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Dispute Resolution and Arbitration Commons™
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Articles 661 - 690 of 1013
Full-Text Articles in Dispute Resolution and Arbitration
Revised Uniform Arbitration Act: Modernizing, Revising, And Clarifying Arbitration Law, The, Timothy J. Heinsz
Revised Uniform Arbitration Act: Modernizing, Revising, And Clarifying Arbitration Law, The, Timothy J. Heinsz
Journal of Dispute Resolution
From the outset of the Drafting Committee's deliberations, two issues came to the fore: federal preemption and adhesion contracts.23 The complexity of both matters presented substantial challenges to the Drafting Committee. The Drafting Committee needed to reach early agreement on an approach to preemption and adhesion, which affect so many areas covered by state arbitration law
Paying The Price Of Process: Judicial Regulation Of Consumer Arbitration Agreements, Stephen J. Ware
Paying The Price Of Process: Judicial Regulation Of Consumer Arbitration Agreements, Stephen J. Ware
Journal of Dispute Resolution
Arbitration clauses now appear in many of the form contracts through which consumers obtain goods, services and credit.' Why do so many businesses that deal with consumers choose arbitration? Relative to litigation, arbitration provides opportunities for a business to save on its dispute-resolution costs. If arbitration does, in fact, lower these costs then arbitration lowers the prices (and interest rates) consumers pay because competition forces businesses to pass their cost-savings on to consumers.
To Litigate Or Arbitrate - No Matter - The Credit Card Industry Is Deciding For You, Johanna Harrington
To Litigate Or Arbitrate - No Matter - The Credit Card Industry Is Deciding For You, Johanna Harrington
Journal of Dispute Resolution
This Comment posits that consumers lose their legal protections in the credit industry when arbitration policies are favored over consumer credit protection policies. Part II will examine the language of credit card arbitration clauses including a discussion of the circumstances under which a credit card holder might bring a claim. Part III will discuss barriers to challenging the arbitration provisions. Part IV will summarize how the courts have addressed mandatory arbitration clauses in credit cards. Part V will examine traditional consumer credit protection laws, specifically whether the Truth-in-Lending Act is able to protect consumers from mandatory arbitration clauses. Finally, Part …
Clarifying The Intent Of Congress: Are The Federal Arbitration Act's Venue Provisions Permissive Or Mandatory - Cortez Byrd Chips, Inc. V. Bill Harbert Construction Co., Darynne L. O'Neal
Clarifying The Intent Of Congress: Are The Federal Arbitration Act's Venue Provisions Permissive Or Mandatory - Cortez Byrd Chips, Inc. V. Bill Harbert Construction Co., Darynne L. O'Neal
Journal of Dispute Resolution
Some circuits have taken the position that the venue provisions are mandatory, thus limiting venue for motions to confirm, vacate, or modify arbitration awards to the district where the award was made. Other circuits, however, have adopted the contrary position that the venue provisions are permissive, allowing such motions to be brought either in the district where the arbitration award was made or in any district that is proper under the general venue statute. This Casenote explores the split among the circuits on the nature of the FAA's venue provisions. Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co. addressed …
Read The Fine Print - Alabama Supreme Court Rules That Binding Arbitration Provisions In Written Warranties Are Okay - Southern Energy Homes, Inc. V. Ard, Garrett S. Taylor
Read The Fine Print - Alabama Supreme Court Rules That Binding Arbitration Provisions In Written Warranties Are Okay - Southern Energy Homes, Inc. V. Ard, Garrett S. Taylor
Journal of Dispute Resolution
When a consumer purchases an item that includes a warranty, they generally do not read the warranty, and a consumer expects that they will have a right to a judicial forum should the warranty come into play. However, courts have recently faced the issue of whether or not binding arbitration provisions in written warranties preclude the consumer from appearing in a courtroom. The Supreme Court of Alabama, in Southern Energy Homes, Inc. v. Ard, held that inclusion of binding arbitration provisions in written warranties is acceptable, despite the intent of the MagnusonMoss Act.'
Prior Issue Index To Volumes 1990-2000
Prior Issue Index To Volumes 1990-2000
Journal of Dispute Resolution
No abstract provided.
