Dispute Resolution and Arbitration Commons^™

Judicial Review: What Judges Write When They Write About Mediation, Jennifer W. Reynolds

Arbitration Law Review (2009 - Present)

Judges are uniquely positioned to comment on the phenomenon of court-connected mediation. Judges design and implement court systems with mediation components; they refer or order litigants into mediation; and they often serve as mediators themselves, either as part of their judicial duties or after retiring from the bench. Yet, ironically, there are few formal judicial opinions commenting on the procedural, ethical, and substantive issues around court-connected mediation today. When researching mediation, therefore, legal scholars who limit themselves to traditional legal sources will not have much to work with.

This Article identifies a new source of “judicial review” of mediation: judge-written …

Error Correction And Dispute System Design In Investor-State Arbitration, Andrea Kupfer Schneider

Arbitration Law Review (2009 - Present)

The current crisis in investor-state arbitration under the International Centre for Settlement of Investment Disputes (ICSID) system is the subject of commentary by both practitioners and scholars in the field. This Article first reviews the current status of ICSID arbitration by specifically using the Argentinean cases as examples of the ongoing legitimacy concerns that many countries have about ICSID. This Article seeks to explain the current crisis using theories of judicial review to understand how the annulment committee process and decisions are contributing to this crisis. The judicial theory of error correction, when utilized to review the recent annulment committee …

Bifurcated Proceedings In Illinois: Survivor Actions To Arbitration But Wrongful Death Claims To Litigation, Joshua Bower

Arbitration Law Review (2009 - Present)

No abstract provided.

For The Good Of All Not Involved: The Case For A Public Protection Exception To The Enforcement Of Arbitral Awards, Michelle Polanto

Arbitration Law Review (2009 - Present)

No abstract provided.

Educational Collective Bargaining: The Effect Of Impasse Resolution Procedures On Public School Teachers, Jessica Nixon

Arbitration Law Review (2009 - Present)

No abstract provided.

Getting To Yes: Remembering Roger Fisher, Kevin R. Schock

Arbitration Law Review (2009 - Present)

No abstract provided.

Lawyers And Mediation: Lessons From Mediator Stories, Sharon Press

Faculty Scholarship

In Stories Mediators Tell, Lela Love and Eric Galton have compiled a compelling anthology of stories about mediation. Not surprisingly, most of the stories involve a significant moment when something special happened for the parties. The author was reminded of presentations by Baruch Bush and Joe Folger in the early 1990's (around the time the first edition of The Promise of Mediation was published). They would ask mediators who attended their sessions to recount to a partner one of their memorable mediations. Inevitably, the stories were about transformative moments - of parties obtaining clarity for the first time - of …

Let's Talk: How Mediation Programs Provide Access To Justice For Homeowners Going Through Foreclosure, Melina Rozzisi

Public Interest Law Reporter

No abstract provided.

Tribal Rights, Human Rights, Kristen A. Carpenter, Angela R. Riley

Publications

No abstract provided.

What Do Clients Want From Their Lawyers, Clark D. Cunningham

Journal of Dispute Resolution

This article, however, will show how the research upon which the ABA story was based–as well as substantial research with other clients ranging from large organizations to individuals–indicates that what clients want most from their lawyers is an aspect of legal services given too little attention both in legal education and professional development: effective lawyer-client communication. After reviewing extensive social science research on causes of client dissatisfaction, this article will conclude by suggesting a variety of ways–from easy to ambitious initiatives—that law schools and law firms can provide greater emphasis on the importance of effective communication with clients, teach effective …

Determining Arbitrability Of The Dispute: The Clear And Unmistakable Standard For Choice Of Law In Arbitration Agreements , Kristen Sanocki

Journal of Dispute Resolution

This note will also address the "clear and unmistakable" standard adopted by the Ninth Circuit and used to determine whether or not parties have agreed to apply non-federal arbitrability law. Based on the Ninth Circuit's reasoning in Cape Flattery Ltd. v. Titan Mar., LLC, this Note concludes that the court properly extracted a standard normally used to determine whether a court decides arbitrability as applicable to determining whether parties have sufficiently contracted for non-federal arbitrability law. Lastly, this Note will address the interpretation of arbitration clauses under federal law.

