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Articles 31 - 60 of 92
Full-Text Articles in Dispute Resolution and Arbitration
Can Informed Consent Preserve The Integrity Of Mediation?, Maureen Laflin
Can Informed Consent Preserve The Integrity Of Mediation?, Maureen Laflin
Articles
No abstract provided.
Preserving The Integrity Of Mediation Through The Adoption Of Ethical Rules For Lawyer-Mediators, Maureen Laflin
Preserving The Integrity Of Mediation Through The Adoption Of Ethical Rules For Lawyer-Mediators, Maureen Laflin
Articles
No abstract provided.
Negotiating In The Shadow Of Outlaws:* A Problem-Solving Paradigm For Unconventional Opponents, Stephanie R. Nicolas
Negotiating In The Shadow Of Outlaws:* A Problem-Solving Paradigm For Unconventional Opponents, Stephanie R. Nicolas
Florida State University Journal of Transnational Law & Policy
No abstract provided.
International Commercial Arbitration: A Case Study Of The Areas Under Control Of The Palestinian Authority, Marshall J. Breger
International Commercial Arbitration: A Case Study Of The Areas Under Control Of The Palestinian Authority, Marshall J. Breger
Scholarly Articles
One necessary component to the success of the Israeli-Palestinian peace process is economic development and growth in the area under the control of the Palestinian Authority (PA). One of the principal requirements for economic growth, and quite possibly for the Palestinian Authority's economic survival, is foreign investment in the West Bank and Gaza (WBG). As they currently exist, laws concerning foreign investment in WBG are a quagmire. Indeed, it is a challenge for an investor to simply identify which law applies to which area, let alone to interpret the law. At the same time many of the protections often found …
Religious Dimensions Of Mediation, F. Matthews-Giba
Religious Dimensions Of Mediation, F. Matthews-Giba
Fordham Urban Law Journal
This article takes an in-depth look at the religious roots of mediation, particularly emphasizing the influence of the Franciscan movement. It also discusses the religious roots of mediation in the United States, various strategies and styles of mediation, the religious motivation for settlement agreements, and multi-cultured mediation.
Presidential Address: Contract Reading Revisited, Theodore J. St. Antoine
Presidential Address: Contract Reading Revisited, Theodore J. St. Antoine
Book Chapters
A quarter century ago, in a presentation at the Academy’s annual meeting, I used the phrase “contract reader” to characterize the role an arbitrator plays in construing a collective bargaining agreement. That two-word phrase may be the only thing I ever said before this body which has been remembered. Unfortunately, it is almost invariably misunderstood. Time and again members have reproached me: “What’s the big deal about contract reading, anyway? Isn’t it just the same as contract interpretation?” Or, more substantively scathing: “Do you really think, Ted, that all you have to do to interpret a labor agreement is to …
Public Policy Defense In International Commercial Arbitration, Mingqiang Qian
Public Policy Defense In International Commercial Arbitration, Mingqiang Qian
LLM Theses and Essays
The purpose of this thesis is to examine how public policy defense functions in international commercial arbitration and whether it will block the development of international commercial arbitration. Chapter II deals with the role of public policy in international private law. This chapter examines the origins of public policy in common law countries and its functions in international private law. It is difficult to evaluate public policy as a precise concept because of its relative nature. Nevertheless, to limit its application in international private law, legal scholars have tried to clarify differences between domestic public policy, international public policy, and …
Toward More Sophisticated Mediation Theory, John M. Lande
Toward More Sophisticated Mediation Theory, John M. Lande
Faculty Publications
In the lead article in this symposium, Professor Jeffrey Stempel provides a very thoughtful analysis of the mediation field. He focuses on the debate over facilitative and evaluative mediation and he is critical of many of the arguments made by proponents of facilitative mediation. I have expressed some similar concerns, and I generally agree with his analysis (with a quibble here and there). I do think that the facilitation-evaluation debate has been productive (though admittedly wearisome), and that proponents of facilitative mediation deserve more credit than he gives them in his article.
Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben
Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben
Faculty Publications
Under the traditional bipolar model, civil dispute resolution is generally divided into two spheres: trial, which is public in nature and therefore subject to constitutional due process, and alternative dispute resolution (ADR), which is private in nature and therefore not subject to such constraints. In this article, Professor Richard Reuben proposes a unitary understanding of public civil dispute resolution, one that recognizes that ADR is often energized by state action and thus is constitutionally required to comply with minimal but meaningful due process standards. Depending upon the process, such standards might include the right to an impartial forum, the right …
The Role Of Dispute Settlement In World Trade Law: Some Lessons From The Kodak-Fuji Dispute, John Linarelli
The Role Of Dispute Settlement In World Trade Law: Some Lessons From The Kodak-Fuji Dispute, John Linarelli
Scholarly Works
No abstract provided.
Religious Dimensions Of Mediation, F. Matthews-Giba
Religious Dimensions Of Mediation, F. Matthews-Giba
Fordham Urban Law Journal
This article takes an in-depth look at the religious roots of mediation, particularly emphasizing the influence of the Franciscan movement. It also discusses the religious roots of mediation in the United States, various strategies and styles of mediation, the religious motivation for settlement agreements, and multi-cultured mediation.
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 …
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
Articles by Maurer Faculty
No abstract provided.
Should An Attorney Be Required To Advise Client Of Adr Options?, Marshall J. Breger
Should An Attorney Be Required To Advise Client Of Adr Options?, Marshall J. Breger
Scholarly Articles
In recent years alternative dispute resolution (ADR) has moved from the margins of legal practice into the mainstream. It is no longer the exception for attorneys to employ or clients to request ADR services in almost every aspect of legal representation. This shift to the legal mainstream raises the question whether attorneys, as part of their general obligation to keep clients informed of their legal alternatives, should be required to advise their clients regarding ADR options. This paper will consider this question. In doing so, it will consider, at least inferentially, the character and purpose of ethics "rules."
The Development Of Arbitration In The Resolution Of Internet Domain Name Disputes, Christopher S. Lee
The Development Of Arbitration In The Resolution Of Internet Domain Name Disputes, Christopher S. Lee
Richmond Journal of Law & Technology
Web surfers who use the AltaVista Internet search engine may not realize that in 1998, Compaq Computer Corporation paid $3.3 million for the rights to the domain name AltaVista.com. A year later, eCompanies paid $7.5 million for the domain name business.com. And in February of 2000, Bank of America paid $3 million for the domain name loans.com. These transactions demonstrate that the ownership, transfer, and control of Internet domain names is a multi-million dollar industry.
Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel
Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel
Scholarly Works
Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …
The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel
The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel
Scholarly Works
The problem with viewing facilitation as the only legitimate form of mediation, of course, is that it borders on tautology: mediation is nonevaluative, therefore any evaluation in mediation must be impermissible. Although this view remains strongly held in many quarters, it appears to be in retreat, both within the mediation community and in the legal community at large. Courts and commentators have shown increasing favor toward some evaluative or advising component of mediation. More important, the eclectic style appears to be what takes place in the metaphorical trenches of mediation practice (although sound empirical data is necessarily hard to obtain …
Fighting Arbitration Clauses In Franchisor Contracts, Jean R. Sternlight
Fighting Arbitration Clauses In Franchisor Contracts, Jean R. Sternlight
Scholarly Works
Purporting to serve justice, efficiency, and freedom of contract, business interests are increasingly attempting to use binding arbitration clauses to secure unfair advantages over unknowing parties. Courts seemingly have been eager to enforce arbitration clauses that appear in franchise agreements. This article discusses courts’ enforcement of arbitration clauses, undermining protections to the franchisee, and how franchisees can create a more level playing field.
