Dispute Resolution and Arbitration Commons^™

Settling Significant Cases, Jeffrey R. Seul

Washington Law Review

Negotiation, mediation, and other consensus-based alternatives to litigation are most often studied and defended in the context of ordinary disputes, in which liability and distributive issues are contested, but the background norms that govern the outcome of a lawsuit are not. Many consider adjudication to be the only acceptable process for addressing "significant cases": disputes about abortion, school prayer, the environment, and other value-laden issues in which background norms are contested. I argue that this perspective is ironic because litigation, like negotiation, entails compromise. Litigation is a lottery in which the substantive values a party seeks to defend, and which …

Remembering The Role Of Justice In Resolution: Insights From Procedural And Social Justice Theories, Nancy A. Welsh

Faculty Scholarship

It is surely a luxury, at this point in the field of dispute resolution, to be invited to identify those concepts that I view as absolutely essential to our canon. Borrowing a bit from Chris Guthrie's wine illustration, I think it is fair to suggest that today's presentations reveal a very impressive wine cellar, with many bottles of fine wine from which to choose. I will spotlight one part of this wine cellar, where concepts regarding procedural and social justice theories can be found. I will focus primarily on procedural justice but will also reference those theories of social justice …

The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura G. Dooley

ExpressO

The question of the relevant community from which a fair cross-section of jurors should be drawn has received little theoretical attention. This article seeks to fill that gap by using communitarian and postmodern theory to give content to the idea of "community" in the fair cross-section context. This analysis is timely and has grave practical importance, given that the federal government is increasingly assuming the prosecution of crime previously dealt with at the state level. This "federalization" of criminal enforcement has the second-order effect of changing the "community" from which criminal juries will be drawn, particularly in urban areas surrounded …

The Vanishing Trial Report, John M. Lande

Faculty Publications

Some in the alternative dispute resolution community are afraid that ADR will be blamed for the apparent disappearance of trials. A close look at the data, however, suggests that changing patterns of litigation are not necessarily bad and that the growth of ADR is probably as much a result of these changes as a cause of them.

On Hostile Ground: Ohio's Notice To Insolvent Insurance Companies With Arbitration Agreements - Bejamin V. Pipoly, Frank C. Koranda Jr.

Journal of Dispute Resolution

In Benjamin v. Popoly, the Court of Appeals of Ohio reviewed whether the liquidator of an insolvent insurance company have the power to avoid the enforcement of arbitration agreements. The court held that the broad statutory power conferred to a liquidator permitted them to affirm or disavow any contracts made by the insolvent insurance companies, including any contractual provisions for the arbitration of disputes. The court also expressly overruled prior Ohio case law regarding the status of arbitration agreements in insurance insolvency.

Rwandan Gacaca: An Experiment In Transitional Justice, Maya Goldstein Bolocan

Journal of Dispute Resolution

This paper argues that shifting the emphasis from the retributive nature of Gacaca to its restorative potential may, in the long term, offer better perspectives of peace and reconciliation to a deeply wounded society. It also argues that, where Gacaca retains its retributive element, it should do so while trying to respect the human rights of those brought before it. Part II of this paper briefly discusses the dominant model of transitional justice, namely the prosecutorial approach of criminal trials, and its effectiveness vis-A-vis alternatives that emphasize the search for truth and reconciliation instead of retribution. Part III provides a …

State Legislative Update, Robert J. Fisher, Katherine M. Massa, Benjamin B. Nelson, Cassandra A. Rogers

Journal of Dispute Resolution

Senate Bill 1970 was introduced in the Florida Senate on March 2, 2004. It was initially referred to the Senate Judiciary Committee where it passed on April 19 with an 8-0 vote. Senate Bill 1970 was read for the first time in the Senate on April 21. The bill passed the full Senate on April 24 with a 39-0 vote. It was then sent to the full House on April 26 where it was substituted for House Bill 1765. Senate Bill 1970 was read and passed in the House on April 27 with a 114-0 vote. The bill was presented …

Assuring Excellence, Or Merely Reassuring - Policy And Practice In Promoting Mediator Quality, Charles Pou Jr.

Journal of Dispute Resolution

Mediation practice in the United States has grown substantially over the last two decades, as has the number of people offering to serve as mediators. This growth has led some to argue that competency standards are needed to protect consumers and promote the integrity of mediation processes. While professionals and researchers have tried over the past fifteen years or so to define "what mediators do" and better understand "how to do it well," alternative dispute resolution (ADR) programs, roster administrators, and parties seeking neutrals have had to make day-to-day choices.

