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Dispute Resolution and Arbitration Commons™
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Articles 901 - 930 of 1029
Full-Text Articles in Dispute Resolution and Arbitration
Struggle Over Consolidation Of Arbitration Proceedings Continues: The Eighth Circuit Chooses Sides, The, Scott E. Blair
Struggle Over Consolidation Of Arbitration Proceedings Continues: The Eighth Circuit Chooses Sides, The, Scott E. Blair
Journal of Dispute Resolution
In response to rising litigation costs and overburdened court dockets, parties are realizing the opportunity to resolve disputes more efficiently through the use of arbitration. 2 To ensure access to arbitration, parties are including provisions in contracts requiring arbitration of future disputes.3 Courts enforce these agreements pursuant to the Federal Arbitration Act (FAA), 4 originally adopted by Congress in 1925, which officially acknowledged the validity of private agreements to arbitrate.5 As a result, courts are faced with procedural issues, such as consolidation of separate arbitration proceedings, in their attempt to enforce the contracts in accordance with the parties' agreement. 6 …
Book Review , Timothy J. Heinsz
Book Review , Timothy J. Heinsz
Journal of Dispute Resolution
As the use of arbitration as a dispute resolution mechanism continues to increase not only in the area of labor relations but also in other fields as well, the authority of arbitrators to issue remedies has likewise become a more important topic. The breadth of this power was established early on in labor-management arbitrations in the Steelworkers Trilogy.1 There the Supreme Court concluded that by entering into an arbitration agreement, a company and union could commission the arbitrator to bring an informed judgment to bear in reaching a fair resolution. The Court stated: "This is especially true when it comes …
Out With The Old, In With The New: The Mini-Trial Is The New Wave In Resolving International Disputes, Mark D. Calvert
Out With The Old, In With The New: The Mini-Trial Is The New Wave In Resolving International Disputes, Mark D. Calvert
Journal of Dispute Resolution
Historically, merchants used arbitration to settle commercial disputes among themselves.1 However, the early American courts viewed arbitration unfavorably, often refusing to acknowledge its validity. 2 During the 1970's, however, the courts' attitude toward arbitration shifted. The United States Supreme Court decision, The Breman v. Zapata Off-Shore Co.,3 ushered in an era of growing acceptance toward arbitration agreements. The change in the Court's attitude has allowed businesses to provide for arbitration agreements in their contracts without fearing that their desire to avoid litigation would be thwarted
Elizabeth Dutson Gee - 1945-1991, Lloyd Burton, Gerald Williams
Elizabeth Dutson Gee - 1945-1991, Lloyd Burton, Gerald Williams
Journal of Dispute Resolution
No abstract provided.
Your Forum Or Mine - Where To Arbitrate Investor-Broker Securities Claims, Christopher J. Moeller
Your Forum Or Mine - Where To Arbitrate Investor-Broker Securities Claims, Christopher J. Moeller
Journal of Dispute Resolution
This Comment will discuss the present forums available for customer-broker arbitration disputes, the problems arising in the current system, what changes in the present system may help resolve these problems, and the desirability of creating a new forum to handle all securities arbitrations between customers and brokers. This Comment will not challenge the desirability of arbitrating customer-broker disputes in general. Indeed, many scholars and commentators argue that arbitration is beneficial to both the customer and the broker because it provides a more efficient and less expensive means of settling disputes than litigation. However, for arbitration to effectively handle customer grievances, …
Valuation Of Cases For Settlement: Theory And Practice, Peter Toll Hoffman
Valuation Of Cases For Settlement: Theory And Practice, Peter Toll Hoffman
Journal of Dispute Resolution
Trial lawyers frequently talk about the value of their cases when they are counseling clients' negotiating with opposing counsel, or conversing with their fellow attorneys. The term "value" may have several definitions when referring to cases, but most attorneys intend it to mean the amount at which they expect a case to settle. However, despite the frequency with which they speak of value, the subject remains cloaked with a miasma of lawyer folklore.
