Dispute Resolution and Arbitration Commons^™

Introduction: Dreaming About Arbitration Reform, Jean R. Sternlight

Scholarly Works

This is an introduction to articles submitted as part of the Saltman Center for Dispute Resolution’s Symposium, Rethinking the Federal Arbitration Act: An Examination of Whether and How the Statute Should be Amended. The panelist’s remarks are divided into five categories: whether and when arbitration agreements ought to be enforceable, how responsibilities and legal issues should be divided among arbitrators and courts, terms under which courts should be able to vacate arbitral awards, multi-jurisdictional issues brought into play by the Federal Arbitration Act and its interpretation, and the FAA through a wide-angle lens rather than focusing on particular narrow aspects …

In Defense Of Mandatory Arbitration (If Imposed On The Company), Jean R. Sternlight

Scholarly Works

Having spent much of her academic life battling companies' mandatory imposition of binding arbitration on consumers and employees, the author now switches gears. This Article contemplates whether mandatory binding arbitration is acceptable if imposed by the government on companies (governmental mandatory arbitration) rather than by companies on their employees and consumers (private mandatory arbitration). Specifically, the Article considers the possibility of statutes that would provide little guys (consumers and employees) with an opportunity to take their disputes to binding arbitration rather than litigation. If the little guys chose arbitration over litigation, post-dispute, companies would have to agree to such arbitration, …

Principles For Policymaking About Collaborative Law And Other Adr Processes, John M. Lande

Faculty Publications

This Article articulates a set of principles for policymaking about alternative dispute resolution (ADR) to promote values of process pluralism, choice in dispute resolution processes, and sound decision making. It argues that policymakers should use a dispute system design (DSD) framework in analyzing policy options. DSD involves systematically managing a series of disputes rather than handling individual disputes on an ad hoc basis. It generally includes assessing the needs of disputants and other stakeholders, planning to address those needs, providing necessary training and education for disputants and dispute resolution professionals, implementing the system, evaluating it, and making periodic modifications as …

How And Why Labor Arbitrators Decide Discipline And Discharge Cases. An Empirical Examination., Theodore J. St. Antoine

Other Publications

Often without attribution, the arbitration literature includes statements about how “most,” “many” or “some” arbitrators decide discipline and discharge cases. Elkouri & Elkouri is probably the best known source of such generalizations. Although statements like these are often consistent with conventional wisdom, empirical support is seldom provided. To illustrate, consider the first of three examples taken from the National Academy of Arbitrators’ The Common Law of the Workplace: Because industrial discipline is corrective rather than punitive, most arbitrators require use of progressive discipline, even when the collective agreement or employment contract is silent on the subject. Based on personal …

Working Towards Restorative Justice In Ethiopia: Integrating Traditional Conflict Resolution Systems With The Formal Legal System, Julie Macfarlane

Cardozo Journal of Conflict Resolution

This paper considers how the multiple realities of dispute resolution in any environment affect the work of conflict resolution practitioners. Conflict resolution practitioners are almost always invited in by representatives of the formal legal system, and their work generally focuses on managing - and perhaps reforming - this system. In practice, they cannot ignore the existence of parallel informal systems of conflict resolution that may undermine or distract from the formal state system. These may include structured alternatives to law, such as religious tribunals or community mediation programs. There may be other, more informal but equally significant family or community-based …

Restorative Justice In Post-Disaster Situations: Untapped Potential, Maria R. Volpe

Cardozo Journal of Conflict Resolution

Post-disaster situations can provide a wide range of opportunities for restorative justice. Depending on the nature of the disaster, man-made or natural, the potential of using restorative justice practices to assist in rescue, recovery, and rebuilding efforts can be significant. The challenges, however, can be even more significant.

My interest in examining restorative justice efforts in post-disaster situations grew out of my earlier research on dispute resolution responses to 9/11. In the aftermath of the 9/11 terrorist attacks, countless questions arose about the role and relevance of dispute resolvers. 9/11 also triggered a wide range of hate crimes, which seemed …

Justice Or Forgiveness? In Search Of A Solution, Olga Botcharova

Cardozo Journal of Conflict Resolution

The presentation will be based on the model I created during my work with the leaders of ethnic/religious communities (Orthodox, Catholic and Muslim) engaged in hostilities in the former Yugoslavia, during times of war and post-war. This work is summarized in two diagrams, Seven Steps Towards Revenge (inner circle) and Seven Steps Towards Reconciliation. In its entirety, the work represents a journey from revenge, understood as a natural response to an inflicted hurt, towards reconciliation, with forgiveness and justice playing crucial roles in the process. This model is in Appendix 1, together with a brief description of the stages …

Restorative Justice And The Sexual Abuse Scandal In The Catholic Church, Janine Geske

Cardozo Journal of Conflict Resolution

Thank you for the opportunity to speak to you today. I want to begin by telling you how I got into the restorative justice field. I served as a judge for almost twenty years, and nine of those years were in criminal court. My last assignment before going to the Wisconsin Supreme Court was to preside full-time over sexual assault and homicide cases. During the time I spent as a trial court judge, I regularly taught classes at prisons in Wisconsin. About ten years ago, I became involved in a restorative justice program in the Green Bay Correctional Institution, a …