Prior Issue Index To Volumes 1990-2000
Prior Issue Index To Volumes 1990-2000
Journal of Dispute Resolution
No abstract provided.
Table Of Leading Articles-Authors Prior Issue Index To Volumes 1990-2000
Table Of Leading Articles-Authors Prior Issue Index To Volumes 1990-2000
Journal of Dispute Resolution
No abstract provided.
Table Of Leading Comments-Authors Prior Issue Index To Volumes 1990-2000
Table Of Leading Comments-Authors Prior Issue Index To Volumes 1990-2000
Journal of Dispute Resolution
No abstract provided.
Student Projects Prior Issue Index To Volumes 1990-2000
Student Projects Prior Issue Index To Volumes 1990-2000
Journal of Dispute Resolution
No abstract provided.
Book Reviews - Authors/Casebook Case Studies Prior Issue Index To Volumes 1990-2000
Book Reviews - Authors/Casebook Case Studies Prior Issue Index To Volumes 1990-2000
Journal of Dispute Resolution
No abstract provided.
Inevitability Of The Eclectic: Liberating Adr From Ideology, The, Jeffrey W. Stempel, Kimberlee K. Kovach
Inevitability Of The Eclectic: Liberating Adr From Ideology, The, Jeffrey W. Stempel, Kimberlee K. Kovach
Journal of Dispute Resolution
In this essay, I continue to argue against such rigid characterization of the mediation enterprise and in favor of what I term an "eclectic" approach to mediation. The eclectic style is one in which a mediator - while maintaining neutrality and impartiality at all times - attempts to both assist the disputants in finding acceptable solutions on their own and also remains free to provide necessary guidance as to the outcomes that might obtain in the legal regime that will govern their dispute should no agreement result from the mediation. In short, my view of good mediation practice is one …
Employees Beware: Signing Arbitration Agreements May Limit Your Remedies In Suits Filed By The Eeoc - Equal Employment Opportunity Commission V. Waffle House, Inc., Sarah Baxter
Journal of Dispute Resolution
Arbitration is used regularly to settle employment disputes, and federal policy supports these agreements between private parties. Federal statutes, however, also grant the Equal Employment Opportunity Commission the authority to pursue employment discrimination claims in court. These claims do more than vindicate the rights of individuals, they also safeguard the public interest in ending employment discrimination. A conflict may arise between these two policies when employees sign agreements to submit statutory discrimination claims to arbitration. This Note examines the split of authority on the issue of whether the Equal Employment Opportunity Commission should be permitted to seek money damages on …
Recent Developments: The Uniform Arbitration Act, S. Owen Griffin, Kelli Hopkins, Scot L. Wiggins, Emily Woodward
Recent Developments: The Uniform Arbitration Act, S. Owen Griffin, Kelli Hopkins, Scot L. Wiggins, Emily Woodward
Journal of Dispute Resolution
This Article is an overview of recent court decisions that interpret state versions of the Uniform Arbitration Act ("U.A.A.").' Arbitration statutes patterned after the U.A.A. have been adopted by thirty-four states and the District of Columbia. The goal of this project is to promote uniformity in the interpretation of the U.A.A. by articulating the underlying policies and rationales of recent court decisions interpreting the U.A.A?
Foreword, Leonard L. Riskin
Foreword, Leonard L. Riskin
Journal of Dispute Resolution
In 1994, I proposed the idea of charting a mediator's role on a facilitative evaluative continuum. Since that time, the notion surely has generated at least as much heat as light. In this Symposium, we are fortunate to have a lead article and final reflections by Professor Jeffrey Stempel, one of the most thoughtful and prolific commentators on this issue. Professor Stempel's argument that eclecticism in mediation is inevitable is well-honed, and yet our distinguished commentators - Gary Gill-Austem, Richard Birke, Kim Kovach, Lela Love, Jon Lande, and Zena Zumeta - found much to say about it.
