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Journal of Dispute Resolution

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Full-Text Articles in Dispute Resolution and Arbitration

Book Review Jul 1992

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 …

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Recent Developments: The Uniform Arbitration Act, Angela C. Cole, Nicole J. Cress, Kevin L. Fritz, Lori L. Green Jul 1992

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. …

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Mediation And Joke Design: Resolving The Incongruities , John M. Cooley Jul 1992

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

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Punitive Damages In New York Arbitration: Who Is Really Being Punished - Barbier V. Shearson Lehman Hutton, Inc. , Brian R. Hajicek Jul 1992

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 …

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Table Of Contents - Issue 2 Jan 1992

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

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Congress, The Executive Brand And The Dispute Resolution Process, Charles E. Grassley, Charles Pou Jr. Jan 1992

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. …

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Demise Of The Faa's Contract Of Employment Exception - Gilmer V. Interstate/Johnson Lane Corp., The, Michael G. Holcomb Jan 1992

Demise Of The Faa's Contract Of Employment Exception - Gilmer V. Interstate/Johnson Lane Corp., The, Michael G. Holcomb

Journal of Dispute Resolution

The recent trend in the federal courts is to expand the scope of the Federal Arbitration Act2 (FAA) to include statutory claims. 3 Gilmer v. Interstate/Johnson Lane Corp. illustrates this trend by compelling claims under the Age Discrimination in Employment Act of 19674 (ADEA) to arbitration pursuant to an arbitration clause in an employment contract' But does this trend neglect the rights of the individual employee vis-a-vis his employer and does it undermine the purpose of the "contract of employment" exception in the FAA?' This Note will examine the Gilmer case and its adherence to the current trend of expanding …

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Comsumer Dispute Resolution In Missouri: Missouri's Need For A True Consumer Ombudsman Jan 1992

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.

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Continuing Power Of Cultural Tradition And Socialist Ideology: Cross-Cultural Negotiations Involving Chinese, Korean, And American Negotiators, The, Richard W. Downing Jan 1992

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, …

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Settlement In Securities Fraud: Is Settlement Promoting Litigation - In Re Jiffy Lube Securities Litigation, Brian R. Hajicek Jan 1992

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.

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Title Page Jan 1992

Title Page

Journal of Dispute Resolution

No abstract provided.

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Table Of Contents - Issue 1 Jan 1992

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

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Confidentiality In Mediation: A Moral Reassessment, Kevin Gibson Jan 1992

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 …

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Just, Speedy, And Inexpensive Or Just Speedy And Inexpensive - Mandatory Alternative Dispute Resolution In The Western District Of Missouri, April A. Fredlund Jan 1992

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, …

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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 Jan 1992

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 …

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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 Jan 1992

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 …

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Arbitrator And The Double Jeopardy Clause: Does The Postman Always Ring Twice - United States V. Reed, The, David A. Cole Jan 1992

Arbitrator And The Double Jeopardy Clause: Does The Postman Always Ring Twice - United States V. Reed, The, David A. Cole

Journal of Dispute Resolution

When an arbitrator's decision is adverse to one party, does the double jeopardy clause2 prohibit further pursuit of the claim by the successful party? With the rising emphasis being placed on arbitration clauses in collective bargaining agreements, it was only a matter of time before this question arose in the workplace. In United States v. Reed3 the Eleventh Circuit established the test for determining if an arbitrator's decision invokes the double jeopardy clause.

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Arbitration And Salary Inflation In Major League Baseball, Deborah R. Swank Jan 1992

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

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Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel Jul 1991

Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel

Journal of Dispute Resolution

The clouded case law of Section l's employment contract exception presents an opportunity to improve the fairness and function of the Arbitration Act, an opportunity the bench has failed to grasp for nearly a half-century. Part II of this article reviews the case law surrounding the judicial construction of what constitutes a "class of workers engaged in interstate commerce," with courts generally holding that the employment contract exception affects only workers directly involved in interstate movement of objects. This view fails to further the overall goals of the Act and undermines the judicial goal of fairness. Recently, the Supreme Court …

