Dispute Resolution and Arbitration Commons^™

Judges As Gatekeepers To Mediation: The Russian Case, Kathryn Hendley

Cardozo Journal of Conflict Resolution

In this Article, I investigate the role of judges in mediation in Russia. Using a mixed-methods approach that draws on my fieldwork in Russian courts as well as a 2013 survey of Russian judges, I explore their attitudes towards mediation and their willingness to recommend it to litigants. I use the survey data to inquire into the factors that tend to predict both their attitudes and behavior vis-avis mediation. The analysis reveals a remarkable division between judges' attitudes and their behavior. The surveyed judges are generally enthusiastic about the introduction of mediation, but this enthusiasm is not always reflected in …

Reorienting Restorative Justice: Initiating A New Dialogue Of Rights Consciousness, Community Empowerment And Politicization, Thalia González

Cardozo Journal of Conflict Resolution

For the last three decades scholars have explored the practice of restorative justice as a crime control mechanism in a multitude of settings. Much of the discourse has focused on restorative justice as an alternative to traditional punitive and retributive criminal justice processes. Whether restorative or punitive, criminal justice processes that seek to address harm are not apart, above, or outside social, cultural and political relations. This Article seeks to initiate a new dialogue of justice and argues that the ontology of restorative justice should to be viewed to include a liberatory moment of politicization focused on promoting equality and …

No More Click? Click In Here: E-Mediation In Divorce Disputes-The Reality And The Desirable, Dafna Lavi

Cardozo Journal of Conflict Resolution

This Article deals with the relatively innovative field of e-Mediation (also known as "online mediation" or "cyber mediation") as used for the resolution of divorce disputes. The first part of the Article surveys the framework and background of the development of eMediation, its implementation, its advantages and disadvantages, focusing on the field of divorce disputes. It includes insights regarding the proven need for the development of alternative dispute resolution processes for such disputes, and the great potential inherent in the model of e-Mediation to address many of the problems typically accompanying such disputes.

In view of the urgency of the …

Beginning With Yes: A Review Essay On Michael Wheeler's The Art Of Negotiation: How To Improvise Agreement In A Chaotic World, Leonard L. Riskin

Cardozo Journal of Conflict Resolution

This Review Essay describes the book, introduces a new system for understanding models of negotiation, and uses it to explain and expand upon some of the ideas in The Art of Negotiation. Then it suggests a different title for Wheeler's book, and describes recent efforts to connect improv with negotiation and mediation training and practice. I mean to honor Wheeler's important work by extending it.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 16, Iss. 3

Cardozo Journal of Conflict Resolution

No abstract provided.

Sleeping? Comatose? Only Mandatory Consideration Of Mediation Can Awake Sleeping Beauty In The European Union, Giuseppe De Palo, Romina Canessa

Cardozo Journal of Conflict Resolution

A 2014 European Parliament-commissioned study, "Rebooting the Mediation Directive: Assessing the Limited Impact of Its Implementation and Proposing Legislative and Non-Legislative Measures to Increase the Number of Mediations in the EU," ("Rebooting Study") has initiated a much needed review and debate on effective mediation policy. The Rebooting Study, which recommended mandatory mediation for EU litigants with an ability to opt-out and enforcement of the 2008 EU Mediation Directive's Balanced Relationship Target Number ("BRTN") concluded, among other findings, that despite increased awareness of mediation and numerous studies and assessments, which have proved its benefits, mediation still remains largely under-utilized as a …

Mediator Misunderstanding Of Bargaining Basics: Heading In An Ugly Direction, Joseph B. Stulberg

Cardozo Journal of Conflict Resolution

A mediator facilitates bargaining conduct among negotiating parties. She conducts the session in a way that is designed to improve everyone's understanding of the situation, promote thoughtful problem solving, and develop settlement terms acceptable to all. When performing her tasks, a mediator must prefer or promote a particular bargaining approach by and among the parties. The only question is: which bargaining theory and approach should she privilege?

