Dispute Resolution and Arbitration Commons^™

Exploring The Federal Arbitration Act Through The Lens Of History Symposium, Imre Stephen Szalai

Journal of Dispute Resolution

The United States Arbitration Act (known today as the Federal Arbitration Act, or FAA) is a relatively short and deceptively cryptic statute. The heart of the statute, section 2, is one sentence, and this key provision simply declares that arbitration agreements are generally “valid, irrevocable, and enforceable.” There is not much traditional legislative history surrounding this statute because much of the development of the bill that became the FAA occurred through organizations outside of Congress, like the American Bar Association and the New York Chamber of Commerce.3 As a result, to understand the FAA at a deeper level, it is …

Robbing The Cradle: The Use Of Mediation In Parental Rights Termination With Evidence Of Drug Abuse By The Mother, M. Katherine Kerbs

Journal of Dispute Resolution

This Comment will explore the use of mediation in termination of parental rights proceedings where there is evidence of drug abuse by the parents. First, this Comment will give an overview of termination proceedings and examine a specific statute’s guidelines for termination. Then, this Comment will provide an overview of mediation and its uses in family law. Finally, this Comment will argue for increased use of mediation in termination of parental rights cases where there is evidence of drug abuse by the mother.

The Historically Shifting Sands Of Reasons To Arbitrate Symposium, James Oldham

Journal of Dispute Resolution

It is well established that for many centuries, arbitration has been a regular, even frequent, method of dispute settlement in the Western World. Derek Roebuck has done path breaking research demonstrating this in his recent book covering the middle ages (1154-1558)1 and in his contribution to this symposium, “The English Experience: What the First American Colonists Knew of Mediation and Arbitration.”2 My own work, with the excellent help of co-authors Henry Horwitz and Su Jin Kim, has explored English patterns from the late 17th century into the 1800s, also tracing the English approach into the American colonies and the early …

A User's Guide To Easier Flood Insurance: A Look Into The History Of Flood Insurance Claims Dispute Processing And Suggestions For Improvement, Courtney Lauer

Journal of Dispute Resolution

In 2012, Superstorm Sandy alone produced 144,484 claims for federal flood insurance coverage under the National Flood Insurance Program (NFIP). The NFIP was created under the National Flood Insurance Act of 1968, and was designed to limit the impact of flooding on both private and public structures. The NFIP’s self-stated goal was to decrease the socioeconomic effects of natural disasters by encouraging the purchase of flood insurance and general risk insurance.

Collective Bargaining In Rent Stabilized Buildings: How New York City's Rent Regulated Market Can Benefit From The Fundamentals Of Labor Law, Stephanie Gorin

Cardozo Journal of Conflict Resolution

There is an evident imbalance of power between the two parties, which is often exasperated by the costs, timing and intimidation of Housing Court. This Note will seek to explore how a "tenant group" should be formed. Although many tenants living in rent-regulated buildings are surrounded by fellow tenants in similar circumstances, many other rent regulated tenants are the sole tenant remaining in their building, still under the auspices of rent regulation. This Note will further seek to explore how sole rent regulated tenants can form and join tenant groups. Next, it proposes a system in which mediation, and, if …

Keeping Our Kids In School And Out Of Court: Rooting Out School Suspension Hearings And A New Alternative, Rachel Klein

Cardozo Journal of Conflict Resolution

This Note proposes an alternative model that can help a child improve his behavior in school, without removing the student from class. Section I of this Note examines the historical and legal context governing school suspension as a whole, specifically making reference to and analyzing New York State school suspension practices. Section II analyzes the effectiveness of school suspension and the methods used in New York to fix this system. In Section III, this Note proposes the use of arbitration as a superior mode of resolution and explains why Board of Education Arbitration is an effective model that helps students …

Mediating Domestic Violence Disputes In Chinese Immigrant Families In The U.S.: The Case For Court-Appointed Mediation Programs, Kevin Lam

Cardozo Journal of Conflict Resolution

Chinese immigrants, particularly those that lack legal status, have historically mistrusted the U.S. legal system. Not only are they wary of the adversarial nature of court proceedings, but also language and cultural barriers frequently prevent them from gaining meaningful access to relief. As a result, issues that arise from within the Chinese immigrant community are generally addressed privately or with the assistance of community leaders. In the case of domestic violence, cultural norms and values about gender roles typically deter battered immigrant women from seeking help in the first place. Undocumented immigrant women are more susceptible to deportation and are …

Food Stamps, Unjust Enrichment And Minimum Wage, Candace Kovacic-Fleischer

Scholarly Articles in Law Reviews & Journals

A number of large retail chains with monopsony power, such as Walmart, pay their low level employees so little that these employees are eligible for food stamps and other governmental benefits. In addition to paying low wages, these chains often have hourly restrictions so that their employees are not eligible for overtime pay. At times the chains violate the wage and hour provisions of the Fair Labor Standards Act (FLSA) by making hourly employees work “off the clock,” a practice known as wage theft.