Toward More Sophisticated Mediation Theory, John Lande
Toward More Sophisticated Mediation Theory, John Lande
Journal of Dispute Resolution
Some of these benefits are due to the particular arguments of facilitation proponents, while others involve a general development of the field resulting from the debate. The first benefit is that facilitation proponents have highlighted how mediation can promote many important values such as party self-determination, and they have cautioned about risks of unfairness created by mediator evaluation as described in Part III. Second, the facilitation-evaluation debate has stimulated a better appreciation of the appropriateness of these techniques in different types of cases, as described in Part IV. Third, the debate has contributed to reducing ill-considered evaluation practice, as discussed …
Facilitative Mediator Responds, A, Zena Zumeta
Facilitative Mediator Responds, A, Zena Zumeta
Journal of Dispute Resolution
I appreciate the thoughtfulness and conclusions of Professor Jeffrey Stempel in his article. His title, "The Inevitability of the Eclectic," seems completely right to me. Most mediators I know who have had training in mediation are more eclectic than squarely in one camp or another. They use techniques that are geared both to their own personalities and to the needs of the case. This, indeed, is a level of sophistication that is a heartening indication of the maturity of the field of mediation. However, there are many points in Stempel's argument that I disagree with, including some of his most …
Faithful, Gary L. Gill-Austern
Faithful, Gary L. Gill-Austern
Journal of Dispute Resolution
The term "facilitative mediation" reminds me of the term "Old Testament." As we Jews from time to time have reminded Christians, the Jewish people call their canon the Tanakh, or, in English, the Hebrew Scriptures. That the same thirty-nine books - Genesis, Exodus, and so on - are labeled "Old Testament" by others indicates that another (later) religious community believes that an event occurred that requires what came before to be interpreted through the prism of an intervening event or reality. For Christians, this is expressed in the New Testament. Returning, then, to the current discussion, it takes a partisan …
Negligent Retention And Arbitration: The Effect Of A Developing Tort On Traditional Labor Law, Terry A. Bethel
Negligent Retention And Arbitration: The Effect Of A Developing Tort On Traditional Labor Law, Terry A. Bethel
Journal of Dispute Resolution
As negligent retention theories continue to grow, courts will inevitably address these questions. This article will offer a brief introduction to the tort of negligent retention and related doctrines and will discuss how courts will accommodate them within traditional labor law principles. Despite my impulsive reaction that negligent retention poses a threat to arbitration, I conclude that, for the most part, negligent retention and labor arbitration can coexist peacefully.
Mediating Citizen Complaints Against The Police: An Exploratory Study , Samuel Walker, Carol Archbold
Mediating Citizen Complaints Against The Police: An Exploratory Study , Samuel Walker, Carol Archbold
Journal of Dispute Resolution
This article examines the subject of mediating citizen complaints against the police. It reviews the history of citizen complaints, presents data on existing police complaint mediation programs, and discusses the potential contributions of mediation to police accountability.
Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P, Love
Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P, Love
Journal of Dispute Resolution
The thesis of this essay is that when mediators try to resolve a controversy by providing their analysis fo the legal - or other- merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral's judgment, award or opinion to determine or jump-start a resolution. That add-on activity to mediation should be called by its proper name. This essay will not review the many reasons that a single neutral combining the roles of facilitator and evaluator is problematic, since that has been done extensively elsewhere.' Instead, in part one, we highlight …
Evaluation And Facilitation: Moving Past Either/Or, Richard Birke
Evaluation And Facilitation: Moving Past Either/Or, Richard Birke
Journal of Dispute Resolution
In this essay, I argue that there is no such thing as a purely facilitative mediation of a legal dispute. Neither is there such a thing as a purely evaluative mediation of a legal dispute. Mediation of legal disputes is, by its nature, always facilitative and evaluative. The evaluative-facilitative divide is an artificial artifact of history. Following this introduction, I offer a brief description of the development of the field of legal mediation, and I attempt to place the Riskin grid in historical context. I then hope to push the debate toward a new moment, one in which all mediation …
Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stemple
Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stemple
Journal of Dispute Resolution
Preparation for the University of Missouri's lecture on dispute resolution and consideration of commentary prompted additional thoughts on the issue and a more refined perspective on the issue of facilitation-versus-evaluation and its role in the continued development of modem ADR. Rather than attempt to fine-tune a completed article, this reply will address the additional perspectives as well as note points of distinct conflict or quibble with commentators. First, this reply provides some additional assessment framing the facilitative-evaluative debate as well as a modified brief in support of the legitimacy of some elements of evaluation in the eclectic mediation that is …
Mediator's Privilege: Can A Mediator Be Compelled To Testify In A Civil Case - California Privilege Law Says Yes - Olam V. Congress Mortgage Co., The, Jennifer C. Bailey
Mediator's Privilege: Can A Mediator Be Compelled To Testify In A Civil Case - California Privilege Law Says Yes - Olam V. Congress Mortgage Co., The, Jennifer C. Bailey
Journal of Dispute Resolution
In the present case, Olain v. Congress, the United States District Court for the Northern District of California has, in a precedent-setting opinion, forced a mediator to testify in a subsequent civil procedure. 9 This Note will examine two recurring issues regarding mediation: first, the appropriate law to be applied when a case sits in federal court; and second, the history of the mediation privilege, the present state of the mediation privilege within the federal and state courts, and the consequences of the instant case.
