Dispute Resolution and Arbitration Commons^™

Lessons From Teaching Students To Negotiate Like A Lawyer, John Lande

Cardozo Journal of Conflict Resolution

This article reports my observations from teaching those courses and offers suggestions for future efforts to improve legal education, particularly through negotiation and other dispute resolution courses. This article also describes experiments with other teaching techniques in my courses. My experience supports the benefits of the (1) focus on negotiation in a wide range of situations in addition to the final resolution of disputes and transactions ("final negotiation"); (2) addition of "ordinary legal negotiation" stage simulations in addition to traditional single-stage simulations. These approaches were critical in providing students with a more realistic understanding of negotiation.

Of course, one should …

Constitutional Conundrums In Arbitration, S. I. Strong

Cardozo Journal of Conflict Resolution

In the immortal words of Grease, some things "go together, like rama-lama-lama, ka-dinga-da-dinga-dong." Though everyone has their own list of favorite pairings, some sure-fire winners are hot dogs and baseball, Mom and apple pie, Justice Scalia and original intent.

Other combinations are not so easy to anticipate, at least until some far-reaching visionary has taken that all-important first step, leading the rest of the world to say "yes, of course, we see it now." Again, individual preferences vary, but some possible unions include surfing and kite flying (now an Olympic sport), bacon and chocolate (now available at an internet …

Get On The Plane: Why Understanding The Israeli-Palestinian Conflict Is Best Done By Traveling There, Andrea Kupfer Schneider, Katie Lonze

Cardozo Journal of Conflict Resolution

International travel seems necessary for understanding international conflict and yet, bringing entire classes of students to the locus of the conflict can be daunting. This essay uses one such example of a class trip to demonstrate the potential learning that occurs with international travel and why, particularly when studying international conflict, onsite learning is crucial.

The genesis of this trip comes from the favorite learning experiences in college: two different international trips taken by author Andrea Schneider ("Andrea"). The first was during her junior year in a seminar on Greek-Turkish relations. The class traveled to both Greece and Turkey, meeting …

The Impact Of Local Patent Rules On Rate And Timing Of Case Resolution Relative To Claim Construction: An Empirical Study Of The Past Decade, Pauline M. Pelletier

Journal of Business & Technology Law

No abstract provided.

Opting Out Of The Procedural Morass: A Solution To The Class Arbitration Problem, Emanwel Josef Turnbull

Student Articles and Papers

American class actions are internationally regarded as a procedural form to avoid and widely criticized in the United States. They have been narrowed and restricted by U.S. statutes and case law. Plaintiffs' lawyers in consumer class actions are portrayed as greedy and fraudulent, while businesses are increasingly acting to avoid class actions through mandatory pre-dispute arbitration clauses. Even class arbitration is criticized as leading to a “procedural morass.”

This Article proposes that parties and arbitral fora opt out of the American procedural morass (and the attendant long-running disputes about American class actions) by adopting an English procedural rule for aggregation. …

Lessons From Mediators' Stories, John M. Lande

Faculty Publications

This article is part of a symposium discussing the book, Stories Mediators Tell, edited by Eric Galton and Lela Love. The book consists of accounts of 31 actual mediations, followed by reflections of each mediator-author. Some of the chapters tell of extraordinary cases and others are more routine.

Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong

Faculty Publications

For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to …

American Exceptionalism In Consumer Arbitration, Amy J. Schmitz

Faculty Publications

“American exceptionalism” has been used to reference the United States’ outlier policies in various contexts, including its love for litigation. Despite Americans’ reverence for their “day in court,” their zest for contractual freedom and efficiency has prevailed to result in U.S. courts’ strict enforcement of arbitration provisions in both business-to-business (“B2B”) and business-to-consumer (“B2C”) contracts. This is exceptional because although most of the world joins the United States in generally enforcing B2B arbitration under the New York Convention, many other countries refuse or strictly limit arbitration enforcement in B2C relationships due to concerns regarding power imbalances and public enforcement of …

Providing Dispute Resolution Expertise To The Community, Rishi Batra

Faculty Articles

As schools and other public institutions struggle for funding, law schools and their students have new opportunities to fill unmet needs by providing consulting expertise in facilitation and dispute resolution. Such partnerships can provide valuable service for the institutions while giving students a chance to apply their skills to issues in nearby communities.

