Dispute Resolution and Arbitration Commons^™

Designer Trials, Elizabeth Thornburg

Journal of Dispute Resolution

This article is a thought experiment, or maybe a nightmare, about the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party …

When Confidentiality Is Not Essential To Mediation And Competing Interests Necessitate Disclosure, Patrick Gill

Journal of Dispute Resolution

Mediation is a process where a neutral intervener helps disputing parties develop a mutually beneficial resolution. Confidentiality is an established element of mediation. In general, confidentiality furthers the ability of the parties to seek mutually beneficial outcomes to disputes that would otherwise customarily produce a win/lose result. Confidentiality encourages parties to explore their underlying interests, without fear of the repercussions of revealing such information. Arguments are asserted that mediation will not succeed without the assurance that communications will be protected by a confidentiality privilege. The Uniform Mediation Act (UMA) has attempted to clarify the various confidentiality protections afforded by individual …

Reconciling Professional Legal Education With The Evolving (Trial-Less) Reality Of Legal Practice, Julie Macfarlane, John Manwaring

Journal of Dispute Resolution

Our focus in this paper is the impact of these trends on legal education, especially professional legal education. What is undeniable is that lawyers (and judges) are more and more involved in legal tasks which are not related to trials. This does not necessarily mean that the practice of law is focused exclusively on settlement activities, although such activities are increasingly important. Pre-trial processes and procedures including motions, discovery and mandatory settlement conferences take up more time than ever before. Lawyers are playing a different role, offering different kinds of service to their clients, and performing different tasks

How Far Is Too Far: Reexamining The Continuing Extension Of Arbitral Immunity To Arbitral Organizations, Elizabeth Wilhelmi

Journal of Dispute Resolution

The protection of arbitration proceedings from judicial inquiry is restricted not only by the limited grounds for vacatur, but also by the application of arbitral immunity, a protection derived from the judicial immunity applied to judges. This immunity strengthens the finality of arbitration by restricting judicial review of decisions protected by arbitral immunity, but at the same time, it raises the question of whether courts should give arbitration the same broad immunity that protects judges. Despite the differences between arbitration and the judicial system, the courts have applied arbitral immunity to the arbitrator's acts in the same way as they …

Mediation Success Or Failure: A Search For The Elusive Criteria, Jacob Bercovitch

Cardozo Journal of Conflict Resolution

One of the central issues in the field of conflict resolution concerns the degree to which we can define a mediated or negotiated outcome as successful. How do we know that an outcome meets the criteria of success? How can we evaluate it? For example, how would we define the conclusion of the Camp David talks, where President Carter so ably mediated between the parties, and which produced a historic agreement between Israel and Egypt in 1978? Was that ground-breaking agreement successful? There will be as many opinions on that as there are commentators, but few will stop and think …

Begging For Justice? Or, Adaptive Jurisprudence? Initial Reflections On Mandatory Adr To Enforce Women's Rights In Rwanda, Phyllis E. Bernard

Cardozo Journal of Conflict Resolution

This Article presents the author's personal reflections on the promise and perils involved in blending rules of modern law with traditional values of African culture. The project began from a basic premise that both Americans and Rwandans should proceed with caution when expanding the privatization of public justice. Nevertheless, an outside observer's caution must be balanced with respect for a nation's right to self-determination, even when those choices may clash with generally accepted ADR theory as developed in the United States. This Article suggests that we can all learn much from Rwanda's bold, pragmatic experiment in redefining the essential nature …

2005 Cardozo International Advocate For Peace Award: Acceptance Speech, Betty Kaari Murungi

Cardozo Journal of Conflict Resolution

Thank you very much for this truly inspiring award, which I am honored to accept on my own behalf and on behalf of the many women with whom I have been privileged to work over the years. The award is presented against the backdrop of two historic international events: the passing of Rosa Parks and the announcement of the victory of Ellen Johnson-Sirleaf as the first elected female head of state of an African country.

Collaboration In The Exploration Of Outer Space: Using Adr To Resolve Conflicts In Space, Ka Fei Wong

Cardozo Journal of Conflict Resolution

This Note will explore in detail the use of ADR procedures for claims brought under the Convention on International Liability for Damage Caused by Space Objects of 1972 ("Liability Convention"), pointing out the benefits and effectiveness of the procedures. This Note will also explore the problems with the Liability Convention, and will suggest modifications to improve the ADR procedures set forth therein. By drawing on the ADR procedures from the Liability Convention as an example, this Note will suggest that the use of ADR procedures to resolve most outer space conflicts would be most desirable. Although ADR procedures currently exist …

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 8 (2006-07), Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Language, Morals, And Conceptual Frameworks In Dispute Resolution: Establishing, Employing, And Managing The Logos, Michael T. Wawrzycki

Cardozo Journal of Conflict Resolution

Any lawyer knows that words and language are important. A single word can derail a painstakingly written contract; the characterization of a would-be killer as a victim framed by racist police officers, rather than a jealous husband, can change the outcome of a case. Yet like many maxims, this important lesson is often forgotten when one is not confronted with the direct principles of words and language. Moreover, even most lawyers do not fully understand how to appropriately utilize the language tools that can change outcomes: myopically focusing on specific issues or characterizations rather than the overall conceptual frames.

