Dispute Resolution and Arbitration Commons^™

When Perception Changes Reality: An Empirical Study Of Investors' Views Of The Fairness Of Securities Arbitration, Jill I. Gross, Barbara Black

Journal of Dispute Resolution

Arbitration in securities industry-sponsored forums is the primary mechanism to resolve disputes between investors and their brokerage firms. Because it is mandatory, participants debate its fairness, and Congress has introduced legislation to ban pre-dispute arbitration clauses in customer agreements. Missing from the debate has been empirical research of perceptions of fairness by the participants, especially investors. To fill that gap, we mailed 25,000 surveys to participants in recent securities arbitrations involving customers to learn their views of the process. The article first details the survey's background, explains the importance of surveying perceptions of fairness, and describes our methodologies, procedures, and …

Elevator Company Goes Down: Mandatory Arbitration Provisions As Applied To Pending Civil Rights Claims In The Employment Context, Miranda Fleschert

Journal of Dispute Resolution

In Goldsmith v. Bagby Elevator Company, the Eleventh Circuit Court of Appeals carved a distinction in the employment context between mandatory predispute arbitration agreements and compulsory arbitration agreements as applied to pending claims of discrimination. In doing so, the court warns employers that any effort to terminate an employee's rights with respect to a pending Equal Employment Opportunity Commission ("EEOC") claim by instituting a mandatory arbitration provision will be seen as impermissibly retaliatory. Amid the backdrop of a case in which supervisors routinely called black employees "monkeys," "slaves," and "niggers," the court makes a well-meaning attempt at preserving employees' statutorily …

Philippine Community Mediation, Katarungang Pambarangay, Gill Marvel P. Tabucanon, James A. Wall Jr., Wan Yan

Journal of Dispute Resolution

First, we present a brief overview of the process, followed by a delineation of the history, purpose, operational structure, jurisdiction, venue, procedure, and time frame for this mediation approach. Finally, we report on interviews we conducted with mediators who have served on these panels. Their accounts reveal intriguing details as to how the mediation process unfolds and the benefits of this dispute resolution process. Our goals in this article are threefold: (1) to describe this grassroots mediation approach; (2) to expand our knowledge about mediation; and (3) to reflect on the advantages of this approach so as to improve mediation …

Expanding The Use Of Collaborative Law: Consideration Of Its Use In A Legal Aid Program For Resolving Family Law Disputes, Lawrence P. Mclellan

Journal of Dispute Resolution

From Perry Mason and Law & Order to Judge Judy, many American consumers believe that legal conflict is resolved by trial--exciting, antagonistic, adversarial fights between lawyers. Yet common experience and research demonstrate that most legal conflict is not resolved between gladiators in the courtroom.' Many consumers come to the legal process with this Hollywood portrayal as their only knowledge of the process. Those engaged in the legal process know that there are alternatives to the courtroom for resolving dispute. Finding alternatives to litigation is especially important for legal aid programs, as the increased time and expense of litigation reduces the …

Knowing And Voluntary Standard: Is The Sixth Circuit's Test Enough To Level The Playing Field In Mandatory Employment Arbitration, The, Christina Semmer

Journal of Dispute Resolution

Most courts require that for an individual to waive her Seventh Amendment right to trial by jury, she must knowingly and voluntarily waive that right. This heightened requirement for waiver exists because the United States Supreme Court has found that "[tlhe trial by jury is justly dear to the American people... and every encroachment upon it has been watched with great jealousy." Seemingly this standard should apply to mandatory employment arbitration agreements, as shifting the venue from the courts to the arbitral tribunal implicitly means waiving the right to trial by jury. However, because the Federal Arbitration Act ("FAA") requires …

Untimely Death Of Wrongful Death Claims: Ohio Removes Decedent-Employee Wrongful Death Claims From The Arbitral Forum, An, Christopher D. Vanderbeek

Journal of Dispute Resolution

When Bob dies, Bob's representative could file either action in order that his estate (in survival) or beneficiaries (in wrongful death) be compensated for losses stemming from his injuries or death. But in Peters v. Columbus Steel Castings Company, a more complex issue arose-what if Bob signed an agreement to arbitrate all of his claims against his employer? Would that bind Bob's representative to arbitrate an action in survival? In wrongful death? Both? The Ohio Supreme Court answered that Bob's representative would be compelled to arbitrate the survival claim, but not the wrongful death claim, as the latter is independent …

Brief Amicus Curiae Of The National Academy Of Arbitrators In Support Of Respondents, 14 Penn Plaza V. Pyett, No. 07-581 (U.S. June 27, 2008), James Oldham

U.S. Supreme Court Briefs

No abstract provided.

Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh

Faculty Scholarship

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …

Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh

UF Law Faculty Publications

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …

Enforcement Of Arbitral Awards In Nigeria: An Appraisal Of Emerging Trends, Foluke Olamiposi Omosuyi

Archived Theses and Dissertations

No abstract provided.

Mediation And The Art Of Regulation, Nadja Alexander

Research Collection Yong Pung How School Of Law

In a political climate filled with talk of how to best regulate mediation, it is surprising that so little regulatory theory has been brought into the discussion. The aim of this paper is to provide a conceptual framework for informed debate in relation to the regulation of mediation. The framework comprises two parts. First, four international regulatory trends in mediation are introduced: the market-contract, self-regulatory, formal framework and formal legislative approaches. Against this background the second part deals with the specific content of regulatory provisions on mediation. The resulting framework is called the Mediation Mix, which brings form and content …

Arbitration And Article Iii, Peter B. Rutledge

Vanderbilt Law Review

Arbitration implicates serious constitutional concerns that have not received adequate attention in case law or commentary. Recent litigation in the D.C. Circuit over the constitutionality of the North American Free Trade Agreement ("NAFTA") represents the most recent, high-profile example. A centerpiece of NAFTA and its implementing legislation is an arbitration mechanism that divests Article III courts of virtually all jurisdiction over countervailing duty and anti-dumping claims and invests that authority in panels of Associate Professor of Law, Columbus School of Law, Catholic University of America. Arbitration implicates serious constitutional concerns that have not received adequate attention in case law or …

Arbitration And Article Iii, Peter B. Rutledge

Scholarly Works

Does arbitration violate Article III? Despite the critical need for a coherent theory to answer this question, few commentators or courts have made serious attempts to provide one. For much of the country's history, federal courts conveniently could avoid this nettlesome question. Prior to the twentieth century, courts simply declined to enforce pre-dispute arbitration agreements as unenforceable attempts to appropriate their jurisdiction. From the early decades of the twentieth century (with the enactment of the Federal Arbitration Act (“FAA”) in 1925) through the 1960s, the non-arbitrability doctrine prevented arbitrators from resolving issues of federal statutory law. Notably, while both of …

Non-Signatories And The New York Convention, William W. Park

Faculty Scholarship

In the context of arbitrations subject to the New York Convention, the term ,non-signatory' might evoke several lines of inquiry. Must commitments to arbitrate be signed? What legal framework guides decision-making about who agreed to arbitrate? How should courts monitor an arbitrator's assertion of jurisdiction over someone who never signed an arbitration agreement?

The second of these matters - rules about who agreed to arbitrate - will retain our attention in this paper. While few commentators deny that arbitration rests on consent,¹ less unanimity exists about what exactly constitutes such consent when one side contests that it ever waived …

Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch

Cardozo Law Review

No abstract provided.

Challenges Facing Investment Disputes: Reconsidering Dispute Resolution In International Investment Agreements, Susan Franck, Karl P. Sauvant, Michael Chiswick-Patterson, Rainer Geiger, José E. Alvarez, M. Sornarajah, Patrick Juillard, Jeswald W. Salacuse, Giorgio Sacerdoti, Anna Joubin-Bret, Hugo Perezcano Díaz, Michael K. Tracton, Christoph Schreuer, Howard Mann, Katia Yannaca-Small, Barton Legum, Jan Paulsson, Asif H. Qureshi, Shandana Gulzar Khan, Christopher Brummer, Brian J. Rapier

Contributions to Books

This volume brings together significant contributions from leading voices in academia, the legal profession and government on the increasingly important topic of international investment and the legal system in which it operates. With the burgeoning size of international capital flows matched only by an explosion in international agreements intending to regulate the field, there is increasing potential for incoherence amongst and between treaties and arbitral decisions.

