Dispute Resolution and Arbitration Commons^™

Is Alternative Dispute Resolution Really An Alternative For Federal Employees?: Possible Suggestions For Encouraging Federal Employees To Participate In Adr Programs, Lisa Pell

Cardozo Journal of Conflict Resolution

This Note will examine the various dispute resolution programs employed by the federal government. Part One of this Note will look at the different federal programs and determine their usefulness. Part Two will establish that ADR is not being used to its potential. Part Three will discuss the reasons for the low ADR usage. Part Four will suggest options for increasing ADR usage in federally implemented programs. Finally, Part Five will conclude that if the federal agencies took advantage of their own programs, the possibilities for change are great.

Mindfulness Meditation, The Cultivation Of Awareness, Mediator Neutrality, And The Possibility Of Justice, Evan M. Rock

Cardozo Journal of Conflict Resolution

This Note argues that the cultivation of awareness through meditation enhances a mediator's ability to be neutral, thereby increasing the possibility of just outcomes from mediation sessions. Part I introduces and explains the basic practice of mindfulness meditation. Part II examines the necessity of neutrality for just outcomes in mediation, the classical view of neutrality as impartiality, and the importance of a mediator's awareness of his biases and preferences for maintaining neutrality. Part III examines the use of procedure in maintaining neutrality during a mediation session, and how a mediator's awareness of his thoughts and emotions can be helpful in …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 7, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Dispute Resolution And Legal Education: A Bibliography, Trevor C.W. Farrow

Cardozo Journal of Conflict Resolution

This selected bibliography is designed to act as a resource to assist in the ongoing, collaborative development of dispute resolution initiatives and programs in legal education and research in North America and abroad. Further, the particular focus of this bibliography, in addition to the teaching and research of dispute resolution generally, is the emphasis that law reform initiatives are putting on dispute resolution processes as potentially useful tools for increasing access to systems of civil justice around the common law world.

A Case For Mediating Trademark Disputes In The Age Of Expanding Brands, David Allen Bernstein

Cardozo Journal of Conflict Resolution

This Note proposes that there is an alternative method that ensures the viability of brand names while avoiding litigation. Companies must be willing to enter a process which will explore the possibility of a mutually beneficial solution, perhaps in the form of a settlement agreement allowing both parties to use the mark or brand name. The process best suited to guide such parties and achieve such a result is mediation.

Military Spying In The United States: When It Is Not Your Neighbor Knocking At Your Door, Where Do You Turn?, Miriam Schneider

Cardozo Journal of Conflict Resolution

This Note will describe the role of the military in the United States and its relationship to privacy rights. Part I of this Note will describe the historical underpinnings that led to a limited role for the military within the United States territory, beyond defending against attack. Part II will describe the expectations by the courts and legislature for the military. In addition, it will illustrate instances where the military, along with numerous federal agencies, overstepped its traditional, constitutional and legal bounds. Part III will offer the legislature's response to, and its subsequent regulation of, the military and other federal …

The Vocation Of International Arbitrators, Catherine A. Rogers

Faculty Scholarship

This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …

Trend Forecast: Imitation Is A Legal Form Of Flattery-Louis Vuitton Malletier V. Dooney & Bourke, Inc., Sarah J. Kaufman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Influence Of Procedural And Distributive Variables On Settlement Rates In Employment Discrimination Mediation, The, E. Patrick Mcdermott, Danny Ervin

Journal of Dispute Resolution

Mediators and scholars are interested in factors that contribute to a successful mediation. The settlement of the dispute is one measure of success. If one could identify certain key process or outcome variables that caused more disputes to be settled in mediation, a mediator could use this information to maximize settlement potential. We seek to add to this search for the "holy grail" of mediation settlement.' Using an extensive database from the evaluation of the Equal Employment Opportunity Commission (EEOC) we attempt to determine whether certain procedural and distributive factors are significant predictors of case resolution. We also examine whether …

Resolving A Split: May Courts Order Consolidation Of Arbitration Proceedings Absent Express Agreement By The Parties, Jonathan R. Waldron

Journal of Dispute Resolution

In Illinois Farmers Insurance Co. v. Glass Service Co., 8 the Minnesota Supreme Court had the opportunity to revisit its 1973 decision in Grover-Dimond Associates v. American Arbitration Ass'n 9 in light of conflicting case law developed since that time.' 0 This Note will address the current split in state and federal courts, and suggest that the best way to resolve this issue is through state adoption of the RUAA.

