Dispute Resolution and Arbitration Commons^™

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Sound Of Dust Settling: A Response To Criticisms Of The Uma, The, Richard C. Reuben

Journal of Dispute Resolution

Continuing UMA "concerns," therefore, have a certain vestigial or residual character, often reflecting views taken in battles that were fought within the drafting sessions - sometimes fiercely - but which were incapable of producing a majority among the UMA drafters. Professor Brian Shannon's criticisms largely echo these discussions, and in this Article I seek to respond to some of them - after first extending my greatest appreciation to Professor Shannon for his willingness to be the "skunk in the parlor" of this symposium edition by generally aggregating those criticisms." In Part I, I give some of the unpublished history of …

Prohibiting Good Faith Reports Under The Uniform Mediation Act: Keeping The Adjudication Camel Out Of The Mediation Tent, Carol L. Izumi, Homer C. La Rue

Journal of Dispute Resolution

This symposium article examines a narrow slice of the Uniform Mediation Act - the prohibition on mediator communication to judges about a party's good faith participation or "problem" behavior in mediation.

Introduction, David A. Hoffman

Journal of Dispute Resolution

My introduction to the issues that the Uniform Mediation Act seeks to resolve occurred about a dozen years ago when a senior partner at Hill & Barlow, the Boston law firm where I practiced for 17 years, came to me with a question. He wanted to know whether he could recommend mediation as a safe process for discussing some delicate tax issues that had arisen during the breakup of a business partnership. Evidently the partners had taken some aggressive positions on their partnership tax returns, and one of the big issues in the dissolution of the partnership was the allocation …

Dancing With The One That Brung Us - Why The Texas Adr Community Has Declined To Embrace The Uma, Brian D. Shannon

Journal of Dispute Resolution

I readily acknowledge that the UMA is a bold and noble project, and it is certainly the result of substantial effort and compromise. Indeed, I largely concur with the sentiment of Philip Harter that "[tihe UMA is the product of heroic effort that brought together many interests and perspectives to thrash out a workable framework for mediation." That being said, however, much of the Texas mediation community, of which I am a part, has largely opposed enactment of the UMA's framework for our state. As I have written previously, the Alternative Dispute Resolution Section of the State Bar of Texas …

Centuries Of Contract Common Law Can't Be All Wrong: Why The Uma's Exception To Mediation Confidentiality In Enforcement Proceedings Should Be Embraced And Broadened, Peter Robinson

Journal of Dispute Resolution

The National Conference of Commissioners on Uniform State Laws and House of Delegates of the American Bar Association recently approved the Uniform Mediation Act ("UMA") with an eye toward unifying the law of mediation confidentiality in the United States. Soon, numerous states and other organizations will consider modifying statutes, court rules, or professional standards to conform to the UMA. One of the important aspects of mediation confidentiality is how it applies when enforcing a mediated agreement.' In some jurisdictions, mediation confidentiality interferes with the application of contract law when enforcing a mediated agreement to produce absurd results. This article will …

Uma And The Uncitral Model Rule: An Emerging Consensus On Mediation And Conciliation, The, Jernej Sekolec, Michael B. Getty

Journal of Dispute Resolution

In this article, we describe how these two efforts have come together to forge an international consensus on mediation and conciliation. In Part I, we look at how some of the different ways that domestic nationals treat the confidentiality of conciliation communications. The disparity of these treatments leads to considerable uncertainty among parties to a conciliation. In Part II, we note the essential features of the UNCITRAL Model Law, and how it addresses this uncertainty through model rules that will harmonize international standards among adopting nations, at least on core issues, while at the same time preserving the flexibility that …

Silent Treatment: Removing The Class Action From The Plaintiff's Toolbox Without Ever Saying A Word - Bazzle V. Green Tree Fin. Corp., The, Andrea Lockridge

Journal of Dispute Resolution

A motion for class certification is often a pivotal point in a lawsuit, playing a determinative role throughout the course of the litigation. Plaintiffs use the class action as a tool to consolidate common claims against a defendant, bypassing the expensive process of bringing suit individually. 2 Defendants hotly contest certification of the class, seeking to avoid the ramifications of a judgment which reflects the cumulative losses of the multitude. This casenote addresses the effects of allowing an arbitration clause that is silent as to class-wide arbitration to preclude the plaintiffs' option to bring suit as a class, and the …

