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Dispute Resolution and Arbitration Commons™
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Articles 841 - 870 of 1013
Full-Text Articles in Dispute Resolution and Arbitration
Compulsory Alternative Dispute Resolution And Voluntarism: Two-Headed Monster Or Two Sides Of The Coin , Lucy V. Katz
Compulsory Alternative Dispute Resolution And Voluntarism: Two-Headed Monster Or Two Sides Of The Coin , Lucy V. Katz
Journal of Dispute Resolution
This Article broadly defines compulsory ADR3 to include any process in which the parties experience a lack of free choice about their participation, other than a civil or criminal trial with full due process protections. Thus, it includes not only court-ordered ADR4 (or alternatives mandated by statute), but also judicial mediation, settlement conferences, non-mandatory summary jury trials, and other techniques5 in which there is pressure on litigants to forgo trials, at least temporarily, and to utilize alternatives to bring about settlement.6
Punitive Damages In Securites Arbitration: The Interplay Of State And Federal Law (Or A Smaller Bite Of The Big Apple), Marilyn B. Cane
Punitive Damages In Securites Arbitration: The Interplay Of State And Federal Law (Or A Smaller Bite Of The Big Apple), Marilyn B. Cane
Journal of Dispute Resolution
As the United States Supreme Court has observed, the Federal Arbitration Act (FAA) 2 "is something of an anomaly in the field of federal-court jurisdiction. It creates a body of federal substantive law establishing and regulating the duty to honor an agreement to arbitrate, yet it does not create any independent federal-question jurisdiction."' The parameters and effect of state law under the FAA are continually being refined by the courts. Since the FAA is silent regarding the award of punitive damages, the role state law plays with respect to this issue is unsettled.
Transforming At-Will Employment Disputes Into Wrongful Discharge Claims: Fertile Ground For Adr, Mary A. Bedikian
Transforming At-Will Employment Disputes Into Wrongful Discharge Claims: Fertile Ground For Adr, Mary A. Bedikian
Journal of Dispute Resolution
This Article begins by reviewing the historical evolution of the at-will rule and examining the common law wrongful dismissal theories. Next, it describes the recent trend of arbitrating wrongful discharge disputes, a trend which the author suggests provides a practical, sound forum for the resolution of employment claims.' 3 Finally, since arbitration is in derogation of the common law, this Article discusses the constitutional and pragmatic barriers to full-scale reform and use of arbitration. The author concludes that fragmentation of interests, political motivations, and the reluctance of the United States Supreme Court to confront an indispensable provision of the Federal …
Arbitration - Sure, But Only On Our Terms: Escape Clauses In Uninsured Motorist Policies - Schaefer V. Allstate Ins. Co., Steven R. Leppard
Arbitration - Sure, But Only On Our Terms: Escape Clauses In Uninsured Motorist Policies - Schaefer V. Allstate Ins. Co., Steven R. Leppard
Journal of Dispute Resolution
Historically, the insurance industry has widely used arbitration to resolve disputes.2 Insurance companies have increasingly included "escape clauses" in their policies.' These clauses allow an insurance company to ignore an arbitrator's award and have a claim directly heard in a trial court if the award exceeds a pre-determined amount.' The Ohio Supreme Court in Schaefer v. Allstate Insurance Co. addressed this issue and decided that the escape clause was unenforceable due to public policy.'
Giving Competency Its Day In Court - In Re Fellman, Michael C. Kirkham
Giving Competency Its Day In Court - In Re Fellman, Michael C. Kirkham
Journal of Dispute Resolution
This Note will examine the decision in In re Fellman,4 where the Superior Court of Pennsylvania determined that the issue of competency was a matter for the courts, not arbitration, to determine.5 Furthermore, this Note will explain how Fellman is consistent with cases concerning different issues, but which similarly denied arbitrators authority based upon similar reasoning.
Efficient Injustice: The Demise Of Teh Substantial Injustice Exception To Arbitral Finality - Moncharsh V. Heily & (And) Blase, Michael J. Smith
Efficient Injustice: The Demise Of Teh Substantial Injustice Exception To Arbitral Finality - Moncharsh V. Heily & (And) Blase, Michael J. Smith
Journal of Dispute Resolution
Judicial review of an arbitrator's decision has been a point of much controversy and discussion among jurisdictions. Many state legislatures have enacted arbitration statutes that list the grounds for review of an arbitrator's decision. However, over time, the courts have also developed some common law grounds for judicial review. Conflict often arose when a state's statute did not provide for review on the same grounds as common law. This Note examines how the California Supreme Court dealt with the difference in the statutory and common law grounds for judicial review of an arbitrator's decision.
