Dispute Resolution and Arbitration Commons^™

External Law In Arbitration Hard-Boiled, Soft-Boiled, And Sunny-Side Up, Theodore J. St. Antoine

Book Chapters

Thirty-seven years ago Bernie Meltzer and the late Bob Howlett squared off at our annual meeting in a classic confrontation on an issue that refuses to die. What should an arbitrator do when there is a seemingly irreconcilable conflict between a provision of a collective bargaining agreement and the dictates of external law? Professor Meltzer was the hard-boiled logician. Arbitrators' proper domain is the parties' contract, said he, and we "should respect the agreement and ignore the law" when the two diverge. Howlett took the softer, more accomodating approach. He reasoned that "every agreement incorporates all applicable law" and so …

The State Of External Law's Effect On The Arbitration Process. Iii. A Commentary On The External Law Papers And Iv. Panel Discussion, Theodore J. St. Antoine, Marilyn S. Teitelbaum, Robert Vercruysse

Book Chapters

Marilyn Teitelbaum: I think I have the best of all worlds because I can read these great papers, without having to prepare one of my own, and like all lawyers I like to talk. So, I can share my views, that sometimes diverge from both of the views just presented, particularly the view from the management perspective.

In one part of Ted St. Antoine’s paper that was not discussed with you today, he says that the external law question may be a “tempest in a tea pot.” My words would be similar—“much ado about nothing.” I think there is a …

Arbitration And Arbitrability: Toward An Expectation Model, Mark Berger

Faculty Works

The process of arbitration has been transformed by a series of Supreme Court decisions that have increased the enforceability of arbitration awards. Beyond that, the Supreme Court has also taken steps to ensure the enforceability of promises to arbitrate. These latter arbitrability issues raise questions as to who will decide whether an enforceable agreement to arbitrate has been made and what standard shall be applied in making that determination. This article explores the arbitrability question in the wide variety of settings in which it occurs, including post-contract disputes, successor parties, and the separability doctrine which focuses on challenges to the …

The Promise And Perils Of "Our" Justice: Psychological, Critical And Economic Perspectives On Communities And Prejudices In Mediation, Clark Freshman

Faculty Scholarship

No abstract provided.

Gollum, Meet Sméagol: A Schizophrenic Rumination On Mediator Values Beyond Self-Determination And Neutrality, James R. Coben

Cardozo Journal of Conflict Resolution

Let me begin by declaring my biases. First, I am a dissatisfied consumer of mediation services, having represented both employment discrimination and family law clients in mediations. The mediators' rapid retreat to caucus, their tendency to incorrectly evaluate my clients' cases, and their strong push for particular settlement structures while simultaneously proclaiming process neutrality, all too frequently have left me (and my clients) disappointed and disillusioned. Second, I am a chronicler of "mediation car wrecks" - a voyeur, if you will, of those times when mediations go so badly that the parties end up disputing about them in court. Third, …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 5, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Remembrance Of Things Past? The Relationship Of Past To Future In Pursuing Justice In Mediation, Carrie J. Menkel-Meadow

Cardozo Journal of Conflict Resolution

What must be remembered and acknowledged before we can move forward to create a future together, whether individually or collectively? Or, as Avishai Margalit has recently put it, is there an ethics of memory - must some things be remembered; what can be forgiven or forgotten in a moral sense? I have long been worried about the emphasis in mediation to focus on the future, to seek ''solutions" to problems in which the parties are guided to "move forward," even while "reorienting the parties to each other," in crafting a more productive relationship. With the growing use and adaptation of …

Moveable Feasts: An Introduction, Christopher Honeyman

Cardozo Journal of Conflict Resolution

In many circles, dispute resolution is still frequently referred to as a movement. Elsewhere, it is increasingly thought of as a business, or a set of professional practices in legal, government, and nonprofit organizations. There are also signs that dispute resolution is beginning to be seen as an integrated academic discipline. But in all of these overlapping senses of the field, there is an implicit assumption that it is appropriate to think of dispute resolution on a national, or even transnational, basis. But how true is that imagery? We know that "all politics is local." Is it possible that this …

Know Justice, Know Peace: Further Reflections On Justice, Equality And Impartiality In Settlement Oriented And Transformative Mediations, Isabelle R. Gunning

Cardozo Journal of Conflict Resolution

In the conversation (or debate) on mediator responsibilities and justice, this Article argues that as mediators we should have a concern for the justness of the outcome of the mediations in which we serve. I have high hopes and expectations for mediation as one important aspect of what I see as a larger and increasingly essential project of peacemaking. But last summer, when I was teaching a basic mediation training course, and I asked my students if they understood themselves to be "peacemakers," they were almost uniformly resistant to the notion. They saw peacemakers as almost "spineless," certainly "wishy-washy," and …

San Diego Moveable Feast: Competition In Cooperation-Building, Christopher Honeyman, Ellen A. Waldman

Cardozo Journal of Conflict Resolution

Local boosters refer to San Diego as "America's Finest City." This, of course, is an invitation to skepticism. Likewise, the strong culture of dispute resolution created by San Diego invites a closer look.