Pre-Dispute Mandatory Arbitration Agreements And Title Vii: Promoting Efficiency While Protecting Employee Rights - Eeoc V. Luce, Forward, Hamilton & (And) Scripps, Steven S. Poindexter

Journal of Dispute Resolution

While the United States Supreme Court has repeatedly held that claims based on statutory rights may be vindicated by arbitration, the Court has yet to determine the validity of a pre-dispute mandatory arbitration agreement ("MAA") that covers Title VII of the Civil Rights Act of 1964 ("Title VII"). The United States Court of Appeals for the Ninth Circuit, contrary to every other district court of appeals to have considered the matter, has held that Title VII claims may not be subjected to arbitration under an MAA. The instant case once again addresses the question of whether the Ninth Circuit will …

Peer Mediation Programs: An End To School Violence?, Alixandra Blitz

Cardozo Journal of Conflict Resolution

This note focuses on the ineffectiveness of PMPs to combat higher-levels of school violence. Part I discusses school violence, both past and present. Part II explores the shift from traditional methods of discipline to more proactive and education-based methods that are used in many schools today. Part III addresses the fundamentals of peer mediation including what it is and how it is implemented. Part IV examines which students PMPs should be targeting and why PMPs fail to prevent them from committing violent acts on their schools. Finally, the conclusion recommends ways to reduce conflict in schools.

Victim-Offender Mediation And Violent Crimes: On The Way To Justice, Ilyssa Wellikoff

Cardozo Journal of Conflict Resolution

This Note will discuss the need for an alternative method within the criminal justice system, such as victimoffender mediation, and will discuss the benefits and implications of extending victim-offender mediation to serious and violent crimes. The first part of this Note will explain the premise and purpose of victim-offender mediation. The Note will detail victim-offender mediation’s roots in restorative justice and the various types of victim-offender mediation programs currently in place. The second part of this Note will address the efficacy of victim-offender mediation programs, highlighting the program’s overall benefits and shortcomings. The Note will then address the criminal judicial …

Symposium Introduction, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

A Traditionalist Looks At Mediation: It's Here To Stay And Much Better Than I Thought, Stephen N. Subrin

Nevada Law Journal

No abstract provided.

Judicial Mediation And Signaling, Edward J. Brunet

Nevada Law Journal

No abstract provided.

Self-Deregulation, The "National Policy" Of The Supreme Court, Paul D. Carrington

Nevada Law Journal

No abstract provided.

Adr Is Here: Preliminary Reflections On Where It Fits In A System Of Justice, Jean R. Sternlight

Nevada Law Journal

No abstract provided.

A Fresh Look At The Federal Rules In State Courts, John B. Oakley

Nevada Law Journal

No abstract provided.

Forgetfulness, Fuzziness, Functionality, Fairness, And Freedom In Dispute Resolution: Serving Dispute Resolution Through Adjudication, Jeffrey W. Stempel

Nevada Law Journal

One of the central goals of this Symposium was to present analysis and commentary by scholars known for their independent thinking and reluctance to ride trends merely because they are trendy. In this panel, that tendency is evident as Professors Subrin, Brunet, Carrington, and Stemlight all make points many would find contrarian. In my contribution to this portion of the Symposium, I hope merely to add some modest insights to their work and to articulate what I believe to be common threads, not only of their comments, but also of the dispute resolution movement generally.

"An Overwhelming Question" About Non-Formal Procedure, Thomas O. Main

Nevada Law Journal

No abstract provided.

The Past And Future Of The Federal Rules In State Courts, Carl Tobias

Nevada Law Journal

No abstract provided.

Procedural Provisions In Nevada Medical Malpractice Reform, Carl Tobias

Nevada Law Journal

No abstract provided.

