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Dispute Resolution and Arbitration Commons™
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Articles 961 - 990 of 1013
Full-Text Articles in Dispute Resolution and Arbitration
Recent Developments - The Uniform Arbitration Act
Recent Developments - The Uniform Arbitration Act
Journal of Dispute Resolution
The Uniform Arbitration Act [hereinafter UAA] was proposed by the National Conference of Commissioners on Uniform State Laws in 1955.2 At present, well over half of the states have enacted arbitration statutes based upon the UAA.3 The purpose of this survey is to explain the principles underlying recent court decisions interpreting the UAA, and provide a framework for analyzing future cases.4
Camping Is On The Rise: A Survey Of Judicially-Implemented Pre-Argument Conference Programs In The United States Circuit Courts Of Appeal, Teresa A. Generous, Katherine D. Knocke
Camping Is On The Rise: A Survey Of Judicially-Implemented Pre-Argument Conference Programs In The United States Circuit Courts Of Appeal, Teresa A. Generous, Katherine D. Knocke
Journal of Dispute Resolution
In April of 1974, Chief Judge Irving R. Kaufman initiated a Civil Appeals Management Plan (hereinafter "CAMP") in the Second Circuit. Over the next thirteen years, pre-argument conference programs were implemented in several other circuits. To date, there are currently five circuits with such a program in effect. These programs possess some common characteristics as well as some distinguishing features. The purpose of this article is to present an overview of the use of the pre-argument conference program in federal appellate courts
Moving Negotiations From Idle To Forward: The Commitment To Flexibility, Peter Contuzzi
Moving Negotiations From Idle To Forward: The Commitment To Flexibility, Peter Contuzzi
Journal of Dispute Resolution
The beginning of any mediation is obviously a good time to clarify procedures and roles. But it also offers the mediator a special opportunity to elicit a commitment from the negotiating parties which can prove quite useful later on: a commitment to flexibility. This article examines some advantages of seeking this commitment from the parties at the outset of negotiations and contrasts the commitment to flexibility with the more traditional one to negotiate in good faith.
Why We Teach Law Students To Mediate, Kathleen W. Marcel, Patrick Wiseman
Why We Teach Law Students To Mediate, Kathleen W. Marcel, Patrick Wiseman
Journal of Dispute Resolution
It has become fashionable, if it was not always, to find fault with the legal system and those who operate it. For people seeking alternatives to, or substitutes for, the traditional system of justice, mediation and other nonlitigation processes are appealing.' As a general proposition, we are neither advocates for nor opponents of mediation as a process for handling and resolving disputes. Our experiences in observing mediations and in mediating have led us to conclude that there are appropriate and inappropriate uses of mediation as there are appropriate and inappropriate uses of other processes including litigation. Indeed, one of our …
Deciding Arbitrability: At&(And)T Technologies, Inc. V. Communications Workers Of America, Sondra B. Morgan
Deciding Arbitrability: At&(And)T Technologies, Inc. V. Communications Workers Of America, Sondra B. Morgan
Journal of Dispute Resolution
Who decides arbitrability-the courts or the arbitrator? The United States Supreme Court recently addressed this issue in the case of AT&T Technologies, Inc. v. Communications Workers of America.2 The Court in AT&T reaffirmed its earlier holding from United Steelworkers v. Warrior & Gulf Navigation Co.,3 where it held that arbitrability is a matter for judicial determination. 4
Trial By Ambush Or Avalanche - The Discovery Debacle, Walter E. Oberer
Trial By Ambush Or Avalanche - The Discovery Debacle, Walter E. Oberer
Journal of Dispute Resolution
I fell in love with the law in 1946, during my first week in law school. It has been a torrid affair ever since. "Ever since" has entailed seven years of law practice followed by thirty-two years of law professing, eight of these as a dean. Against this backdrop of fealty, I had occasion recently to encounter the legal process as it presently, honest-to-God, exists. This encounter was not as a lawyer, not as a law professor, not as a consultant, not, that is, as a professional impersonally involved, but as the father of the mother in a child-custody case. …
Mediating With A Powerful/Competitive Couple: Michael And Debbie, John M. Haynes
Mediating With A Powerful/Competitive Couple: Michael And Debbie, John M. Haynes
Journal of Dispute Resolution
The behavior of the mediator is situational. That is, s/he not only uses specific strategies that are appropriate to each situation during the mediation, s/he also behaves differently depending on the overall dynamics of the parties. If both parties are equally powerful and competitive, the mediator tends to be more controlling and engage in direct control activities that are not explained to the parties. If the parties appear to be fragile and/or depressed, the mediator will be less controlling, seek to gain their permission for strategies to empower them, and move more slowly through the process.