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 …

Out Of The Shadows: What Legal Research Instruction Reveals About Incorporating Skills Throughout The Curriculum , Barbara Glesner Fines

Journal of Dispute Resolution

The article first examines the politics of curricular reform. Before a law school will be able to increase or improve any skills instruction, the targeted skill must be important to enough to affect the curriculum. For example, sometimes law schools send inconsistent messages about the importance of legal research instruction. While external voices such as ABA accreditation standards and surveys of the practicing bar have long-recognized importance of the skills of legal research, evidence of the importance of the skill in the law school curriculum is mixed. If asked, most faculty members will agree that a given skill, such as …

Reforming Legal Education To Prepare Law Students Optimally For Real-World Practice , John Lande

Journal of Dispute Resolution

This article synthesizes some of the main points of the symposium contributors. They covered a wide range of key issues and thus this symposium provides a good overview of the challenges of and options for legal education reform. Of course, given the vast scope of the problems presented, this symposium issue of the Journal of Dispute Resolution cannot provide an all-encompassing analysis nor a comprehensive set of recommendations for reform. We do, however, hope that it will be a useful contribution to the growing movement and literature designed to improve legal education in the U.S. Part II of this article …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 14, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Increasing Referrals To Small Claims Mediation Programs: Models To Improve Access To Justice, Heather Scheiwe Kulp

Cardozo Journal of Conflict Resolution

The justice system is in crisis. In 2011, 85% of Connecticut's family court cases had at least one self-represented litigant. In Massachusetts, 92% of parties appearing in housing cases are selfrepresented. New York saw self-representation in 97% of child support cases. Although judges and attorneys are learning to adapt to this new reality, the strain is felt strongly by bench and bar alike.

This article explores a service that many courts already offer-small claims mediation-and studies how courts may more effectively refer parties to such services. Specifically, this article identifies six primary models courts use to refer parties to small …

Hawaiian Land Disputes: How The Uncertainty Of The Native Hawaiian Indigenous Tribal Status Exacerbates The Need For Mediation, Donna S. Salcedo

Cardozo Journal of Conflict Resolution

Many people see the Hawaiian Islands as a paradise in the Pacific Ocean. However, most are unaware that history has left an unpleasant and permanent scar on the original inhabitants of the islands, the Native Hawaiians. It is often forgotten that the islands were once ruled by its monarchy. In fact, the Hawaiian Kingdom was not overthrown until 1893, and the islands did not reach statehood until 1959. Despite this however, Native Hawaiians have never officially been considered an indigenous tribe. This lack of recognition from the federal government has caused a strong sense of injustice that is prevalent throughout …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 14, Iss. 3

Cardozo Journal of Conflict Resolution

No abstract provided.

A Tale Of Two Lawyers: How Arbitrators And Advocates Can Avoid The Dangerous Convergence Of Arbitration And Litigation, Neal M. Eiseman, John E. Bulman, R. Thomas Dunn

Cardozo Journal of Conflict Resolution

When modern arbitration became popular in the United States in the 18th and 19th centuries, courts viewed it as a threat to their exclusive powers. Over time, that mindset has changed dramatically. The passage of the Federal Arbitration Act ("FAA") in 1926 embraced a federal policy strongly favoring arbitration as a method of relieving court congestion and providing parties with a speedier, less costly means of resolving disputes. Thereafter, agreements to arbitrate found their way into many standard form agreements and business contracts as arbitration became accepted as a bona fide alternative to litigating in court. Today, as litigators can …

Is Adjudication A Public Good? "Overcrowded Courts" And The Private Sector Alternative Of Arbitration, Stephen J. Ware

Cardozo Journal of Conflict Resolution

Courts are underfunded, dockets are crowded, and litigation is slow. These observations lead many lawyers and judges to call for increased court funding. While I would like to see a significantly higher percentage of government spending go to courts, I do not believe that is likely to happen. So I suggest we think about "underfunded" courts differently.

Exchanging Shares To Settle A Lawsuit: Should A Confidentiality Agreement Bar Evidence Of Securities Fraud?, Christopher Tao

Cardozo Journal of Conflict Resolution

Suppose that two parties enter into a mediated written settlement, but in a subsequent court proceeding, one party claims to have discovered evidence clearly establishing fraud by the opposing party during the mediation process. When a court has to determine whether or not to enforce a negotiated settlement, do mediation confidentiality rules permit the court to admit one party's evidence of the other party's fraud or misrepresentations during the mediation?