Mediation Of Environmental Enforcement: Overcoming Inertia, Bruce Stiftel, Neil G. Sipe
Mediation Of Environmental Enforcement: Overcoming Inertia, Bruce Stiftel, Neil G. Sipe
Journal of Dispute Resolution
This Article aims to examine the claims for the usefulness of environmental mediation in the context of enforcement through consideration of two environmental enforcement cases processed by the Florida Department of Environmental Regulation (DER) during 1990-1991. Specifically outlined is a pilot mediation program designed to improve the resolution of the cases. Next, two DER cases are described and compared, in detail; the two cases are quite similar except that one underwent mediation and one did not. Finally, this Article draws conclusions about environmental enforcement dispute resolution processes. Particularly examined is the success of mediation at overcoming the reluctance of environmental …
Twenty Years Later...Contractual Arbitration As Medical Malpractice Tort Reform, Maureen Dulen
Twenty Years Later...Contractual Arbitration As Medical Malpractice Tort Reform, Maureen Dulen
Journal of Dispute Resolution
Although there is minimal empirical data to support many of the conclusions, 4 the purported advantages and disadvantages of using private tort reform such as contractual arbitration are popular subjects of debate." This Comment will examine both the acceptance of and the use of private contract arbitration clauses in the medical malpractice legal arena.
Arbitration Clauses In Retainer Agreements: A Lawyer's License To Exploit The Client - Haynes V. Kuder, Mark G. Anderson
Arbitration Clauses In Retainer Agreements: A Lawyer's License To Exploit The Client - Haynes V. Kuder, Mark G. Anderson
Journal of Dispute Resolution
An attorney is in an influential and superior position to the client when negotiating fee contracts. Because of this position, an attorney has the opportunity to exploit his or her client. Consequently, courts view agreements between a lawyer and client rather suspiciously and apply a higher standard to these agreements. Furthermore, a lawyer is subject to ethical rules which require a lawyer to meet certain duties, including the duty to inform the client about matters regarding the representation! Because of the higher obligations imposed on an attorney when dealing with a client, any benefit of the doubt should go to …
Recent Developments: The Uniform Arbitration Act, Angela C. Cole, Nicole J. Cress, Kevin L. Fritz, Lori L. Green
Recent Developments: The Uniform Arbitration Act, Angela C. Cole, Nicole J. Cress, Kevin L. Fritz, Lori L. Green
Journal of Dispute Resolution
Arbitration, once viewed as an undesirable alternative to litigation, has become widely accepted as a viable and often superior cost-effective approach to resolving disputes. In 1955, the national Conference of Commissioners on Uniform State Laws proposed a Uniform Arbitration Act.' Currently, 35 jurisdictions have arbitration statutes patterned after the U. A.A..' What began as an article in the Missouri Law Review entitled Recent Developments: The Uniform Arbitration Act, has evolved into an annual survey of recent developments in case law interpreting state versions of the U.A.A.' This detailed update monitors the underlying principles and rationales that develop from recent decisions. …
Mediation And Joke Design: Resolving The Incongruities , John M. Cooley
Mediation And Joke Design: Resolving The Incongruities , John M. Cooley
Journal of Dispute Resolution
The purposes of this Article are: (1) to highlight some of these new discoveries; (2) to discuss their implications for mediators generally, particularly toward achieving super-optimum resolutions of conflict; (3) to explore the relationship of these discoveries to the brain's bilateral functions, creativity, and the process of humor and joke design; (4) to suggest techniques, based on joke design, for altering conflict frames of disputants; and (5) to suggest directions for further experimentation and research. Although the interrelationships among the separate topics presented here may not be immediately discernible, the seeming incongruities will be resolved in Part VIII
Punitive Damages In New York Arbitration: Who Is Really Being Punished - Barbier V. Shearson Lehman Hutton, Inc. , Brian R. Hajicek
Punitive Damages In New York Arbitration: Who Is Really Being Punished - Barbier V. Shearson Lehman Hutton, Inc. , Brian R. Hajicek
Journal of Dispute Resolution
Promotion of settlement to reduce litigation is a well-established policy goal in our federal court system.2 However, when parties cannot resolve all of their disputes in alternative dispute resolution, this policy goal is undermined. In arbitration governed by the law of the state of New York, parties are generally unable to resolve all of their disputes in arbitration when punitive damages would be warranted. In most cases, the parties' dispute cannot be fully resolved where punitive damages would be available because an arbiter is not free to award punitive damages in arbitration under New York law. This is particularly troublesome …
Negotiating In Good Faith: Management's Obligation To Maintain The Status Quo During Collective Bargaining Under The Railway Labor Act - International Ass'n Of Machinists & Aerospace Workers V. Transportes Aereos Mercantiles Pan Americandos, S.A., Jay M. Dade
Journal of Dispute Resolution