Promise And Problems In Divorce Mediation, Steven T. Knuppel
Promise And Problems In Divorce Mediation, Steven T. Knuppel
Journal of Dispute Resolution
In the past two decades, mediation in general has gained increasing acceptance in the legal community.' "[T]he search for alternative methods of resolving disputes has burgeoned to 'a movement'."2 In the divorce context, particularly, mediation has been seen by some as a more suitable process than the adversary system. 3 Proponents of mediation assert that the adversary system involves debilitating expense, frustrating delay, 4 and fails to address the emotional needs of the parties.5 Adversarial tactics often aggravate rather than resolve spousal differences, 6 though an amicable settlement might be in the best interests of both parties, especially when there …
Statutory Claims Under Erisa: Is Arbitration The Appropriate Forum, Amy L. Brice
Statutory Claims Under Erisa: Is Arbitration The Appropriate Forum, Amy L. Brice
Journal of Dispute Resolution
The Employment Retirement Income Security Act of 1974 (ERISA) 2 provides a regulatory scheme for the myriad of employee benefit plans that affect so many workers and their families today. 3 One ERISA issue is whether claims under the Act may be arbitrated or if they must be heard in a judicial forum. The Supreme Court has not yet spoken on this issue, but the district court in Southside Internists Group PC Money Purchase Pension Plan v. Janus Capital Corp. relied on the Supreme Court's determinations of arbitrability in various other cases 4 to conclude that ERISA claims may be …
Summary Jury Trial: Who Will Speak For The Jurors, The, Charles W. Hatfield
Summary Jury Trial: Who Will Speak For The Jurors, The, Charles W. Hatfield
Journal of Dispute Resolution
Since its inception in 1980, the summary jury trial has received much attention in the scholarly journals and the courts. Most of the arguments and litigation center around the impact of the summary jury trial on the parties or their lawyers. One issue which has gone almost untouched is the authority of the courts to empanel the advisory jury; the backbone of the entire procedure. In Hume v. M,& C Management,2 the court addressed its authority to require citizens to serve as jurors in this alternative method of dispute resolution.
Curtailing The Arbitrator's Power: Valid Withholding Of Jurisdictionor Judicial Flaw, Kevin L. Wibbenmeyer
Curtailing The Arbitrator's Power: Valid Withholding Of Jurisdictionor Judicial Flaw, Kevin L. Wibbenmeyer
Journal of Dispute Resolution
With the movement toward alternative dispute resolution comes the issue of how much freedom arbitrators will be given before the courts will find the arbitrator's rulings to be beyond their jurisdiction. This Note will provide an understanding of the decision in Cobler v. Stanley, Barber, Southard, Brown & Associates, where the court limited the power of the arbitrator. 2 Further, this Note will explain how Cobler is inconsistent with California case law which suggests that great deference shall be given to the power of arbitrators.
Consumer Problems And Adr: An Analysis Of The Federal Trade Commission-Ordered General Motors Mediation And Arbitration Program, Arthur Best
Journal of Dispute Resolution
This Article evaluates a controversial mediation and arbitration program established by General Motors (GM) for owners of certain cars. It began in 1984, under the terms of a Federal Trade Commission (FTC) consent order settling charges that GM had deceptively failed to inform buyers that particular models of cars contained components that had unusually low durability. When the settlement was proposed, debate centered on whether the public interest would be served best by: 1) creation of mediation and arbitration opportunities for individual owners; or 2) prosecution of a single action seeking uniform compensation for all owners. One commissioner feared that …
Enforcing Forum-Selection Clauses: The Federal Court Dilemma And The Arbitration Clause Alternative, Lee R. Hardee
Enforcing Forum-Selection Clauses: The Federal Court Dilemma And The Arbitration Clause Alternative, Lee R. Hardee
Journal of Dispute Resolution
The inclusion of forum-selection' and arbitration clauses has become standard in commercial contracts throughout the United States.2 Parties choose to include these clauses for a variety of reasons: to provide a neutral or convenient forum, to reduce the risk of being sued in multiple forums where a party does business in many states,3 and in the case of arbitration clauses4 to avoid the high cost of litigation.'
