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Articles 631 - 660 of 1013
Full-Text Articles in Dispute Resolution and Arbitration
Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey
Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey
Journal of Dispute Resolution
The Emperor's New Clothes is a very modem tale about carving out market niches, about generating and feeding unreasonable desires, and about the power of conformity within emergent occupations and powerful professions.
Ability Of Native American Tribes To Waive Their Tribal Sovereign Immunity In Clear And Unequivocal Contracts To Arbitrate - C&(And)L Enterprises, Inc. V. Citizen Band Potawatomie Tribe Of Oklahoma, The, Emily J. Huitsing
Journal of Dispute Resolution
Native American tribes enjoy immunity from suits on contracts made on or off a reservation.2 A tribe is subject to suit only if it has clearly waived its immunity or Congress has expressly authorized the suit.' Tribal immunity was given to the tribes on the principle that tribes are sovereigns or quasi sovereigns enjoying immunity from judicial attack absent their consent.4 The purpose of tribal sovereignty, according to the Supreme Court, is to promote tribal economic development and self-sufficiency.5 Though the Court has expressed its dissatisfaction with the doctrine in light of increased tribal economic self-sufficiency through successful business ventures, …
No Out For The Federal Government: Enforcing Contractual Arbitration Clauses In Federal Government False Claims Actions - U. S. V. Bankers Ins. Co., Sarah A. Wight
Journal of Dispute Resolution
As a party to one-fourth of all civil litigation2 the federal government exerts a looming presence in American judicial proceedings. Thus, attempts by the government to elude obligations under arbitration agreements, if successful, would significantly impact the elite status that pre-dispute contractual arbitration clauses currently hold.' This casenote examines how the United States Court of Appeals for the Fourth Circuit recently addressed this issue in the context of a false claims action.
Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler
Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler
Journal of Dispute Resolution
Across the country, people who file lawsuits are being diverted from adjudication to mediation. Whereas once mediation was seen as the preferred means of resolving family disputes (especially those involving child custody), now it is mandated for a broad range of civil disputes. Whereas once citizens were called upon to volunteer as mediators in community justice centers outside the courts, now mediation is a line of business for lawyers whose customers are sent to them by the courts. Whereas once dispute resolution theorists called on courts to provide a variety of procedural choices for civil disputants, now courts order litigants …
Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, The, Clark Freshman, Adele Hayes, Greg Feldman
Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, The, Clark Freshman, Adele Hayes, Greg Feldman
Journal of Dispute Resolution
This article explores two related questions: First, does mood7 shape how well lawyers succeed at negotiation?" Second, can lawyers succeed better at negotiation by understanding and managing the role of mood? We begin by exploring what scientific evidence we currently have about how mild changes in mood are associated with significant differences in success at negotiation. Ultimately, we argue that existing scientific evidence shows mood plays a far more complicated role than negotiators and negotiation scholars usually imagine, but that further research needs to address more carefully exactly how mood works and how it affects lawyers and legal negotiation. We …
Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham
Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham
Journal of Dispute Resolution
In this commentary, I suggest that we can get a broader picture of the research agenda to address these policy issues by refining our notions of self-determination. In addition to self-determination over process and outcome in the individual case, we need to start examining who has control over design of the dispute system as a whole. First, this commentary addresses the difference between self-determination at the case level and self-determination in dispute system design and how these two separate dimensions of self-determination can help us distinguish among different uses of mediation and arbitration. Second, using this framework, I attempt to …
Procedural Justice Research And The Paucity Of Trials, Chris Guthrie
Procedural Justice Research And The Paucity Of Trials, Chris Guthrie
Journal of Dispute Resolution
Likewise, I do not mean to criticize Hensler's contribution to this volume. Although she is a prominent procedural justice researcher herself, she is certainly not responsible for the inattention given to the questions I have identified, and her measured conclusions about what might be inferred from the existing research are certainly appropriate. Indeed, I take Hensler' s broader point to be that courts should not mandate mediation simply because they believe as a matter of faith that mediation is a "better" process than others." Rather, courts should base their decisions, to the extent possible, on empirical evidence about the relative …
Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler
Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler
Journal of Dispute Resolution
In this article, we first use existing research evidence to contextualize more clearly the place of civil case mediation in the litigation process. When we understand civil mediation as part of adversarial litigation - rather than as distinct from it - we see the importance of comparing mediation and unassisted negotiation. Next, we discuss research and commentary on the barriers to negotiation and the ways in which mediation might help overcome them. This work provides a more pragmatic and empirically grounded perspective on the potential value of mediation than does "mediation ideology" and suggests a wide range of "hypotheses" to …
Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips
Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips
Journal of Dispute Resolution
This experience stands in stark contrast to the thesis of Professor Deborah Hensler in her article, Suppose It's Not True: Challenging Mediation Ideology. Therein, Professor Hensler attempts to link social psychological research that she interprets as showing dissatisfaction with the use of mediation compared to adjudication, which, in turn, leads her to conclude that clients should prefer counsel who ordinarily can resolve cases successfully without the help of mediation.7 The fallacy of Professor Hensler's argument is evident in several respects. For one, she relies far too heavily on her own intuition and previous empirical research of marginal relevance, and on …
Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh
Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh
Journal of Dispute Resolution
Such a uniform commitment to procedural justice might seem natural for the courts. However, the procedural due process jurisprudence indicates that the courts' appreciation of procedural justice is unlikely to translate easily to processes in which the disputants, not the courts, are deemed to exercise control over outcomes. Given the current state of procedural due process jurisprudence, courts may lack both the desire and the ability to demand procedural justice in third party processes that are classified as "consensual." Ironically then, disputants' decision control, which is meaningful to mediation advocates and the courts but a rather hollow promise for disputants, …
Arbitration Agreements In Labor And Employment Contracts: Well Within The Reach Of The Faa - Circuit City Stores, Inc. V. Adams, Lisa M. Eaton
Arbitration Agreements In Labor And Employment Contracts: Well Within The Reach Of The Faa - Circuit City Stores, Inc. V. Adams, Lisa M. Eaton
Journal of Dispute Resolution
Despite a series of decisions where the Supreme Court has upheld the use of arbitration in the employment context, the Court has never clearly stated that arbitration agreements contained in employment contracts fall under the Federal Arbitration Act (FAA). This omission has led to a split in the Circuits as to the scope of the FAA coverage ad exemption provisions. The controversy centers on whether the FAA covers all employment contracts except those of employees who transport people or goods in interstate commerce or whether the FAA exempts all employment contracts.
Call For Intellectual Honesty: A Response To The Uniform Mediation Act's Privilege Against Disclosure, A, J. Brad Reich
Call For Intellectual Honesty: A Response To The Uniform Mediation Act's Privilege Against Disclosure, A, J. Brad Reich
Journal of Dispute Resolution
I will discuss and respond to three potential concerns of creating confidentiality through contractual provision. First, contract provisions are not binding on persons not parties to the contract. As a purely legal principle this is undoubtedly correct, but I will argue that while contract provisions cannot specifically bind non-parties, they can decrease the risk of disclosure of mediation communications to and by non-parties. Second, while it is true that contractual provisions may be voided as violative of public policy, I will argue that courts have generally upheld contractual confidentiality provisions and only voided them when the need for confidentiality was …
Stop The Stay: Interrupting Bankruptcy To Conduct Arbitration - Slipped Disc, Inc. V. Cd Warehouse, Inc., Matthew Dameron
Stop The Stay: Interrupting Bankruptcy To Conduct Arbitration - Slipped Disc, Inc. V. Cd Warehouse, Inc., Matthew Dameron
Journal of Dispute Resolution
Since its inception, arbitration has affected other practice areas of the law differently. Some practice areas, such as bankruptcy, have created special exceptions to accommodate the growth of arbitration. Arbitration's effect on the automatic stay in bankruptcy is explored in the following Note.