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

Cardozo Journal of Conflict Resolution

Like any fairy tale, the Sleeping Beauty story has many variations. Most are far more complicated and sinister than the Disneyesque version that the public is familiar with. The same is true with mediation. On the surface, it is a beautiful story-self-determination, mediator neutrality, and party empowerment. In practice, especially in litigated cases, something else quite dark is actually transpiring: parties are literally locked away from one another. Mediators routinely testify and often actively "assist parties" to see the world as the mediators and the parties' lawyers do. Settlement is a prime directive and driving force. Institutionalization through statute and …

Fourteenth Annual International Advocate For Peace Award Honoring Judge Daniel Weinstein, Matthew Diller, Lela Love, Paula Shulman, David Carden, Daniel Weinstein, Laila Ollapally, Hagit Shaked-Gvili, Sherif Elnegahy, Ihsanullah Khan, Andrew W. Lee, Ximena Bustamante, Farshad Ghodoosi

Cardozo Journal of Conflict Resolution

On March 16, 2015, the Cardozo Journal of Conflict Resolution presented its annual International Advocate for Peace Award to the Honorable Daniel Weinstein (ret.). What follows is a transcription of his public address at the Benjamin N. Cardozo School of Law.

Welcome To The Jungle, Where The Rent Is Too Damn High: Using Rent Regulation In New York City To Maintain An Affordable Housing Stock, Gabrielle Denaro

Cardozo Journal of Conflict Resolution

First, this Note describes and explains the difference between rent control and rent stabilization in New York City. Then, the history of rent control and rent stabilization laws is discussed, followed by an analysis of the arguments of those both for and against the preservation of rent regulation. Further, this Note discusses the issue of gentrification. Finally, this Note proposes an idea for an arbitration forum, and explains the logistics of how it would work and how it could benefit the system overall.

Safe And Sound: How Adr Can Protect Aquatic Life And National Security, James Diskint

Cardozo Journal of Conflict Resolution

Part I of this Note examines the background of the LFA conflict, introducing the reader to the parties involved in the litigation, the nature of LFA sonar technology, the applicable statutory laws, and the litigation history. Part II outlines ADR procedures and proposes that ECR mediation would serve as an ideal forum for the LFA dispute. ECR involvement would help protect both aquatic life and national security by empowering the parties to collaboratively find creative solutions to complex problems and reach closure from the unending cycle of litigation.

The Legitimacy Crisis And The Future Of Courts, Orna Rabinovich-Einy

Cardozo Journal of Conflict Resolution

There is an overall legitimacy crisis in courts. The sources of this crisis have, to a large extent, been misconstrued. While there has been significant writing depicting the diminished quality, effectiveness, and fairness of courts, these phenomena have, for the most part, been viewed as distinct problems that warrant discrete solutions. This article shows that these problems are all manifestations of an overall legitimacy crisis that stems from the blurring of the originally stark distinctions between courts and alternatives. Traditionally, formal and informal dispute resolution processes had their own sources of legitimacy, each grounded in their respective distinctive (often opposing) …

Fitting The Forum To The Pernicious Fuss: A Dispute System Design To Address Implicit Bias And 'Isms In The Workplace, Elayne E. Greenberg

Cardozo Journal of Conflict Resolution

This paper proposes a dispute system design to address workplace discrimination caused by implicit biases so that employees and employers involved in such disputes can secure a more responsive justice than existing legal processes are able to provide. Workplace discrimination caused by implicit bias continues to contaminate our work environment despite our focused legal efforts to combat such overt "isms" as sexism, racism, ageism, and ableism. Although overt expressions of bias have significantly decreased in recent years, expressions of implicit bias, the primary cause of workplace discrimination, persist.

This discussion takes place in three parts. Part One describes implicit bias, …

Where Do We Fight?: A Way To Resolve The Conflict Between A Forum Selection Clause And Finra Arbitration Rule 12200, Suleman Malik

Cardozo Journal of Conflict Resolution

First, Section II summarizes the historical background of the dispute between Goldman Sachs & Co. ("Goldman Sachs") and Golden Empire Schools Financing Authority ("Golden Empire"). Second, Section II identifies the forum selection and merger clauses from the 2004 Broker-Dealer Agreement at issue in Golden Empire. Third, Section II provides a brief background of FINRA and its rules and regulations most pertinent to this dispute, mainly FINRA Rule 12200. Fourth, Section II discusses the emerging circuit split and explains the holdings from each of the circuits. As discussed more fully below, Golden Empire marks a growing circuit split over the availability …

Client Problem-Solving: Where Adr And Lawyering Skills Meet, Katherine R. Kruse, Bobbi Mcadoo, Sharon Press

Faculty Scholarship

Influenced by critiques of legal education, law schools are scrambling to offer more and better opportunities for experiential education. To fulfill the new demands for experiential education, one obvious place to turn is clinic pedagogy, which has developed methodologies for teaching students in the real-practice settings of in-house clinics and externships. As the interest in experiential education broadens, a wider spectrum of teaching methodologies comes under the experiential tent, creating opportunities to tap new sources of guidance for reshaping legal education.