Grievance Mediation Of Contracual Disputes In Public Education, Sylvia Skratek
Grievance Mediation Of Contracual Disputes In Public Education, Sylvia Skratek
Journal of Dispute Resolution
This summary provides an overview of the findings of the study. There are, of course, many findings in the body of the report which are not summarized here, and interested readers are encouraged to examine the full report for these details.
Healing Angry Wounds: The Roles Of Apology And Mediation In Disputes Between Physicians And Patients, Ann J. Kellett
Healing Angry Wounds: The Roles Of Apology And Mediation In Disputes Between Physicians And Patients, Ann J. Kellett
Journal of Dispute Resolution
This country is in the midst of what has been identified as a medical malpractice "crisis."' A similar "crisis" was recognized over a decade ago. 2 In both eras, rates for medical liability insurance soared, 3 frequency and severity of claims reportedly increased, 4 and damage awards spiralled.' Decreased availability of malpractice insurance coverage, 6 and its increased cost, threatened availability of physician services in certain specialties and geographic areas.
Whose Dispute Is This Anyway: The Propriety Of The Mini-Trial In Promoting Corporate Dispute Resolution, Lewis D. Barr
Whose Dispute Is This Anyway: The Propriety Of The Mini-Trial In Promoting Corporate Dispute Resolution, Lewis D. Barr
Journal of Dispute Resolution
This comment is divided into five parts. Part I examines the nature of the mini-trial-its unique and attractive features. Part II inquires into the minitrial's suitability for resolving certain types of disputes. Part III describes how the mini-trial meets the needs of corporate parties to a dispute while benefiting the public. Part IV addresses the validity of general ADRM criticism as applied to the mini-trial. Finally, Part V offers a conclusion on the propriety of the mini-trial for resolving corporate disputes.
Adr In The Law Firm: A Practical Viewpoint, Karen A. Burch
Adr In The Law Firm: A Practical Viewpoint, Karen A. Burch
Journal of Dispute Resolution
This comment is divided into three major sections. In Part I, the attorneys explain how ADR concepts are employed within their respective firms. Part II is advisory in nature, with the attorneys expressing their opinions and beliefs regarding how ADR should be integrated into a law firm practice. In Part III, the attorneys express some of their perceptions and viewpoints regarding ADR in general.
Impact Of Opinion 11 On The Publication Of Arbitration Awards, The, Donald J. Petersen, Julius Rezler
Impact Of Opinion 11 On The Publication Of Arbitration Awards, The, Donald J. Petersen, Julius Rezler
Journal of Dispute Resolution
The primary purpose of an arbitration award is, of course, to resolve the issues submitted to the arbitrator for determination. However, awards also serve a number of other purposes, namely, to facilitate the selection of arbitrators, to assist researchers in evaluating trends in arbitration, to educate prospective arbitrators, and to help the parties in the preparation of their cases and briefs.
