Dispute Resolution and Arbitration Commons^™

Mandatory Process, Matthew J.B. Lawrence

Indiana Law Journal

This Article suggests that people tend to undervalue their procedural rights—their proverbial “day in court”—until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance— their perception of unfairness and accompanying negative emotional reaction—win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this happens, people will waive their procedural rights …

Von Fischen Im Wasser Und Andere Mediationserzählungen [Of Fish In Water And Other Mediation Stories] (In German), Nadja Alexander

Research Collection Yong Pung How School Of Law

This essay offers an international and cross-cultural perspective on mediation. It builds on the contributions to this journal issue and extends the conversation to include (1) the role of culture in mediations models and (2) the taboo topic of directive, evaluative approaches. After reviewing various taxonomies of mediation models, the author’s mediation meta model is used as a framework to analyze diverse approaches of mediation including those presented in this issue. Historical-cultural perspectives provide further layers of depth and nuance that thicken the already complex storylines of the human mediation narrative. If mediation is to succeed in attaining truly global …

Mandatory Arbitration In Consumer Finance And Investor Contracts, Michael S. Barr

Articles

Mandatory pre-dispute arbitration clauses are pervasive in consumer financial and investor contracts—for credit cards, bank accounts, auto loans, broker-dealer services, and many others. These clauses often ill serve households. Consumers are typically presented with contracts on a “take it or leave it” basis, with no ability to negotiate over terms. Arbitration provisions are often not clearly disclosed, and in any event are not salient for consumers, who do not focus on the importance of the provision in the event that a dispute over the contract later arises, and who may misforecast the likelihood of being in such a dispute. The …

Tallman V. Eight Judicial District Court, 131 Nev. Adv. Op. 60673 (Sep. 24, 2015), Marta Kurshumova

Nevada Supreme Court Summaries

The Court held that an employment arbitration agreement, which contains a clause waiving the right to initiate or participate in class actions, constitutes a valid contract, even though it is not signed by the employer. The Court further determined that the Federal Arbitration Act applies to all transactions involving commerce and does not conflict with the National Labor Relations Act, which permits and requires arbitration. Finally, the Court found that a party does not automatically waive its contractual rights to arbitration by removing an action to federal court.

Mika V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 71 (Sep. 24, 2015), Kory Koerperich

Nevada Supreme Court Summaries

The court denied extraordinary writ relief from the district court’s decision to compel arbitration between Petitioners and their employer based on a long-form arbitration agreement signed only by the Petitioners, and federal law favoring arbitration agreements.

What Makes Lawyers Happy? – And How Can You Help?, John Lande

Faculty Blogs

This post summarizes Lawrence Krieger and Kennon Sheldon’s impressive study, What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success. They write, “[T]he current data show that the psychological factors [related to subjective well-being] seen to erode during law school are the very factors most important for the well-being of lawyers. Conversely, the data reported here also indicate that the factors most emphasized in law schools – grades, honors, and potential career income, have nil to modest bearing on lawyer well-being.”

Fairness, Trust And Security In Online Dispute Resolution, Noam Ebner, John Zeleznikow

Journal of Public Law and Policy

No abstract provided.

Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong

Michigan Journal of International Law

Unlike many types of domestic arbitration where unreasoned awards (often called “standard awards”) are the norm, international commercial arbitration routinely requires arbitrators to produce fully reasoned awards. However, very little information exists as to what constitutes a reasoned award in the international commercial context or how to write such an award. This lacuna is extremely problematic given the ever-increasing number of international commercial arbitrations that arise every year and the significant individual and societal costs that can result from a badly written award. Although this Article is aimed primarily at specialists in international commercial arbitration, the material is also useful …

Saltman Center For Conflict Resolution Tenth Anniversary Honors Nelson Mandela, Jean R. Sternlight

Nevada Law Journal

No abstract provided.

Making Peace With Your Enemy: Nelson Mandela And His Contributions To Conflict Resolution, Jean R. Sternlight, Andrea Schneider, Carrie Menkel-Meadow, Robert Mnookin, Richard Goldstone, Penelope Andrews

Nevada Law Journal

No abstract provided.

