Appeals for the Eighth Circuit dealt with whether a tribe's affirmative participation in the arbitration process waived its sovereign immunity as to arbitration and enforcement of an arbitration award in state court. Previously, courts have maintained that the existence of an arbitration clause in a commercial contract was sufficient to waive tribal immunity, but they relied on the explicit wording of the agreement itself. In the instant decision, this precedent applied to three construction contracts that contained an explicit choice of law provision, but the …

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Is It The Real Thing: How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux Jan 2009

Is It The Real Thing: How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux

Journal of Dispute Resolution

This article is comprised of six parts. Part I introduces the topic. Part II examines the growing prevalence of compulsory pre-dispute arbitration agreements in employment contracts and the problems with such agreements. Part III describes the challenges employees face in the federal court system: higher pleading thresholds for intentional discrimination claims, the federal judiciary's current antagonism toward employee claims of discrimination (as demonstrated by recent empirical studies), and a beleaguered EEOC. Part IV describes how Coke adopted one-way binding arbitration and explores the ways in which this alternative is preferable to both mandatory arbitration and civil litigation for employees, employers, …

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Table Of Contents - Issue 1 Jan 2009

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

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Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy Jan 2009

Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy

Journal of Dispute Resolution

Judicial review of arbitration awards is highly deferential-but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed arbitration awards. A sub-sample of forty-four employment discrimination arbitration awards under Title VII produced similar results. By comparison, federal Courts of Appeals in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

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Future Of Mediation: A Sociological Perspective, The, Brian Jarrett Jan 2009

Future Of Mediation: A Sociological Perspective, The, Brian Jarrett

Journal of Dispute Resolution

Arguably, these sociological pressures are central to the future direction of the mediation field and, in the aggregate, provide a useful building block in the development of an emerging sociology of mediation-a development that could fill the theory-to-practice gap which currently bedevils the mediation field. Understanding sociological forces reminds us of the constraints within which mediators, as social actors, must work. More importantly, an awareness of these pressures is, conceivably, essential to the development of an autonomous and discernible profession that remains capable of welcoming a diversity of practitioners and their respective approaches. I summarize each of these pressures below …

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Confidential Arbitration Of Whistleblower Actions: A Loophole That Could Effectively Undo The Sarbanes-Oxley Act Of 2002, Nicholas E. Eckelkamp Jan 2009

Confidential Arbitration Of Whistleblower Actions: A Loophole That Could Effectively Undo The Sarbanes-Oxley Act Of 2002, Nicholas E. Eckelkamp

Journal of Dispute Resolution

Among Sarbanes-Oxley Act of 2002 's many requirements and protections are protections for whistleblowers, the Sherron Watkins' and Cynthia Coopers' of the world, who are the first to take risks to alert others of a potential fraud. These whistleblowers normally would be able to utilize the court system to vindicate their rights in the event of a retaliatory employment action. Recently, however, employers have begun using mandatory arbitration agreements to keep potentially embarrassing whistleblower actions out of the court system. Guyden v. Aetna, Inc. is a recent Second Circuit case that examined the enforceability of such agreements, ultimately holding that …

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I Want The Opposite Of What You Want: Reducing Fixed-Pie Perceptions In Online Negotiations, Laura Klaming, Jelle Van Veenen, Ronald Leenes Jan 2009

I Want The Opposite Of What You Want: Reducing Fixed-Pie Perceptions In Online Negotiations, Laura Klaming, Jelle Van Veenen, Ronald Leenes

Journal of Dispute Resolution

Negotiators typically believe their opponents' interests are diametrically opposed to their own. The existence of these fixed-pie perceptions has been identified as a major cause of ineffective conflict resolution and seem to be relatively resistant to change. In contrast to what negotiators typically believe, most conflict situations contain potential for solutions that benefit both parties instead of favoring one party at the expense of the other. Integrative agreements can be reached if opposing negotiators realize that they might have different priorities.