One of the reasons these low wage retailers can pay so little is because their employees …

Tharu Barghar-Mukhiya Indigenous Model: A Case Study Of Tharu Community Of Nepal, Narayan B. Khadka

Department of Conflict Resolution Studies Theses and Dissertations

This research explores the indigenous conflict resolution processes practiced by the Tharu community living in Nepal’s Bara, Dang and Bardiya districts, the role of Tharu traditions and customs, and the function of the Barghar-Mukhiya. Due to geographic and monetary challenges experienced by the Tharu accessing Nepal’s formal justice system, they continue to serve as a viable and vibrant vehicle for resolving minor and major conflicts at the community level and form the basis of researcher’s Barghar-Mukhiya model. Shaped by Tharu collectivist culture and traditions, it supports the social fabric of the community. Utilizing qualitative case study methodology, this research assesses …

Masthead

Journal of Dispute Resolution

No abstract provided.

Beyond The Faa: Arbitration Procedure, Practice, And Policy In Historical Perspective Symposium: Introduction, Carli N. Conklin

Journal of Dispute Resolution

The purpose of this symposium edition of the Journal of Dispute Resolution is to widen the focus of our present-day discourse on arbitration by exploring the broader histories of arbitration in America, considering not only what arbitration procedure, practice, and policy looked like in early America (and in the earlier legal, cultural, or religious systems from which American arbitration was adopted), but also how those broader histories might contribute to important discussions and developments in arbitration procedure, practice, and policy today. To that end, we brought together scholars in law and history whose combined works restore breadth and depth to …

For Eschewing Of Trouble And Exorbitant Expense: Arbitration In The Early Modern British Isles Symposium, Margo Todd

Journal of Dispute Resolution

The history of binding arbitration in British customary law is very long, and in scope, very broad. In Scotland and in England, in settings both urban and rural, commercial and ecclesiastical, and across a broad range of social estates, from craftsmen to lords, alewives to merchant princes, it had by the sixteenth and seventeenth centuries become the default mechanism to avoid costly litigation, and to resolve disputes likely otherwise to end in bloodshed.1 It was often a device to avoid the courts, since litigation was always expensive and time-consuming; however, in a great number of cases it occurred in cooperation …

Arbitration And Elite Honour In Elizabethan England: A Case Study Of Bess Of Hardwick Symposium, Francis Calvert Boorman

Journal of Dispute Resolution

During the 1580s, Queen Elizabeth I intervened in a marital dispute between two of her foremost subjects, George Talbot, Earl of Shrewsbury and his wife, commonly referred to as Bess of Hardwick. The Queen appointed several of her Privy Councillors to negotiate a reconciliation. These events provide a case study of the use of arbitration and mediation in resolving familial disputes among the elite of Elizabethan England, and their particular application by the Queen and her closest advisers. This article also highlights the importance of contemporary conceptions of gender and honor to dispute resolution.

Table Of Contents - Issue 1

Journal of Dispute Resolution

Table of Contents - Issue 1

Constructions Of Arbitration's Informalism: Autonomy, Efficiency, And Justicesymposium, Hiro N. Aragaki

Journal of Dispute Resolution

In the wake of a recent three-part series by the New York Times, arbitration is now back in the eye of the storm. The leading critique of arbitration, especially in the consumer and employment space, is that it is unjust both in the sense that it does not comport with basic notions of procedural fairness and/or because it cannot be expected to produce outcomes we would consider substantively just. For example, procedure in arbitration is dictated largely by contract rather than by mandatory rules that have been vetted by public bodies entrusted with safeguarding procedural values. Arbitrators are not bound …

The Historical Basis Of Securities Arbitration As An Investor Protection Mechanism Symposium, Jill Gross