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Discord Behind The Table: The Internal Conflict Among Israeli Jews Concerning The Future Of Settlements In The West Bank And Gaza, Robert H. Mnookin, Ehud Eiran

Journal of Dispute Resolution

Our exclusive focus is on one of these conflicts-the profound internal rift among Israeli Jews over the Jewish settlements in the West Bank and Gaza. We are especially interested in the role of the national religious settlers and the Israeli government's response to them. These settlers lead the movement and are dominant actors in the internal conflict. The current controversies within Israel regarding Prime Minister Ariel Sharon's "unilateral initiative," which was not the product of a negotiation with Palestinians, demonstrate the importance of understanding the internal conflict within Israel and the dominant role of the leaders of the settlement movement

Confidentiality In Mediation: Is It Encouraging Good Mediation Or Bad Conduct, Sarah Williams

Journal of Dispute Resolution

Mediation has long been used in the judicial system of the United States to offer an alternative to litigation which can save time and money. Not only have its cost-effective and time efficient attributes contributed to its use, but the judiciary and legislature have often encouraged its use in order to mitigate the number of cases in the court system. In some states, the legislature has enacted statutes to make mediation mandatory before certain adjudications will even take place. Furthermore, to encourage these mediations to settle, many legislatures and jurisdictions have enacted statutes to protect the confidentiality of the mediation. …

The New Iraq: Resolving Public And Private Obligations Incurred Under Saddam Hussein's Rule In The Context Of International Arbitration, Darius Adam Marzec

Cardozo Journal of Conflict Resolution

Saddam Hussein's rule in Iraq collapsed on April 9, 2003, after an American-led coalition invasion. The coalition quickly deposed the Iraqi dictator and began the process of turning the nation away from authoritarian rule, murder, and death, to civility. While Saddam Hussein is gone, and no government-supported oppression of people exists, another form of tyranny persists: Iraq's modern economy is burdened with $383 billion in public debt and judgments. Adding insult to injury, after the coalition troops drove up to Baghdad through the desert, Iraq's banking system turned out to be insolvent.

The Unguided Use Of Internal Adr Programs To Resolve Sexual Harassment Controversies In The Workplace, Jessica Oser

Cardozo Journal of Conflict Resolution

This Note will explore some of the concerns raised by the use of mandatory IDR mechanisms in the workplace, particularly in the context of resolving sexual harassment disputes. As previously noted, the use of IDR in the workplace can be highly effective and beneficial for both the employee and the employer. However, just as the Food and Drug Administration approves drugs that have potentially harmful side effects, the public and the U.S. government should approve of the use of IDR mechanisms despite the potential for abuse. In both circumstances, the public deserves to be warned about the possible dangers. This …

Inter-American System, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Title Page

Journal of Dispute Resolution

No abstract provided.

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Tribute To Dean Timothy J. Heinsz, A, Robert G. Bailey

Journal of Dispute Resolution

Timothy J. Heinsz, Earl F. Nelson Professor of Law, and Director for the Center for the Study of Dispute Resolution, received his undergraduate degree from St. Louis University and his law degree from Cornell University. He came to the University of Missouri-Columbia School of Law as an associate professor in 1979, and became a full professor in 1981. Between 1988 and 2001, he was dean of the law school. He became Director of the Center for the Study of Dispute Resolution in 2002. On July 2, 2004, Dean Heinsz had a heart attack while jogging on the MKT Trail near …

If You Lose, It Is Binding, But If You Win - They Get A New Trial: Illinois Uninsured Motorist Arbitration, Michael J. Hanagan

Journal of Dispute Resolution

In Reed v. Farmers Insurance Group the Illinois Supreme Court-by a 4-3 vote-upheld an arbitration system in which injury victims are bound by awards below $20,000, but in which insurance companies can insist on a trial de novo for awards over that amount.' A recent legislative enactment has complicated the threshold at which awards change from binding to non-binding, by increasing it to $50,000. However, even in cases where a higher threshold applies, those injury victims receiving awards below the threshold (or losing on the issue of liability) are bound by the arbitration, while injury victims receiving awards higher than …

Where Can Unconscionability Take Arbitration - Why The Fifth Circuit's Conscience Was Only Partially Shocked, Mary Jane Groff

