Dispute Resolution and Arbitration Commons^™

Measures To Encourage And Reward Post-Dispute Agreements To Arbitrate Employment Discrimination Claims, Michael Z. Green

Nevada Law Journal

No abstract provided.

Process Purity And Innovation: A Response To Professors Stempel, Cole, And Drahozal, Richard C. Reuben

Nevada Law Journal

No abstract provided.

The Minimal Role Of Federalism And State Law In Arbitration, Edward Brunet

Nevada Law Journal

No abstract provided.

The Arrival Of The "Have-Nots" In International Arbitration, Catherine A. Rogers

Nevada Law Journal

No abstract provided.

Federal Common Law And Arbitral Power, Alan Scott Rau

Nevada Law Journal

No abstract provided.

The Arbitration Penumbra: Arbitration Law And The Rapidly Changing Landscape Of Dispute Resolution, Thomas J. Stipanowich

Nevada Law Journal

No abstract provided.

Preserving The Federal Arbitration Act By Reigning In Judicial Expansion And Mandatory Use, Maureen A. Weston

Nevada Law Journal

No abstract provided.

Re Air Canada And Acpa (Thain), Innis Christie

Innis Christie Collection

The Grievor alleged that the Employer breached the Collective Agreement when it dismissed him after a criminal conviction. The parties requested a "bottom-line decision, without reasons".

This is a consent award. The Grievor is reinstated to employment effective immediately with a Leave of Absence status. The suspension, which occurred before the discharge, is rescinded. While on Leave of Absence the Grievor will not accrue pay or other compensation, but will retain his position on the seniority list. There will be a one year trial period. During this time a number of conditions must be addressed by the Grievor. Jurisdiction is …

Summary Of Caballero V. Dist. Ct., 123 Nev. Adv. Op. No. 34, Jerald Van Rhyn

Nevada Supreme Court Summaries

Petitioner Caballero didn’t speak English and wanted an interpreter for his small claims proceedings. The justice court denied his request on the ground that he wasn’t disabled under NRS 50.050.2 The Supreme Court held that the justice court had an inherent power to allow a volunteer interpreter or appoint one in the alternative if justice demands it. Further, the Supreme Court held that the justice court had an express power of appointment under JCRCP 43(f).3 The Supreme Court therefore issued a write of mandamus ordering the district court’s order vacated and remanding the issue to justice court for consideration.

Re Canada Post Corp And Cupw (Paris), Innis Christie

Innis Christie Collection

This is a supplementary award. The parties could not agree on the interpretation of a consent award issued the day before this grievance. The issue being the length of time the Grievor was to remain free of illegal drug use. The Union said the 24 months mentioned in the award; the Employer said indefinitely. The counsel for the Employer also suggested that the Arbitrator did not have jurisdiction to decide the matter.

Re Canada Post Corp And Cupw (Paris), Innis Christie

Innis Christie Collection

The Grievor had previously been reinstated to her position, with certain conditions. This grievance was submitted by the Union after the Grievor was again discharged for a positive drug test. The parties agreed to a consent award.

This is a consent award. A "last chance" reinstatement is ordered for the Grievor with numerous conditions, which include a treatment program. Jurisdiction is retained regarding any further alleged breach, but not to modify penalty.

Summary Of Marcuse V. Del Webb Communities, 123 Nev. Adv. Op. No. 30, Jeremy K. Cooper

Nevada Supreme Court Summaries

Appeal of a district court’s dismissal of a construction defect class action. Also, appeal from a district court’s denial of appellants’ motion to consolidate their claim and their motion for a separate trial within a class action (first action) and appeal from a district court’s order granting respondent’s motion to dismiss appellant’s pursuit of a second action independent from the class action under the doctrines of res judicata and collateral estoppel (second action). The Nevada Supreme Court affirmed the district court’s dismissal of the class action based on the settlement and reversed the district court’s order granting respondent’s motion to …

Summary Of Nelson V. Heer, 123 Nev. Adv. Op. 26, Shauna Welsh

Nevada Supreme Court Summaries

Review of district court’s order denying a motion for judgment as a matter of law based on the statutory interpretation of N.R.S. Chapter 113, which governs the sale of real property.