Is Adr The Solution? How Adr Gets Around The Get Controversy In Jewish Divorce, Aviva Vogelstein

Cardozo Journal of Conflict Resolution

The New York State government in particular has attempted to find creative solutions to the modern problems associated with Jewish divorce issues. This Note first gives a brief historical background of the beth din and the reasons for its authority, elucidating why alternative dispute resolution (ADR) benefits the American legal system and explaining how and why the beth din serves as a preferred method of ADR in contemporary America. Using New York as a case study, this Note then proposes that, although New York civil legislative solutions and tort claims for intentional infliction of emotional distress may sometimes achieve satisfactory …

Law And Negotiation: Necessary Partners Or Strange Bedfellows?, Nancy L. Schultz

Cardozo Journal of Conflict Resolution

Almost thirty years ago, Robert Condlin wrote an article discussing the frustrations of students in his Negotiations class. He noted that his law students saw legal argument in negotiation primarily as a source of vexation rather than resolution. In the twenty-plus years I have taught negotiations, I have heard the same thing many times. Students will prepare and research and then be disconcerted when their negotiating partners are not swayed by their brilliant legal arguments. One comment by a student in a paper discussing his team's preparation for negotiation shows the initial thought process in a domestic relations negotiation: "It …

The Age Of (Guilt Or) Innocence: Using Adr To Reform New York's Juvenile Justice System In The Wake Of Miller V. Alabama, Morgan Molinoff

Cardozo Journal of Conflict Resolution

"Youth matters." The concept is deceptively simple. Of course youth matters. One must be a certain age to drive, to vote, to drink, to be elected president. However, the issue becomes much more complex in the context of criminal responsibility and punishment. Should children be held less accountable for their crimes because of their age? Do juveniles have a greater capacity for rehabilitation than adults? By explaining that youth matters in Graham v. Florida and holding that juveniles cannot be sentenced to life in prison without parole for non-homicide crimes, Justice Kennedy of the United States Supreme Court answered these …

Litigating Toward Settlement, Christina L. Boyd, David A. Hoffman

Scholarship@WashULaw

Civil litigation typically ends when the parties compromise. While existing theories of settlement primarily focus on information exchange, we instead examine how motion practice, especially non-discovery motions, can substantially shape parties’ knowledge about their cases and thereby influence the timing of settlement. Using docket-level federal district court data, we find a number of strong effects regarding how motions can influence this process, including that the filing of a motion significantly speeds case settlement, that granted motions are more immediately critical to settlement timing than motions denied, and that plaintiff victories have a stronger effect than defendant victories. These results provide …

The Rise In Judicial Hostility To Arbitration: Revisiting Hall Street Associates, Thomas E. Carbonneau

Faculty Scholarship

When the United States Supreme Court granted certiorari in Hall Street Associates,LLC v. Mattel, Inc., commentators expected the Court to resolve the split among the federal circuits regarding the validity and enforceability of 'opt-in' agreements.Since the late 1990s, these agreements had become a means through which contracting parties could obtain enhanced judicial supervision of arbitral awards by providing for judicial review of the merits of arbitrator rulings. While commentators got a resolution to the split, they received a great deal more than they had been promised.

Stylistic opacity made the opinion in Hall Street somewhat inaccessible. In fact, as …

Confidentiality: The Illusion And The Reality— Affirmative Steps For Lawyers And Mediators To Help Safeguard Their Mediation Communications, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Confidentiality is one promise of mediation that is increasingly broken, even though judges, lawyers and mediators frequently extol the sacredness of mediation confidentiality as a primary benefit for considering mediation as a settlement forum. We observe that legal challenges to any aspect of the mediation have caused judges to scrutinize mediation communications in a way that renders mediation confidentiality vulnerable at a minimum and violated at the worst. We are finding it a chronic challenge to decipher the precise and appropriate boundaries of mediation confidentiality. Moreover, we are increasingly discomforted to see that even unsuccessful legal challenges to mediation …

What Sally Soprano Teaches Lawyers About Hitting The Right Ethical Note In Adr Advocacy, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Paradoxically, when lawyers opt to mediate or arbitrate, lawyers may still wind up selecting, shaping and advocating in these dispute resolution processes to resemble the very litigation process they have sought to avoid. After all, litigation likely comports with the lawyer’s own conflict style, comfort level and concepts of justice. As a consequence of this litigation bias, we see that the metaphorical doors of a multi-door courthouse that once offered a menu of dispute resolution choices are increasingly leading us back to one choice: a variation of the litigation door. Even though the Model Rules of Professional Conduct confirm …