Uniform Arbitration Act, The
Journal of Dispute Resolution
In 1955, the Uniform Arbitration Act (UAA) was proposed by the National Conference of Commissioners on Uniform State Laws.' Since that time, well over half of the states have adopted statutes modeled after the UAA. 2 The purpose of this survey is to explain the principles underlying recent court decisions interpreting the UAA, and provide a framework for analyzing future cases.3
Defamation And Alternative Dispute Resolution: Healing The Sting, Robert M. Ackerman
Defamation And Alternative Dispute Resolution: Healing The Sting, Robert M. Ackerman
Journal of Dispute Resolution
This article will explore several mechanisms for the resolution of defamation cases. It will first review problems of substantive law which present obstacles to the fair and efficient resolution of these disputes. It will then explore some substantive law reform proposals which may expedite the fair and rational resolution of these disputes. Finally, the article will suggest some private dispute resolution processes which may advance the parties' goals, with or without substantive law reform. While a large number of defamation disputes involve non- media defendants, 9 the article will focus upon disputes involving news organizations. The article will also examine …
Thesis (Preventive Law), Antithesis (Adversarial Process), Synthesis (Settlement, Adr): A Comment On Nyhard And Dauer, Louis M. Brown
Thesis (Preventive Law), Antithesis (Adversarial Process), Synthesis (Settlement, Adr): A Comment On Nyhard And Dauer, Louis M. Brown
Journal of Dispute Resolution
In terms of the Nyhart-Dauer article, the goal which is to be attained is "the commercial exploitation of the coastal zone and continental shelf."' The legal system aids the accomplishment of that goal by permitting parties to enter into contracts which "define the measure of present exchange and provide the standards by which executory performance will later be judged... "2 The goal is achieved by performances in accord with "creative arrangements" developed "in such a way that their constituents will be most likely to accept and adhere to the undertakings to which they" are committed.3 It is performance that counts. …
Clinical Negotiating Achievement As A Function Of Traditional Law School Success And As A Predictor Of Future Negotiating Performance, Charles B. Carver
Clinical Negotiating Achievement As A Function Of Traditional Law School Success And As A Predictor Of Future Negotiating Performance, Charles B. Carver
Journal of Dispute Resolution
This article will explore the degree to which these two basic hypotheses have been substantiated. Statistical comparisons will be made between negotiation course performance and overall law school success. Comparisons of bargained results obtained in a Trial Advocacy class are made between students who had previously taken my Lawyer as Negotiator course and students who had not received such clinical training.
Re-Examination Of Litigation Trends In The United States: Galanter Reconsidered, A, Kenyon D. Bunch, Richard J. Hardy
Re-Examination Of Litigation Trends In The United States: Galanter Reconsidered, A, Kenyon D. Bunch, Richard J. Hardy
Journal of Dispute Resolution
The general commentary on recent litigation patterns in the United States depicts a worrisome, and occasionally panicked, scenario often called the "litigation explosion."' The commentaries characteristically direct attention to a supposed "epidemic of hair-trigger suing" burying the courts under an "avalanche" of civil actions. 2 Moreover, judicial scholars proffer a myriad of purported explanations for the alleged prodigious growth in the number of civil lawsuits. The common theme throughout these explanations is that changes or disruptions in our social, economic, political-legal environments have caused Americans to become a contentious and overly-litigious people.
Conflict And Paradox In The New American Mediation Movement: Status Quo And Social Transformation, Ted Becker
Conflict And Paradox In The New American Mediation Movement: Status Quo And Social Transformation, Ted Becker
Journal of Dispute Resolution
This essay will focus on some of the disharmony in the field of mediation in the United States, particularly from the perspective of those who try to utilize mediation's potential as an instrument of socio-political transformation. The work of these individuals remains a relatively well-kept secret in a time of much publicity about the numerous virtues of mediation as an "alternative" to the legal system. Among the reasons for this secrecy is that, for the time being, the American conflict resolution movement has been substantially overwhelmed by the force and forces of the legal system, professionalization, bureaucracy, and interest-group politics.