Dispute Resolution: A Matrix Of Mechanisms, Nancy Neslund
Dispute Resolution: A Matrix Of Mechanisms, Nancy Neslund
Journal of Dispute Resolution
The purpose of this Article is to respond to the oft-repeated comment that, in spite of the massive attention various dispute resolution mechanisms have received in the last decade, theoretical research in the area has been woefully lacking.' This Article is not intended as a culmination of dispute resolution knowledge, but as a necessary first step, fabricating a structure of dispute resolution mechanisms on which later research, theoretical and empirical, can hang. The output of the Article is a suggested organization of the body of knowledge known as dispute resolution, or popularly-alternative dispute resolution or ADR, 2 into its three …
Litigation Management Proposals: Storm Clouds For Voluntary Adr, Leo Dreyer
Litigation Management Proposals: Storm Clouds For Voluntary Adr, Leo Dreyer
Journal of Dispute Resolution
This Article will examine in detail some of the current reform proposals relating to case management of civil litigation and court-annexed alternative dispute resolution. These projects or proposals, discussed in more detail in ensuing sections, include the Final Report and Recommendations of the ABA Special Commission on Mass Torts,' the ALI Complex Litigation Project,' the Report of the Federal Courts Study Committee, 3 the Multiparty, Multiforum Jurisdiction Bill of 1989, 4 and the Civil Justice Reform Act of 1990 along with the underlying Report of the Civil Litigation Project.5
Mediator Accountability: Responding To Fairness Concerns, Judith L. Maute
Mediator Accountability: Responding To Fairness Concerns, Judith L. Maute
Journal of Dispute Resolution
Mediation and newer forms of dispute resolution provide much-needed options to the traditional litigation forum. The adversary process is too contentious, expensive and time-consuming for many disputes. Nevertheless, some thoughtful lawyers and legal scholars voice concern that mediation may cut short legal developments on important issues of public concern and reinforce existing power disparities between parties.' Traditional commitment to mediator neutrality may undermine protection of parties' legal rights.
Mediation And Medical Malpractice Disputes: Potential Obstacles In The Traditional Lawyer's Perspective, Andrew Mcmullen
Mediation And Medical Malpractice Disputes: Potential Obstacles In The Traditional Lawyer's Perspective, Andrew Mcmullen
Journal of Dispute Resolution
This Comment will examine the applicability of mediation in the resolution of medical disputes and the advantages its proponents assert can be achieved with its use. The focus, however, will be upon the lawyer's perspective towards this alternative method and the obstacles that may be present which would impede or prevent the success of mediation.
When Your Law Firm Wants A Divorce: Mediating The Dissolution Of Law Firms, Brian K. Asberry
When Your Law Firm Wants A Divorce: Mediating The Dissolution Of Law Firms, Brian K. Asberry
Journal of Dispute Resolution
Part II of this Comment will discuss in detail the two primary issues facing a law firm that is dealing with dissolution: property division and "custody" of the firm's clients upon dissolution. 15 Part III will review the Pennsylvania Bar Association Program and examine the successes enjoyed by the program. Part IV will look at the benefits of using mediation in firm dissolutions and analyze the advantages between alternative dispute resolution and litigation
Mini-Trial: Misunderstanding And Miscommunication May Short-Circuit Its Effective Use In Settlements - Lightwave Technologies, Inc. V. Corning Glass Works, The, Annie Billings
Journal of Dispute Resolution
This Casenote will discuss the basic elements and appropriate uses of the mini-trial. It will also compare the mini-trial with other ADR processes and evaluate the advantages and disadvantages of using the mini-trial. Finally, this Casenote will analyze how the parties and their attorneys in the present case wrestled with an alleged agreement to settle their dispute through a mini-trial. Because one of the parties was never fully appraised of how the mini-trial would proceed, the process was aborted and settlement negotiations broke down.
Before The First Shot Is Fired: Hypothetical Use Of Alternative Dispute Resolution To Avoid A Re-Enactment Of The Hatfields And The Mccoys - Kirkham V. Wright, Christian C. Doherty, Christopher J. Moeller
Before The First Shot Is Fired: Hypothetical Use Of Alternative Dispute Resolution To Avoid A Re-Enactment Of The Hatfields And The Mccoys - Kirkham V. Wright, Christian C. Doherty, Christopher J. Moeller
Journal of Dispute Resolution
Kirkham v. Wright was chosen as the subject case because it represents the type of dispute that is extremely well suited to resolution through the ADR process. While some argument exists about the law in Kirkham,2 the bulk of the dispute revolves around the application of the law to the facts.' Furthermore, this case was eventually settled after remand,4 which leads to the conclusion that a settlement may have been possible earlier. Additionally, while the attorneys involved would not disclose the legal costs, it is a safe estimate that they ran into the tens of thousands of dollars.'