Science-Policy Disputes: Resolution Through Data Mediation, Erik S. Knutsen
Science-Policy Disputes: Resolution Through Data Mediation, Erik S. Knutsen
Journal of Dispute Resolution
It is the aim of this article to propose a novel system of dispute resolution for disputes which turn on interpretations of complex but uncertain scientific evidence. Part II identifies a specific subset of legal disputes that can only be resolved through policy judgments from ambiguous scientific data. Recognizing the underlying commonalities of these science-policy disputes offers an opportunity to craft a single dispute resolution mechanism which may be utilized for a wide variety of disputes. Part III outlines the benefits of using a mediation-based dispute settlement mechanism, as opposed to the traditional adversary-style litigation system, for these specific types …
Uniform Arbitration Act: Introduction, The, Timothy J. Heinsz
Uniform Arbitration Act: Introduction, The, Timothy J. Heinsz
Journal of Dispute Resolution
The Uniform Arbitration Act (UAA) is one of the most successful laws promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL). Originally passed by NCCUSL in 1955, the UAA has served as the bases of arbitration statutes in some forty-eight jurisdictions. As more parties have incorporated arbitration clauses into contractual relationships, the importance of the UAA and its federal counterpart, the Federal Arbitration Act (FAA), have correspondingly increased. Supreme Court precedent at both federal and state levels abrogating the common law hostility against arbitration and replacing this attitude with and avowedly pro-arbitration doctrine has enhanced the arbitration …
Mediation And Domestic Violence: A Practical Screening Method For Mediators And Mediation Program Administrators, Alexandria Zylstra
Mediation And Domestic Violence: A Practical Screening Method For Mediators And Mediation Program Administrators, Alexandria Zylstra
Journal of Dispute Resolution
Presented with such a dearth of standard practices and literature, family mediators have little guidance in whether and how to address cases involving domestic violence. Thus, this article sets forth a mediation screening framework that mediators and mediation program administrators can use to evaluate whether cases are appropriate for regular mediation (joint session without special safety measures), some modified form of mediation, or should be excluded from mediation. Such a method will better ensure a safe and fair mediation experience. Part II briefly examines the controversy surrounding the mediation of cases involving domestic violence, concluding that the arguments against mediating …
Arbitral Discovery Of Non-Parties, Jason F. Darnall, Richard Bales
Arbitral Discovery Of Non-Parties, Jason F. Darnall, Richard Bales
Journal of Dispute Resolution
This article argues that the broad power approach is the better reasoned of the two. Timely discovery of important information is vital in any dispute. Further, fair results should be the goal of any dispute resolution process. The possessor of the pertinent information, i.e., whether it is held by parties or non-parties, should be irrelevant. Part II of this article describes the differences between discovery in litigation and discovery in arbitration. Part III examines the limited power approach to prehearing discovery, which restricts the power of an arbitrator to compel non-party participation in discovery to the actual hearing. Part IV …
Hold All Arbitrations: Public Policy Invalidations Are On The Loose - Town Of Groton V. United Steelworkers Of America, Christina S. Lewis
Hold All Arbitrations: Public Policy Invalidations Are On The Loose - Town Of Groton V. United Steelworkers Of America, Christina S. Lewis
Journal of Dispute Resolution
The United States Supreme Court has held that arbitration awards derived from collective bargaining agreements may be invalidated based on public policy. However, an arbitration award should only be invalidated if the public policy is explicit, well-defined, and dominant.' This article will examine how the Connecticut Supreme Court applied the public policy test and whether the court adequately justified its decision.
Supreme Court Defines Final Decisions Relating To Arbitration Decisions And Ducks The More Important Costs Issue - Green Tree Financial Corp. - Alabama V. Randolph, The, Franklin D. Romines Ii.
Supreme Court Defines Final Decisions Relating To Arbitration Decisions And Ducks The More Important Costs Issue - Green Tree Financial Corp. - Alabama V. Randolph, The, Franklin D. Romines Ii.
Journal of Dispute Resolution
The United States Supreme Court in Green Tree Financial Corp. - Alabama v. Randolph dealt with two arbitration issues of varying import. The less controversial issue involved defining the term 'final decision' in the context of arbitration proceedings.2 The second major issue in the case provided the Court an opportunity to analyze cost assignments in arbitration agreements that were silent on the issue.3 This issue has generated considerable policy disagreement among the circuits
Be Careful What You Say In Mediation - Indiana Supreme Court Rules That Oral Settlement Agreements Reached In Mediation Must Be In Writing To Be Enforceable - Kirk E. And Martha Vernon V. Adam J. Acton, Garrett S. Taylor
Journal of Dispute Resolution
When parties use mediation as an alternative to litigation, they generally expect the agreement will be binding upon the parties and confidential. However, the parties must ensure that the agreement they reach is reduced to writing or the agreement may not be enforceable. Furthermore, certain things said during the mediation session may be admissible in future litigation proceedings. The Indiana Supreme Court, in Vernon v. Acton, held that until mediation agreements are reduced to writing and signed by the parties, they must be considered compromise settlement negotiations under the applicable evidence rules and are not admissible as evidence of an …
Recent Developments: The Uniform Arbitration Act, Brent A. Correll, S. Jacob Sappington, David Sims, Blake J. Tompkins
Recent Developments: The Uniform Arbitration Act, Brent A. Correll, S. Jacob Sappington, David Sims, Blake J. Tompkins
Journal of Dispute Resolution
Since 1983, this annual Article 2 has been prepared to provide a survey of recent developments in the case law interpreting and applying the various state versions of the Uniform Arbitration Act3. The purpose is to promote uniformity in the interpretation of the U.A.A. by developing and explaining the underlying principles and rationales courts have applied in recent cases.4
Table Of Leading Notes -Authors Prior Issue Index To Volumes 1990-2000
Table Of Leading Notes -Authors Prior Issue Index To Volumes 1990-2000
Journal of Dispute Resolution
No abstract provided.