Doctrine Of Intertwining: A Dead-End After - Dean Witter Reynolds, Inc. V. Byrd, The, Ranee Melissa Force
Doctrine Of Intertwining: A Dead-End After - Dean Witter Reynolds, Inc. V. Byrd, The, Ranee Melissa Force
Journal of Dispute Resolution
The arbitrability of pendent state claims in federal securities cases has become a problematic issue. This issue arises out of federal courts' efforts to recognize the conflicting policies of two federal statutes in the context of investor-broker disputes. 2 Since 1953 federal courts have chosen sides in this controversy3 between the pro-investor Securities Acts' (hereinafter Securities Act, 1933 Act, or 1934 Act) and the pro-broker Federal Arbitration Act 5 (hereinafter Arbitration Act). Ineffectual attempts to reconcile the two competing policies were exemplified in a recent dispute between a retired dentist and his investment company, where the issue was settled by …
Federal Arbitration Act Comparison
Federal Arbitration Act Comparison
Journal of Dispute Resolution
The question the Supreme Court left unanswered in Southland is which FAA provisions must be applied by state courts.' Although the FAA clearly preempts state law on the enforceability of arbitration clauses, 6 state procedural rules may still apply in enforcing arbitration agreements.' Since the extent of preemption remains to be determined, it is important for practioners to be aware of and review potential areas of state arbitration acts which may be superceded by the FAA. Accordingly, a comparison of the FAA with selected state arbitration statutes will lend practitioners some guidance in determining the applicable law.
Book Review , John S. Murray
Book Review , John S. Murray
Journal of Dispute Resolution
Textbooks intended for law school use should be evaluated in line with their intended purpose. The objective of Dispute Resolution is to provide law students with materials that describe, explain and raise questions about our society's processes for resolving disputes. An ideal textbook is thorough in its coverage of the substance and issues of the subject matter, usable in the sense of providing resources to help the teacher motivate students and channel class discussion, and readable in a student-friendly sense. In this essay I will review the Goldberg, Green and Sander text from the classroom perspective using these standards as …
Preliminary Analysis Of The Uses Of Scientific Models In Dispute Prevention, Management And Resolution, A, J. D. Nyhart, E. A. Dauer
Preliminary Analysis Of The Uses Of Scientific Models In Dispute Prevention, Management And Resolution, A, J. D. Nyhart, E. A. Dauer
Journal of Dispute Resolution
The ambition of this article is modest-to suggest linkages at a theoretical level rather than to "prove" them empirically. A fully rigorous analysis, employing the three model-use variants strictly as independent variables, would require the articulation of a comprehensive theory of dispute resolution, a construction which the state of the literature does not yet allow. To the extent that the analysis does lead to at least some preliminary hypotheses about the linkage between process tools and conflict outcomes, it may be useful to the eventual elaboration of such a theory.
Dispute Resolution And Preventive Law: A Reply To Professor Brown, E. A. Dauer, J. D. Nyhard
Dispute Resolution And Preventive Law: A Reply To Professor Brown, E. A. Dauer, J. D. Nyhard
Journal of Dispute Resolution
Within our discussion of scientific models and the processes of dispute resolution,' we suggested a single continuum along which the strategies of Preventive Law and of ADR (Alternative Dispute Resolution) could be arrayed. Beneath that synthesis lay a proposition which we may not have made entirely clear: That the two bodies of hitherto separate principles address problems which are not themselves distinct.
Will The Seventh Amendment Survive Adr?, Roger W. Kirst
Will The Seventh Amendment Survive Adr?, Roger W. Kirst
Journal of Dispute Resolution
The seventh amendment problem is not within the ADR procedures themselves, but rather in how ADR is integrated into the total system of formal dispute resolution. Proponents of ADR may not intend to destroy federal civil jury trial, but ADR could be a serious threat to the seventh amendment if alternative procedures supplant civil jury trial and leave the constitutional language as a hollow shell. On the other hand, substantial use of ADR would not necessarily threaten seventh amendment values if jury trial remains available; instead, ADR procedures in routine litigation might protect the role of the civil jury in …
Redress By A Licensing Authority: Settling Home Improvement Disputes In New York City, Richard A. Daynard
Redress By A Licensing Authority: Settling Home Improvement Disputes In New York City, Richard A. Daynard
Journal of Dispute Resolution
First, it costs consumers almost nothing to use, since there are no filing fees and attorneys are unnecessary. Second, it offers the full relief of specific performance rather than the limited amount of damages which are allowed in small claims court. Third, it makes use of expert fact-finding in a technical area in which the typical judge or small claims arbitrator is at sea (and hence may lean too heavily on "credibility" determinations). Fourth, it is supported by a powerful sanction-license revocations-that is not available to other dispute-settlement tribunals. Finally, it is capable of handling a large number of consumer …