Open Access. Powered by Scholars. Published by Universities.®

Dispute Resolution and Arbitration Commons™

Open Access. Powered by Scholars. Published by Universities.®

2012

Discipline
Institution
Keyword
Publication
Publication Type

Articles 181 - 210 of 484

Full-Text Articles in Dispute Resolution and Arbitration

The September 11th Victim Compensation Fund: The Answer To Victim Relief?, Joe Ward Mar 2012

The September 11th Victim Compensation Fund: The Answer To Victim Relief?, Joe Ward

Pepperdine Dispute Resolution Law Journal

The events of September 11, 2001 shook America to its core. The world was forever changed as the horrific tragedy unfolded on live television. Families were destroyed as loved ones were severely injured or killed, leaving spouses and children in need of aid. In response, the United States government established the September 11th Victims' Compensation Fund in an effort to provide the necessary reparations to victims of the terrorist attacks. This article will analyze the September 11th Victims' Compensation Fund (hereafter "Fund") as a way of compensating victims while preserving the financial stability of the United States economy. This Fund …

Go to article

Investors Win: Howsam V. Dean Witter Reynolds, Inc. Makes Entering Arbitration Quicker, Easier, And Less Expensive, Peter J. Smith Iv Mar 2012

Investors Win: Howsam V. Dean Witter Reynolds, Inc. Makes Entering Arbitration Quicker, Easier, And Less Expensive, Peter J. Smith Iv

Pepperdine Dispute Resolution Law Journal

In securities arbitration disputes, a split in the federal circuits arose over whether an arbitrator or a court should determine if the National Association of Securities Dealers Code of Arbitration Procedure ("NASD Code") Section 10304 barred the bringing of a claim that was more than six years old. While some courts have held the issue was a procedural one for the arbitrator to decide, others have held that it was a substantive issue for the courts to decide. Obviously, the resolution of the time eligibility rule by the court delays the resolution of the dispute diminishes the benefits and duplicates …

Go to article

Negotiating On Un-Holy Land: The Road From Israel To Palestine , Randolph "Michael" Nacol Ii Mar 2012

Negotiating On Un-Holy Land: The Road From Israel To Palestine , Randolph "Michael" Nacol Ii

Pepperdine Dispute Resolution Law Journal

The Middle East is no stranger to conflict. In particular, the land currently called "Israel" has been through the hands of many dynasties and has long been the center of religious development and identity. Despite turmoil and failed attempts at achieving peace, there is no excuse for complacency in resolving this intolerable Israeli-Palestinian divide. The conflict is arguably the longest, most complicated, deep-seated, and vicious battle in modern history. This article explores various fundamentals of negotiation and settlement with the hopes of spurring ideas, and furthering an interest in how this great conflict might finally be resolved. Recognizing most topics …

Go to article

Preparations For A Storm: A Proposal For Managing The Litigation Stemming From September 11th, 2001 , A. David E. Balahadia Mar 2012

Preparations For A Storm: A Proposal For Managing The Litigation Stemming From September 11th, 2001 , A. David E. Balahadia

Pepperdine Dispute Resolution Law Journal

After the attacks, the United States government immediately began to address the exorbitant number of problems and issues that resulted. One of the first issues the government addressed was victim compensation. The creation of the September 11th Victim Compensation Fund by virtue of the Air Transportation Safety and System Stabilization Act was the first step towards victim compensation. The VCF would help relatives and families of those killed in the attacks. However, the VCF has several limitations that narrow the scope of those eligible for compensation. The limitations of the VCF are indirectly creating a new two-pronged problem: the first …

Go to article

"Expanded" Judicial Review Revisited: Kyocera Overturns Lapine, Eric Van Ginkel Mar 2012

"Expanded" Judicial Review Revisited: Kyocera Overturns Lapine, Eric Van Ginkel

Pepperdine Dispute Resolution Law Journal

Just when you thought you could validly add a clause to your client's arbitration agreement providing that the losing party may take an appeal from the award to the district court having jurisdiction over the parties, think again. What was the law of the Ninth Circuit since December 1997, when a three-judge panel of the Ninth Circuit Court of Appeals decided LaPine Technology Corporation v. Kyocera Corporation ("LaPine I"), has just been reversed by the Ninth Circuit Court of Appeals sitting en banc. In its decision, on a rehearing of what the court refers to as " …