The Internal Revenue Service And Alternative Dispute Resolution: Moving From Infancy To Legitimacy, David Parsly

Cardozo Journal of Conflict Resolution

As Alternative Dispute Resolution (ADR) attains greater acceptance in the American legal landscape, government sponsored ADR programs will grow in size, number, and significance. The Internal Revenue Service (IRS) provides a primary example of a governmental body experimenting and obtaining modestly successful results through the use of various dispute resolution mechanisms along the ADR spectrum. The purpose of this Note is to examine the types of ADR processes being implemented by the IRS, focusing specifically on how the IRS has pioneered each program by combining the unique exigencies of sound tax administration with the principles of negotiation, mediation, and arbitration. …

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 9 (2007-08), Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 9, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Of All The Things I'Ve Lost, I Miss My Marbles The Most! An Alternative Approach To The Epic Problem Of The Elgin Marbles, Melineh S. Ounanian

Cardozo Journal of Conflict Resolution

The Elgin Marbles have been the subject of debate for nearly 200 years. Competing claims from Greece, where the marbles originated, and England, where the marbles are now held, have continued unabated despite attempts by the international community to quell the dispute. This Note will explore the various types of dispute resolution as they can be applied to the Elgin Marble controversy, sift through various reconciliation ideas and make a recommendation as to which of the methods is likely to be most effective. In furtherance of that goal, the Note will examine past attempts at dispute resolution in the fields …

Apology In The Context Of Wrongful Conviction: Why The System Should Say It's Sorry, Abigail Penzell

Cardozo Journal of Conflict Resolution

The first section of this Note will discuss apology as a psychological tool to heal victims, offenders, and the community. The second section will examine the use of apology in analogous contexts to that of wrongful conviction. The third section will explore the potential or perceived disadvantages of offering an apology in the criminal context. The fourth section will detail the desire for apology among the wrongfully convicted as well as give examples of situations - like Mr. Fuller's - in which an apology has been tendered and has helped victims reintegrate into society. Finally, I will conclude that the …

Does International Arbitration Need A Mandatory Rules Method?, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

The role of mandatory rules in international arbitration remains a persistent source of debate. The basic problem is a straightforward one: contractual arbitration arises as a matter of the parties’ consent, but the resolution of contractual disputes can implicate mandatory rules of law that are not waivable and are typically designed to protect broader public rights. The literature has often presented the issue in terms of conflict between the authority of the state and the party-derived authority of the arbitrator. Asserting an independent public duty to protect national mandatory laws as well as the enforceability of arbitral awards, some writers …

News Reporting And Its Impact On Conflict, Richard C. Reuben

Faculty Publications

This symposium seeks to bridge this important gap in our social understanding of conflict by stimulating a sustained discussion among scholars about its contours. The task is important and timely, worthy of effort on both the media and the conflict sides of the equation.

Mediation At The End Of Life: Getting Beyond The Limits Of The Talking Cure, Thaddeus Mason Pope, Ellen A. Waldman

Faculty Scholarship

Mediation has been touted as the magic band-aid to solve end-of-life conflicts. When families and health care providers clash at the end of life, bioethicists and conflict theorists alike have seized upon mediation as the perfect procedural balm. Dissonant values, tragic choices, and roiling grief and loss would be confronted, managed, and soothed during the emotional alchemy of the mediation process. But what is happening in a significant subset of end-of-life disputes is not mediation as we traditionally understand it. Mediation's allure stems from its promise to excavate underlying needs and interests, identify common ground, and push disputants toward more …

Confirming Arbitration Awards: Taking The Mystery Out Of A Summary Proceeding, Susan Wiens, Roger S. Haydock

William Mitchell Law Review

No abstract provided.

What Process Is Due In The Adjudication Of Erisa Claims?, 40 J. Marshall L. Rev. 811 (2007), Mark D. Debofsky

UIC Law Review

No abstract provided.

Scholarship Advice For New Law Professors In The Electronic Age, Nancy Levit

Faculty Works

The article suggests that the legal academy is in a time of transition between promotion and tenure rules based on traditional methods of publication and contemporary electronic and interdisciplinary possibilities for publication. While a number of articles contain recommendations for newer law professors about the process of scholarship, most of those articles are between five and twenty years old and do not address publishing in the age of blogs, expedited reviews, electronic submissions, and open-access databases.