When an employer and employee-representative union engage in collective bargaining negotiations, their negotiating activities are covered under the auspices of the Railway Labor Act.2 The Act, particularly applicable today in the tumultuous airline industry, established a rather elaborate mechanism for negotiation, mediation, voluntary arbitration, and conciliation to avoid interruptions to interstate commerce, to protect employees' freedom of association with respect to labor unions, and to provide prompt and orderly dispute settlements. 3 Indispensable to this scheme, Section 152, First of the Act imposes a statutory obligation upon the parties to such negotiations to bargain in good faith.4 In International Ass …
Leading Horses To Water: May Courts Which Have The Power To Order Attendance At Mediation Also Require Good-Faith Negotiation - Decker V. Lindsay, Charles J. Mcpheeters
Leading Horses To Water: May Courts Which Have The Power To Order Attendance At Mediation Also Require Good-Faith Negotiation - Decker V. Lindsay, Charles J. Mcpheeters
Journal of Dispute Resolution
Settlement is a favorite of the law,4 and courts encourage it as a social good which may even outweigh other important policy considerations.5 Reasons for this favoritism include a desire to avoid the time-consuming uncertainty and cost of litigation,6 settlement's contributions to the efficient use of the court system,7 and a general wish for peaceful resolution of controversies.
Book Review
Journal of Dispute Resolution
Getting Past No is an important companion to a previous book co-authored by William Ury. In 1981, Ury collaborated with Roger Fisher on a book entitled Getting to Yes, 3 which has sold more than two million copies and has become one of the most influential works on the subject of negotiation. Getting to Yes is a lucid, step-by-step guide for negotiating mutually satisfactory agreements. The authors labeled their approach "principled negotiation" and boiled it down to the following points: separate the people from the problem; focus on interests, not positions; generate a variety of possibilities before deciding what to …
Shackling The Secretary's Hands: Limits To Authorizing Whistle-Blower Settlements Under Section 210 Of The Energy Reorganization Act - Macktal V. Secretary Of Labor, Jay M. Dade
Journal of Dispute Resolution
In seeking to encourage nuclear industry employees to report safety concerns, Section 210 of the Energy Reorganization Act of 1974 (ERA) acts to protect such "whistle-blowers" in the event they are terminated or discriminated against because of their whistle-blowing activities.2 When an employee and an employer negotiate a Section 210 "whistle-blower" complaint and subsequently submit the settlement for approval, the Secretary of Labor faces certain encumbrances when reviewing the agreement . This limitation on review arises when certain provisions may be in violation of public policy.4 In Macktal v. Secretary of Labor, the United States Court of Appeals for the …
Comsumer Dispute Resolution In Missouri: Missouri's Need For A True Consumer Ombudsman
Comsumer Dispute Resolution In Missouri: Missouri's Need For A True Consumer Ombudsman
Journal of Dispute Resolution
The purpose of this Article is to explore the practicality of such a "modest proposal." In determining whether Missouri really needs a consumer ombudsman, the first order of business must be to comprehend how consumer protection developed in Missouri. Once established, this framework sheds lights upon how complaints are processed and what remedies are available to Missouri consumers. Only after we know the extent of the typical consumer's helplessness can we start to appreciate the need for an alternative dispute resolution device in Missouri. Finally, this article concludes by proposing a viable solution to Missouri's consumer crisis-the Consumer Ombudsman.
Continuing Power Of Cultural Tradition And Socialist Ideology: Cross-Cultural Negotiations Involving Chinese, Korean, And American Negotiators, The, Richard W. Downing
Continuing Power Of Cultural Tradition And Socialist Ideology: Cross-Cultural Negotiations Involving Chinese, Korean, And American Negotiators, The, Richard W. Downing
Journal of Dispute Resolution
This Comment approaches the issue of "cultural" factors in international negotiations by examining cross-cultural negotiation in which the People's Republic of China (PRC) and Korea (North and South) have dealt with Western nations. First, the cultural heritage of these nations appears important. Confucian ideals, for example, have had a tremendous impact on China for thousands of years,7 and they continue to influence modern societies. Second, more recent political tradition, namely the "ideology" of Marx, Lenin, and Mao, has also had an impact on the conduct and goals of conflict resolution today. As one scholar states, the "Chinese view of negotiation, …
Settlement In Securities Fraud: Is Settlement Promoting Litigation - In Re Jiffy Lube Securities Litigation, Brian R. Hajicek
Settlement In Securities Fraud: Is Settlement Promoting Litigation - In Re Jiffy Lube Securities Litigation, Brian R. Hajicek
Journal of Dispute Resolution
In the complex securities fraud arena, partial pretrial settlement in cases involving multiple defendants would appear to reduce litigation in the dispute. However, conflict over the proper method of allocating responsibility for a damage award among settling and non-settling defendants can in fact increase litigation. Federal courts disagree as to which method most fairly and equitably apportions damage liability. In re Jiffy Lube Securities Litigation is the most recent case that touches upon the issue of damage allocation among settling and non-settling defendants. This Note will address competing policy considerations which drive courts to choose different allocative methods.
