Dispute Resolution and Arbitration Commons^™

Superstition-Based Injustice In Africa And The United States: The Use Of Provocation As A Defense For Killing Witches And Homosexuals, Jennifer Dumin

ExpressO

This Article examines two different instances where strong cultural and religious beliefs suggest that an individual is justified in taking another’s life. Focusing primarily on South Africa and the United States, it argues that the rationale used to defend those who kill suspected witches and those who kill suspected homosexuals is the same – merely because a criminal holds a belief that the victim is evil, the criminal is somehow entitled to a lesser punishment. In the United States, those who readily recognize the absurdity of the witchcraft defense may have some difficulty in recognizing the same level of absurdity …

Train Our Jurors, Jonathan Koehler

Faculty Working Papers

Lay jurors are often legally and logically unprepared for trial. In response, it is recommended that jurors receive training in how to make better legal decisions. This chapter suggests that jurors should receive comprehensive training in critical legal doctrines and in how to reason with legal evidence. Jurors who cannot be trained to achieve minimal levels of competence (in the law or in basic reasoning) should be excused from jury service. Suggestions are given as to how policy makers and researchers who are interested in jury reform may wish to proceed.

Balancing The Scales Of Confidential Justice: Civil Mediation Privileges In The Criminal Arena - Indispensable, Impracticable, Or Merely Unconstitutional, Shawn P. Davisson

McGeorge Law Review

No abstract provided.

Selecting Mediators And Representing Clients In Cross-Cultural Disputes, Harold Abramson

Cardozo Journal of Conflict Resolution

Even an adept negotiator can be baffled by cultural differences. When a negotiation reaches an impasse because of an unfamiliar cultural interest or a miscommunication between the parties due to different styles of communicating, negotiating, or decisionmaking, the negotiator might find it helpful to enlist assistance from a culturally-trained and culturally-appropriate mediator. This Article considers how such a third party can help you, as a negotiator, bridge cultural differences. It considers when to seek aid from a mediator, what the credentials of the mediator ought to be, and the impact of the mediator's approach on the way you represent your …

Venting Of Vipassana? Mindfulness Mediation's Potential For Reducing Anger's Role In Mediation, Don Ellinghausen Jr.

Cardozo Journal of Conflict Resolution

American culture is suffused and infatuated with anger. Politicians strive to placate the "Angry White Male," whose antagonisms also find expression in road rage, overheated talk radio, violent video games, and players-fans skirmishes at professional sporting events. American media churns out alarmingly vivid images of violence, and the ominous tendency for teenagers, in particular, to act out these lurid fantasies of "righteous wrath" dramatizes the nexus between this potentially toxic "consumption of cultural items" and anger. Vietnamese expatriate monk Thich Nhat Hanh observes that Americans "cannot speak about anger, and how to handle our anger, without paying attention to all …

The Hague Convention On Choice Of Court Agreements: The United States Joins The Judgment Enforcement Band, Matthew H. Adler, Michele Crimaldi Zarychta

Northwestern Journal of International Law & Business

In 2005, the United States signed a treaty that, if ratified, would be the United States' first-ever international agreement on judgment enforcement. The treaty provides that (a) where two commercial parties elect to resolve disputes between them in a particular forum, and (b) a judgment issues from that forum, then (c) all member states must enforce the judgment. It is a document driven by party autonomy; absent a choice of court agreement (in U.S. parlance, a choice of forum clause), the treaty has no meaning or applicability. The treaty's signing was the end of a rigorous journey. The United States …

Modernizing Security In Rents: The New Uniform Assignment Of Rents Act, R. Wilson Freyermuth

Faculty Publications

This article explains the provisions of the UARA and encourages its prompt adoption in states that presently lack comprehensive statutes governing security interests in rents.

The Role Of Medicare In Medical Malpractice Reform, William M. Sage

Journal of Health Care Law and Policy

No abstract provided.

Privatizing Our Public Civil Justice System, Trevor C. W. Farrow

Articles & Book Chapters

No abstract provided.