Several Initiatives On Media And Conflict Under Way, Richard C. Reuben

Faculty Publications

Both in Arizona and in other jurisdictions, both in longstanding and newly implemented programs, both currently and more than a decade ago, court-connected arbitration does not appear to reduce, but also does not substantially improve, the effectiveness and efficiency of dispute resolution. It does, however, seem to increase litigants' access to a hearing. How aspects of program structure could enhance arbitration's performance warrants further study.

Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz

Faculty Publications

This Article is part of my larger project exploring what I call "contracting culture," which borrows from legal realism and relational contract theory by considering contextual factors such as negotiators' relations, understandings, and values. As part of this project, I am pursuing various threads, including empirical studies of how contracting realities impact arbitration. In this Article, however, I focus on how these realities in business to consumer contracts combine with the Federal Arbitration Act and formulaic contract law to foster dangerous deference to form arbitration provisions. The Article then invites procedural reforms and offers suggestions for regulations aimed to temper …

Beyond Let Them Eat Cake: An Argument For The Armendariz Method Of Cost Allocation In Mandatory Employment And Consumer Arbitration, Dan O'Hearn

Journal of Dispute Resolution

Jane Doe is a twenty-two year old young woman who recently has been experiencing problems at work. About two years ago, Jane took a job at a local fast food establishment, Bubba's, which is a subsidiary of a larger corporation. The job has provided barely enough income for Jane to support herself and her two year old daughter while she has been earning an associate teaching degree at the local junior college. Jane planned to continue working at Bubba's while finishing her degree, but the recent behavior of her supervisor has made her question whether she will be able to …

Sacrificing Settlement Agreements In The Name Of Mediation Confidentiality: The California Supreme Court's Narrow Holding Has Harsh Consequence, Laura J. Bettenhausen

Journal of Dispute Resolution

Confidentiality is regarded as one of the primary benefits of mediation. For parties who wish to avoid the public eye, mediation is often preferable to court. However, when parties reach some form of a settlement agreement during mediation, and subsequently disagree as to the terms of that agreement, the parties may find themselves in court. In court, the issue of whether the settlement agreement is admissible arises. In Fair v. Bakhtiari, the California Supreme Court addressed the question of whether an arbitration provision listed in a settlement agreement renders the agreement admissible under the California Evidence Code. The court emphasized …

Arbitrating Employment Law Disputes, William L. Corbett

Montana Law Review

Arbitrating Employment Law Disputes

From Darfur To Sinai To Kashmir: Ethno-Religious Conflicts And Legalization, Sandeep Gopalan

Buffalo Law Review

No abstract provided.

The Evolution And Utilization Of The Gatt/Wto Dispute Settlement Mechanism, Pao-Li Chang

Research Collection School Of Economics

This paper provides a theoretical framework of dispute settlement to explain the surge in blocking incidence of GATT panel reports during the 1980s and the variations in withdrawn incidence versus total disputes across different decades of the GATT regime. The study first suggests the role of the degree of legal controversy over a panel ruling in determining countries' incentives to block (appeal) a panel report under the GATT (WTO) regime. The study then analyzes the effects of political power on countries' incentives to use, and their interactions in using, the dispute settlement mechanism, when two-sided asymmetric information exists regarding panel …

Returning To The Circle: The Reemergence Of Traditional Dispute Resolution In Native American Communities, Jessica Metoui

Journal of Dispute Resolution

An examination of Native American cultural definitions of justice illustrates the cultural relevance of traditional dispute resolution processes. Because these alternative processes focus largely on community inclusion and the importance of party healing after a crime, concepts central to Native American worldview, traditional dispute resolution is superior to the mainstream adversarial court system for handling many criminal matters in the Native American context. The successes of traditional dispute resolution processes in Native American communities are also evidence of the potential cross cultural applications of such processes within the mainstream criminal justice system

Community Lawyering In The Juvenile Cellblock: Creative Uses Of Legal Problems Solving To Reconcile Competing Narratives On Prosecutorial Abuse, Juvenile Criminality, And Public Safety, David Dominguez

Journal of Dispute Resolution

The power imbalance in juvenile legal proceedings is so lopsided that children and families are routinely overpowered and intimidated by administratively convenient processes and outcomes. I fully understand (and at times envy) the zealous legal advocate who champions his young client's cause and "makes the system pay." But I have found over my years of Community Lawyering that zealous advocacy can become so critical of institutional error that it bums problem solving relationships and destroys the chance to negotiate for mutual gain and structural reform. Zealous advocacy can win at the detention hearing and force the juvenile justice system to …