Managing Inner And Outer Conflict: Selves, Subpersonalities, And Internal Family Systems, Leonard L. Riskin

UF Law Faculty Publications

This article describes potential benefits of considering certain processes within an individual that take place in connection with external conflict as if they might be negotiations or other processes that are routinely used to address external disputes, such as mediation or adjudication. In order to think about internal processes in this way, it is necessary to employ a model of the mind that includes entities capable of engaging in such processes. The Internal Family Systems (IFS) model, developed by Richard C. Schwartz, works well for this purpose. The IFS model is grounded on the construct that the mind is composed …

Hidden Curriculum Of Legal Education: Toward A Holistic Model For Reform, The, David M. Moss

Journal of Dispute Resolution

The following section of this article directly addresses the notion of the hidden curriculum and why this construct is essential for legal educators to consider as they contemplate reforms. Core principles of curriculum theory will then be briefly discussed as a precursor to the subsequent section that addresses the notion of a transdisciplinary curriculum. A transdisciplinary perspective will offer a holistic lens for considering law school curriculum. Finally, such notions as curriculum mapping offer tangible solutions to addressing the challenge of preparing practice-ready graduates in the legal profession.

Training The Heads, Hands And Hearts Of Tomorrow's Lawyers: A Problem Solving Approach , Lisa A. Kloppenberg

Journal of Dispute Resolution

I hope this essay on preparing practice-ready graduates is a useful resource for those considering circular reform or for those in legal education undertaking assessment and strategic planning processes. I begin with four goals: (a) to offer a brief synopsis of the two major critiques of legal education which have influenced deeply recent curricular reforms by many law schools and the challenges facing law schools today; (b) to summarize recently published data from the ABA Curriculum Committee on trends in law school curricula, showing some significant areas of reform in legal education over the past decade, and offering some thoughts …

Labor-Relations Privilege: How Far Can We Tip The Scales To Hide The Truth, The, Joanna L. Byrne

Journal of Dispute Resolution

In order to understand the precise effect the Peterson holding will have on labor-relations law and privilege creation, it is important to first understand how privileges have been created in the past, both traditionally and divergently. Next, it is important to apply the historical context of privilege creation to understand the critical thinking that determines when and how a new privilege should apply. Further, it is important to compare and contrast labor-relations privileges with other privileges in order to create proper limits and application of the labor-relations privilege. Applying this analytical framework to the facts, holding, and reasoning of the …

You Can't Have Your Trust And Defeat It Too: Why Mandatory Arbitration Provisions In Trusts Are Enforceable, And Why State Courts Are Getting It Wrong, Rachel M. Hirshberg

Journal of Dispute Resolution

This note addresses a recent decision by the Texas State Court of Appeals concerning the enforceability of mandatory arbitration provisions found in testamentary instruments, and specifically, inter vivos trusts. After analyzing the legal background of arbitration, the use of contract principles to analyze both arbitration and trust agreements, and statutory enactments making trust arbitration provisions enforceable, this note will discuss the nuanced relationship between contract principles of construction, arbitration agreements, and trust instruments, and specifically the relationship between trust agreements and contracts. In analyzing these relationships, this note will also address the differences between the statute at issue in Rachal …

Read Between The Lines: Considering The Party Agreement When Determining Arbitrability In Bilateral Investment Treaties, Ryan Nichols

Journal of Dispute Resolution

This note will discuss the impact party autonomy and limited judicial review of arbitral awards have on the issue of arbitrability, concluding that parties should be held to their agreement despite strict judicial review limitations. It will also discuss the implications of BG Group for the manifest disregard of law doctrine. Furthermore, this note will also attempt to examine the future ramifications this decision may have on other courts and arbitration panels facing a similar issue. It will primarily focus on the role of party autonomy in arbitration and how such party interest analysis should and does supersede other legal …

Enforcement Of Icsid Awards In The People's Republic Of China, Julian G. Ku

Hofstra Law Faculty Scholarship

The People’s Republic of China is one of the most enthusiastic signatories of bilateral investment treaties that grant mandatory jurisdiction to the ICSID investment arbitration system. This essay considers the PRC’s domestic laws affecting the fulfillment of its ICSID Convention obligations to recognize and enforce ICSID awards. It notes that the PRC has failed to enact any specific legislation to comply with the ICSID Convention’s recognition and enforcement obligations, making its compliance with these obligations uncertain. It concludes that the only way that the PRC could claim to have fulfilled its treaty obligations is to declare that the ICSID Convention …

The Role Of The Ombuds In A Knowledge-Intensive Corporation: A Partner For Conflict Prevention And Mitigation, David P. Clark

Working Papers

No abstract provided.