Enforcement Of Wto Rulings: An Interest Group Analysis, Mark L. Movsesian

Faculty Publications

The WTO's Dispute Settlement Understanding ("DSU") provides that disputes are to be resolved in adversarial proceedings before impartial panels of experts. These panels have authority to decide whether members' laws conform to WTO requirements; members may appeal rulings to a permanent Appellate Body within the organization, which has the final say on questions of law and legal interpretation. Under the DSU, if a member fails to comply with a final ruling in a dispute, the prevailing party may retaliate by suspending trade concessions that it owes the offending member. This retaliation can continue until the offending member implements the WTO's …

Uniform Mediation Act And Official Comments

Journal of Dispute Resolution

The provisions in this Act reflect the intent of the Drafters to further these public policies. The Drafters intend for the Act to be applied and construed in a way to promote uniformity, as stated in Section, and also in such manner as to: promote candor of parties through confidentiality of the mediation process, subject only to the need for disclosure to accommodate specific and compelling social interests, encourage the policy of fostering prompt, economical, and amicable resolution of disputes in accordance with principles of integrity of the mediation process, active party involvement, and informed self-determination by the parties, and …

Evaluation Of The Effect Of Court-Ordered Mediation And Proactive Case Management On The Pace Of Civil Tort Litigation In Lake County, Indiana, An, Jeffrey J. Dywan

Journal of Dispute Resolution

This author conducted a survey of mediators working with the courts in Lake County, Indiana in 1993-1994. At that time, thirty-four civil mediators were listed with the court administrator's office. The mediators were asked to track mediation cases for six months and to record the number of cases that had been referred to them for mediation, the number of cases actually mediated, the number settled, and the time to settlement after the referral to mediation

Contractarian Economics And Mediation Ethics: The Case For Customizing Neutrality Through Contingent Fee Mediation, Scott R. Peppet

Publications

No abstract provided.

Correspondences And Contradictions In International And Domestic Conflict Resolution: Lessons From General Theory And Varied Contexts, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Does the field of conflict resolution have any broadly applicable theories that "work" across the different domains of international and domestic conflict? Or, are contexts, participants, and resources so "domain" specific and variable that only "thick descriptions" of particular contexts will do? These are important questions which have been plaguing me in this depressing time for conflict resolution professionals, from September 11,2001 (9/11), to the war against Iraq. Have we learned anything about conflict resolution that really does improve our ability to describe, predict, and act to reduce unnecessary and harmful conflict? These are the questions I want to explore …

Globalization Of Arbitral Procedure, Gabrielle Kaufmann-Kohler

Vanderbilt Journal of Transnational Law

Imagine attending hearings in three different arbitrations: one in Geneva, one in New York, and one in Hong Kong. All three hearings will likely involve the same hotel conference rooms, the same court reporters, the same language--English, the same types of oral submissions, witness examinations, expert presentations, and procedural arguments, and often even the same people. Does this mean that arbitral procedure is globalized '--that an arbitration is conducted in a uniform manner wherever it takes place, whatever national law governs? Does national law govern at all? This paper will discuss these issues.

Renegotiation And Adaptation Of International Investment Contracts, Klaus P. Berger

Vanderbilt Journal of Transnational Law

In modern-day international investment practice, especially in connection with the exploitation of natural resources, Production Sharing Agreements have come to take over the role of the classic concession agreement. Like their predecessors, these contracts are particularly vulnerable to disturbances in the commercial balance agreed to, or assumed by, the parties at the conclusion of the contract. This vulnerability has three primary causes.

First, these are classic examples of long term contracts. In the petroleum industry, the commitment of significant capital for exploration, particularly in development, and the assumption of considerable risk, particularly in exploration, require contracts covering up to and …

The Problem With Arbitration Agreements, Stephen J. Choi

Vanderbilt Journal of Transnational Law

Arbitration procedures today have become highly standardized. Institutions such as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the American Arbitration Association Center for International Dispute Resolution (AAA) each have detailed provisions for administering arbitration proceedings (often involving parties of different nationalities). Parties entering into arbitration can expect to have limited discovery, a hearing, and the ability to bring attorneys to the proceedings. While typically providing less process than formal court proceedings, the standardized nature of arbitration can lead parties to view arbitration much like court proceedings--a fixed, pre-determined process to settle disputes. Thomas …