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Avoiding Farm Foreclosure Through Mediation Of Agricultural Loan Disputes: An Overview Of State And Federal Legislation, Donna L. Malter Jul 1991

Avoiding Farm Foreclosure Through Mediation Of Agricultural Loan Disputes: An Overview Of State And Federal Legislation, Donna L. Malter

Journal of Dispute Resolution

The use of credit played a major role in the growth of agricultural productivity in the United States.' In recent years, however, the financial distress faced by farmers resulted in a record number of farm foreclosures and bank closures in agricultural states. 2 Farm losses are concentrated in the mid-size farms, indicating that the owner-operated farm has been hit the hardest.3 The attendant social and economic turmoil faced by families and communities dependant on agriculture focused attention on the responsibility of federal and state government in preventing further losses within the families and communities that comprise the agricultural sector.

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Privileged Communication Extended To The Corporate Ombudsman-Employee Relationship Via Federal Rule Of Evidence 501, Kevin L. Wibbenmeyer Jul 1991

Privileged Communication Extended To The Corporate Ombudsman-Employee Relationship Via Federal Rule Of Evidence 501, Kevin L. Wibbenmeyer

Journal of Dispute Resolution

While there is no universally accepted definition of a corporate ombudsman, many companies view a corporate ombudsman as a neutral manager within a corporation, who may provide informal assistance to both managers and employees in resolving work-related concerns and whose office is located outside of the management structure.2 Serious interest in utilizing a corporate ombudsman did not take a firm hold in the corporate arena until the 1900's.3 Reasons for increased interest in the corporate ombudsman include: an increasingly welleducated employee pool, changing laws and statutes, and stresses associated with huge increases in government contracting.4 Kientzy v. McDonnell Douglas Corp. …

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Injunctions Pending Arbitration: Do The Courts Really Have Jurisdiction, Elizabeth Phillips Jul 1991

Injunctions Pending Arbitration: Do The Courts Really Have Jurisdiction, Elizabeth Phillips

Journal of Dispute Resolution

The issue of injunctive relief pending arbitration stems from the language of the Federal Arbitration Act (FAA), 5 which compels arbitration.16 The instant decision falls within the growing majority of cases holding that the issuance of an injunction to preserve the status quo pending arbitration fulfills the court's obligation under the FAA to enforce a valid agreement to arbitrate. 7

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Right To Sue Vs. The Agreement To Arbitrate: The Dilemma In Title Vii Cases, The, Jennifer A. Clifton Jul 1991

Right To Sue Vs. The Agreement To Arbitrate: The Dilemma In Title Vii Cases, The, Jennifer A. Clifton

Journal of Dispute Resolution

In enacting Title VII, Congress specifically gave employees who are victims of discrimination based on race, color, religion, sex, or national origin the opportunity for judicial redress through the federal courts.2 In Alexander v. Gardner-Denver Co.,3 the Supreme Court held that a Title VII suit could be maintained despite a clause in an employment contract providing for the arbitration of all employment disputes. After Alexander, two federal circuit courts followed the Supreme Court's ruling.4 However, a recent trio of Supreme Court decisions favoring contractual agreements for the arbitration of several statutorily-founded claims5 cast doubt upon the continued applicability of Alexander …

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Confidentiality In Mediation: Status And Implications, Kent L. Brown Jul 1991

Confidentiality In Mediation: Status And Implications, Kent L. Brown

Journal of Dispute Resolution

Mediation is becoming an increasingly popular alternative to formal adjudication. Large mediation programs handling huge numbers of both civil and criminal cases have sprung up in several of the largest cities in the nation. In Tulsa, Oklahoma, when the police write a citation, they often write "mediation" in place of a dollar amount.' The mediation program in Columbus, Ohio, handled over 9,000 cases in a one year period.2 Of those 9,000 cases, 500 ultimately resulted in criminal charges, 3 and twelve resulted in one of the disputants murdering the other.4

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Feminist Theory, Professional Ethics, And Gender-Related Distinctions In Attorney Negotiating Styles, Lloyd Burton, Larry Farmer, Elizabeth D. Gee, Lorie Johnson Jul 1991