Journal of Dispute Resolution

As a means of countering the pro-arbitration stance taken by the Supreme Court, a number of lower courts have chosen to police the fairness of arbitration clauses in contracts by using the doctrine of unconscionability. The Supreme Court has authorized the use of generally applicable contract law principles including unconscionability-to invalidate arbitration agreements. Unconscionability provides courts with a flexible tool for coming to the rescue of parties who, if the court is sufficiently shocked, find themselves entangled in unfair arbitration clauses. This Note addresses the Fifth Circuit's use of unconscionability in respect to a particularly one-sided arbitration clause, and examines …

California's Unique Approach To Arbitration: Why This Road Less Traveled Will Make All The Difference On The Issue Of Preemption Under The Federal Arbitration Act, Michael G. Mcguiness, Adam J. Karr

Journal of Dispute Resolution

We begin this article by framing the issue in simple terms. The statute itself is clear. The FAA contains a "savings clause" that provides that arbitration agreements shall be "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.", By its terms, the FAA permits courts to refuse to enforce arbitration agreements if the agreement is invalid under state laws that "arose to govern issues concerning the validity, revocability, and enforceability of contracts generally."

No Notice Is Good News: Notice Under The New Ombuds Standards For The Establishment And Operation Of Ombuds Offices , Katherine A. Welch

Journal of Dispute Resolution

The American Bar Association (ABA) recently announced its decision to endorse the revised Standards for the Establishment and Operation of Ombuds Offices, dated February 2004.1 A modification to the 2001 Standards for the Establishment and Operation of Ombuds Offices, 2 the new Standards are responsible for certain clarifications of the role of an ombuds. One such clarification is that of notice in the employment context. Under the new Standards, communications made to an ombuds regarding complaints of violations or unlawful practices within the workplace do not constitute notice to the employer, provided that the ombud's practices are consistent with the …

Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers

Faculty Scholarship

Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …

Look Before You Leap And Keep On Looking: Lessons From The Institutionalization Of Court-Connected Mediation, Bobbi Mcadoo, Nancy A. Welsh

Faculty Scholarship

This article will use the institutionalization of general civil mediation into the courts as a case study, with both hopeful and cautionary lessons for policy makers. This article will (1) examine the goals created for court-connected ADR; (2) assess to what extent court-connected mediation has achieved these goals, from the perspective of judges, lawyers, and parties; and (3) and propose reforms of court-connected mediation to better ensure the achievement of justice.

An Essay Challenging The Racially Biased Selection Of Arbitrators For Employment Discrimination Suits, Michael Z. Green

Faculty Scholarship

Since 1991, employers have increasingly decided to require that employees agree to arbitrate statutory employment discrimination claims as a condition of employment. This Essay seeks to expose some of the potential discriminatory components that may arise in the arbitrator selection process while highlighting the lack of legal remedy for those who believe that employers, in conjunction with neutral service provders, have stacked the pool in favor of having arbitrators who tend to be older, white and male. The Essay suggests the use of 42 U.S.C. Section 1981 as a potential remedy and challenge to the dearth of arbitrators of color …

Court Or Arbitrator—Who Decides Whether Res Judicata Bars Subsequent Arbitration Under The Federal Arbitration Act?, Jarrod Wong

McGeorge School of Law Scholarly Articles

No abstract provided.

Objecting To Court Ordered Mediation, Jane C. Murphy

All Faculty Scholarship

Maryland judges have wide discretion to refer parties to mediate a variety of civil matters. Title 17 of the Maryland Rules, enacted in 1998, governs mediation of civil cases in the circuit courts. These rules are supplemented by Maryland Rule 9-205, which addresses mediation of child custody and visitation disputes. Although these rules define mediation and address mediator qualifications in some detail, they say very little about either a party's right to object to mediation or the court's authority to compel participation in mediation.

Given that the mediation rules are relatively new and mediation orders would generally be considered interlocutory, …

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N.C. Smalkin

All Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary's loss of focus on the core function of trying jury cases; the business community's loss of interest in jury adjudication (opting out of the legal system altogether in favor of arbitration); Congress's marginalizing the district court judiciary; and the …

Book Review: Beyond Neutrality: Confronting The Crisis In Conflict Resolution, Nadja Alexander

Research Collection Yong Pung How School Of Law

No abstract provided.