Dispute Resolution and Arbitration Commons^™

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Journal of Dispute Resolution

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Table Of Contents - Issue 1

Journal of Dispute Resolution

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Table Of Contents - Issue 2

Journal of Dispute Resolution

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Revised Uniform Arbitration Act: Modernizing, Revising, And Clarifying Arbitration Law, The, Timothy J. Heinsz

Journal of Dispute Resolution

From the outset of the Drafting Committee's deliberations, two issues came to the fore: federal preemption and adhesion contracts.23 The complexity of both matters presented substantial challenges to the Drafting Committee. The Drafting Committee needed to reach early agreement on an approach to preemption and adhesion, which affect so many areas covered by state arbitration law

Paying The Price Of Process: Judicial Regulation Of Consumer Arbitration Agreements, Stephen J. Ware

Journal of Dispute Resolution

Arbitration clauses now appear in many of the form contracts through which consumers obtain goods, services and credit.' Why do so many businesses that deal with consumers choose arbitration? Relative to litigation, arbitration provides opportunities for a business to save on its dispute-resolution costs. If arbitration does, in fact, lower these costs then arbitration lowers the prices (and interest rates) consumers pay because competition forces businesses to pass their cost-savings on to consumers.

To Litigate Or Arbitrate - No Matter - The Credit Card Industry Is Deciding For You, Johanna Harrington

Journal of Dispute Resolution

This Comment posits that consumers lose their legal protections in the credit industry when arbitration policies are favored over consumer credit protection policies. Part II will examine the language of credit card arbitration clauses including a discussion of the circumstances under which a credit card holder might bring a claim. Part III will discuss barriers to challenging the arbitration provisions. Part IV will summarize how the courts have addressed mandatory arbitration clauses in credit cards. Part V will examine traditional consumer credit protection laws, specifically whether the Truth-in-Lending Act is able to protect consumers from mandatory arbitration clauses. Finally, Part …

Clarifying The Intent Of Congress: Are The Federal Arbitration Act's Venue Provisions Permissive Or Mandatory - Cortez Byrd Chips, Inc. V. Bill Harbert Construction Co., Darynne L. O'Neal

Journal of Dispute Resolution

Some circuits have taken the position that the venue provisions are mandatory, thus limiting venue for motions to confirm, vacate, or modify arbitration awards to the district where the award was made. Other circuits, however, have adopted the contrary position that the venue provisions are permissive, allowing such motions to be brought either in the district where the arbitration award was made or in any district that is proper under the general venue statute. This Casenote explores the split among the circuits on the nature of the FAA's venue provisions. Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co. addressed …

Read The Fine Print - Alabama Supreme Court Rules That Binding Arbitration Provisions In Written Warranties Are Okay - Southern Energy Homes, Inc. V. Ard, Garrett S. Taylor

Journal of Dispute Resolution

When a consumer purchases an item that includes a warranty, they generally do not read the warranty, and a consumer expects that they will have a right to a judicial forum should the warranty come into play. However, courts have recently faced the issue of whether or not binding arbitration provisions in written warranties preclude the consumer from appearing in a courtroom. The Supreme Court of Alabama, in Southern Energy Homes, Inc. v. Ard, held that inclusion of binding arbitration provisions in written warranties is acceptable, despite the intent of the MagnusonMoss Act.'

Prior Issue Index To Volumes 1990-2000

Journal of Dispute Resolution

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Prior Issue Index To Volumes 1990-2000

Journal of Dispute Resolution

No abstract provided.

Table Of Leading Articles-Authors Prior Issue Index To Volumes 1990-2000

Journal of Dispute Resolution

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Table Of Leading Comments-Authors Prior Issue Index To Volumes 1990-2000

Journal of Dispute Resolution

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Student Projects Prior Issue Index To Volumes 1990-2000

Journal of Dispute Resolution

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Book Reviews - Authors/Casebook Case Studies Prior Issue Index To Volumes 1990-2000

Journal of Dispute Resolution

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Making Deals In Court-Connected Mediation: What's Justice Got To Do With It?, Nancy A. Welsh

Faculty Scholarship

When mediation was first introduced to the courts, the process was hailed as “alternative.” Mediation gave disputants the opportunity to discuss and resolve their dispute themselves; the role of the third party was to facilitate the disputants’ negotiations, not to dictate the outcome; and because the disputants were able to focus on their underlying interests in mediation, the process could result in creative, customized solutions. The picture of mediation is changing, however, as the process settles into its role as a tool for the resolution of personal injury, contract, and other nonfamily cases on the courts’ civil dockets. Attorneys dominate …

All In The Family: Darwin And The Evolution Of Mediation, Nancy A. Welsh

Faculty Scholarship

Maybe I’ve been thinking about evolution more than is normal for the average lawyer. I have a 5-year-old son who is fascinated by every species of dinosaur. As a result, I read to my son nearly every night about the events and the evolving cast of creatures that populated the Triassic, Jurassic and Cretaceous periods. Since the Triassic period began 240 million years ago, this provides a real sense of perspective.