Go to article

Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law , Roger Alford Mar 2012

Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law , Roger Alford

Pepperdine Dispute Resolution Law Journal

In this Article, Professor Alford discusses a report by the Law Revision Commission recommending that certain changes be made to arbitration law in California. It begins by outlining the history of arbitration in California, from its 1961 adoption of the Uniform Arbitration Act, to the 1988 enactment of an international arbitration statute modeled on the UNCITRAL Model Law, to the 1989 enactment of Section 1281.8, which allowed courts to grants provisions remedies to parties involved in arbitration proceedings. It also provides a general overview of the purpose and practice of arbitration law. Then, it provides a chapter-by-chapter analysis the Law …

Go to article

The Evolution Of Investment-State Dispute Resolution In Nafta And Cafta: Wild West To World Order, Jeffrey T. Cook Mar 2012

The Evolution Of Investment-State Dispute Resolution In Nafta And Cafta: Wild West To World Order, Jeffrey T. Cook

Pepperdine Law Review

No abstract provided.

Go to article

Don't Get Bit: Addressing Icsid's Inconsistent Application Of Most-Favored-Nation Clauses To Dispute Resolution Provisions, Gabriel Egli Mar 2012

Don't Get Bit: Addressing Icsid's Inconsistent Application Of Most-Favored-Nation Clauses To Dispute Resolution Provisions, Gabriel Egli

Pepperdine Law Review

No abstract provided.

Go to article

The Third Party Non-Signatory's Ability To Compel International Commercial Arbitration: Doing Justice Without Destroying Consent , James M. Hosking Mar 2012

The Third Party Non-Signatory's Ability To Compel International Commercial Arbitration: Doing Justice Without Destroying Consent , James M. Hosking

Pepperdine Dispute Resolution Law Journal

This article analyzes the legal theories and other mechanisms employed in international commercial arbitration to achieve a workable compromise among the above-cited propositions. In so doing it touches on larger, more complex questions like the position of third parties in contract law, the jurisdictional foundations of arbitration, and the role of choice-of-law issues in determining the validity of the arbitration agreement. However important these broader concerns may be, they should not undermine the importance of the issue in its own right.

Go to article

Collaborative Family Law - The Big Picture, Kim David Kurodason, Donna Beck Weaver, David Kuroda Mar 2012

Collaborative Family Law - The Big Picture, Kim David Kurodason, Donna Beck Weaver, David Kuroda

Pepperdine Dispute Resolution Law Journal

Collaborative family law is an innovative intervention designed to bring legal, psychological and financial expertise to assist couples who face divorce. It's non-adversarial and problem-solving setting facilitates the transition to a healthy, post-divorce life for the family. Not surprisingly, clients are very satisfied. How does this all work and should you consider collaborative family law in your practice? Following presentation was made on February 20, 2004 at the Association of Family and Conciliation Courts California Chapter Conference and provides an introduction to the fundamentals of collaborative family law, the fastest growing practice area in family law.

Go to article

Collaborative Lawyering: A Closer Look At An Emerging Practice, William H. Schwab Mar 2012

Collaborative Lawyering: A Closer Look At An Emerging Practice, William H. Schwab

Pepperdine Dispute Resolution Law Journal

A critical analysis of collaborative law (CL) is only now beginning, and should be based on actual, not hypothetical information about the practice and its impact on clients as courts, the bar, and the public begin to digest the idea of CL. This Article intends to present a more comprehensive picture of collaborative practice than is currently available, to better inform the ongoing conversation about what role CL will play in the legal system. Toward that end, the following sketches some basic questions about CL, and provides some preliminary answers. Part I recounts the origin of CL and introduces the …

Go to article

The Collaborative Law Process For Prenuptial Agreements, Donna Beck Weaver Mar 2012

The Collaborative Law Process For Prenuptial Agreements, Donna Beck Weaver

Pepperdine Dispute Resolution Law Journal

This article posits that the prevailing adversarial model for negotiating prenuptial agreements deters many from considering them, and limits the benefits that might otherwise be achieved for couples by prenuptial planning. This article posits that the collaborative law process offers an effective method for developing prenuptial agreements, one that is far better suited to the needs of persons who are about to marry than the traditional model. This article concludes that the standard of care for prenuptial agreements should mandate the use of the collaborative process for most cases.