This article turns the spotlight on one of these other, less obvious resources within legal education: the alternative dispute …

Notes On The German Economy And Energy Ministry's Proposal For Reformed Investor-State Dispute Settlement (Isds), Gus Van Harten

Osgoode Legal Studies Research Paper Series

These notes provide a general reaction to a proposal by the German economy and energy ministry for ISDS in a treaty between Europe and the U.S. Overall, the proposal takes only a minority of the steps needed to make ISDS independent, fair, open, subsidiary, and balanced. I suggest that the appropriate approach remains to reject ISDS in new treaties (especially among Western developed countries). The proposal would be a good starting point for replacing ISDS in existing treaties with developing or transition countries – but that is clearly not its purpose.

A Parade Of Reforms: The European Commission's Latest Proposal For Isds, Gus Van Harten

Osgoode Legal Studies Research Paper Series

The European Commission's most recent proposal for ISDS reflects a move away from essentially fake reforms to something potentially more meaningful. However, it is insufficient to satisfy the criteria of independence, fairness, openness, subsidiarity, and balance and does not appear reliable until backed by clear language and a negotiating red line for the proposed Canada-Europe CETA and any other agreement providing for ISDS.

The European Commission's Push To Consolidate And Expand Isds: An Assessment Of The Proposed Canada-Europe Ceta And Europe-Singapore Fta, Gus Van Harten

Osgoode Legal Studies Research Paper Series

The purpose of this paper is to evaluate the European Commission’s approach to investor-state dispute settlement (ISDS) in the proposed CETA with Canada and FTA with Singapore. The text on ISDS in both agreements is evaluated according to general criteria of independence, fairness, openness, and balance. The main conclusion reached is that there is no significant difference between the CETA and FTA when it comes to ISDS. With the qualified exception of the criterion of openness, both agreements fall well short of satisfying the criteria. As such, neither agreement offers a significant improvement on the U.S. model of ISDS and, …

The Icsid Under Siege: Unasur And The Rise Of A Hybrid Regime For International Investment Arbitration, Kendall Grant

Osgoode Legal Studies Research Paper Series

The legitimacy and effectiveness of the International Centre for Settlement of Investment Disputes (ICSID) — a dispute resolution body established in 1966 under the auspices of the World Bank — is a matter of spirited debate. It has been argued by some that ICSID’s ideological and procedural bias impedes fairness and by others that its complexity and cost restrict access to justice; many contend that the absence of an appeal process has exacerbated uncertainty and unpredictability. In 2009, in the wake of rampant dissatisfaction and ideological challenge, especially on the part of Latin American states, Ecuador proposed the creation of …

Foreign Investor Protection And Climate Action: A New Price Tag For Urgent Policies, Gus Van Harten

Osgoode Legal Studies Research Paper Series

From a climate perspective, not all investment is equal. Desirable investment in clean energy needs encouragement and protection, while undesirable investment in fossil fuels needs clear policy signals to avoid further investment in destructive activities and stranding more assets. In this paper, evidence is presented on how foreign investor protection provisions in trade and investment agreements tilt the playing field in favor of entrenched incumbents and against urgent action on climate; on the potential for a massive expansion of investor-state litigation and risks to climate policy in proposed trade deals; and on key flaws in recent European Commission proposals to …

Mediation: The Best And Worst Of Times, Jacqueline Nolan-Haley

Cardozo Journal of Conflict Resolution

At this period in the evolution of dispute resolution, mediation is in a unique time zone, similar to what Dickens described in a Tale of Two Cities, as the best and worst of times, the seasons of Light and Darkness. It is the best of times, the season of Light and a time of joy in honoring human connections, as mediation is widely embraced in the public and private sectors. From government agencies and courts to corporations and United Nations peacemaking units, mediation offers a vision of hope in the midst of drowning bureaucracies, clogged dockets, corporate scandals and …

Medical Malpractice Claims In Mississippi: A Preliminary Analysis, Randall K. Johnson

Faculty Works

This essay explains where medical malpractice claims are filed in Mississippi. It initially does so by collecting state circuit court data, which have been recently released by the Administrative Office of Courts. The essay, then, computes summary statistics. Lastly, it examines these statistics: in order to find out which county had the most medical malpractice claims.

Arbitration Agreements In Arkansas After Concepcion, John C. Williams

University of Arkansas at Little Rock Law Review

No abstract provided.