I wonder how Charles Darwin would use his theory of evolution to explain the many strange and wonderful variations of mediation that have flowered in the past decade. And …

The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie

Vanderbilt Law School Faculty Publications

Riskin's categorization of mediation has engendered much debate among academics and practitioners. Although most in the mediation community accept Riskin's positive assertion that mediation as currently practiced includes both facilitation and evaluation, a vocal group of purist critics rejects Riskin's pluralist view of mediation on normative grounds. These purist critics -- including such prominent mediator-scholars as Professors Kim Kovach, Lela Love," and Josh Stulberg -- argue that mediation is in fact, and should be, solely a facilitative process "designed to capture the parties' insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes." For …

A Well-Founded Fear Of Prosecution: Mediation And The Unauthorized Practice Of Law, David A. Hoffman, Natasha Affolder

All Faculty Publications

To many mediators, "UPL" is an acronym with an increasingly ominous ring. This growing concern about the unauthorized practice of law (UPL) arises from reports around the country of charges filed against mediators who are not lawyers. These prosecutions - or in some cases warnings - are primarily directed at divorce mediators as a result of their drafting of detailed marital settlement agreements. However, all mediators have a reason to be concerned, because of uncertainties about what constitutes UPL in the context of mediation. This article surveys the legal terrain of UPL, and argues that it's time for new, clear …

A Trade/Human Rights Linkage By The United States: Is Enforcing Human Rights By Use Of Trade Sanctions Effective?, Blaise Omondi Odhiambo

LLM Theses and Essays

Universally held basic human rights must remain separate from political rights. Such basic human rights are those that are so universal that all societies, systems, nations, and ideology could, and do espouse them. Conversely, political rights are those that are dependent upon compatibility with the system of government in place and arc therefore far less likely to gamer universal support. An effective multilateral enforcement mechanism can only succeed if there are universal agreement and acceptance of the protected rights. Accordingly, at the outset of such a mechanism, only basic human rights may be enforced through trade sanctions. Once such a …

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

Articles

Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

Articles

A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …

Mediation In Practice: Common Law And Civil Law Perspectives Compared, Nadja Alexander

Research Collection Yong Pung How School Of Law

Australian mediation practice is thriving. Effective forms of mediation are practised in court-connected schemes, in the public sector, in the community justice sector and in the private business sector. Indeed, no industry is excluded from the application of mediation. In contrast, Hoffmann-Riem laments that despite many years of discussions about ADR (alternative dispute resolution) in Germany, mediation plays a marginal role only. Further, Labes states that 'ADR mechanisms are relatively obscure methods in Germany.' The comparison between Australia and Germany is particularly interesting because it considers both a common law and a civil law tradition. This essay will discuss the …

And Now A Word About Secular Humanism, Spirituality, And The Practice Of Justice And Conflict Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The papers presented in this Dialogue raise very important and moving questions about the relationship of spirituality, moral values, and religion to the practice of law generally, and the practice of conflict resolution specifically. In this Commentary, I want to focus on two related questions: First, where do our moral values, spirituality, and sense of communion or connection come from? And second, how do values derived from various sources of secular humanism inform our practices? For some of us, organized religion is not the primary source of our commitment to the "moral" values that inform our legal and conflict resolution …

Ethics In Adr: The Many "Cs" Of Professional Responsibility And Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I have been teaching both alternative dispute resolution ("ADR") and professional responsibility for a long time, and I will devote the majority of this essay to reporting on some of the enormous changes and developments in this field. However, I will begin with a mea culpa at a higher level of ethical consciousness than the rules that govern us, or are about to govern us, typically use. I have spent the last five years of my life writing ethical rules for ADR, and I am worried about the future of this field. There are many changes occurring in ADR, and …

Mediation Of Probate Matters: Leaving A Valuable Legacy, Lela P. Love

Articles

No abstract provided.

The Newly Revised Cpr Rules For Non-Administered Arbitration Of International Disputes, Robert H. Smit

Faculty Scholarship

In August 2000, the Center for Public Resources Institute for Dispute Resolution (“CPR”) – one of the pre-eminent alternative dispute resolution organizations in the United States – announced revisions to its Rules for Non-Administered Arbitration of International Disputes (the “International Rules” or the “Rules”). CPR first promulgated its International Rules in April 1992 as an alternative – indeed, the only alternative currently available – to the international ad hoc arbitration rules issued in 1976 by the United Nations Commission on International Trade Law (the “UNCITRAL Rules”). According to the Chair of the CPR Committee that prepared the original CPR International …

Why Courts Review Arbitral Awards, William W. Park

Faculty Scholarship

Judicial review of arbitral awards constitutes a form of risk management. In most countries courts may vacate decisions of perverse arbitrators who have ignored basic procedural fairness, as well as those of alleged arbitrators who have attempted to resolve matters never properly submitted to their jurisdiction. In some countries judges may also correct legal error or monitor an award's consistency with public policy.

Public scrutiny of arbitration is inevitable at the time of award recognition. Judges can hardly ignore the basic fairness of an arbitral proceeding when asked to give an award res judicata effect by seizing assets or staying …