Journal of Dispute Resolution

This article describes a history of securities arbitration, and uncovers the original purpose of designating arbitration to resolve investor disputes. This article argues that both investors and the industry have disregarded this underlying purpose, causing them to view securities arbitration through a distrusting, critical lens. Rather than cynically viewing securities arbitration as a forum created by and favoring industry players, investors should view arbitration as a central and critical component in a system of investor protection. Likewise, rather than promoting mandatory arbitration as desirable because of its speed and economies, broker-dealers and SIFMA should advertise the investor-protective benefits of the …

A Variety Of State-Level Procedures, Practices, And Policies: Arbitration In Early America Symposium, Carli N. Conklin

Journal of Dispute Resolution

This article seeks to explore the history of arbitration more in depth by taking a close look at the historical procedures, practices, and policies of arbitration in three states: Kentucky, New Jersey, and Massachusetts. Each state developed a complex system of arbitration that included multiple arbitration procedures drawn from English law. Each state had unique geographic, political, social, religious, or commercial conditions that influenced not only the development of arbitration in that state, but also arbitration practice and the policy goals surrounding its use. A closer look at arbitration in early America reveals that, rather than one history of American …

Ancient And Comely Order: The Use And Disuse Of Arbitration By New York Quakers Symposium, F. Peter Phillips

Journal of Dispute Resolution

From the late 17th century, the Religious Society of Friends ("Quakers") observed a method of resolving disputes arising within congregations that was scripturally based, and culminated in final and binding arbitration. The practice of Quaker arbitration gradually disappeared during the late 19th and early 20th centuries, and few modern Quakers are even aware of it. This article traces that decline and notes similarities with mercantile arbitration. In both religious and mercantile arbitration, a defined community valued the goal of avoiding group disruption more than the goal of vindicating individual legal rights. In both cases, members of the community applied distinct …

Stripping Away Employment Rights: The Unconscionability Of Class Waivers In Employment Agreements, Nikki Clark

Journal of Dispute Resolution

As support for arbitration clauses began to grow, employers began to include arbitration clauses in employment agreements because it lowers the cost and uncertainty of litigation. Many of these arbitration clauses contain waivers of the right to class action. This Note argues that a waiver of collective action, whether express or unknowing, should be per se unconscionable to provide consistency and to resolve the inconsistency between and even within federal circuits.

The Idea And The Use Of Mediation And Collaborative Dispute Resolution In Due Process Disputes, Katherine Mcmurtrey

Journal of Dispute Resolution

This Comment discusses the future of alternative dispute resolution in special education conflicts by first examining a brief history of the IDEA and the areas it covers. Due process complaints under the IDEA and mediation as a solution to due process complaints will then be addressed. Then, it will focus on mediation and its impact on parents and schools, particularly the advantages and disadvantages of mediation, and the presence of attorneys in mediation. Finally, it will look towards collaborative law, when two attorneys and their clients collaborate to reach an agreement, and the future of collaborative dispute resolution in the …

The Latest Nfl Fumble: Using Its Commissioner As The Sole Arbitrator, Theresa Mullineaux

Journal of Dispute Resolution

The National Football League (NFL) is the governing body of professional football in America and is led by Commissioner Roger Goodell who acts as the chief executive of the NFL overseeing all 32 NFL teams. Amongst his vast powers includes resolving disputes with “full, complete, and final jurisdiction to arbitrate any dispute between any player, coach, and/or other employee of any member of the League (or any combination thereof) and any member club or clubs.” The Commissioner’s ability to make binding decisions in these disputes is diminished by a clear conflict of interest. This must be changed. This Note will …

Rescuing The “Supreme Court” Of Sports: Reforming The Court Of Arbitration For Sport Arbitration Member Selection Procedures, Jennifer R. Bondulich

Brooklyn Journal of International Law

The international athletic community’s preference for arbitration over traditional domestic courts to settle disputes between individual athletes and their respective sports governing bodies has led to the development of an authority specializing in international sports dispute resolution—the Court of Arbitration for Sport (CAS). Originally created in 1984 by the International Olympic Committee (IOC) to hear Olympic disputes, CAS has developed into the exclusive arbitral body for international sports disputes, and clauses granting CAS exclusive authority are found in essentially all contracts between individual athletes and their respective athletic federation. Although, CAS functions as the “Supreme Court” of Sports and is …

The Challenge Of Fiduciary Regulation: The Investment Advisors Act After Seventy-Five Years, Roberta S. Karmel