Mediating Cases Involving Domestic Violence: Solution Or Setback?, Aimee Davis

Cardozo Journal of Conflict Resolution

This Note will first explore the psychological and social aspects of domestic violence. It will then examine the appropriateness of mediation for such cases, exploring viewpoints on the topic. Lastly, the Note will propose a standard to guide cases involving domestic violence. Although the victim should always have the final word on whether to mediate, a judge, psychologist, and mediator should collaborate and make a united recommendation as to how they suggest the victim should proceed. This will allow the victim to make a thoughtful and individualized assessment of her situation.

Moving From Mandatory: Making Adr Voluntary In New York Commercial Division Cases, Ari Davis

Cardozo Journal of Conflict Resolution

Due to its success during the last thirteen years, New York's Commercial Division in the state's Supreme Court has become the model for other states and countries seeking to establish a commercial division for their court systems. Before 1993, New York's state court system had its dockets clogged with commercial cases. Judges who heard commercial litigation cases often did not have the expertise or resources to handle them well or give them proper attention. As a result, New York businesses turned to Delaware's Chancery Court, federal courts, and private dispute resolution to resolve their disputes and avoid the New York …

The Road Less Traveled: Using Adr To Help Reform Firsttime Juvenile Offenders, Maggie Gertz

Cardozo Journal of Conflict Resolution

Section I of this Note details the history of the juvenile justice system, making specific reference to the various developments in juvenile justice policy, concluding with a discussion of the conflicts involved in juvenile offending. Section II examines ADR techniques that have been used in the juvenile justice field, with some success, as an alternative to further prosecution, incarceration or other punishment, highlighting Victim-Offender Mediation and Family Group Conferencing. In Section III, I analyze why ADR techniques are an ideal solution to the ills of the current system, and how these methods meet many of the goals of the traditional …

An Unfair Advantage: Comparing The International Court Of Justice To A Form Of Adr And Why It Was Inappropriate For The Court To Issue An Advisory Opinion In The Case Of Israel's Separation Fence, Mimi Trenk

Cardozo Journal of Conflict Resolution

This Note will begin with a concise background of the ArabIsraeli conflict. It will then explain the three arguments presented to the Court as to why it should have declined to exercise jurisdiction and the Court's response. It will explore the similarities of non-binding arbitration, as a form of alternative dispute resolution, and the Advisory Opinion. It will then examine whether, in the interests of justice, it was appropriate for the Court to issue the opinion, even though it is considered to be non-binding. This Note will examine the Israeli Supreme Court as the proper forum to enforce the rights …

Origin, Scope, And Irrevocability Of The Manifest Disregard Of The Law Doctrine: Second Circuit Views, Christian Turner, Joshua Ratner

Scholarly Works

After arbitration has occurred, parties may seek judicial enforcement of the arbitral award, converting the private determination into an enforceable judgment. Parties that did not prevail in the arbitration may, at the same time, seek to have the arbitral award vacated. This article concerns the doctrine that permits courts to vacate an arbitral award when the arbitrators “manifestly disregarded” the law, focusing on recent developments in the Second Circuit. Despite the exceedingly deferential scope of this doctrine, the Second Circuit has actually vacated a handful of arbitrations on grounds of manifest disregard, and the doctrine is routinely raised by litigants. …

Barriers To Progress At The Negotiation Table: Internal Conflicts Among Israelis And Among Palestinians, Robert H. Mnookin, Ehud Eiran, Sreemati Mitter

Nevada Law Journal

No abstract provided.

Creating Positive Facts On The Ground: A Viable Palestinian State Overview, Byron Bland, Lee Ross, Walid Salem

Nevada Law Journal

This paper makes a series of inter-related points. (1) The main features of a Palestinian-Israeli agreement for a "two-state" solution-if such an agreement is to be achieved-have become very clear. (2) The long-term success of such an agreement in meeting the needs of the two state will depend on the viability of the Palestinian state that is created, which in turn will depend on three features-contiguity of Palestinian territories, permeability of the border with Israel, and normal human security for its citizens. (3) The current political climate does not allow the creation of such a state through standard bilateral negotiations. …

Exploring The Link Between Domestic Conflicts And Negotiation Failure In The Middle East, Russell Korobkin

Nevada Law Journal

No abstract provided.

The Day After Tomorrow: What Happens Once A Middle East Peace Treaty Is Signed?, Andrea Kupfer Schneider

Nevada Law Journal

No abstract provided.

