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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.
Preface, Ryan D. O'Dell
Future Of Adr - The Earl F. Nelson Memorial Lecture, The, Frank E. A. Sander
Future Of Adr - The Earl F. Nelson Memorial Lecture, The, Frank E. A. Sander
Journal of Dispute Resolution
Because I've been fortunate to observe the ADR scene for much of its recent development, I'm often asked my views of where we stand now. My somewhat flip answer is, "On Monday, Wednesday and Friday, I think we've made amazing progress. On Tuesday, Thursday and Saturday, ADR seems more like a grain of sand on the adversary system beach." So I think we have a way to go. Let me try to elaborate a little on those thoughts
Continuing The Conversation About The Current Status And The Future Of Adr: A View From The Courts, Wayne D. Brazil
Continuing The Conversation About The Current Status And The Future Of Adr: A View From The Courts, Wayne D. Brazil
Journal of Dispute Resolution
In this essay I would like to complement the picture that Professor Sander has presented by adding information about and commentary from the perspective of the courts. After offering some general observations about the current status of ADR in the courts, I will describe what I think the near-term future looks like. Then I will articulate values that we need to take special care to preserve in court-sponsored ADR programs. I also will identify dangers that we, as courts, must try to avoid on the road ahead. Along the way, I will respond specifically to three of the concerns that …
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. …
Arbitration And Judicial Review, Theodore J. St. Antoine
Arbitration And Judicial Review, Theodore J. St. Antoine
Other Publications
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 that 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 …
Mandatory Arbitration: Bane Or Boon?, Theodore St. Antoine
Mandatory Arbitration: Bane Or Boon?, Theodore St. Antoine
Other Publications
Buy a new car that turns out to be a lemon and you may find you can't sue. Fine print in the sales contract often restricts you to arbitration. That means presenting your case before a private person instead of a judge and jury. And the arbitrator may be someone drawn from a panel compiled by the car seller.
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 …
Judicial Review Of Arbitration Awards On Public Policy Grounds: Lessons From The Case Law, Ann C. Hodges
Judicial Review Of Arbitration Awards On Public Policy Grounds: Lessons From The Case Law, Ann C. Hodges
Law Faculty Publications
A review of the case law demonstrates that most of the labor arbitration awards challenged on public policy grounds involve reinstatement of discharged employees. This article analyzes 138 private sector federal cases in which labor arbitration ·awards have been contested on public policy grounds. All the cases reviewed are discharge cases in which arbitration awards reversing the terminations were challenged. The article attempts to determine the factors that influence courts to uphold or overturn arbitration awards. This analysis will provide assistance to arbitrators in writing opinions that are less subject to challenge, and to employers, unions, and their attorneys in …
Contract Reading' In Labor Arbitration, Theodore J. St. Antoine
Contract Reading' In Labor Arbitration, Theodore J. St. Antoine
Articles
A quarter century ago, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. This phrase has almost invariable been misunderstood to refer to reading or interpreting the contract. When I spoke of the "contract reader," it was in the context of judicial review of an award. My point was this: When a court has before it an arbitrator's award applying a collective bargaining agreement, it is as if the employer and the union had signed a stipulation stating: "What the arbitrator says this contract means is exactly what we meant …
International Commercial Arbitration And Information Technology, Ganesh Chandru
International Commercial Arbitration And Information Technology, Ganesh Chandru
Student Works (2000-2009)
The thesis is divided into six chapters and it endeavors to describe the interface between International Commercial Arbitration and Information Technology. The use of computers, e-mail, online conferences and the Internet have two-fold impact on arbitration. On the one hand it sets new standards in International Commerce. Electronic Commerce is an example. Intellectual Property issues also arise over the Internet. The issues at stake with respect to arbitration are, can arbitration be a means of dispute resolution in this context? After a general introduction in the first chapter, the kinds of disputes that may arise over Internet and in Electronic …
First Annual International Advocate For Peace Award, Honoring Ambassador Richard C. Holbrooke, Spring 2000
Cardozo Journal of Conflict Resolution
No abstract provided.
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 …
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.'
Concern Over Confidentiality In Mediation - An In-Depth Look At The Protection Provided By The Proposed Uniform Mediation Act, The, Mindy D. Rufenacht
Concern Over Confidentiality In Mediation - An In-Depth Look At The Protection Provided By The Proposed Uniform Mediation Act, The, Mindy D. Rufenacht
Journal of Dispute Resolution
This Comment will investigate the historical problems with confidentiality in mediation and evaluate the Proposed Uniform Mediation Act's (hereinafter "U.M.A." or "Act") approaches to remedying confidentiality issues. The reader should carefully note that the Uniform Mediation Act is in an on-going drafting phase at this time, and the content of the Act's drafts discussed herein are not final and are for discussion purposes only. This Comment's discussion will cover confidentiality in disclosure with respect to parties, waiver, and a mediator's duty of non-disclosure. This Comment will also compare the mechanisms the U.M.A. has put in place to govern confidentiality to …
Promoting The Best Interests Of Children Whose Parents Are Divorcing: The Next Steps For Arkansas, Kenneth S. Gallant
Promoting The Best Interests Of Children Whose Parents Are Divorcing: The Next Steps For Arkansas, Kenneth S. Gallant
Law Faculty Scholarship
No abstract provided.
Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P. Love, Kimberlee K. Kovach
Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P. Love, Kimberlee K. Kovach
Articles
When mediators try to resolve a controversy by providing their analysis of the legal – or other – merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral’s judgment, award or opinion to determine or jump-start a resolution. This article urges that this add-on activity to mediation should be called by its proper name. The essay highlights the advantages of calling "mediation plus evaluation" a mixed process and discusses the advantages of having an eclectic and diverse mix of processes from which parties and counsel can choose to promote party …
A Dangerous Supplement? Longshot Claims And Private Securities Litigation, Charles M. Yablon
A Dangerous Supplement? Longshot Claims And Private Securities Litigation, Charles M. Yablon
Articles
No abstract provided.
Images Of Justice, Lela P. Love
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.
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.
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.