Dispute Resolution and Arbitration Commons^™

Escaping From Lawyers' Prison Of Fear, John Lande

Faculty Publications

Lawyers regularly experience numerous fears endemic to their work. This is not surprising considering that lawyers generally operate in environments that frequently stimulate many fears. Lawyers’ fears can lead them to enhance their performance due to increased preparation and effective “thinking on their feet.” Fear is problematic when it is out of proportion to actual threats, is expressed inappropriately, or is chronically unaddressed effectively. It can lead to sub-optimal and counterproductive performance through paralysis, ritualized behavior, or inappropriate aggression. Some lawyers’ fears unnecessarily prevent them from performing well, producing good results for clients, earning more income, and experiencing greater satisfaction …

Opening The Floodgates Of Small Customer Claims In Finra Arbitration: Finra V. Charles Schwab & Co., Inc., Teresa J. Verges

Articles

No abstract provided.

“Sticky” Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

Scholarly Works

We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …

Public And Private In International Investment Law: An Integrated Systems Approach, Julie A. Maupin

Faculty Scholarship

Members of the invisible college of international investment lawyers are engaged in a fierce battle over the conceptual foundations of their common legal enterprise. The debate centers on whether the international legal regime governing foreign direct investment is a de facto transnational public governance system or merely an institutional support structure for the settlement of essentially private investment disputes. These attempts to establish the public versus private nature of the regime are misconceived. International investment law deals with both public and private concerns, impacts upon both public and private actors, and crosses over traditional divides separating public law from private …

Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John Lande

Cardozo Journal of Conflict Resolution

This Article summarizes the views of respected lawyers about how they negotiate, which were collected as described in Part II. Part III recommends that lawyers develop a strategic approach to negotiation, including general negotiation goals and plans to negotiate at the earliest appropriate time. Part IV outlines recommendations for lawyers to take charge of their cases from the outset, including getting a clear understanding of clients' interests, developing good relationships with counterpart lawyers, carefully investigating the cases, making strategic decisions about timing, and enlisting mediators and courts when needed. Part V provides two general suggestions for improving the quality of …

Wachovia Securities, Llc V. Brand (2012): The Fourth Circuit's Dubious Position In The Ongoing Federal Circuit Split In The Application Of "Manifest Disregard Of The Law" As A Basis For Vacatur Of Arbitration Awards Following The U.S. Supreme Court's Hall Street Decision (2008), Jonas Cullemark

University of Miami Business Law Review

No abstract provided.

The Many Lanes Out Of Court: Against Privatization Of Employment Discrimination Disputes, Theresa M. Beiner

Maryland Law Review

No abstract provided.

Parallel Justice: Creating Causes Of Action For Mandatory Mediation, Marie A. Failinger

University of Michigan Journal of Law Reform

The American common law system should adopt court-connected mandatory mediation as a parallel system of justice for some cases that are currently not justiciable, such as wrongs caused by constitutionally protected behavior. As evidence that such a system is practical, this Article describes systemic and ethical parallels between court-connected mediation and the rise of the equity courts in medieval England, demonstrating that there are no insurmountable practical objections to the creation of “mediation-only” causes of action. The Article then explores the constitutional concerns surrounding the idea of “mandatory mediation-only” causes of action, using constitutional hate speech and invasion of privacy …

The Critical Nature Of Verbal Leaks And Nonverbal Signals During Bargaining Interactions, Charles B. Craver

Cardozo Journal of Conflict Resolution

When individuals negotiate, they communicate with each other in person, over the telephone, or through e-mail and text exchanges. Proficient negotiators carefully prepare for such interactions, and they endeavor to choose their words carefully to convey the precise messages they intend to communicate. Despite these efforts, however, they frequently include inadvertent modifiers that undermine what they appear to be saying. Persons who listen carefully for such "verbal leaks" can gain a significant bargaining advantage.

An Empirical Study Of Arbitrators Acting As Mediators In China, Fan Kun

Cardozo Journal of Conflict Resolution

Whether an arbitrator can and should act as a mediator in a pending arbitration is one of the most controversial issues in international arbitration. While mediation is not a new concept for the West, the practice of having the same person acts as both an arbitrator and a mediator in one proceeding has aroused great debate in theory and practice. The debate gives rise to delicate ethical issues, and touches the very core of arbitration, i.e., the mission of arbitrators.

Section II of the Article reviews relevant literature on the general attitudes of arbitrators in settlement facilitation. Section III defines …

Ethics Consultations And Conflict Engagement In Health Care, Charity Scott

Cardozo Journal of Conflict Resolution

This article explores the intersection of two professional fields-bioethics and clinical ethics consultation in health care on one hand, and alternative dispute resolution ("ADR") and conflict management on the other-which until recent years remained relatively unknown to each other. It marries the literatures and lessons of these two fields in order to promote the quality of ethics consultations in hospitals and other health care organizations.