Mediator As Cook: Mediation Metaphors At The Movies, The, Jennifer L. Schulz

Journal of Dispute Resolution

In this article I will explore the vitality of the metaphor of the mediator as cook by tracing it through other food and conflict resolution related films. In so doing, I hope to achieve two things: first, to continue to insist that non-adversarial processes like mediation be included in the study of Law & Film, and second, to show that the metaphor suggested for mediators based on one film, resonates in other films and suggests new insights about mediator style and practice. Through a Law & Film analysis of two films, Soul Food and Mostly Martha, I will argue that …

Mediation, Improvisations, And All That Jazz, John W. Cooley

Journal of Dispute Resolution

In the present article, we will be exploring the subject of improvisation generally from the perspective of mediation and jazz as performance arts; the roles of the jazz musician, the mediator, and the mediation advocate as creative problem solvers; the elements of jazz in mediation; and the collective conversation in jazz as compared with the collective conversation in mediation.

Application Of Due Process To Arbitration Awards Of Punitive Damages - Where Is The State Action, The, Charles Smith

Journal of Dispute Resolution

This article will analyze why the position of the courts-no state action-is correct. Specifically, this article will take the position that the policy of finality traditionally found in arbitration law must trump any constitutional inquiries. This is because arbitration is ultimately based on the parties' agreement, which inevitably recites that the arbitrator's decision shall be final and, in any event, this finality is generally implied.

State Legislative Update, J. Matthew Belz, Caleb Lewis, Remington Smith, Peter Wilder

Journal of Dispute Resolution

Collaborative law is a relatively new dispute resolution method by which parties mutually agree to negotiate a settlement in good faith. Either party may terminate the collaborative process at will and present the matter to a court for a decision. Upon termination of the collaborative process, both attorneys must withdraw and cease all participation in the case. The continuing saturation of court dockets and the expense of litigation require the promotion of viable, alternative means to resolve disputes. Collaborative law as authorized under Texas Senate Bill 942 is an especially attractive process because it demands cooperation between the disputing parties …

Low-Value &(And) Predictably Small: When Should Class-Arbitration Waivers Be Invalidated As Unconscionable, Christopher B. Mckinney

Journal of Dispute Resolution

In Muhammad v. County Bank of Rehoboth Beach, the New Jersey Supreme Court chose the interests of consumers over liberally construed Federal Arbitration Act (FAA) policies in deciding that a no class-arbitration provision contained within a payday loan contract was unconscionable. The court used state law contract principles to invalidate the clause, finding that the clause violated several state public policies. Particularly important to the court was the fact that individual claims for damages would be nominal, and thus individual vindication of statutory rights would prove too costly to be practical. In making this distinction, the court suggested a preference …

Arbitration By Accident: The Consequence Of Unintentionally Meeting The Clear And Unmistakable Evidence Standard, Mark A. Mulchek

Journal of Dispute Resolution

A fundamental principle of arbitration law is that parties may only be compelled to submit an issue to arbitration if they agreed to do so. The question of when an arbitrator, instead of a district court, can decide the arbitrability of an issue has been taken up by the courts in recent years. In First Options of Chicago, Inc. v. Kaplan, the Supreme Court stated that an arbitrator may decide questions of arbitrability only when the parties have "clearly and unmistakably" agreed to defer such questions to an arbitrator. Since First Options, the lower courts have attempted to define when …

Only The Rich Can Afford A Remedy: The Unconscionable Enforcement Of Arbitration Provisions Against The Indigent, Ryan M. Turley

Journal of Dispute Resolution

In Overstreet v. Contigroup Cos., Inc.,2 the Fifth Circuit Court of Appeals held that neither economic disadvantage nor undisclosed arbitration fees may form the basis for striking down an arbitration provision on the grounds of unconscionability.3 While the Supreme Court and the Federal Arbitration Act (FAA) expressly authorize the use of the doctrine of unconscionability to invalidate arbitration provisions, courts are sharply divided on its proper application. 4 The difficult juxtaposition of the Supreme Court's interpretation of the FAA as a "liberal federal policy favoring arbitration" and the traditional application of unconscionability as a means of policing unfair contracts has …

Mediation Und Rugby 'Downunder', Nadja Alexander

Research Collection Yong Pung How School Of Law

No abstract provided.