Incentivizing Corporate America To Eradicate Transnational Bribery Worldwide: Federal Transparency And Voluntary Disclosure Under The Foreign Corrupt Practice Act, Peter Reilly

Faculty Scholarship

In 1977, it was discovered that hundreds of U.S. companies had spent hundreds of millions of dollars in bribes to improve business overseas. In response, Congress passed the Foreign Corrupt Practices Act (FCPA), thereby making it illegal to bribe foreign officials to obtain a business advantage. A major tension has emerged between the federal agencies charged with enforcing the FCPA (i.e., the DOJ and SEC), and the corporate entities trying to stay within the legal and regulatory bounds of the statute. Specifically, while the government appears to be trying to maximize discretion and flexibility in carrying out its enforcement duties, …

Recent Developments In International Mediation: Singapore’S Unique Approach, Josephine Hadikusumo, Eunice Chua

Research Collection Yong Pung How School Of Law

Singapore’s vibrant dispute resolution sector has been growing on the back of a significant rise in commercial transactions in Asia and a corresponding increase in the number and complexity of cross-border disputes. In particular, Singapore has achieved significant success in the field of international arbitration. Singapore has been recognised as the third most preferred seat of arbitration, after London and Geneva, and the Singapore International Arbitration Centre (“SIAC”) is the fourth most preferred arbitral institution worldwide despite being a relatively young institution. In recent years, Singapore law firms have also ranked amongst the top international arbitration practices in Asia.In order …

Michael Mustill: A Reminiscence, William W. Park

Faculty Scholarship

The arbitration world lost a giant when Michael Mustill departed in April of this year, just a few days short of his 84th birthday. A man of enormous intellect and wit, with a fine capacity for sincere friendship, this generous Yorkshireman enriched us through contributions as counsel, judge, scholar, and mentor.

‘Pro Enforcement Bias’ Under Article V Of The New York Convention In International Commercial Arbitration: Comparative Overview, Fifi -. Junita -

Indonesia Law Review

This article explores the main features of exceptions to enforcement under Article V of the NYC, including its exhaustive and discretionary natures. It then specifically provides an overview of narrow judicial control over the grounds for refusing enforcement under the Article V of the NYC. It points out the fundamental principles of the provision in determining the enforceability of international arbitral awards. Then this article will occasionally refer to international arbitral cases in some jurisdictions, such as the United States, France and Switzerland. It is noted that courts and legislatures in those jurisdictions have moved towards pro-enforcement policy to questions …

Informal Dispute Resolution Based On Adat Law: A Case Study Of Land Dispute In Flores, East Nusa Tenggara, Indonesia, Najmu Laila Sopian

Indonesia Law Review

The issue of law enforcement is central to land property rights. Modes of property rights enforcement can be performed either with or without intervention of the state. This article focuses on the latter mode of enforcement; that is, how people manage to enforce their land rights without the involvement of state institutions and to what extent informal arrangements can offer effective enforcement and secure land property rights. This article also contributes to the debate on how formal and informal institutions can be used to secure property rights and resolve disputes over land ownership. In particular, this paper examines how the …

Tips For Lawyers Who Want To Get Good Results For Clients And Make Money, John M. Lande

Faculty Blogs

This post suggests that lawyers do the following to help clients achieve their goals: Understand your clients’ interests. Pay attention to what’s really important in your cases, not just the law or winning. Recognize the importance of emotions – especially yours. Get to know your counterpart lawyer. Make a habit of preparing to resolve matters at the earliest appropriate time. Be prepared to negotiate more than you might expect. Get help from mediators when needed. Be prepared to advocate hard and smart.

Private Investment And Public Health, David Gartner

Georgia Journal of International & Comparative Law

Related to Georgia Journal of International and Comparative Law Conference: The New Roles of Corporations in Global Governance

Arbitration - Dispute Involving Hazardous Working Conditions Is Within The Scope Of Broad Arbitration Clause Of A Collective Bargaining Agreement In Absence Of Forceful Indication Of Exclusionary Intent; Gateway Coal Co. V. United Mine Workers, Raymond T. Royko

Akron Law Review

The collapse of a ventilation structure substantially reduced the air flow into a mine operated 'by the Gateway Coal Co., seriously increasing the danger of accumulation of dust, flammable gas and possible explosion. Three assistant foremen, whose duties included checking and recording the airflow in the mine, made false entries in their logbooks that failed to disclose the reduced air flow. The three foremen were suspended, and criminal proceedings were instituted against them. While the charges remained pending, the Company, after receiving permission from the Pennsylvania Department of Environmental Resources, reinstated the foremen. Ruling that the continued presence of the …

Transforming News: How Mediation Principles Can Depolarize Public Talk, Carol Pauli

Faculty Scholarship

News media interviews bring opposing voices into the public forum where, ideally, audience members can deliberate and reach democratic compromise. But in today’s politically polarized atmosphere, partisans increasingly accuse each other of being a threat to the country, and prospects for compromise have suffered. Journalists have been urged to take a more affirmative role, promoting problem-solving and opposing conflict. They have stopped short, citing professional norms that demand a stance of neutral detachment.