Confidentiality In Victim Offender Mediation: A False Promise, Mary Ellen Reimund

Journal of Dispute Resolution

The intent of the article is to provide the framework by which victim offender programs can delve into the complexities of mediation confidentiality and avert potential disaster. First, a foundation is needed to explain the philosophical goals of restorative justice, the VOM process, and mediation as it relates to restorative justice. With that background, areas that are likely to spark confidentiality concerns will be discussed as will exemplary confidentiality statutes, cases, and the Uniform Mediation Act. By carving a path of awareness through this previously unexplored topic as it relates to VOM, there will be less likelihood of false promises …

Open Issue: The Fifth Circuit's Misleading Interpretation Of An Arbitrator's Jurisdiction Under The Telecommunications Act Of 1996 - Coserv Limited Liability Corporation V. Southwestern Bell Telephone Company, An, Amanda Davis Anthony

Journal of Dispute Resolution

in Coserv v. Southwestern Bell Telephone Co., the Fifth Circuit addressed the meaning of "open issues" as related to an arbitrator's jurisdiction to decide issues not agreed upon in voluntary negotiations under provisions of the Telecommunications Act of 1996 (Telecom Act) that ensure competition in local telephone service markets. Through statutory interpretation, the Fifth Circuit gave arbitrators almost limitless jurisdiction. In doing so, the Fifth Circuit cited to the Eleventh Circuit to support its view, but failed to acknowledge the opposite holding by the Eleventh Circuit on the same issue.

Issues Of Trust: Resolving Mismanagement Of The Indian Trust Fund - The Indian Money Account Claim Satisfaction Act Of 2003, Allison Cafer

Journal of Dispute Resolution

Land has been held in trust by the United States government for Native Americans since Congress enacted the General Allotment Act of 1887. In recent decades the management of the trust accounts has been called into question by the Native American beneficiaries and has resulted in complex litigation. The government has acknowledged that there has been gross mismanagement of the trusts, to the extent that balances in many of the individual accounts are unknown. After lengthy litigation resulting in victory for the Native Americans, Senator Ben Nighthorse Campbell has introduced legislation that he claims will resolve the trust fund matter …

Arbitration Clauses Should Be Enforced According To Their Terms - Except When They Shouldn't Be: The Ninth Circuit Limits Parties' Ability To Contract For Standards Of Review Of Arbitration Awards - Kyocera Corporation V. Prudential-Bache Trade Services, Jonathan R. Bunch

Journal of Dispute Resolution

Arbitration is the process whereby parties submit disputes to a third, neutral party who will issue a decision that is both final and binding upon the parties. The Supreme Court has recognized arbitration as a valuable form of dispute resolution, with its primary advantages being speed, affordability, and the lower degree of hostility created by a less adversarial environment. In contrast to litigation, the standards of review for arbitral awards are defined in the Federal Arbitration Act (FAA) and are extremely narrow. In somewhat of a collision-course with the terms of the FAA is the fact that some courts have …

Visualising The Adr Landscape, Nadja Alexander

Research Collection Yong Pung How School Of Law

Access to ADR can be conceptualised in a number of ways. Some commentators focus on the court or the legal profession as a central access point for disputes. While this may seem natural for lawyers and judges, such an approach fails to account for the vast majority of disputes – approximately 80 per cent – that never see a lawyer, let alone a court. Other commentators focus on private or community-based applications of ADR as well as transactional applications of mediation such as contract negotiations. Yet others analyse ADR from the perspective of particular stakeholder groups such as industry, insurers, …

Necessity Never Made A Good Bargain: When Consumer Arbitration Agreements Prohibit Class Relief, Thomas V. Burch

Scholarly Works

The American system of arbitration is constantly evolving. From the first formal arbitration tribunal in 1786—established by the New York Chamber of Commerce—to the creation of the Federal Arbitration Act in 1925—passed to suppress judicial hostility towards arbitration -- the system has continuously adapted to accommodate changing business practices and rising judicial concerns over the legitimacy of the institution. In fact, the system’s adaptation has been so effective that the Supreme Court now recognizes a “national policy favoring arbitration.” This “national policy” is the most recent phase of the arbitration evolution, and it raises several concerns. Most significantly, lower courts …

Re Atlantic Pilotage Authority And Canadian Merchant Service Guild, Innis Christie

Innis Christie Collection

Employee Grievances alleging breach of Article 27.05 of the Collective Agreement between the parties dated October 16, 2000, which the parties agreed is the Collective Agreement that governs this matter, in that the Union alleges that each of the Grievors was given notice of recall in accordance with Article 27.05, each was available for the ten-hour period as required and each submitted a request to be paid in accordance with Article 27.05, which was refused. The Union seeks an order that the Employer pay each Grievor at the rate of pay specified in Article 27.05.