Table Of Symposia Prior Issue Index To Volumes 1990-2000
Table Of Symposia Prior Issue Index To Volumes 1990-2000
Journal of Dispute Resolution
No abstract provided.
Waiver - Not Yet: After More Than Eight Years Of Pre-Trial Litigation The Second Circuit Orders Arbitration - Crysen/Montenay Energy Co. V. Shell Oil Co. And Scallop Petroleum Co., David A. Geisler Ii.
Waiver - Not Yet: After More Than Eight Years Of Pre-Trial Litigation The Second Circuit Orders Arbitration - Crysen/Montenay Energy Co. V. Shell Oil Co. And Scallop Petroleum Co., David A. Geisler Ii.
Journal of Dispute Resolution
Arbitration clauses, like most terms in a contract, are enforceable against either party and, unless expressly or impliedly waived, should be enforced. While the federal courts and Congress have a policy that strongly favors arbitration, in some situations the factual nature of the case leads the court to conclude that the right to arbitrate the matter has been waived. The Second Circuit Court of Appeals, in In re Crysen/Montenay Energy Co. v. Shell Oil Co. and Scallop Petroleum Co., addressed this issue; however the court concluded that the policy favoring the enforcement of arbitration provisions outweighed the prejudice to Crysen/Montenay …
Federal Preemption And Vacatur: The Bookend Issues Under The Revised Uniform Arbitration Act, Stephen L. Hayford
Federal Preemption And Vacatur: The Bookend Issues Under The Revised Uniform Arbitration Act, Stephen L. Hayford
Journal of Dispute Resolution
As one of the two Academic Advisors to the Drafting Committee appointed by the National Conference of Commissioners on Uniform State Laws ("NCCUSL") to revise the Uniform Arbitration Act, I was assigned primary responsibility for the two most important issues pertinent to the Drafting Committee's framing of the Revised Uniform Arbitration Act ("RUAA"). The first-the issue of federal preemption-set the baseline for the scope and character of the RUAA by defining for the Drafting Committee the areas of the substantive law of arbitration in which the states are free to regulate, the Federal Arbitration Act ("FAA") notwithstanding. The second-the issue …
Class Action Vs. Arbitration: Does Tila Support Class Actions In Arbitration Where Statutory Rights Are Concerned - Johnson V. West Suburban Bank, Christina S. Lewis
Class Action Vs. Arbitration: Does Tila Support Class Actions In Arbitration Where Statutory Rights Are Concerned - Johnson V. West Suburban Bank, Christina S. Lewis
Journal of Dispute Resolution
Johnson v. West Suburban Bank is an important case in American jurisprudence because it combines several United States Supreme Court cases to establish a test for whether arbitration provisions relating to statutory rights should be upheld when they essentially preclude class actions. This Casenote will examine the progression the courts have taken and Johnson's subsequent test. Finally, an evaluation of this test will follow.
Mandatory Arbitration Of An Employee's Statutory Rights: Still A Controversial Issue Or Are We Beating The Proverbial Dead Horse - Penn V. Ryan's Family Steakhouse, Inc., Andrea L. Myers
Journal of Dispute Resolution
Since the early 1980s, the Supreme Court has espoused a strong preference for arbitration in the employment setting. Despite this general preference, the Supreme Court has never clearly stated that mandatory arbitration of statutory rights is always reasonable. This omission has led to much controversy about whether this preference permits the mandatory arbitration of all statutory rights or only those that are amenable to arbitration as defined by the Supreme Court.