Brooklyn Journal of Corporate, Financial & Commercial Law

Seventy-five years after its enactment the Investment Advisers Act of 1940 has advanced from a relatively weak statute merely registering advisers with the Securities and Exchange Commission (SEC) to a more robust law imposing fiduciary responsibilities on advisers. Over the years, the number of investment advisers and the number of their clients have increased greatly. The SEC therefore has been pressured by Congress to develop a harmonized fiduciary standard for broker-dealers and advisers and also to develop and enforce a greater degree of oversight over the advisory industry. These developments have raised the questions of how to fund such efforts …

The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross

Brooklyn Journal of Corporate, Financial & Commercial Law

Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.

More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms’ duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …

The State Courts Centre For Dispute Resolution: Serving The Society With Quality Dispute Resolution Services, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

Court Alternative Dispute Resolution (“ADR”) has its origins in a 1994 pilot project in the Subordinate Courts (as it was known then) to have selected District Judges assist in resolving civil disputes using ADR processes. Within two decades, Court ADR has been extended to the entire gamut of cases filed in court, including civil claims, minor criminal offences and family disputes. Court ADR services, which have been known as “Court Dispute Resolution”, have become integral to the delivery of justice in the State Courts. As the Honourable The Chief Justice Sundaresh Menon has observed, ADR has been promoted as the …

The Gang That Couldn't Shoot Straight: The Not So Magnificent Seven Of The Wto Appellate Body, Petros C. Mavroidis

Faculty Scholarship

The WTO Appellate Body (AB) has produced a volume-wise important body of case law, which is often difficult to penetrate, never mind classify. Howse (2016) has attempted a very lucid taxonomy of the case law using the standard of review as benchmark for it. His conclusion is that the AB is quite cautious when facing nondiscriminatory measures, especially measures relating to the protection of human life and health, while it has adopted a more intrusive (into national sovereignty) standard when dealing with trade measures (like antidumping), which are by definition discriminatory as they concern imports only. In my response, I …

The Wto Dispute Settlement System 1995-2016: A Data Set And Its Descriptive Statistics, Louise Johannesson, Petros C. Mavroidis

Faculty Scholarship

In this paper, we provide some descriptive statistics of the first twenty years of the WTO (World Trade Organization) dispute settlement that we have extracted from the data set that we have put together, and made publicly available.

The statistical information that we present here is divided into three thematic units: the statutory and de facto duration of each stage of the process, paying particular attention to the eventual conclusion of litigation; the identity and participation in the process of the various institutional players, that is, not only complainants and defendants, but also third parties, as well as the WTO …

Law Student Mediators Wear A Triple Crown: Skilled, Sellable, & Successful, Laurie A. Lewis

Scholarly Articles

This Article considers several trends that converge to make it a highly favorable time for law students to obtain mediation training and work as mediators prior to graduating. Part I summarizes a brief history of the modern ADR movement, and mediation's emergence as the ADR methodology of choice. Part II discusses the proliferation of live clinics in law schools, with a special emphasis upon mediation clinics and their role in teaching unique practice-ready skills. Part III focuses on the practicalities of community mediation training as well as state requirements for mediators. Finally, Part IV considers the tight legal job market …

Decriminalizing Violence: A Critique Of Restorative Justice And Proposal For Diversionary Mediation, M. Eve Hanan

All Faculty Scholarship

The movement to reduce over-prosecution and mass incarceration has focused almost exclusively on non-violent offenders despite data showing that over half of all prisoners incarcerated within the United States are sentenced for crimes of violence. As a consequence of the focus on nonviolent offenses, the majority of current and future defendants will not benefit from initiatives offering alternatives to criminal prosecution and incarceration.

A discussion of alternatives to the criminal justice system in cases of violent crime must begin by acknowledging that violent crime is not monolithic. Many incidents meet the statutory elements of a violent crime, that is, the …

Making Mediation Law, Nadja Alexander, Felix Steffek

Research Collection Yong Pung How School Of Law

Mediation is a procedure in which an intermediary without decision-making powers (themediator) systematically facilitates communication between the parties of a conflict withthe aim of enabling the parties themselves to take responsibility for resolving their dispute.Mediation is a highly flexible and adaptable process—a factor that can create challengesfor regulators. In fact, some people suggest that mediation should not be regulated at all.Yet, mediation does not and cannot exist in a regulatory vacuum.