Go to article

Collaborative Family Law, Pauline H. Tesler Mar 2012

Collaborative Family Law, Pauline H. Tesler

Pepperdine Dispute Resolution Law Journal

Collaborative Law appears to meet significant needs both among family law clients and among the lawyers who assist them through divorce. As will be discussed more fully below, clients appear to want the advantages of a contained, settlement-oriented, creative, private, respectful process without sacrificing the benefits of having a committed legal advocate at their sides. For that reason Collaborative Law appeals to clients who may hesitate to commit to a dispute resolution process facilitated solely by a neutral mediator. And, while many family lawyers suffer considerable professional angst as a consequence of their awareness that family law courts are neither …

Go to article

Colloborative Law Introduction, Stu Webb Mar 2012

Colloborative Law Introduction, Stu Webb

Pepperdine Dispute Resolution Law Journal

Introduction to Collaborative Law Symposium.

Go to article

The Mediated Settlement: Is It Always Just About The Money? Rarely!, Steven L. Schwartz Mar 2012

The Mediated Settlement: Is It Always Just About The Money? Rarely!, Steven L. Schwartz

Pepperdine Dispute Resolution Law Journal

Since our legal system of dispute resolution tends to remedy wrongs only by payment of money, most settlements will eventually involve negotiations over the amount to be paid and received. Yet, in both the theory and actual practice of mediation that has lead this writer to conclude that it is never just about the money. Effective lawyer representation of clients in mediation requires a different kind of investigation and preparation than lawyers may be accustomed to conducting. Similarly, an effective mediator must be adept in identifying the clues that reveal the "below the water line" interests at work and which …

Go to article

The Narrative Approach To Mediation, Toran Hansen Mar 2012

The Narrative Approach To Mediation, Toran Hansen

Pepperdine Dispute Resolution Law Journal

Narrative Mediation is an approach and methodology that can offer mediators an innovative way to handle conflict intervention. It is important to note that "it is not a model that can be ransacked for techniques without damaging the intent and process it requires.. .because the foundational view is vastly different [from other approaches]." It may, however, particularly appeal to mediators with a postmodernist theoretical bent who prefer to work with the accounts of parties in conflict rather than attempting to get at "the truth" because they recognize that any truth brings with it implicit bias. The explicit role of mediator …

Go to article

Facillitative Mediation: The Classic Approach Retains Its Appeal, Carole J. Brown Mar 2012

Facillitative Mediation: The Classic Approach Retains Its Appeal, Carole J. Brown

Pepperdine Dispute Resolution Law Journal

In this additional step in the civil litigation process in Ontario, the mediator is assigned a primarily "facilitative" role. This paper advances the position that mandatory mediation in Ontario was not designed as a process where a third party would offer an evaluation of the legal merits of a dispute. Instead, the goals of mandatory mediation are best achieved, and the parties know what to expect, when a mediator takes on the role of a neutral third party who facilitates communication, and takes an interest-based approach to problem-solving. This paper further posits that the mandatory mediation process, which requires the …

Go to article

Defining The Ethical Limits Of Acceptable Deception In Mediation, John W. Cooley Mar 2012

Defining The Ethical Limits Of Acceptable Deception In Mediation, John W. Cooley

Pepperdine Dispute Resolution Law Journal

In a recent law review article I authored for the Loyola University of Chicago Law Review, Mediation Magic: Its Use and Abuse, I addressed the perplexing problem of the current lack of ethical guidance available to mediators and mediation advocates on the question of permissible uses of deception in mediation generally and in caucused mediation, in particular. This article is a sequel to that publication, offering the reader a condensation of some of the ideas contained in that article and some additional thoughts on criteria that might be appropriate to consider when designing a truthfulness standard for mediation.

Go to article

The Neutral As Lie Detector: You Can't Judge Participants By Their Demeanor, Bruce Fraser Mar 2012

The Neutral As Lie Detector: You Can't Judge Participants By Their Demeanor, Bruce Fraser

Pepperdine Dispute Resolution Law Journal

As mediators we are often faced with sharply conflicting stories. One of the advantages of mediation is that we sometimes can solve the underlying problem without determining who did what, to whom, and when. Indeed, experience has shown that mediation is not a good process for finding the truth because it has none of the tools (such as testimony under oath) used for this purpose in the judicial system. Still, mediators often spend a good deal of time and effort trying to determine who is telling the truth.