Securities Mediation: Dispute Resolution For The Individual Investor, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Part I of this article will provide a brief history of ADR in the securities industry (primarily arbitration), and then will describe the emergence of mediation as an alternative to arbitration. Part II will explore the state and federal statutory regulations that arguably govern the securities mediation process, and their impact on procedural and substantive justice. In particular, this section will review the applicability to and impact on securities mediation of the Securities Exchange Act of 1934 (1934 Act), the Federal Arbitration Act (FAA), and state mediation statutes, including the Uniform Mediation Act. In this section, I will argue that …

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).

Rule-Based Dispute Resolution In International Trade Law, Rachel Brewster

Faculty Scholarship

Why does the United States ever prefer to settle disputes under a system of rules rather than a system of negotiations? Powerful states are advantaged by negotiation-based approaches to settling disagreements because they have the resources to resolve individual disputes on favorable terms. By contrast, rule-based dispute resolution advantages weak states as a means to hold powerful states to the terms of their agreements. Then why did the United States want a rule-based system to settle international disputes in the WTO? To answer this question, we have to understand domestic politics as well as international politics. International constraints, particularly international …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 7, Iss. 2

Cardozo Journal of Conflict Resolution

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.

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.

The Democratic Legitimacy Of Government-Related Dispute Resolution, Richard C. Reuben

Faculty Publications

The elective branches get most of the attention when we think about democracy. But it's important to remember that one of the things that a democratic government provides is a number of structures by which disputes may be resolved peacefully. Indeed, voting itself is one way of resolving conflict at a societal level. In the United States, courts historically have been the starting point for the resolution of individual, and sometimes social, disputes. Courts would seem to exude a great deal of democratic legitimacy, but why, and under what conditions? And what about other methods of dispute resolution: How do …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 8, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Self-Determination In International Mediation: Some Preliminary Reflections, Jacqueline Nolan-Haley

Cardozo Journal of Conflict Resolution

Few concepts have generated as much discussion in the postwar international legal system as that of "self-determination." Scholars debate the proper identity of the "selves" endowed with this right, its boundaries and its normative relevance. When the focus turns to mediation, the discussion becomes murky because the concept of self-determination has both procedural and substantive components and is noticeably different in the private and public sectors.

What Private Mediators Can Learn From The Peace-Builders, Kenneth Fox

Cardozo Journal of Conflict Resolution

The purpose of this article is to examine "mediation" and facilitated intervention from the perspective of the peace and conflict studies field. My hope is to provoke deeper thinking and broader consideration of how we, as professionals, can be more informed and intentional interveners in the service of constructive conflict response.

Land Conflict Management Under A Tree Cropping System: The Case Of Theobroma Cacao In Southwestern Nigeria, E. O. Idowu

Cardozo Journal of Conflict Resolution

General observation and systematic research have consistently indicated that a sizeable portion of farmlands within the cacao growing communities of southwestern Nigeria is tenant-operated. This article will focus primarily on a specific study area within Southwestern Nigeria. Within the study area, the cultivation of cacao, mainly for export, is of primary importance to the farmers. Economic and social activities revolve around the crop with annual festivals and ceremonies held during the periods immediately after the annual sale of the crop. Until 1985, the study area produced about 40% of total Theobroma cacao (cacao) output for southwestern Nigeria. This share has …

Strategies For Implementing And Enforcing Peace Agreements: Lessons Learned, Mark L. Schneider

Cardozo Journal of Conflict Resolution

In the aftermath of the Cold War, there was a general belief that the demise of the major ideological drivers of conflict between East and West would bring about a major reduction in armed conflict. Then, all were stunned by the appearance of seemingly endless ethnic, religious and resource-driven civil conflicts in the 1990s, particularly the horrors of genocide in Rwanda, Srbrenica and Kosovo and the recurring and devastating conflicts in Central and West Africa. In this first decade of the 21st century, conflicts raged in the Congo and Northern Uganda, and massive atrocities have been documented in Darfur. We …

Transformed, Not Transcended: The Role Of Extrajudicial Dispute Resolution In Antebellum Kentucky And New Jersey, Carli N. Conklin

Faculty Publications

The purpose of this paper is to explore the applicability of that conclusion to two states not studied by Horwitz: Kentucky and New Jersey. The study of Kentucky, a state that was largely agricultural in the antebellum period, will provide a case study for the argument that the destruction of arbitration in antebellum America was mainly due to a merchant-lawyer alliance.