Increasingly, health care ethics committees and consultants acknowledge the need to employ the frameworks, approaches, and tools of good conflict management to do their work effectively. Similarly, conflict specialists and ADR professionals are becoming increasingly …

Opening The Floodgates Of Small Customer Claims In Finra Arbitration: Finra V. Charles Schwab & Co., Inc., Teresa J. Verges

Cardozo Journal of Conflict Resolution

When the Supreme Court held over twenty-five years ago that customers could be compelled to arbitrate their federal securities claims against their brokers, the vast majority of financial firms in the U.S. inserted pre-dispute arbitration provisions ("PDAAs") in agreements with their customers requiring them to arbitrate any claims arising out of their brokerage relationship. Since Sheerson/ Am. Express, Inc. v. McMahon, investor advocacy groups, scholars, and legislators have called for Congressional action to eliminate mandatory arbitration in securities cases, but the closest Congress has come to such elimination has been to punt this issue to the Securities and Exchange …

Room For Me? - An Analysis Of Whether Mediation Is A Viable Solution To School Bullying, Angelique Palmer

Cardozo Journal of Conflict Resolution

This Article will review recent efforts to utilize mediation as a solution to bullying, and evaluate whether common approaches to its use and implementation have proven to be an effective solution to the bullying epidemic. Part I of this Article provides an overview of bullying and the current state of the problem in America today. Part II discusses the current legal climate and underlying motivations in legislative change and development. It goes on to offer a synopsis of the state of the law and the scope of its reach to address and remedy the problem of bullying. Part III offers …

Mediator Ethical Breaches: Implications For Public Policy, Sharon Press

Faculty Scholarship

Court-connected mediation, which includes both court mandated and court encouraged mediation, has become a well-established part of the judicial system in the United States. There are many public policy implications of this phenomenon. These include the underlying goals of the development of court-connection mediation and the responsibility to the public once a court-connected mediation program is established to ensure that the public has access to quality providers of mediation services. Once a court-connected mediation program has established qualifications and ethical standards for mediators, there is a public policy obligation for there also to be a mechanism to educate, reprimand or …

Beyond International Commercial Arbitration? The Promise Of International Commercial Mediation, S. I. Strong

Faculty Publications

Although international commercial arbitration has long been the preferred means of resolving cross-border business disputes, the international corporate community has become increasingly concerned about increasing costs, delays and procedural formalities. As a result, parties are looking for other means of resolving cross-border business disputes. One of the more popular alternatives is mediation. Advocates of mediation extol its many benefits, including its ability to resolve disputes more quickly and with fewer costs and formalities than other alternatives. However, very little research exists on how mediation operates in the international commercial context. This Essay therefore considers whether and to what extent international …

Anti-Arbitration Injunctions In Cases Involving Investor-State Arbitration: British Caribbean Bank Ltd. V. The Government Of Belize, S. I. Strong

Faculty Publications

Over the last few years, the international legal community has become increasingly interested in anti-arbitration injunctions, which are analogous to antisuit injunctions except that the former prohibits the initiation or continuation of an arbitration while the latter focuses on judicial actions. At this point, very few courts have actually issued an injunction of this type. Nevertheless, a number of commentators have expressed concern about these mechanisms, since they can wreak havoc with contractual or treaty-based expectations about how a particular dispute is to be resolved. Indeed, some scholars and practitioners would prefer that these sorts of injunctions be made universally …

Barnacles, Aristocracy And Truth Denial: Three Not So Beautiful Aspects Of Contemporary Mediation, James Coben

Faculty Scholarship

In this article, I examine the themes of self-determination, mediator neutrality, and party empowerment by exploring three separate topics: barnacles, aristocracy and truth denial.

The first topic, barnacles, refers to the surprising and myriad number of ways that mediation has fully integrated (insinuated) itself into the U.S. litigation system. Institutionalization, some might argue, is "beautiful;" indeed, widespread, systematic use of mediation is often offered evidence of success. But I want to explore a different perspective on the same development-how institutionalization leads to rule exploitation and spawns its own unique litigation ironies. The second topic, aristocracy, refers to the documentation and …

Innovation, Dispute Resolution & Access To Justice: Needs Assessment 2014, Nicole Aylwin, Trevor C. W. Farrow

Commissioned Reports, Studies and Public Policy Documents

The Winkler Institute is pleased to announce the launch of an innovation, dispute resolution and access to justice needs assessment. This needs assessment, funded primarily by the Law Foundation of Ontario, will examine current innovation practices and future needs in dispute resolution — all with a view to bridging the current knowledge gap around justice sector innovation in Canada.

A Framework For Advancing Negotiation Theory: Implications From A Study Of How Lawyers Reach Agreement In Pretrial Litigation, John Lande

Cardozo Journal of Conflict Resolution

The prevailing negotiation theory tries to fit lots of square pegs into just two round holes-adversarial or cooperative bargaining. In the real world, negotiation comes in many different shapes, not just circles and squares. This Article demonstrates that the two "round holes" in current negotiation theory are poorly defined and do not reflect the reality of much pretrial negotiation. It argues that it is time to replace the system of theoretical models with a flexible framework that can accommodate virtually all legal negotiations, including those that do not fit into any pre-defined model.