Appeals Mechanism in International Investment Disputes compiles, compares and contrasts the analysis and arguments of the leading scholars, practitioners and government officials on the future of the international investment law regime. Its special emphasis …

C-Drum News, V. 1, No. 2, Spring 2008

The C-DRUM News

No abstract provided.

Resolving Conflict In Non-Ideal, Complex Systems: Solutions For The Law-Science Breakdown In Environmental And Natural Resource Law, Barbara Cosens

Articles

In 2006, the U.S. Supreme Court decided a consolidated case concerning the scope of the U.S. Army Corps of Engineers' jurisdiction to require permits for dredge and fill of wetlands under section 404 of the Clean Water Act, issuing a plurality, two concurrences, and two dissents. Each opinion has a solid legal foundation, yet none truly makes sense if the science of the resource in question is considered. The opinions in Rapanos v. United States illuminate the struggle at the law-science interface. The problem is not due to either a failure in legal reasoning or a failure in scientific methodology …

Who Can Be Against Fairness? The Case Against The Arbitration Fairness Act, Peter B. Rutledge

Scholarly Works

In this brief essay, I hope to lay out the case against the Arbitration Fairness Act.3 Part I of this Article addresses the “findings” on which the act is premised. It explains how in several respects the current research on arbitration flatly contradicts the premises animating those findings (in other respects, the data is incomplete, so the “findings” at best are better described as “untested hypotheses” or “assumptions”). Part II of this Article explains why postdispute arbitration is not a viable alternative to our present system of enforceable predispute arbitration clauses.

An Appreciation Of Marc Galanter's Scholarship, John M. Lande

Faculty Publications

This brief essay highlights three of Marc Galanter's works to illustrate qualities that seem especially worth emulating. Galanter's classic article, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, focuses on how the legal system actually operates in daily life and challenges a conventional wisdom that simply providing have-nots with more lawyers would substantially reduce inequality. The article is particularly relevant to the dispute resolution field, focusing on the vast majority of legally-oriented behavior that occurs outside of court. It distinguishes truly private dispute resolution (such as self-help, withdrawal from relationships, and intra-group processes) from settlement …

Improving Asylum-Seeker Credibility Determinations: Introducing Appropriate Dispute Resolution Techniques Into The Process, Daniel Forman

Cardozo Journal of International and Comparative Law

The note argues that incorporating Alternative Dispute Resolution (ADR) techniques into asylum adjudications can enhance the fairness and accuracy of credibility determinations. It proposes a two-step process, including preliminary fact-finding and early neutral evaluation, to address challenges such as cultural differences, trauma, and adversarial dynamics.

Getting To "Let's Talk": Legal And Natural Destabilizations And The Future Of Regional Collaboration, Bradley C. Karkkainen

Nevada Law Journal

No abstract provided.

On Perfect Storms And Sacred Cows Of Collaboration, Comments On Bradley Karkkainen, Getting To "Let's Talk": Legal And Natural Destabilzations And The Future Of Regional Collaboration, Kirk Emerson

Nevada Law Journal

No abstract provided.

Getting To "Let's Talk": Comments On Collaborative Environmental Dispute Resolution Processes, Carrie Menkel-Meadow

Nevada Law Journal

No abstract provided.

Séances, Ciénegas, And Slop: Can Collaboration Save The Delta?, Bret C. Birdsong

Nevada Law Journal

No abstract provided.

Collaboration In Mexico: Renewed Hope For The Colorado River Delta, Francisco Zamora-Arroyo, Osvel Hinojosa-Huerta, Edith Santiago, Emily Brott, Peter Culp

Nevada Law Journal

No abstract provided.

Collaboration And The Colorado River Compact, Patricia Mulroy

Nevada Law Journal

No abstract provided.

Beyond Conjecture: Learning About Ecosystem Management From The Glen Canyon Dam Experiment, Alejandro E. Camacho

Nevada Law Journal

No abstract provided.

Collaborative Management Of The Glen Canyon Dam: The Elevation Of Social Engineering Over Law, Joseph M. Feller

Nevada Law Journal

No abstract provided.

Collaborative Solutions To Colorado River Water Shortages: The Basin States' Proposal And Beyond, Douglas L. Grant

Nevada Law Journal

No abstract provided.