Arbitration And Its Collateral Estoppel Effect On Third Parties - Vandenberg V. Superior Court, Thurston K. Cromwell
Arbitration And Its Collateral Estoppel Effect On Third Parties - Vandenberg V. Superior Court, Thurston K. Cromwell
Journal of Dispute Resolution
This Note examines why California's supreme court chose not to allow judicially confirmed arbitration awards to apply to third parties. The court based its decision on the contract model of arbitration and determined that an agreement to arbitrate was not necessarily an agreement binding third parties. However, this decision undermines the credibility of the arbitration process and fails to consider the negative impact relitigation of issues will have on the California courts.
How Level Is The Playing Field - Should Employers Be Able To Circumvent State Workers' Compensation Schemes By Creating Their Own Employee Compensation Plans - Strawn V. Afc Enterprises, D/B/A Church's Chicken, Nathan E. Ross
Journal of Dispute Resolution
Disputes resulting from workplace incidents are consuming increasingly greater proportions of our courts' dockets.2 In recent years, "[e]mployment litigation has grown at a rate many times greater than litigation in general ... almost one thousand percent greater than the increase in all other types of civil litigation combined."3 Due to the unequal bargaining power employers possess over employees in these disputes, states have passed workers' compensation laws to level the playing field.' However, employers have chosen not to subscribe to their states' workers' compensation systems, but instead have created their own employee compensation plans.' In addition, these employer-created compensation plans …
Is Binding Arbitration A Form Of Adr: An Argument That The Term Adr Has Begun To Outlive Its Usefulness, Jean R. Sternlight
Is Binding Arbitration A Form Of Adr: An Argument That The Term Adr Has Begun To Outlive Its Usefulness, Jean R. Sternlight
Journal of Dispute Resolution
While the semantic question may be uninteresting, I suggest that it is useful to ask the normative question of how we should categorize binding arbitration.'7 Again, there may be no clear "right" answer. Nevertheless, addressing the question of the appropriate categorization of binding arbitration provides a good means for rethinking the nature of binding arbitration, what we mean by ADR, and how the variety of dispute resolution techniques typically grouped together as ADR relate to litigation. Artificially grouping these disparate processes together under the "ADR" umbrella is beginning to prove problematic. While we may continue to use the phrase in …
Search To Clarify An Elusive Standard: What Relationships Between Arbitrator And Party Demonstrate Evident Partiality - Anr Coal Co. V. Cogentrix Of North Carolina, Inc., The, Jennifer C. Bailey
Search To Clarify An Elusive Standard: What Relationships Between Arbitrator And Party Demonstrate Evident Partiality - Anr Coal Co. V. Cogentrix Of North Carolina, Inc., The, Jennifer C. Bailey
Journal of Dispute Resolution
In Commonwealth Coatings Corp. v. Continental Casualty Co.,3 the Supreme Court adopted a standard to determine and define an arbitrator's evident partiality in arbitration proceedings. Lower courts have relied on the Court's treatment of the issue, but this reliance has proved problematic, and led to both federal and state courts adopting inconsistent standards of evident partiality. This Casenote will examine the problems of Commonwealth, its impact on the standards of arbitrator partiality over the past thirty years, its continuing influence on the recent Fourth Circuit Court of Appeals decision in ANR Coal Co. v. Cogentrix of North Carolina, Inc., and …