Public Access To Information In Civil Litigation Vs. Litigant's Demand For Privacy: Is The Vanishing Trial An Avoidable Consequence, Dennis J. Drasco

Journal of Dispute Resolution

Recently, the legal and academic communities have been studying the phenomenon of the "vanishing trial." The phenomenon is an observation of the fact that the American court system is experiencing a trend of shrinking trial dockets. At least one scholar has partially attributed the decline in trials to the value placed upon settlement rather than adjudication within our justice system. Those competing values have spawned a debate regarding the secrecy and confidentiality characteristic of settlements versus public access to information in civil litigation. Jurisdictions that have addressed the issue have noted the complexities involved in regard to the factors to …

Parties To International Commercial Arbitration Agreements Beware: Bankruptcy Trumps Supreme Court Precedent Favoring Arbitration Of International Disputes, Lindsay Biesterfeld

Journal of Dispute Resolution

Phillips v. Congelton (In re White Mountain Mining Co.), presents a heightened version of the conflict between the general policy favoring enforcement of arbitration agreements and the policy favoring resolution of bankruptcy-related claims in the bankruptcy court proceedings as the case involves a dispute over the enforcement of an international agreement to arbitrate a claim that is a "core" bankruptcy proceeding. In Phillips, the Fourth Circuit analyzed the underlying purposes of both the bankruptcy code and the federal arbitration statutes, and resolved the conflicting purposes of the two by giving greater deference to the policy favoring resolution of bankruptcy-related claims …

A Modest Proposal To Streamline Fair Use Determinations, David Nimmer

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Demand For A Jury Trial And The Selection Of Cases For Trial, Joni Hersch

Vanderbilt Law School Faculty Publications

This paper uses a unique data set to examine how parties in civil litigation choose whether to demand a jury trial or to waive this right and whether trial forum influences the probability of trial versus settlement. Plaintiffs are more likely to demand trial by jury when juries are relativety more favorable to plaintiffs in similar cases and jury trials are relatively less costly than bench trials. Cases in which jury trials are demanded are 5.5 percentage points more ikely to settle without a trial than cases in which jury trials are waived. This differential settlement rate by potential trial …

Designer Trials, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article considers the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing, without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party with the greatest pre-dispute bargaining power.

Such a …

How To Deal With Multi-Party Nominations Of Arbitrators In International Commercial Arbitration - A Comparative Study Of Appointment Procedures With Emphasis On U.S.-European Commerce Between Private Entities, Marie-Beatrix Tupy

LLM Theses and Essays

The nomination procedure for the Arbitral Tribunal in commercial arbitration is one of the crucial points in the arbitral procedure. Parties have to have in mind the provisions of the New York Convention regarding the setting aside of an award in case of a failure during the nomination procedure of the tribunal. Besides from the famous Dutco case on multi-party arbitrations and their nomination procedures have received highest interest within the international arbitral world. As the thesis will comparatively show, all major arbitral institutions have updated their Rules, countries have even rendered new legislation with respect to the nomination procedure …

The Effect Of Forum Selection Clauses On District Courts’ Authority To Compel Arbitration, Thomas V. Burch, John W. Hinchey

Scholarly Works

This is a short piece written for the AAA's Dispute Resolution Journal on two competing provisions in Section 4 of the FAA. One provision tells district courts to compel arbitration in accordance with the parties' agreement, including any forum selection clause. The other says that the court can compel arbitration only within its own territory. This, of course, creates a problem when the forum selection clause calls for arbitration in another jurisdiction. This short article addresses the conflict, showing how courts tend to rule on the issue (as of 2006).

Investor-State Dispute Settlement Between Developed Countries, William S. Dodge

Vanderbilt Journal of Transnational Law

Free trade agreements between developed countries now frequently contain provisions on investor protection, but the resolution of disputes remains problematic. Chapter 11 of the North American Free Trade Agreement (NAFTA) allows investors to bring direct claims against a host state before an international tribunal without exhausting domestic remedies. This has resulted in a number of claims against the United States by Canadian investors and against Canada by U.S.investors. Chapter 11 of the Australia-United States Free Trade Agreement (AUSFTA) does not permit direct claims, relying instead on a state-to-state dispute resolution mechanism.

This Article reviews the evolution of investment-dispute resolution from …

Summary Of Koller V. State, 122 Nev. Adv. Op. 20, Amy S. Scarborough

Nevada Supreme Court Summaries

Appeal from a writ of prohibition granted by the Third Judicial District Court, State of Nevada.

Your Pace Or Mine: Culture, Time And Negotiation, Ian Macduff

Research Collection Yong Pung How School Of Law

This article explores the impact that different perceptions of time may have on cross-cultural negotiations. Beyond obvious issues of punctuality and timekeeping, differences may occur in the value placed on the uses of time and the priorities given to past, present, or future orientations. The role of time in negotiations involves two key dimensions: differing perceptions and values of time, and the management of time. Both dimensions, the author suggests, need to be on the negotiation table.

Interview With Michael Leathes, Nadja Alexander

Research Collection Yong Pung How School Of Law

Alexander: Can you describe your professional role and how it relates to international mediation?Leathes: I have been an in-house counsel for most of my 36-year career, including general counsel of Pfizer International and of International Distillers & Vintners and general manager of BAT’s intellectual propertycompany. In all these roles I have been responsible for litigation portfolios internationally—in total, thousands of cases. Before I figured out a better way, I’m certain that I must have been responsible for about as many losses as wins. Then, in the late 80s, I discovered mediation…A: And what happened?L: Together with the teams of people …