Arbitration Advocacy: From Clause To Hearing, 28 Am. J. Trial Advoc. 101 (2004), Celeste M. Hammond, Jeffrey J. Mayer

UIC Law Open Access Faculty Scholarship

This Article provides an overview of the key differences between arbitration and litigation, a look at the past and present state of the law governing arbitration, techniques for drafting arbitration clauses, and effective advocacy at arbitration hearings

Bringing Online Dispute Resolution To Virtual Worlds: Creating Processes Through Code, Ethan Katsh

NYLS Law Review

No abstract provided.

Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

People thinking about contractual arbitration clauses usually envision the resulting disputes as contractual in nature. However, there is also a group of cases in which the clauses are used to compel arbitration of personal injury claims. This article examines those cases, including the impact of the Federal Arbitration Act on their enforcement. Next, the article considers the ways in which these pre-dispute, mandatory arbitration clauses can disturb the traditional values of procedural justice, contractual fairness, and the enforcement of tort-based duties. Finally, the article proposes changes in the law of arbitration and evaluates whether such changes are politically feasible.

Gollum, Meet Smeagol: A Schizophrenic Rumination On Mediator Values Beyond Self Determination And Neutrality, James Coben

Faculty Scholarship

The author asserts that the exclusive reliance on the "Two Towers" of self-determination and neutrality as the foundation for mediation practice has inevitably left us with a process routinely characterized by mediator manipulation and deception. The "tricks" are tolerated by sophisticated repeat players, and absent transparency in practice, disturbingly not known to others. The evolution of mediation, from empowerment/community roots to corporate/court sustenance, is no surprise given the nation's journey through the Reagan revolution, the ideology of free markets, and the Supreme Court's unbridled support for freedom to contract in disputing. In short, mediation is at a crossroads needing to …

Damages: Using A Case Study To Teach Law, Dispute Resolution, And Lawyering , Melody Richardson Daily, Chris Guthrie, Leonard L. Riskin

Faculty Publications

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …

Arbitral Law-Making, Thomas E. Carbonneau

Michigan Journal of International Law

Diversity--of a cultural, economic, religious, and political kind—exists not only among nation-states and in the sources and interpretation of international law, but also among the group of commentators who study the interactions of transborder actors and institutions. For example, sociologists interested in the global community seek to identify emerging entities and activities and to elaborate conceptual models that explain the new differentiations within the traditional pattern. Some of them have a mounting interest in the fashioning of transborder commercial justice by international arbitrators and private arbitral institutions. Who are these new players? How did they acquire their mandate? Further, how …

The Legal Foundation–Defining The Legislative Format, William W. Huss, Sharon Press, J. Michael Mcwilliams

Faculty Scholarship

Current and pending mediation legislative programs in the United States, Canada, and other countries were examined by speakers and panelists who are living under these new systems or were authors of their design. Topics included court annexed programs, mandatory programs, voluntary programs, private institutional programs, the Uniform Mediation Act, state and federal initiatives, and the impact each has, or will have, on the mediation practice.

Terminating Public School Teachers For Cause Under Minnesota Law, Christine D. Ver Ploeg

William Mitchell Law Review

It is important to understand the realities that surround the discharge of a teacher, for embarking upon this path promises to be painful for everyone involved. Teachers who challenge allegations that they are personally or professionally unworthy of continuing to teach in their districts--or perhaps to continue to teach at all--understandably experience extraordinary trauma and anxiety. By the same token, districts that ultimately fail to prove the case for discharge can face significant financial liability and may even be forced to reinstate teachers who have been found to be deficient. Finally, these efforts often divide schools and communities because teachers, …

Case Note: Contracts—Into The Void: Minnesota Limits Application Of The Prima Paint Doctrine—Onvoy, Inc. V. Shal, Llc, Mikel D. Johnson

William Mitchell Law Review

This note first gives a brief overview of arbitration use in the United States. It then discusses the Onvoy decision and provides an analysis of the Minnesota Supreme Court’s ruling. Finally, the note concludes that the court’s holding properly weighs Minnesota’s strong presumption in favor of arbitration against the need to allow access to the courts.

Problem-Solving Advocacy In Mediations, Harold I. Abramson

Scholarly Works

No abstract provided.