This Article turns to the principles of transformative mediation. Like journalism, it is detached from any goal of settlement. It aims instead at increasing the capacity of …

Gravitating Toward Sensible Resolutions: The Pca Optional Rules For The Arbitration Of Disputes Relating To Outer Space Activity, Caroline Arbaugh

Georgia Journal of International & Comparative Law

No abstract provided.

Vimar Segurosy Reaseguros V. M/V Sky Reefer: A Change In Course: Cogsa Does Not Invalidate Foreign Arbitration Clauses In Maritime, C. Christine Fahrenback

Akron Law Review

The purpose of this Note is to analyze the Supreme Court's reasoning in Vimar Seguros Y Reaseguros, S.A. v. M/V Sky Reefer, and to explore the case's domestic and international implications. Part II discusses the statutory history of COGSA and the Arbitration Act, and the lineage of cases preceding the Supreme Court's decision in this case. Part III looks at the specifics of the case, presenting the facts, procedural history, and reasoning of the majority and dissent. Finally, the Note concludes with an analysis of the Court's decision to abandon precedent and depart into uncharted waters by upholding the foreign …

The Investigation Procedures Of The United Nations Office Of Internal Oversight Services And The Rights Of The United Nations Staff Member: An Analysis Of The United Nations Judicial Tribunals’ Judgments On Disciplinary Cases In The United Nations, Tamara A. Shockley

Pace International Law Review

An employee of an international organization misappropriates over one million dollars from a United Nations Peace-Keeping Mission’s designated for procurement of supplies. As a staff member of an international organization, he or she has functional immunity and cannot be investigated by the local jurisdiction or by authorities in his home country. Is this the “perfect crime”? Taking into consideration that these misappropriated funds are contributions from Member States of the United Nations, is there any recourse to investigate the facts of the incident to determine culpability?

International organizations have a legal obligation to ensure compliance with internal regulations, rules and …

Law & Lawyering In The Work Place: Building Better Lawyers By Teaching Students To Exercise Critical Judgment As Creative Problem Solver, Alan M. Lerner

Akron Law Review

This article is about the evolution of that course from the earliest planning through its presentation. Hopefully, having the two of us involved in the day-to-day teaching of the course would send the message to our students that collaboration was a positive aspect of the learning and lawyering processes. Additionally, we hoped that the students would see that “academic” and “clinical” faculty are partners in their legal education.

Trending@Rwu Law: Professor Bruce Kogan's Post: Why Mediation?, Bruce Kogan

Law School Blogs

No abstract provided.

Taking Advantage Of Opportunities In Litigotiation, John M. Lande

Faculty Publications

This article is partially based on a study in which I interviewed respected lawyers about their negotiation processes in pretrial litigation. I asked these lawyers about their negotiation procedures generally, and I asked them to describe the last case they settled, starting with the first interaction with their clients in the matter. Although this article focuses on negotiation in the litigation context, some lawyers presumably use analogous procedures in transactional matters.

Court Arbitration By Compromise: Rethinking Delaware's State Sponsored Arbitration Case, Yuval Sinai, Michal Alberstein

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Mediating A Family: The Use Of Mediation In The Formation And Enforcement Of Post-Adoption Contact Agreements, Sophie Mashburn

Journal of Dispute Resolution

This comment will discuss how and why adoption law has evolved into a preference for open adoption, provide a brief history of post-adoption contact agreements, and discuss the current and best practices for utilizing post-adoption contact agreements. Finally, this comment will explore the use of mediation in various states to assist adoptive parents and birth parents in forming and maintaining an agreement they both accept and that furthers the best interests of the children being adopted. Using mediation to further the interests of children, adoptive couples, and birth parents is a positive trend in adoption law that should be encouraged …

Inetianbor And Green: How Two Payday Loan Disputes Illustrate The Integrality Rule’S Incompatibility With The Faa, Cameron C. Lincoln

Journal of Dispute Resolution

The integrality rule is a rule grounded in the analysis of party intent and allows for an arbitration agreement to be vitiated if the selected forum is unavailable and the forum was integral to the agreement. The integrality rule, conceived in 1990, has a short history, and while it is followed by several federal appellate circuits, it is not consistently named or referenced. The Eleventh Circuit applied the rule in Inetianbor v. CashCall, Inc., where the court precluded arbitration due to the integrality rule. This case raises questions of whether the integrality rule contradicts the Federal Arbitration Act (FAA), whether …

Masthead

Journal of Dispute Resolution

No abstract provided.

The Special Nature Of International Insurance And Reinsurance Arbitration: A Response To Professor Jerry, S. I. Strong

Journal of Dispute Resolution

No abstract provided.