The substance and length of what law professors write, the formats in which they do so, and the fora in which they publish are …

When Lawyers Move Their Lips: Attorney Truthfulness In Mediation And A Modest Proposal, Donald C. Peters

UF Law Faculty Publications

This article examines whether the punch line that you can tell when lawyers are lying by confirming that their lips are moving applies to their conduct when negotiating in mediations. General surveys of lawyer honesty suggest that this perception probably does apply to the way lawyers negotiate in mediations. Only 20% of people surveyed in a 1993 American Bar Association poll described the legal profession as honest, and that number fell to 14% in a 1998 Gallup poll. However, research demonstrates a connection between honest negotiating and perceived effectiveness. A study of 5,000 Denver and Phoenix lawyers found that honest, …

Privatizing Antidiscrimination Law With Arbitration: The Title Vii Proof Problem, Stephen A. Plass

Montana Law Review

Privatizing Antidiscrimination Law

The Secret To Success: An Examination Of New York State Mediation Related Litigation, Andrew N. Weisberg

Fordham Urban Law Journal

This Comment examines the difficulties in using alternative dispute resolution, specifically mediation, to settle disputes between parties. While mediation is meant to lighten the courts' caseload, it occasionally results in post-settlement issues concerning the mediated agreement, leaving the court to determine whether the agreement should be enforced. This Comment examines such enforcement issues, specifically how often enforcement issues arise and the typical grounds on which parties rely to vacate or modify mediated agreements. It discusses the research conducted on New York State cases decided between 1/1/2004 and 10/31/2006 and describes research conducted by Hamline University School of Law Professors James …

How Can Adr Alleviate Long-Standing Social Problems?, Kenneth R. Feinberg

Fordham Urban Law Journal

Keynote Address at Inaugual Fordham Dispute Resolution Society Symposium: "ADR as a Tool for Achieving Social Justice."

Achieving Better Outcomes For Litigants In The New York State Courts, Chief Administative Judge Jonathan Lippman

Fordham Urban Law Journal

Remarks at the Inaguargal Fordham Dispute Reolution Society Symposium "ADR as a Tool for Achieving Social Justice."

Whither Community Justice?: The Rise Of Court-Connected Mediation In The United States, Colleen M. Hanycz

Articles & Book Chapters

This paper traces the development of mediation in the United States along two distinct paths: the court-connected paradigm and the community justice paradigm. In the former, as a child of the labour arbitration movement, the link between mediation and the law appears to have been forged at conception. In the latter, we see two distinct branches: the 'Community Mediation Center' model and the neighborhood Justice Center' model. Of those illustrations of community justice, only the first has been strongly connected to the law and legal institutions, while the second strand has retained its institutional independence. These neighbourhood justice centres appear …

The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In The Contracts Of Publicly Held Companies, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Informed parties bargaining for their mutual advantage will tend to agree to provisions that maximize the social surplus. Such bargaining includes provisions regarding the resolution of disputes that might arise under the contract. Thus, if a form of alternative dispute resolution, such as binding arbitration, provides greater social benefits than litigation, the dynamics of the process should tend to induce the parties to include a clause submitting future disputes to arbitration. This Article studies the actual contracting practices of large, sophisticated actors with respect to arbitration clauses. We examined over 2800 contracts, filed with the Securities Exchange Commission (SEC) in …

Judicial Review And The Limits Of Arbitral Authority: Lessons From The Law Of Contract, Paul F. Kirgis

Faculty Law Review Articles

The Supreme Court simply stopped talking about the limits of arbitration as a mechanism for the adjudication of legal rights. Once the Court decided that any and all claims could be arbitrated, it funneled everything into the framework of the FAA, with its contractarian approach to arbitration. While it never expressly declared that arbitration of discrimination claims or consumer fraud claims fit within a contractarian model, as a practical matter, those claims were governed by the same rules that governed traditionally contractarian matters such as labor and commercial disputes. Most notably from my perspective, they all received the same extremely …

Mcmahon Turns Twenty: The Regulation Of Fairness In Securities Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

I believe that current regulation of securities arbitration does ensure that it is fair to investors. Part II of this Commentary explores the various sources of law, including the FAA, which could require fairness in securities arbitration. It revisits the first critical assumption of the McMahon Court, that the FAA's provisions for post-award judicial review protect investors from an unfair arbitration process. This Part demonstrates that, while the FAA does require “fundamental fairness” in arbitration, courts loosely construe that requirement and find most arbitration proceedings meet it easily. Part IIII of this Commentary explores SEC oversight of securities arbitration, particularly …

Eleven Big Ideas About Conflict: A Superficial Guide For The Thoughtful Journalist, Leonard L. Riskin

UF Law Faculty Publications

When Professor Richard Reuben asked me to speak about the most basic ideas in conflict resolution to a group that included renowned journalists and journalism scholars, I balked. Surely these notions would seem too obvious, mundane, or superficial. But Richard - a practicing journalist for many years as well as an expert on conflict - assured me that the audience would find most of them surprising and useful. I hope he is correct.

I plan to present eleven ideas from the dispute resolution literature that I find particularly helpful in my work and life and which I think any journalist …

Tearing Down The Great Wall: The New Generation Investment Treaties Of The People's Republic Of China, Stephan W. Schill

Cardozo Journal of International and Comparative Law

The People's Republic of China (PRC or China) has emerged as the world's premier destination of foreign investment in the developing world and is continuously strengthening its position as a source of outward foreign investment, notably in Asia and Africa. In this context, the PRC has concluded over 110 bilateral investment treaties (BITs) that grant protection against expropriation and establish other standards of treatment for foreign investors in China and Chinese investors abroad. While the PRC was originally hesitant regarding international investment protection, the country started, beginning in the late 1990s, entering into new generation BITs that break with her …