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Promise Of Confidentiality In Mediation: Practitioners' Perceptions, The, T. Noble Foster, Selden Prentice Jan 2009

Promise Of Confidentiality In Mediation: Practitioners' Perceptions, The, T. Noble Foster, Selden Prentice

Journal of Dispute Resolution

In response to these articles, we sought to determine the perceptions of mediation practitioners in our own region, the Seattle/King County area, regarding mediation confidentiality and privilege. This paper presents our finding and addresses the following: (1) the scope of confidentiality and privilege under Washington law; (2) recent Washington case law addressing evidence of mediation communications; (3) a review of Florida's recent legislation - significantly different from Washington law, and unique among state mediation statutes - which provides for sanctions in the event confidentiality is breached; and (4) the perceptions of mediators, attorneys, and judges from the greater Seattle area …

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I Lost My Home, Don't Take My Voice: Ensuring The Voting Rights Of The Homeless Through Negotiated Rulemaking, Sarah Devlin Jan 2009

I Lost My Home, Don't Take My Voice: Ensuring The Voting Rights Of The Homeless Through Negotiated Rulemaking, Sarah Devlin

Journal of Dispute Resolution

"The right to vote, as the citizen's link to his laws as government, is protective of all fundamental rights as privileges." This right is often unexercised or taken for granted; but for hundreds of thousands of homeless citizens, voting is a right which is beyond reach. The U.S. Department of Housing and Urban Development estimated that on any given night in 2005, more than 754,000 Americans were without a traditional residence--living in emergency shelters, transitional housing, or on the streets. While many of those people are only temporarily homeless, many others are being disenfranchised by an electoral system that requires …

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Immunity And Justice For All: Has The Second Circuit Overextended The Doctrine Of Absolute Immunity By Applying It To Arbitration Witnesses, W. Monroe Bonnheim Jan 2009

Immunity And Justice For All: Has The Second Circuit Overextended The Doctrine Of Absolute Immunity By Applying It To Arbitration Witnesses, W. Monroe Bonnheim

Journal of Dispute Resolution

In Rolon v. Henneman, the Second Circuit Court of Appeals considered whether absolute immunity should apply to witnesses in an arbitration proceeding. The common law doctrine of absolute immunity from civil liability for judges has a long pedigree dating back to English courts. When the United States Supreme Court reaffirmed the doctrine after Congress passed 42 U.S.C. § 1983, the Court cautioned against extending the doctrine beyond judges. Since then, however, the doctrine has been extended to prosecutors and witnesses at public trials, and more recently, to arbitrators and arbitral institutions. Whether absolute immunity should be further extended to witnesses …

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Making Friends Of Foes: Bringing Labor And Management Together Through Integrative Bargaining, Carly Duvall Jan 2009

Making Friends Of Foes: Bringing Labor And Management Together Through Integrative Bargaining, Carly Duvall

Journal of Dispute Resolution

Collective bargaining's unique history and structure make it an ideal setting for integrative bargaining ("LB").1 First, most collective bargaining agreements have a set expiration date, which causes the parties to constantly return to the bargaining table to negotiate new terms. Second, collective bargaining in the labor-management setting has a long history in the United States, and unions and management tend to form long-lasting relationships. Finally, collective bargaining agreements address complex interests and are designed to meet the needs of a variety of constituents. These factors combine to produce a relationship involving several individuals, going back multiple generations, who are sure …

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What's Fair Is Fair: Tribal Assertions Of Jurisdiction Over Arbitration Decisions, Matthew E. Terry Jan 2009

What's Fair Is Fair: Tribal Assertions Of Jurisdiction Over Arbitration Decisions, Matthew E. Terry

Journal of Dispute Resolution

While the modem trend is to provide tribes with a certain amount of latitude in some areas, the court in First Specialty Insurance Corp. v. Confederated Tribes of the Grand Ronde Community of Oregon was tasked with shoehorning the facts into the applicable precedent because the various doctrines defining the limits of tribal jurisdiction under the Federal Arbitration Act ("FAA") have not often been tested, as they were here. The district court's opinion followed the modem trend by upholding the Tribe's assertion of its court system's jurisdiction, yet the court did not establish a precedent that should trouble the notion …

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Expansion Of Arbitral Immunity: Is Absolute Immunity A Foregone Conclusion, The, Jenny Brown Jan 2009

Expansion Of Arbitral Immunity: Is Absolute Immunity A Foregone Conclusion, The, Jenny Brown

Journal of Dispute Resolution

With the increased use of arbitration in recent years, the concept of judicial immunity has expanded its scope to include arbitrators. As a result, states are currently enacting their own legislation regarding arbitrator immunity and are looking for guidance in how to do so. In response, the National Conference of Commissioners on State Laws has drafted two model acts, referred to as the Uniform Arbitration Act and the Revised Uniform Arbitration Act for states to utilize in formulating their own arbitration laws. Currently the Uniform Arbitration Act has been adopted in thirteen states and is being considered in four other …

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On Becoming A Collaborative Professional: From Paradigm Shifting To Transformative Learning Through Critical Reflection And Dialogue, Richard W. Shields Jul 2008

On Becoming A Collaborative Professional: From Paradigm Shifting To Transformative Learning Through Critical Reflection And Dialogue, Richard W. Shields

Journal of Dispute Resolution

In Part II, I provide a brief overview of CL and its underlying assumptions. A description of CL training and learning objectives follows in Parts III and IV. In Parts V and VI, I review the paradigm shifting and transformative learning literature. I provide an overview of the study in Part VII, followed by my analysis of the data in Parts VIII and IX. In Part X, I conclude with a discussion of critical reflection and dialogue in a CL training context.