Introduction To Vanishing Trial Symposium, John M. Lande

Faculty Publications

This symposium shows that "vanishing trial" phenomena touch an extremely broad range of issues including transformations of society, courts, dispute resolution procedures, and even the nature of knowledge. These phenomena relate to decisions by litigants in particular cases, court systems, national policy, and international relations. This subject is too large and complex for any symposium to analyze fully, especially at this early stage of analysis. This symposium makes an important contribution to this study, with theories and evidence about the existence, nature, and extent of reductions in trials and similar proceedings. It elaborates a range of theories about possible causes …

Confidentiality In Arbitration: Beyond The Myth, Richard C. Reuben

Faculty Publications

Many people assume that arbitration is private and confidential. But is that assumption accurate? This article is the first to explore that question in the important context of whether arbitration communications can be discovered and admitted into evidence in other legal proceedings - a question that is just beginning to show up in the cases. It first surveys the federal and state statutory and case law, finding that arbitration communications in fact are generally discoverable and admissible. It then considers the normative desirability of discovering and admitting arbitration communications evidence, concluding that the free discovery and admissibility of arbitration communications …

Untangling The Privacy Paradox In Arbitration, Amy J. Schmitz

Faculty Publications

Arbitration is private but not secret. This truism regarding arbitration seems contradictory and nonsensical. However, common understandings of privacy in arbitration often lull individuals into assuming personal information revealed in arbitration may not become public. They assume privacy and confidentiality are synonymous. The reality is that arbitration is private but not necessarily confidential, or secret. This is the privacy paradox: it defies common conceptions of arbitration's secrecy, but is nonetheless true. This paradox is problematic because it leads to shortsighted contracting and simplistic assumptions about arbitral justice. Moreover, it may foster injustice when repeat players unduly benefit from unpublished awards …

Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong

Faculty Publications

Britain's Lord Denning once said that “as a moth is drawn to the light, so is a litigant drawn to the United States.” Certainly, as a pro-arbitration state and a signatory to various international conventions concerning the enforcement of foreign arbitral awards, the United States seems a natural place to bring an action to enforce an arbitral award against a foreign state or state agency. However, suing a sovereign has not traditionally been a simple task in the United States or elsewhere. Most nations grant foreign states the presumption of immunity, thus denying that their domestic courts have jurisdiction to …

Technology Mediated Dispute Resolution (Tmdr): A New Paradigm For Adr, David Allen Larson

Faculty Scholarship

Technology is changing the way that children are communicating (particularly elementary and pre-school aged children), and these changes have significant implications for alternative dispute resolution processes and practices. Although ADR practitioners and theorists are not ignoring technology, we have focused almost exclusively on the question of how we can use technology to enhance our existing practices. We are not paying sufficient attention to the fact that young children are communicating differently than we communicate. Insufficient energy is being dedicated to the question of how those differences in communication inevitably influence the way that those children resolve disputes.

The article analyzes …

Technology Mediated Dispute Resolution (Tmdr): Opportunities And Dangers, David Allen Larson

Faculty Scholarship

Technology Mediated Dispute Resolution (TMDR) presents opportunities and dangers that we cannot yet fully envision. Technologies are available or imminent, such as tele-immersion, that will dramatically change the ways we think about dispute resolution in a virtual environment. Whether or not one finds the idea of TMDR appealing, a generation of teens and preteens is integrating technology so deeply into their daily lives that they not only will expect, but will demand, that those technologies be used in a dispute resolution proceeding. Because girls communicate differently than boys when using technology, it will be interesting to learn if women prove …

Improving The Construction And Litigation Resolution Process: The 2005 Amendments To The Washington Condominium Act Are A Win-Win For Homeowners And Developers, Mark F. O'Donnell, David E. Chawes

Seattle University Law Review

On August 1, 2005, significant amendments to the Washington Condominium Act (WCA) became effective. These amendments were intended to substantially reduce water infiltration in multiunit residential buildings and to simplify the condominium construction dispute resolution process. The heart of the amendments is the implementation of alternative dispute resolution (ADR) procedures, as well as fee-shiftingprovisions which require the non-prevailing party to pay the attorney fees and costs of the prevailing party. A decade of lawsuits brought under the WCA by condominium owners associations against builders and developers, and in turn by builders against subcontractors, alleging defects in the ability of the …

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.