Fostering Climate Change Education In The Central Great Plains: A Public Engagement Approach, Lisa M. Pytlikzillig, Timothy Steffensmeier, Amber Campbell Hibbs, Ben Champion, Eric Hunt, John A. Harrington, Jr., Jacqueline D. Spears, Natalie Umphlett, Tarik Abdel-Monem, Roger Bruning, Daniel Kahl

Lisa PytlikZillig Publications

Despite its increasing importance for sustainability, building widespread competency in the basic principles of climate literacy among the United States general public is a great challenge. This article describes the methods and results of a public engagement approach to planning climate change education in the Central Great Plains of the United States. Our approach incorporated contextual and lay expertise approaches to public engagement with a focus on supporting the self-determination of the specific stakeholder groups–rural producers, educators, and community members. An integration of results from the focus groups reveal that our approach was received positively and elicited a number of …

Community Mediation Of Parenting Disputes Between Estranged Parents, Madhawa Palihapitiya, Kaila Obstfeld Eisenkraft

Massachusetts Office of Public Collaboration Publications

Community mediation, characterized by free or low cost mediation services delivered primarily by volunteer mediators, aims to provide effective dispute resolution services to a broad spectrum of the population, particularly to underserved and low-income populations. The present study seeks to determine whether community mediation fulfills this goal with respect to divorce/separation-related parenting disputes while concomitantly testing the legitimacy of concerns about the quality of mediation services offered according to a community mediation model. Thus, the effectiveness of community mediation in resolving these disputes is measured through indicators reported by mediation participants, such as the population served, mediation results and party …

Foreward

Arbitration Law Review (2009 - Present)

No abstract provided.

Judicial Review Of Mediated Settlement Agreements: Improving Mediation With Consent, Jacqueline M. Nolan-Haley

Arbitration Law Review (2009 - Present)

No abstract provided.

Concluding Remarks, Thomas Carbonneau

Arbitration Law Review (2009 - Present)

No abstract provided.

Alternative Dispute Resolution And Social Media: How Mandatory Arbitration Clauses Impact Social Networking, Kelsey L. Swaim

Arbitration Law Review (2009 - Present)

No abstract provided.

Defusing Hydroelectric Brinkmanship: The Indus Waters Treaty's Alternative Dispute Resolution Provisions And Their Role In The Tenuous Peace Between India And Pakistan, Thomas E. Robins

Arbitration Law Review (2009 - Present)

No abstract provided.

Consumer Financial Services Arbitration: What Does The Future Hold After Concepcion?, Alan S. Kaplinsky, Mark J. Levin

Journal of Business & Technology Law

No abstract provided.

Jewish Law Courts In America: Lessons Offered To Sharia Courts By The Beth Din Of America Precedent, Michael J. Broyde

Faculty Articles

Although the BDA is now a fifty-year-old organization, its true metamorphosis as an arbitration panel began only in 1996 when it gained autonomy from the Rabbinical Council of America. In the fifteen years since, an independent board of directors has worked with the BDA’s rabbinic leaders to craft an arbitration process that secular courts would feel comfortable upholding. While the BDA’s transformation required some level of compromise within Jewish law itself, the adaptations necessary for judicial acceptance proved to be procedural. Broadly, this meant conforming to the tenets of the Federal Arbitration Act (FAA). More specifically, the BDA’s viability came …

Family Mediation After Hendershott: The Case For Uniform Domestic Violence Screening And Opt-In Provision In Montana, Eduardo R.C. Capulong

Faculty Law Review Articles

In Hendershott v. Westphal, the Montana Supreme Court held that § 40-4-301(2) of the Montana Code Annotated absolutely bars mediation in family law cases involving domestic violence. Yet neither the Court nor the statute prescribes a method by which to screen for such cases. In this article, the author argues that a uniform, statewide screening method is the only way by which to implement this policy. The author also argues that Hendershott should be interpreted narrowly and Montana should allow parties to opt in to mediation and other forms of alternative dispute resolution. The Court's understanding of domestic violence …

Executive Board

Arbitration Law Review (2009 - Present)

No abstract provided.

Weighing (In)Discretion On A Sliding Scale: California Appellate Court Hands Down An Expose Of Modern Approaches To Jurisdiction And Unconscionability, Anthony Rallo

Arbitration Law Review (2009 - Present)

No abstract provided.

Lawyers And Mediation, Brian Rans

Arbitration Law Review (2009 - Present)

No abstract provided.