Go to article

The Truth About Deception In Mediation, Jeffrey Krivis Mar 2012

The Truth About Deception In Mediation, Jeffrey Krivis

Pepperdine Dispute Resolution Law Journal

Now that the court system has institutionalized the use of mediation in virtually all civil proceedings, trial lawyers are paying closer attention to their negotiation skills. While those skills involve less structured behavior than presenting a case to a jury, they nonetheless involve one common strategy that even the most skilled practitioners refuse to acknowledge: deception.

Go to article

Journeys Into The Heart Of Conflict, Kenneth Cloke Mar 2012

Journeys Into The Heart Of Conflict, Kenneth Cloke

Pepperdine Dispute Resolution Law Journal

This is an excerpt from a forthcoming book by Mr. Cloke. Sweet, indeed, are the uses of adversity, yet this sweetness is often concealed in the ugly, venomous aspects of conflict. The "precious jewels" our conflicts contain are the deeper truths they are able to teach us. What prevents us from recognizing these deeper truths and learning from our conflicts? What drives us along ugly, venomous paths of aggression and self-destruction rather than dialogue and constructive engagement? What keeps us locked in impasse? And how can a deeper understanding of the origin of our conflicts help us locate these precious …

Go to article

Getting To The Heart Of The Matter - Taking Risks That Honor Yourself And Your Work, Linda E. Meyer Mar 2012

Getting To The Heart Of The Matter - Taking Risks That Honor Yourself And Your Work, Linda E. Meyer

Pepperdine Dispute Resolution Law Journal

I am here to talk to you about what got you into this profession in the first place. And that was a feeling. A feeling that is very hard to articulate, except maybe to yourself. It was a sense that there was something here for you that was new, that was different, that was amazing, and that you could actually be part of a process where things happened and changed. You could be respected. You could be honored. You could feel that you had actually done something that made a difference. I want to tell you that is why I …

Go to article

Mediating Multi-Party Disputes: Reflections On Leadership In Mediation, Elizabeth "Wendy" Trachte-Huber Mar 2012

Mediating Multi-Party Disputes: Reflections On Leadership In Mediation, Elizabeth "Wendy" Trachte-Huber

Pepperdine Dispute Resolution Law Journal

Leadership in mediating multi-party matters is imperative. In my work as Claims Administrator for one of the largest ever personal injury/bankruptcy settlements ($2.3 billion, net present value), I am charged with four primary areas of responsibility: (1) the efficient and fair evaluation of claims consistent with provisions of the Joint Plan of Reorganization; (2) the efficient delivery of payments to all approved claimants pursuant to the provisions of the Joint Plan; (3) the management and custody of the assets paid to the Settlement Facility; and finally (4) the faithful execution of the provisions of the Joint Plan in all respects. …

Go to article

"Adr" Comes Of Age: What Can We Expect In The Future?, Richard Chernick Mar 2012

"Adr" Comes Of Age: What Can We Expect In The Future?, Richard Chernick

Pepperdine Dispute Resolution Law Journal

Important developments in dispute resolution are reported in the legal and popular press every day. We have recently seen, for example, major developments in arbitration ethics, mediator confidentiality, standards for mandatory consumer predispute processes and expansion of court-annexed ADR programs. This is an opportune time to think about the future of ADR, because dispute resolution has survived its infancy and its sometimes awkward adolescence without any obvious body piercings, tattoos or felony convictions and is now thriving, energetic and poised for its most productive period.