Protecting Franchisees From Abusive Arbitration Clauses, Jean R. Sternlight
Protecting Franchisees From Abusive Arbitration Clauses, Jean R. Sternlight
Scholarly Works
This article sets out a number of legal arguments that franchisees can potentially use to defeat arbitration clauses that seek to accomplish ends that would not be permissible in litigation. Drawing from decisions protecting consumers and employees from unfair arbitration clauses, as well as from opinions in the franchise context, this article analyzes arguments that can be based on the U.S. Constitution, federal statutes, state statutes, and common law. By way of this analysis, it suggests that some courts are misapplying arbitration precedents and preemption arguments to support decisions that allow franchisors to effectively exempt themselves from legislation and even …
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
Scholarly Works
Professor Frank Sander has, for many years, been one of the most prescient commentators on the alternative dispute resolution ("ADR") movement. His 1976 Pound Conference speech has been identified by many as marking the birth of the modern ADR phenomena. That speech, which compared some of the pros and cons of litigation and an array of other dispute resolution processes, has been summarized as proposing the concept of the "multi-door courthouse." In contrast, Professor Sander's more recent and very interesting review of the present and future of ADR makes little attempt to distinguish between mediation and binding arbitration, the two …
As Mandatory Binding Arbitration Meets The Class Action, Will The Class Action Survive?, Jean R. Sternlight
As Mandatory Binding Arbitration Meets The Class Action, Will The Class Action Survive?, Jean R. Sternlight
Scholarly Works
Assuming that the traditional prerequisites for a class action have been met, courts have four choices: (1) order the dispute to be resolved in an individualized arbitration, thereby denying plaintiffs either a litigation or arbitration venue for their class claims; (2) refuse to mandate arbitration, and instead allow plaintiffs to litigate their class claims; (3) order that the dispute be resolved through an arbitral class action, also known as classwide arbitration; or (4) order the dispute to arbitration but allow the arbitrators to make the determination as to whether the dispute should be resolved individually or on a class basis. …
Understanding Conflict And Human Capacity: The Role Of Premises In Mediation Training, Robert A. Baruch Bush, Sally G. Pope
Understanding Conflict And Human Capacity: The Role Of Premises In Mediation Training, Robert A. Baruch Bush, Sally G. Pope
Hofstra Law Faculty Scholarship
In this article, the authors, point out that underlying mediator practices and techniques, there are deeper premises and values that guide and shape practice. The authors argue that mediation training should include articulation and explanation of the premises that underlie the transformative orientation to mediation practice and give examples of how these premises can be conveyed within an overall training design, and how doing so enriches the teaching of skills and techniques themselves.
Mothers And Fathers Of Invention: The Intellectual Founders Of Adr, Carrie Menkel-Meadow
Mothers And Fathers Of Invention: The Intellectual Founders Of Adr, Carrie Menkel-Meadow
Georgetown Law Faculty Publications and Other Works
When we think of the "founding" of the ADR movement (particularly, but not exclusively, in law), from when do we date it? Whom do we think of as our leaders? Many of us think of Frank Sander and the "multi-door courthouse" suggested by his famous paper, delivered at the Pound Conference on the Causes of Popular Dissatisfaction with the Administration of Justice in 1976. For others, the publication of Roger Fisher and William Ury's "Getting to Yes," signaled an interest in a changed paradigm for engaging in legal negotiations. Some may associate ADR's nascency with early practical efforts to institutionalize …
A Problem Of Process In Wto Jurisprudence: Identifying Disputed Issues In Panels And Consultations, Glenn R. Butterton
A Problem Of Process In Wto Jurisprudence: Identifying Disputed Issues In Panels And Consultations, Glenn R. Butterton
Articles
No abstract provided.
Arbitration: Arbitration In The 21st Century: Where We've Been, Where We're Going, Todd Baker
Arbitration: Arbitration In The 21st Century: Where We've Been, Where We're Going, Todd Baker
Oklahoma Law Review
No abstract provided.
The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian
The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian
Faculty Publications
Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power …
First Annual International Advocate For Peace Award, Honoring Ambassador Richard C. Holbrooke, Spring 2000
Cardozo Journal of Conflict Resolution
No abstract provided.
Variations In Mediation: How - And Why - Legal Mediators Change Styles In The Course Of A Case, Dwight Golann
Variations In Mediation: How - And Why - Legal Mediators Change Styles In The Course Of A Case, Dwight Golann
Journal of Dispute Resolution
I will seek to show in this article that professional legal mediators in fact use a variety of styles, and that they change their approach constantly during a single mediation, even within a single meeting with a disputant. I will argue that these stylistic changes are the norm rather than the exception in the mediation of civil legal disputes and that the use of evaluative techniques is also frequent, even among those mediators who favor a broad, facilitative approach. Finally, I will describe the contrasting styles that the filmed mediators used in the same dispute and argue that these variations …
Adr Research At The Crossroads, Deborah R. Hensler
Adr Research At The Crossroads, Deborah R. Hensler
Journal of Dispute Resolution
One of the remarkable aspects of the ADR movement is the empirical research that it has engendered. The granddaddy of court-administered alternative dispute resolution--the pretrial settlement conference--was the occasion for the first experimental study of an innovative legal procedure.' Small claims courts--another early alternative to full-fledged litigation--were put under the microscope in the 1960s.' Over the years, a host of empirical studies on the adoption, implementation and consequences of court ADR programs has been published.'