Slides: Intro To Groundwater Law In Colorado, David L. Harrison

Groundwater in the West (Summer Conference, June 16-18)

Presenter: David L. Harrison.

17 slides.

Groundwater Management: Lessons From Colorado V. Kansas, David W. Robbins

Groundwater in the West (Summer Conference, June 16-18)

11 pages.

The Future Of Groundwater In The West, James S. Lochhead

Groundwater in the West (Summer Conference, June 16-18)

7 pages.

Intro To Ground Water Law In Colorado And Surface-Groundwater Conflicts In The South Platte, David Harrison, Veronica A. Sperling, Steven O. Sims

Groundwater in the West (Summer Conference, June 16-18)

25 pages.

Contains footnotes.

Advancing Binational Cooperation In Transboundary Aquifer Management On The U.S. Mexico Border [Paper And Presentation], Stephen P. Mumme

Groundwater in the West (Summer Conference, June 16-18)

Presenter: Steve Mumme, Colorado State University.

23 pages and 8 slides.

Contains footnotes.

Slides: The Spokane And The Yakima: A Tale Of Two Aquifers, Rachel Paschal Osborn

Groundwater in the West (Summer Conference, June 16-18)

Presenter: Rachael Paschal Osborn, Private Practice and Gonzaga Law School.

89 slides.

Slides: California Groundwater Management, Michael Fife

Groundwater in the West (Summer Conference, June 16-18)

Presenter: Michael Fife, Hatch and Parent.

66 pages (includes map) and 18 slides.

Contains footnotes.

Groundwater Resources Of The Lower Colorado Region, Tim Henley

Groundwater in the West (Summer Conference, June 16-18)

15 pages.

Slides: Survey Of Indian Groundwater Issues, Rodney B. Lewis

Groundwater in the West (Summer Conference, June 16-18)

Presenter: Rodney Lewis, General Counsel, Gila River Tribe.

49 slides.

Agenda: Groundwater In The West, University Of Colorado Boulder. Natural Resources Law Center

Groundwater in the West (Summer Conference, June 16-18)

Conference moderators and/or speakers included University of Colorado School of Law professors James N. Corbridge, Jr., Douglas S. Kenney, Jim Martin and Kathryn M. Mutz.

The Colorado Law Natural Resources Law Center celebrated its 25th Annual Summer Conference by exploring one of the most important natural resources of the 21st century: groundwater. Titled "Groundwater in the West," the conference was held June 16-18 at the Fleming Law Building on the University of Colorado at Boulder campus. Participants discussed law, policy, and management of groundwater in the West. "As demands on surface water increase and drought seems more the norm than …

Binding Arbitration And Specific Performance Under The Faa: Will This Marriage Of Convenience Survive?, Kenneth Dunham

ExpressO

Traces the history of arbitration from ancient times to the present. Demonstrates how the process has changed and how it has been altered through the centuries into its present form enforceable under the FAA. Shows how specific performance is used to enforce arbitration in equity using the rules of contract law.

Summary Of Pan V. Eighth Judicial District Court, 120 Nev. Adv.Op.No.26, Ronda Heilig

Nevada Supreme Court Summaries

When all of the “prerequisites for finality are met, an order that dismisses a case for forum non conveniens is a final judgment that should be reviewed on appeal,”2 and not via a petition for a writ of mandamus.

Brief Of Respondents In Opposition, In Re Green Tree Financial Corp., No. 03-1243 (U.S. Apr. 22, 2004), Cornelia T. Pillard

U.S. Supreme Court Briefs

No abstract provided.

Private Parties And Wto Dispute Settlement System , Alberto Alemanno

Cornell Law School Inter-University Graduate Student Conference Papers

This paper examines the (non) role that private business operators play in the implementation of WTO Dispute Settlement Reports. More precisely, by analysing the legal status of these decisions in national and regional law, it looks at what individuals are entitled to obtain when a WTO Member ignores the results of a Dispute Settlement Body’s proceedings. As private business operators bear most of the economic costs of non-compliance, there is an increasing pressure for a more direct involvement of these parties in the Dispute Settlement System mechanims. The challenge is therefore to find a way to accommodate their interests within …

Federal Arbitration Act Preemption, Christopher R. Drahozal

Indiana Law Journal

No abstract provided.