Go to article

First The Context, Later The Challenge: Commercial Mediators Interface With The Volatile International Sector, William F. Lincoln Mar 2012

First The Context, Later The Challenge: Commercial Mediators Interface With The Volatile International Sector, William F. Lincoln

Pepperdine Dispute Resolution Law Journal

Unless we talk of international commerce, the two respective sectors in which you and I each work appear to be very separate arenas that lack any commonality. But, if we permit, a common bond indeed yearns to be acknowledged and cultivated: You and I have willingly accepted the honorable mantle as stewards of integrity, competency, and credibility of the mediation process and the profession itself. Mediation - a process which is neither pure nor scientific; a process complete with bastardizations such as mandatory mediation provisions as well as creative variations including partnering and med-arb models; a process which we regard …

Go to article

The Center Of The Center For Alternative Dispute Resolution, Wayne D. Brazil Mar 2012

The Center Of The Center For Alternative Dispute Resolution, Wayne D. Brazil

Pepperdine Dispute Resolution Law Journal

Hawaii was one of the first states to establish within its judiciary a Center for Alternative Dispute Resolution. The Center's mission is: to mediate major public policy disputes and to facilitate policy formulation dialogues, to design and help implement mediation and other ADR programs for state and local governmental agencies, to provide education about and training in mediation for the public and for employees of state and local government, and to oversee the extensive network of community mediation centers that provide grass-roots mediation services throughout the Islands. In November of 2005 the Center celebrated its 20th anniversary by sponsoring various …

Go to article

Moving Forward Together: The Lgbt Community And The Family Mediation Field , Mark J. Hanson Mar 2012

Moving Forward Together: The Lgbt Community And The Family Mediation Field , Mark J. Hanson

Pepperdine Dispute Resolution Law Journal

This is a time of great change for the Lesbian, Gay, Bisexual and Transgender ("LGBT") community. Members of the LGBT community have gained increased awareness and rights. The United States Supreme Court found state sodomy laws that ban same-sex sexual activity unconstitutional. Thirty-three states have enacted hate crime legislation that protects members of the LGBT community. Recently from the streets of San Francisco, to New Platz, New York and to Sandoval County, New Mexico, LGBT couples have received marriage licenses despite being prohibited by state law. Other states, such as Connecticut, Massachusetts and Vermont have enacted legislation giving LGBT couples …

Go to article

A Civil Matter For A Common Expert: How Should Parties And Tribunals Use Experts In International Commercial Arbitration?, Ruth Fenton Mar 2012

A Civil Matter For A Common Expert: How Should Parties And Tribunals Use Experts In International Commercial Arbitration?, Ruth Fenton

Pepperdine Dispute Resolution Law Journal

How should parties and tribunals use experts in international commercial arbitration? Are the common and civil law traditions blurred or blended, or should there be specific practices for international arbitration? To answer these questions, it is necessary to look at the common and civil law approaches to the use of experts in international commercial arbitration. This article will look at circumstances that may require an expert and arbitration laws and rules that assist parties and arbitrators in appointing an appropriate expert. The article highlights and discusses differences and similarities between civil and common law traditions and draws a conclusion as …

Go to article

The Impact On "The Vanishing Trial" If People Of Faith Were Faithful To Religious Principles Of Settling Disputes Without Litigation , Anthony R. Benedetto Mar 2012

The Impact On "The Vanishing Trial" If People Of Faith Were Faithful To Religious Principles Of Settling Disputes Without Litigation , Anthony R. Benedetto

Pepperdine Dispute Resolution Law Journal

Commentators have expressed concern about "the vanishing trial" with respect to the possible loss of precedent and the loss of opportunities for aggrieved persons to have their concerns resolved in the judicial arena. Ignoring the controversy surrounding whether the number of trials is actually decreasing significantly, this paper asks whether the number of trials would be significantly affected if all people of faith resolved their disputes within their religious communities, or at least outside of the secular court setting. The impact on secular case law of the disappearance of such disputes is then estimated. Finally, recommendations are presented for overcoming …

Go to article

The Confirmation Of Punitive Awards In Arbitration: Did Due Process Disappear?, Stuart M. Boyarsky Mar 2012

The Confirmation Of Punitive Awards In Arbitration: Did Due Process Disappear?, Stuart M. Boyarsky

Pepperdine Dispute Resolution Law Journal

Part I of this article provides a brief overview of the reasoning behind the limited judicial review of an arbitral award. Part II describes the state action doctrine and explains how several courts have used the doctrine in order to apply due process protection to proceedings involving private actors. In particular, this section discusses several significant decisions that involve the issue of whether a court's confirmation of an arbitrator's award of punitive damages creates state action and requires the application of constitutional protections such as due process. This Note concludes that due to a leading decision by the Eleventh Circuit, …

Go to article

First Prev Next Last