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Dispute Resolution and Arbitration Commons™

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2015

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Articles 241 - 270 of 289

Full-Text Articles in Dispute Resolution and Arbitration

The Mediation Witches, Eric R. Galton Jan 2015

The Mediation Witches, Eric R. Galton

Cardozo Journal of Conflict Resolution

At first, the relationship probably seemed like a good idea. The law, bellicose, arrogant, and generally unloved, needed a kinder, gentler, more humanistic side. Mediation, the lah-di-dah flower child of peace rallies and community centers, needed a more serious and credible business angle if it was to continue its gettingpeople-together endeavors.

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The Repeat Player Effect In Child Protection Mediation: Dangers Of And Protections Against Second-Class Justice For Marginalized Parties, Donna Erez-Navot Jan 2015

The Repeat Player Effect In Child Protection Mediation: Dangers Of And Protections Against Second-Class Justice For Marginalized Parties, Donna Erez-Navot

Cardozo Journal of Conflict Resolution

This Article will be structured as follows: Part I of this Article will introduce some of the basic and problematic phenomenon including the repeat player effect, cooptation and others that arise in the legal system. In Part II, there will be specific attention to these phenomenon applied in various well-researched dispute resolution areas including criminal, child protection, employment and arbitration contexts. Part III of this Article gives a broad introduction into court annexed mediation and child protection mediation in general. Part IV of this Article will focus on the specific effects of repeat player, cooptation, and others in Family Court …

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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 Jan 2015

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.

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Judicial Conflict Resolution (Jcr): A New Jurisprudence For An Emerging Judicial Practice, Michal Alberstein Jan 2015

Judicial Conflict Resolution (Jcr): A New Jurisprudence For An Emerging Judicial Practice, Michal Alberstein

Cardozo Journal of Conflict Resolution

In the past few decades, the role of judges has changed dramatically, yet its nature has remained largely unexplored. To date, most cases settle or reach plea-bargaining, and the greater part of judges' time is spent on managing cases and encouraging parties to reach consensual solutions. Adjudication based on formal rules is a rare phenomenon which judges mostly avoid. This Article argues that the various Conflict Resolution methods, which are used outside the courtroom, as alternatives to adjudication, could have a strong and positive influence, both theoretical and practical, on judicial activities inside the courts. Theoretically, the Article develops a …

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Copyright Alert System: Six-Strikes And Forced Arbitration Might Not Be The Answer, Brett Schiff Jan 2015

Copyright Alert System: Six-Strikes And Forced Arbitration Might Not Be The Answer, Brett Schiff

Cardozo Journal of Conflict Resolution

Ongoing technological advancements are imminent and new forms of media will increasingly be created further broadening one's ability to share both his or her own intellectual property and the intellectual property of others almost instantaneously. Rising piracy and the growing use of peer-to-peer ("P2P") file-sharing resulted in representatives from the Motion Picture Association of America ("MPAA"), the Recording Industry Association of America ("RIAA"), and the nation's five largest Internet Service Providers ("ISPs")-AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon-joining forces. The Copyright Alert System ("CAS"), similar to foreign copyright enforcement graduated response systems, is the privatized, contractual United States graduated …

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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 Jan 2015

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.

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Masthead, Cardozo Journal Of Conflict Resolution, Vol. 17 (2015-16) Jan 2015

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 17 (2015-16)

Cardozo Journal of Conflict Resolution

No abstract provided.

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How To Conduct Effective Telephone And E-Mail Negotiations, Charles B. Craver Jan 2015

How To Conduct Effective Telephone And E-Mail Negotiations, Charles B. Craver

Cardozo Journal of Conflict Resolution

In this article, we will explore the ways in which negotiators use telephone and e-mail exchanges to consummate deals. Which factors should they consider when they talk on the telephone? What issues do cell phones raise that are not associated with traditional landlines? How do e-mail interactions differ from in-person and telephonic dealings? What can individuals do to optimize their use of these bargaining channels?

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Jury Glasses: Wearable Technology And Its Role In Crowdsourcing Justice, Anjanette H. Raymond, Scott J. Shackelford Jan 2015

Jury Glasses: Wearable Technology And Its Role In Crowdsourcing Justice, Anjanette H. Raymond, Scott J. Shackelford

Cardozo Journal of Conflict Resolution

This Article explores the growing development of wearables and immersive technology within the field of dispute resolution. It provides a hypothetical example of how these existing technologies could be used in combination with data gathering, analytics, and artificial intelligence to transform the justice system. The Article then explores the age-old limitations and biases that exist within the justice system and suggests the use of the newest technology could lessen the impact of these limitations and biases. Finally, the Article suggests a marriage of technology, dispute resolution, and the crowd that may produce outcomes that should be supported by the judiciary …

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"Pay-For-Delay" Settlements Post-Actavis: Why Mediation Can Tackle The "Unreasonable" Antitrust Settlements, Sheena Ching Jan 2015

"Pay-For-Delay" Settlements Post-Actavis: Why Mediation Can Tackle The "Unreasonable" Antitrust Settlements, Sheena Ching