Book Review , Rona L. Pietrzak
Book Review , Rona L. Pietrzak
Journal of Dispute Resolution
ANATOMY OF MEDIATION is a case study of a contract dispute between an opera company and a musicians' union. The facilitated negotiations, which take place over ten days, are presented in the form of an annotated transcript which is introduced by a summary of the four primary purposes of the mediator 5 and the twenty-five topics which are used to accomplish these central purposes. The case study is presented and then dissected in detail in order to describe what the authors call the "keys to success".6 Finally, mini-case studies are used to portray a complex business dispute, a sexual harassment …
Recent Developments: The Uniform Arbitration Act, Gregory K. Barnes, Cynthia R. Bradley-Bishop, Michele Carroll, Richard W. Fischer
Recent Developments: The Uniform Arbitration Act, Gregory K. Barnes, Cynthia R. Bradley-Bishop, Michele Carroll, Richard W. Fischer
Journal of Dispute Resolution
Arbitration as a forum for dispute resolution has been a part of the American common law heritage for at least the past one hundred fifty years. However, until recently, state law was almost uniformly biased against arbitration.2 The theory at common law was that either party to an agreement to arbitrate future disputes could void the agreement at any time.3 This legal environment rendered the institution of arbitration impotent in any situation in which one of the parties decided that their interests would be better served if the dispute was resolved in a more traditional court setting
Arbitration Awards In Uninsured And Underinsured Motorist Insurance Provisions: Which Public Policy To Apply - Mendes V. Automobile Insurance Co. Of Hartford, L. Dean Wilson
Journal of Dispute Resolution
This Note examines how the Connecticut Supreme Court handled a case involving an automobile insurance policy that called for arbitration of disputes concerning uninsured and underinsured motorist coverage, but allowed either party to demand a trial de novo if unsatisfied With the arbitration award.
Enforcing International Arbitration Agreements - Marchetto V. Dekalb Genetics Corp., Karen L. Massey
Enforcing International Arbitration Agreements - Marchetto V. Dekalb Genetics Corp., Karen L. Massey
Journal of Dispute Resolution
The importance, magnitude and frequency of international business transactions have necessitated finding an acceptable method of resolving disputes arising from such transactions. Parties to international commercial transactions often come from nations with cultures and legal systems which are greatly diverse.2 Arbitration agreements in international commercial contracts are a preferred manner of resolving disputes.3 Arbitration is a method of providing orderliness and predictability in an area in which it is necessary, but often difficult to achieve.4 In order for the arbitration system to work, courts of law must be willing to relinquish their jurisdiction and allow the arbitration system to resolve …
Bridging The Procedural Gap: Arbitration Decisions As A Basis For Collateral Estoppel - Benjamin V. Traffic Executive Association Eastern Railroads, Robert M. Bain
Journal of Dispute Resolution
Courts have long used the doctrine of collateral estoppel to preclude relitigation of previously determined issues. The fora for the previous determination is of importance in deciding whether to apply the doctrine. This Note will examine the application of the doctrine of collateral estoppel to arbitration decisions. In deciding the question, the courts' major consideration is the degree of procedural differences between the arbitration proceeding and a judicial proceeding. The more closely an arbitration resembles litigation in the procedural safeguards employed, the more likely that the arbitral decision will be accorded a preclusive effect. Unfortunately, as arbitration proceedings become more …
Context, Properties, And Constitutionality Of Nonconsensual Arbitration: A Study Of Four Systems, The, John R. Allison
Context, Properties, And Constitutionality Of Nonconsensual Arbitration: A Study Of Four Systems, The, John R. Allison
Journal of Dispute Resolution
The purpose of this article is to analyze the context, properties, and constitutionality of these instances of nonconsensual arbitration. Although FIFRA data arbitration and the constitutional challenges to which it has been subjected will receive the most extensive study, the other examples also will be explored in some detail. It is first necessary, however, to lay some groundwork. Each of the nonconsensual arbitration systems to be studied, including FIFRA data arbitration, draws the inspiration for its design and operation from contract-based commercial arbitration. To aid in the understanding of the former, Part II discusses the fundamental nature and legal framework …