Teaching And Learning From The Mediations In Barry Werth's Damages, Leonard L. Riskin

UF Law Faculty Publications

This essay is based primarily on materials the author developed for courses taught at the University of Missouri-Columbia, School of Law, in the winter 2002 and 2003 semesters, based on Barry Werth's book, "Damages."

Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Leonard L. Riskin

UF Law Faculty Publications

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on …

Creating And Certifying The Professional Mediator -- Education And Credentialing, Joseph B. Stulberg, Donald C. Peters, Tracy L. Allen, Judith P. Meyer

UF Law Faculty Publications

Existing and pending law school mediation programs, post-graduate mediator training programs, mentorship programs, credentialing movements, and continuing mediation education were examined by a panel and speakers directly involved in those fields. Are we effectively training new mediators in law schools and post-graduate programs? Should we, and how can we, "credential" mediators? Do good mediators need to be re-trained? How would continuing mediation educational requirements be implemented?

Assessing Mediator Performance: The Usefulness Of Participant Questionnaires, Roselle L. Wissler, Robert W. Rack Jr.

Journal of Dispute Resolution

As part of their obligation to provide quality services, courts that offer mediation need to periodically assess the performance of mediators to whom they refer cases. One of several methods that have been proposed for monitoring mediator quality is participant assessments of mediator performance. The present article reports an empirical study that examined attorneys' assessments of the skillfulness of mediators in a federal appellate civil medations program. The attorneys rated some of the mediators as being more skillful than others, and these differences generally remained whether or not favorable outcomes were achieved in mediation. In addition, the attorneys rated individual …

Going Dutch: Should Employees Have To Split The Costs Of Arbitration In Disputes Arising From Mandatory Employment Arbitration Agreements - Morrison V. Circuit City Stores, Inc., John F. Crawford

Journal of Dispute Resolution

Employers often require their employees to sign arbitration agreements as a condition of employment, obligating employees to submit their disputes with employers to binding arbitration. These agreements may include terms, such as cost splitting provisions, that may be advantageous to the employer, but extremely limiting to an employee seeking to enforce her statutory rights. The United States Supreme Court has yet to set out a clear position about whether an employee, by signed agreement, can be required to pay all or part of the arbitration fees and costs when the employee submits a statutory claim to arbitration. Federal district courts …

Using Adr To Resolve Online Disputes, Aashit Shah

Richmond Journal of Law & Technology

In the context of the Internet, where parties located in different corners of the world can contract with each other at the click of a mouse, litigation of online disputes is often inconvenient, impractical, time-consuming and prohibitive. Providing an alternative approach to resolve online disputes might assist in redressing grievances and gaining consumer confidence in e-commerce. Alternative Dispute Resolution (ADR) is an appurtenant candidate for such an approach. The Virtual Magistrate Project, launched in 1996, initiated the idea of using ADR to resolve Internet-related disputes. The joint statement promoting the use of ADR in cyberspace, made by the European Union …

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Cardozo Journal of Conflict Resolution

This Article will consider mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article will outline how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation's citizens as "justice." The Article will then highlight particular aspects of the changing picture of the American civil justice system to suggest that today's sprawling and multitiered structure is increasingly disengaged from its democratic roots. Finally, the Article …

Merger Of Law And Mediation: Lessons From Equity Jurisprudence And Roscoe Pound, The , Jacqueline Nolan-Haley

Faculty Scholarship

This article examines Roscoe Pound's concerns with the decline of equity jurisprudence in the American legal system, suggesting that they resonate with those of modern ADR scholars who worry about the effects of blending settlement with adjudication and mediation with the law. It examines court-connected mediation with particular emphasis on the historic parallels between equity and mediation. Both equity and mediation offer a form of "individualized justice" unavailable in the official legal system, and each allow room for mercy in an otherwise rigid, rule-bound justice system. Yet, scholars question whether equity today is still equitable and whether institutionalized mediation offers …

Judicial Attitudes Toward Arbitration And The Resurgence Of Unconscionability, Susan Randall

Buffalo Law Review

No abstract provided.

Arbitration, Unconscionability, And Equilibrium: The Return Of Unconscionability Analysis As A Counterweight To Arbitration Formalism, Jeffrey W. Stempel

Scholarly Works

However incomplete, unaggressive, or sub-optimal, unconscionability analysis of arbitration agreements has made something of a comeback in the late twentieth century and early twenty-first century. Just as nature abhors a vacuum, water seeks to be level, and ecosystems work to retain environmental stability, the legal system has witnessed an incremental effort by lower courts to soften the rough edges of the Supreme Court's pro-arbitration jurisprudence through rediscovery of what might be called the “unconscionability norm”--a collective judicial view as to what aspects of an arbitration arrangement are too unfair to merit judicial enforcement. In rediscovering and reinvigorating the unconscionability norm …