Cardozo Journal of Conflict Resolution

This Note discusses the benefits that mediation can have on the reverse payment settlement and antitrust debate, and how it can satisfy the "rule of reason" requirement post-Actavis. Accordingly, Section II discusses the legislative history and policy of the Hatch-Waxman Act. It elaborates on the pioneer drug development process and how the combination of legislation and the inherent nature of drug development resulted in "pay-for-delay" settlements. Section III discusses majority and dissenting opinions in the landmark Supreme Court case FTC v. Actavis as well as the circuit split decisions that led up to the Court's ultimate ruling and …

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Arbitration Agreements In Arkansas After Concepcion, John C. Williams Jan 2015

Arbitration Agreements In Arkansas After Concepcion, John C. Williams

University of Arkansas at Little Rock Law Review

No abstract provided.

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Mediation: The Best And Worst Of Times, Jacqueline Nolan-Haley Jan 2015

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

Faculty Scholarship

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 ethnic …

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Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra Jan 2015

Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra

Faculty Articles

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …

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A Window Into The Soul Of International Arbitration: Arbitrator Selection, Transparency And Stakeholder Interests, Catherine A. Rogers Jan 2015

A Window Into The Soul Of International Arbitration: Arbitrator Selection, Transparency And Stakeholder Interests, Catherine A. Rogers

Faculty Scholarship

New Zealand Law Foundation International Dispute Resolution Lecture 2013, delivered at Stone Lecture Theatre, University of Auckland Faculty of Law, 26 November 2013. This essay derives from that lecture, which considers the important issue of arbitrator selection, appointment and challenge standards and procedures, and introduces the Arbitrator Intelligence project - a proposed solution for informational asymmetries that can affect the fairness of arbitrator selection and appointment.

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Repatriation Of Korean Cultural Property Looted By Japan-Can A Sincere Apology Resolve The Centuries-Old Korea/Japan Disputes?, Melissa (Youngjae) Koo Jan 2015

Repatriation Of Korean Cultural Property Looted By Japan-Can A Sincere Apology Resolve The Centuries-Old Korea/Japan Disputes?, Melissa (Youngjae) Koo

Cardozo Journal of Conflict Resolution

This Note will focus on the disputes between Korea, both North and South Korea, and Japan surrounding Korean cultural property looted by Japan and will explore concrete solutions for resolving such issues through alternative dispute resolution-more specifically, an apology. It will consider two predominant exampies of cultural property looting, which occurred during Japanese invasions of Korea-first, at the end of the sixteenth century and, the second, from 1910 to 1945. Additionally, Japan has frequently been characterized as being a "significant market" for stolen cultural property. It is reported that there are at least 34,157 objects of Korean origin in Japan, …

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Involved, Empowered And Inspired: How Mediating Halakhic Prenuptial Agreements Honors Jewish And American Law And Builds Happy Families, Lara Traum Jan 2015

Involved, Empowered And Inspired: How Mediating Halakhic Prenuptial Agreements Honors Jewish And American Law And Builds Happy Families, Lara Traum

Cardozo Journal of Conflict Resolution

This Note discusses the pitfalls of existing halakhic prenuptial protocols and advances the use of mediation in the prenuptial drafting process. Section II of this Note provides a history of Jewish marital and divorce law, explaining the significance of halakhic legal documents and religious arbitration units. Section III examines the unresolved relationship between Jewish and American systems, discusses the advent of American prenuptial agreements, and highlights the shortcomings of existing prenuptial agreements in the Orthodox Jewish community. Section IV proposes that prenuptial mediation best honors halakha, American law, and individual interests.

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Safe And Sound: How Adr Can Protect Aquatic Life And National Security, James Diskint Jan 2015

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.

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Judging As Judgment: Tying Judicial Education To Adjudication Theory, Robert G. Bone Jan 2015

Judging As Judgment: Tying Judicial Education To Adjudication Theory, Robert G. Bone

Journal of Dispute Resolution

The thesis of this Article, simply stated, is that judicial education makes sense only against the backdrop of general ideas and beliefs about law, courts, and adjudication. These ideas and beliefs motivate a focus on educating judges and help guide more specific pedagogical choices. I explore this broad thesis from both a historical and a normative perspective. Historically, I argue that interest in judicial education caught fire in the 1960s in large part because of prevailing beliefs about law and the proper function of courts. Normatively, I argue that the connection between judicial education and normative views of courts and …

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Judicial Bias: The Ongoing Challenge, Kathleen Mahoney Jan 2015

Judicial Bias: The Ongoing Challenge, Kathleen Mahoney

Journal of Dispute Resolution

This article calls for a renewed commitment to judicial education on the roles that gender, race, class and other biases can have on judicial decisions and impartiality. This article also calls for the appointment of a more representative and diverse judiciary. An explosion of activity occurred for about a decade between the late 1980s until the late 1990s to promote and implement social context education for judges to help judges understand the realities of people most unlike themselves, and to appoint judges to be more representative of the population of Canada. But this trend has diminished to the point that …

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Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong Jan 2015

Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong

Journal of Dispute Resolution

Producing well-written reasoned judgments (a term that is used herein to denote both trial court decisions and appellate opinions) is the goal of all members of the bench. Badly written rulings can have significant legal consequences for both the parties, who may incur costs as a result of a need to appeal a poorly worded decision or opinion, and society as a whole, since a poorly drafted precedent may drive the law in an unanticipated and unfortunate direction or lead to increased litigation as individuals attempt to define the parameters of an ambiguous new ruling. As a result, helping judges …

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“Throwing The Baby Out With The Bathwater”: Parenting Coordination And Pennsylvania’S Decisions To Eliminate Its Use, Sophie B. Mashburn Jan 2015

“Throwing The Baby Out With The Bathwater”: Parenting Coordination And Pennsylvania’S Decisions To Eliminate Its Use, Sophie B. Mashburn

Journal of Dispute Resolution

Parenting coordination is a relatively new ADR practice utilized by courts to assist in resolving high conflict divorce cases. Though considered controversial by some, it can also serve as an effective tool for divorced parents who struggle with regular co-parenting decisions. Parenting coordination is defined as: A child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s needs, and with prior approval of the parties and/or court, making …

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Breaking The Impasse: A Two-Pronged Approach For Resolving Sovereign Debt Holdout Disputes, Alexander Shapos Jan 2015

Breaking The Impasse: A Two-Pronged Approach For Resolving Sovereign Debt Holdout Disputes, Alexander Shapos

Cardozo Journal of Conflict Resolution

Sovereign debt holdout disputes implicate billions of dollars. For nearly a decade, one such dispute has led to a de facto embargo on Argentina as well as an inability for investment funds to enforce multibillion-dollar judgments. Thus, it is significantly in the interests of both future sovereign bond issuers and future creditors to preemptively avoid unproductive impasses. But with no existing formal bankruptcy regime, sovereigns are left to litigate, arbitrate, or negotiate their debt disputes. This Note proposes that litigation is an inappropriate remedy to resolve such disputes-and instead, it proposes a two-pronged approach for preventing and resolving disputes. The …

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Where Do We Fight?: A Way To Resolve The Conflict Between A Forum Selection Clause And Finra Arbitration Rule 12200, Suleman Malik Jan 2015

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 …

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A Legislative Pendency Proposal To Address The Consumer Harm Caused By The Broken Retransmission System, Marla S. Merchut Jan 2015

A Legislative Pendency Proposal To Address The Consumer Harm Caused By The Broken Retransmission System, Marla S. Merchut

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt Jan 2015

Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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The Diversity Challenge: Exploring The 'Invisible College' Of International Arbitration, Susan Franck Jan 2015

The Diversity Challenge: Exploring The 'Invisible College' Of International Arbitration, Susan Franck

Scholarly Articles in Law Reviews & Journals

As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Using data from a survey of attendees at the prestigious and elite biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the …

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The Parts Are Greater Than The Sum: What I Learned From My Mediation Clinic Students, Floralynn Einesman Jan 2015

The Parts Are Greater Than The Sum: What I Learned From My Mediation Clinic Students, Floralynn Einesman

Faculty Scholarship

I co-created the Mediation Clinic at California Western School of Law (hereafter CWSL) with my colleague Linda Morton in 1996 to provide students the opportunity to learn the process of mediation and to mediate live disputes in the community. We recognized the importance of “soft skills” such as communication, collaboration, initiative, and adaptability and therefore we sought to create an experiential learning opportunity for the students that encouraged them to nurture those skills. We wanted to teach students conflict resolution skills and to have them work together to use those skills to help individuals in the community resolve actual disputes. …

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Table Of Contents - Issue 1 Jan 2015

Table Of Contents - Issue 1

Journal of Dispute Resolution

Table of Contents - Issue 1

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Judicial Education And Regulatory Capture: Does The Current System Of Educating Judges Promote A Well-Functioning Judiciary And Adequately Serve The Public Interest?, S. I. Strong Jan 2015

Judicial Education And Regulatory Capture: Does The Current System Of Educating Judges Promote A Well-Functioning Judiciary And Adequately Serve The Public Interest?, S. I. Strong

Journal of Dispute Resolution

First, the Essay considers certain obstacles to research concerning judicial education as a means of determining why more scholars have not sounded an alarm regarding practices in this field (Section II). The Essay then addresses a number of issues relating to the current approach to judicial education to determine whether and to what extent judicial control over this issue can be considered problematic (Section III). That analysis leads logically into a discussion of various ways that the possibility of regulatory capture of judicial education could be diminished (Section IV). Finally, the Essay concludes by drawing together various strands of analysis …

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International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers Jan 2015

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

Journal of Dispute Resolution

This essay sketches an account of how investment arbitration affects development of local legal institutions, in particular domestic courts. When investment arbitration is introduced into a local legal environment, it becomes integrated with international commercial arbitration, and often domestic arbitration. This integration occurs because the local economic elites, private law firms, and local businesses that deal with (or compete with) foreign investors and investment arbitration disputes also deal with international commercial matters, international commercial disputes, and domestic arbitration.

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