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From Kneecappings Toward Peace: The Use Of Intra-Community Dispute Resolution In Northern Ireland, Patrick Cody Jul 2008

From Kneecappings Toward Peace: The Use Of Intra-Community Dispute Resolution In Northern Ireland, Patrick Cody

Journal of Dispute Resolution

Violence has been a way of life in Northern Ireland for many years as communities were divided by separate warring paramilitary factions. Each side believed that it existed for the benefit and protection of the local community against the forces on the other side. The Irish Republican Army ("IRA") pledged itself to the defense of Northern Irish Catholics from persecution by those loyal to the British government. Similarly, groups such as the Ulster Volunteer Force ("UVF") and the Ulster Defense Association ("UDA") formed to defend Protestant citizens against IRA attacks. Policing of local neighborhoods fell largely to these groups. Enforcement …

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State Legislative Update, Gregory Cassens, Matthew D. Decker, Carly Duvall, Claire Mcguire Jul 2008

State Legislative Update, Gregory Cassens, Matthew D. Decker, Carly Duvall, Claire Mcguire

Journal of Dispute Resolution

The purpose of this Bill is to provide an alternative approach for individuals with a cause of action against a municipality.' Rather than the costly and time-consuming traditional method of hiring an attorney and filing a lawsuit, House Bill 2631 offers individuals an opportunity for Alternative Dispute Resolution ("ADR") in the form of arbitration. The Bill would allow any individual with a claim in contract or tort against a municipality to require the municipality to submit to the arbitration of the claim. The purpose of House Bill 2631 is to facilitate the resolution of individual claims against a city. However, …

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No Exceptions: How The Legitimate Business Justification For Unconscionability Only Further Demonstrates California Courts' Disdain For Arbitration Agreements, Thomas H. Riske Jul 2008

No Exceptions: How The Legitimate Business Justification For Unconscionability Only Further Demonstrates California Courts' Disdain For Arbitration Agreements, Thomas H. Riske

Journal of Dispute Resolution

In Davis v. O'Melveny & Myers, the Ninth Circuit Court of Appeals considered whether an arbitration agreement adopted by a law firm and distributed to its employees was enforceable. When interpreting an arbitration agreement, how the contract doctrine of unconscionability should be applied by state courts, is an essential element of this case. While the Federal Arbitration Act ("FAA") has been interpreted to preempt any state law in conflict with it, state laws governing the necessary foundation to revoke a contract remain unaffected. In considering these principles, state courts have applied the doctrine of unconscionability to arbitration agreements in the …

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Thoughts About Spiritual Fatigue: Sustaining Our Energy By Staying Centered, Wayne D. Brazil Jul 2008

Thoughts About Spiritual Fatigue: Sustaining Our Energy By Staying Centered, Wayne D. Brazil

Journal of Dispute Resolution

Spiritual fatigue can afflict seasoned mediators and judges who have hosted many settlement conferences.' It can sap the energy we need to do our work well. It can reduce our patience, shorten our anger fuses, and impair our ability to listen to and to connect with the people we are trying to help. Worse, it can lead us into procedural or ethical temptation-inviting us to cut comers and compromise values we hold dear. If it persists too long, it can drive us away from this field. Thus, for those of us who experience it, spiritual fatigue can pose a serious …

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When Perception Changes Reality: An Empirical Study Of Investors' Views Of The Fairness Of Securities Arbitration, Jill I. Gross, Barbara Black Jul 2008

When Perception Changes Reality: An Empirical Study Of Investors' Views Of The Fairness Of Securities Arbitration, Jill I. Gross, Barbara Black

Journal of Dispute Resolution

Arbitration in securities industry-sponsored forums is the primary mechanism to resolve disputes between investors and their brokerage firms. Because it is mandatory, participants debate its fairness, and Congress has introduced legislation to ban pre-dispute arbitration clauses in customer agreements. Missing from the debate has been empirical research of perceptions of fairness by the participants, especially investors. To fill that gap, we mailed 25,000 surveys to participants in recent securities arbitrations involving customers to learn their views of the process. The article first details the survey's background, explains the importance of surveying perceptions of fairness, and describes our methodologies, procedures, and …

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