The Extension Of The Arbitral Agreement To Non-Signatories In Europe: A Uniform Approach?, Eduardo Silva Romero, Luis Miguel Velarde Saffer

American University Business Law Review

No abstract provided.

Beginning With Yes: A Review Essay On Michael Wheeler's The Art Of Negotiation: How To Improvise Agreement In A Chaotic World, Leonard L. Riskin

UF Law Faculty Publications

Michael Wheeler's The Art of Negotiation: How to Improvise Agreement in a Chaotic World stands on the shoulders of a number of previous books on negotiation by Wheeler's colleagues in the Program on Negotiation at Harvard Law School (PON), and others, but not because it needs their support. Instead, The Art of Negotiation illuminates the principal models in such books, by showing why, when, and how to improvise in relation to them. Some standard models of negotiation seem static, Wheeler tells us, whereas negotiation mastery requires dealing with the ‘inherent uncertainty‘ of almost any negotiation, and that calls for improvisation, …

What Judges Want And Need: User-Friendly Foundations For Effective Judicial Education, Duane Benton, Jennifer A.L. Sheldon-Sherman

Journal of Dispute Resolution

This article evaluates the connection between judicial education and judges’ needs and preferences. In Part I, we begin by discussing the history, purpose, and form of judicial education, charting its evolution over time. In Part II, we examine current judicial education programs and scholarship, highlighting differences and similarities between federal and state programming. In Part III, we analyze the limitations of existing scholarship and programming, arguing judicial education programs are insufficiently tied to evidence of judicial demands. We conclude in Parts IV and V by suggesting two proposals to align programming with needs: (1) an annual needs-based assessment of judicial …

Arbitration Whack-A-Mole: The Federal Policy Favoring Arbitration Hammers The Rights Of Individual Employees, Spring E. Taylor

Journal of Dispute Resolution

In a country that protects the plaintiff's right to a day in court, it only seems natural that Sally should have the opportunity to take her cause to the courthouse. But the strong fedral presumption that supports the enforcement of arbitration provisions is like a hammber that pushes plaintiffs like Sally and those if Huffman into the arbitration arena. In Huffman, the Sixth Circuit rescued an employwer from an ambiguous arbitration provision contained in the employer-drafted employment agreement and enforced the arbitration provision as one of the provisions to survive expiration of the contract, even though it was not listed …

International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers

Faculty Scholarship

One potentially devastating critique of investment arbitration is that it undermines or hampers development of national legal institutions. Investment arbitration was originally conceived of as a means of encouraging foreign investment and strengthening rule of law for investment protection. Critics often question whether it actually contributes to either of these goals. If investment arbitration could not deliver on intended goals related to improvements in local legal institutions, it would be disappointing. If, however, investment arbitration not only failed to deliver benefits to, but instead affirmatively undermined, local legal institutions, it would be devastating. While numerous critics have leveled this charge, …

Legislative Study: Massachusetts Municipal Conflict Resolution Needs Assessment, Interim Report, Massachusetts Office Of Public Collaboration, University Of Massachusetts Boston

Massachusetts Office of Public Collaboration Publications

All across Massachusetts, municipal officials are at the front line of dealing with today’s complex problems in such areas as budgets, education, land use, environment, economic development, public works, public safety and public health. In addressing these complex problems, local public officials tackle public conflicts head-on and bring many to resolution. However, officials also face public conflicts that persist and impair their ability to move forward. This study documents specific needs that municipal officials identified as important for dealing with public conflict and for obtaining the societal results they desired. These ran the gamut from resource and process-oriented needs to …

Diálogo Y Políticas Públicas: Transformación De Conflictos En El Marco De La Gestión De La Política Pública, Fundación Futuro Latinoamericano, University Of Massachusetts Boston

Center for Peace, Democracy and Development Publications

Cuando la Fundación Futuro Latinoamericano (FFLA) se contactó con la Secretaría Nacional de Planificación y Desarrollo del Ecuador (SENPLADES), para transmitir su experiencia en la prevención y transformación de conflictos socioambientales, se promovió un encuentro entre la sociedad civil y la institución del Estado encargada del diseño de políticas públicas para la planificación estatal, en el marco del mandato constitucional de planificación participativa.

Es así como se iniciaron una serie de encuentros que dieron forma al Manual que ahora se presenta. Los destinatarios/as de este documento son funcionarios públicos que, a lo largo y ancho de Latinoamérica, se enfrentan diariamente …