Arbitration And Salary Inflation In Major League Baseball, Deborah R. Swank
Arbitration And Salary Inflation In Major League Baseball, Deborah R. Swank
Journal of Dispute Resolution
Major league baseball has undergone significant changes since its inception over a century ago.2 While the game itself remains basically the same, the system governing management and player relations is hardly the same as it was even twenty years ago.' In years past, team owners exercised absolute authority over terms of players' employment including player mobility and salary levels. 4 Under this system, players essentially had no voice in salary determinations and players were contractually restricted from signing with another team.5 Players were forced either to accept the terms as offered by management or to quit the game altogether.6
Congress, The Executive Brand And The Dispute Resolution Process, Charles E. Grassley, Charles Pou Jr.
Congress, The Executive Brand And The Dispute Resolution Process, Charles E. Grassley, Charles Pou Jr.
Journal of Dispute Resolution
This rapid, recent expansion in administrative proceedings and related litigation is not, of course, a unique or isolated phenomenon. It is part of a greatly increased reliance on our judiciary to decide all manner of social, political, and economic issues. Much of this litigation may be an inexorable result of complicated social and economic interactions, heightened resort to regulatory schemes to deal with environmental, health and safety, civil rights and welfare concerns, and other historical factors. However, the point has been reached where much of it is unnecessary, unproductive, and less than ideally suited for many of the conflicts involved. …
Confidentiality In Mediation: A Moral Reassessment, Kevin Gibson
Confidentiality In Mediation: A Moral Reassessment, Kevin Gibson
Journal of Dispute Resolution
In discussing mediation confidentiality, it appears that different commentators address different issues. For example, some commentaries discuss only court ordered mediation while others consider the possibility of any intervention by a neutral to be mediation, and hence under scrutiny. There is also disagreement about what should be protected: pre-mediation screening calls, post session discussions among mediators and their supervisors and so on.5 In order to keep the discussion as broad and inclusive as possible, I will use "mediation" to refer to any organized intervention by an impartial third party and to any part of that process. Although some may consider …
Just, Speedy, And Inexpensive Or Just Speedy And Inexpensive - Mandatory Alternative Dispute Resolution In The Western District Of Missouri, April A. Fredlund
Just, Speedy, And Inexpensive Or Just Speedy And Inexpensive - Mandatory Alternative Dispute Resolution In The Western District Of Missouri, April A. Fredlund
Journal of Dispute Resolution
This Comment will address five questions which may arise as challenges to the Western District of Missouri's implementation of its ADR program. First, is the experimental program designed by the court likely to be predictive? That is, will the program be able to tell us whether cost and delay are being reduced by the ADR program? Second, is the program as implemented likely to reduce cost and delay? Third, does the Western District of Missouri have authority to impose mandatory ADR on litigants? Fourth, is the provision for mandatory ADR constitutionally sound? And fifth, assuming affirmative answers to these questions, …
Waiver Of A Contractual Arbitration Agreement By Causing Prejudice To The Opponent: Should Federal Courts Adopt A Bright-Line Test - Kramer V. Hammond, Mark G. Anderson
Waiver Of A Contractual Arbitration Agreement By Causing Prejudice To The Opponent: Should Federal Courts Adopt A Bright-Line Test - Kramer V. Hammond, Mark G. Anderson
Journal of Dispute Resolution
Due to the high costs of litigation and the backlog on court dockets, parties to a contract are beginning to rely more and more on contractual provisions requiring arbitration for future disputes.2 In the past, courts were reluctant to enforce these provisions,' but now the federal courts enforce a strong presumption in favor of such provisions.' Because of this strong federal policy, waiver of the contractual agreements is not easily inferred.5 To overcome this presumption federal courts have developed tests to determine when waiver of contractual agreements to arbitrate occurs.6 These tests focus on whether the opposing party has been …