Feminist Theory, Professional Ethics, And Gender-Related Distinctions In Attorney Negotiating Styles, Lloyd Burton, Larry Farmer, Elizabeth D. Gee, Lorie Johnson

Journal of Dispute Resolution

Historically, law has been a male-dominated profession; only recently has it become possible to consider the woman's experience and perspective with respect to law practice generally and negotiation practice in particular. This paper addresses two gender-related issues: first, are there identifiable gender-related distinctions in the negotiating behavior of attorneys? Second, if there are discoverable differences, are they attributable to ethical perspectives linked to gender? In addressing these questions, this article begins by reviewing the literature on feminist theory, moral development, and negotiation theory. These themes are tied together in a review of the small but growing literature on negotiation ethics. …

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Arbitration Allocates Costs Of Hazardous Waste Cleanup Claim Under Superfund, Nancy P. O'Brien Jul 1991

Arbitration Allocates Costs Of Hazardous Waste Cleanup Claim Under Superfund, Nancy P. O'Brien

Journal of Dispute Resolution

With the growth in volume and complexity of environmental enforcement cases, alternative dispute resolution (ADR) has assumed increasing importance in the allocation of costs among liable parties. At the same time, the growth is less than might be expected because of obstacles in both the governmental and private sectors. This dichotomy is especially evident in cases involving pollution from hazardous wastes. 4

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Enforcement Of State Annexed-Arbitration Rules In Federal Courts With Diversity Jurisdiction: Towey V. Catling, John S. Mackey Jul 1991

Enforcement Of State Annexed-Arbitration Rules In Federal Courts With Diversity Jurisdiction: Towey V. Catling, John S. Mackey

Journal of Dispute Resolution

Both state and federal court systems are swamped with litigants. This fact is so widely recognized, repeating it almost seems unnecessary. Courts experiment with a variety of approaches just to pump some of this litigious bilge into alternative forums for resolution. The state of Hawaii sought to lighten its overburdened docket with a Court Annexed Arbitration Program.2 It provides for mandatory submission of certain tort claims to arbitration.' It is non-binding and either party may obtain a trial de novo at its conclusion.4 However, to do so is not without risk. Pursuit of a trial de novo gambles not only …

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Recent Developments: The Uniform Arbitration Act, Scott Blair, Amy Brice, Robert Carroll, Chuck Hatfield Jul 1991

Recent Developments: The Uniform Arbitration Act, Scott Blair, Amy Brice, Robert Carroll, Chuck Hatfield

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.

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Is Settlement Conditioned On Vacatur An Option - Should It Be, Elizabeth L. Anstaett Jan 1991

Is Settlement Conditioned On Vacatur An Option - Should It Be, Elizabeth L. Anstaett

Journal of Dispute Resolution

Currently, whether a court grants or denies a motion to vacate resulting from settlement depends more on the particular court in which the request is made, than on the facts of the case and the effect of vacatur. Courts not permitting vacatur have expressed the fear that parties sensing they are going to lose will "buy their way out of an unfavorable precedent often at the relatively cheap price asked by the single opponent they face in that appeal."1 Other courts routinely grant requests for vacatur. Settlements conditioned on the court's granting vacatur, and thereby avoiding precedent or issue preclusion, …

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Quasi-Judicial Immunity: The Arbitrator's Shield Or Sword, Robert M. Carroll Jan 1991

Quasi-Judicial Immunity: The Arbitrator's Shield Or Sword, Robert M. Carroll

Journal of Dispute Resolution

With the rising number of divorces in today's society 2 and with the national emphasis to resolve child custody disputes through alternative forms of dispute resolution,3 the ability to hold arbitrators accountable for their actions within settlement conferences is becoming a prevalent issue. Arbitrators and mediators, commonly outside of the court's supervision, are now determining the best interests of the child, a role traditionally reserved to the courts.4 This increase of out-of-court settlements creates a need for certain standards which hold these quasi-judicial officers responsible for their decisions and liable for their actions. The court in Howard v. Drapkin addressed …

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