The Improbable Birth And Conceivable Death Of The Securities Arbitration Clinic, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This Article explores the birth, life, and possible death of securities arbitration clinics (SACs) in the United States. Part II of this Article describes the history of the securities arbitration clinic in the United States. Part III describes how a SAC operates and how SAC students help investors. Part IV reviews the pedagogical advantages and disadvantages of a SAC, and addresses the reluctance of many law schools to embrace this type of clinic. Part V concludes by predicting whether these clinics have a future in light of the modern challenges to clinical legal education.

Open-Minded Listening, Jonathan R. Cohen

UF Law Faculty Publications

Parties in conflict do not typically listen to one another well. On a physical level they hear what their counterparts say, but on a deeper level they do not truly absorb or think seriously about their counterparts’ words. If they listen at all, they listen with an ear toward how they can refute rather than toward what they may learn. This article explores how we might change this. In contrast to prior research examining external aspects of listening (e.g., how being listened to influences the speaker), this article probes the internal side of listening, specifically, whether the listener will allow …

Intersection Of Patent Infringement And Antitrust Liability In Abbreviated New Drug Application Litigation, The, Kevin E. Noonan

Journal of Dispute Resolution

A battle has been raging, over the past ten years, regarding the competing interests of patent protection and antitrust prohibitions in the specialized area of law concerned with patented drugs regulated by the Food and Drug Administration ("FDA").' The contestants are the Federal Trade Commission ("FTC") and parties to Abbreviated New Drug Application (ANDA) litigation, which are a branded drug company and a generic challenger.

Ethics Consultations And Conflict Engagement In Health Care, Charity Scott

Faculty Publications By Year

This article explores the intersection of two professional fields - bioethics and clinical ethics consultation in health care on one hand, and alternative dispute resolution ("ADR") and conflict management on the other - which until recent years remained relatively unknown to each other. It marries the literatures and lessons of these two fields in order to promote the quality of ethics consultations in hospitals and other health care organizations. * Increasingly, health care ethics committees and consultants acknowledge the need to employ the frameworks, approaches, and tools of good conflict management to do their work effectively. Similarly, conflict specialists and …

“A Different Day In Court”: Exploring The Place Of Judicial Mediation In Ontario’S Alternative Dispute Resolution Landscape, Nicole Aylwin, Trevor C. W. Farrow

Articles & Book Chapters

In January 2011, the Ontario Bar Association established a taskforce to explore the question of how judicial dispute resolution could improve access to justice in Ontario. In their recently released final report, the taskforce offers some compelling conclusions. In particular, the report recommends that JDR be formally recognised as part of the alternative dispute resolution options available in Ontario since it would provide litigants the opportunity to receive their “day in court” without the necessity of a costly trial.This article elaborates on the findings of the report and places them within the larger context of current research and Canadian policy …

No Career Ladders For Mediators: A Failure Of The Field, David Matz

Center for Peace, Democracy and Development Publications

As a field, mediation has excellent training and education and excellent service delivery. But it has no career path from the completion of education to a case flow practice. There is no apprenticeship process, there is no way to gain experience with significant cases, there is no structure for serious supervision, there is no way to establish a reputation for professional competence. The result is the loss of many talented, particularly young, mediators. One major cause is a failure to attract cases valued at more than small claims level and less than, say, $100,000. The field needs to focus on …

Status And Contract In An Emerging Democracy: The Evolution Of Dispute Resolution In Ghana, Paul F. Kirgis

Faculty Law Review Articles

Ghana is one of the developing world’s success stories. The first sub-Saharan colony to gain independence, it is a stable democracy experiencing sustained economic growth. Yet as Ghana reaches for the material gains of participation in modern commercial life, its dual legal systems—the system of customary adjudication by traditional authorities and the formal court system—have come under increasing pressure. New legal developments have truncated the authority of traditional decisionmakers, while an overburdened court system lacks the resources to fill the resulting adjudicative gaps. To solve the problem, Ghana is now experimenting with a system of quasi-public dispute resolution, including contractual …

The Concerted Protected Activity Loophole: How The Nlrb Is Undermining The Federal Policy Favoring Arbitration By Invalidating Class Action Waivers, Thomas E. Robins

Arbitration Law Review (2009 - Present)

No abstract provided.

Timor-Leste V. Australia: "Guerrilla Tactics" And Schoolyard Bullies In State Arbitration, Sarah Whittington

Arbitration Law Review (2009 - Present)

No abstract provided.

Could Commercial Arbitration Help Settle A Historic Conflict Between The Israelites And Palestinians?, Evan Goldsmith

Arbitration Law Review (2009 - Present)

No abstract provided.

International Commercial Arbitration In Central Asia, W. E. Butler

Arbitration Law Review (2009 - Present)

No abstract provided.