Dispute Resolution and Arbitration Commons^™

Multicultural Adr And Family Law: A Brief Introduction To The Complexities Of Religious Arbitration, Michael J. Broyde

Cardozo Journal of Conflict Resolution

Recent polls indicate that the U.S. population is getting less religious and more secular. This seems to mirror the nation'sand its laws'-movement away from reflecting certain traditional values. While these movements have left some members of the religious population in a precarious situation, surrounded by a society whose values are changing before their eyes, it has also caused the religious to cling tighter to their respective faiths and become more entrenched in the values they assert.

Resolving Multicultural Family Disputes In New York: A Clash Of Courts And Cultures, Alla Roytberg

Cardozo Journal of Conflict Resolution

In this Article, I will discuss my experiences with litigated cases involving multi-cultural families. I will then analyze how issues of cultural sensitivity can be addressed and honored during a mediation between the parties, with the help of an experienced, culturally sensitive mediator.

Reform Of Family Justice: Children's Dispute Resolution In Hong Kong, Katherine Lynch

Cardozo Journal of Conflict Resolution

This article discusses evolving family justice system reforms in Hong Kong and the inherent problems that persist with the system, particularly as they relate to the resolution of disputes involving children.1 9 The important initiatives of the Hong Kong Judiciary are highlighted (including the various mediation practice directions issued and pilot schemes established), along with challenges of legislative reform in the family justice area. Underlying all of this are the various paradigm shifts occurring within family justice systems, including the emergence of the "shared or joint parental responsibility" concept, the increased use of ADR processes for children's issues outside of …

Reducing Recidivism Of Violent Offenders Through Victim-Offender Mediation: A Fresh Start, Laura Ravinsky

Cardozo Journal of Conflict Resolution

This Note will examine how VOM between victims and violent offenders improves the criminal justice system and reduces recidivism. The Note will propose that there is a better remedy for violent crime than punitive prison sentences absent genuine efforts to reform. In Section II, this Note will discuss the breakdown of the U.S. criminal justice system, particularly the excessive incarceration rate and the ineffectiveness of the current retributive scheme, followed by a history and overview of VOM. Next, it will discuss the issue of prison recidivism, how it affects our society on both a social and economic level, and the …

Gendered Differences In Negotiation: Advancing An Understanding Of Sources, Effects, And Awareness, Stacy M. Roberts

Cardozo Journal of Conflict Resolution

Conversations about gendered differences in negotiation have been around for decades. However, recent research about these gendered differences is expanding our understanding of gender stereotypes and role expectations in negotiation. This article reviews some of this research and discusses how awareness of gendered differences can be advantageous to both male and female negotiators.

One's self-identity hinges on more than just gender; for example, cultural values, economic class, ethnic origin, geographic location, group affiliations, hobbies, language and dialect, national citizenship, occupation, personal values, race, religion, self-interests, sexual orientation, social status, etc., also play parts in forming one's self identity. These factors …

Land Use Consultations Advancing Therapeutic Jurisprudence: Ripe For Clinical Trials, Michael N. Widener

Cardozo Journal of Conflict Resolution

This paper proposes educating law students in the processes of therapeutic justice through service as a neutral in land use controversies, and in the process, improving law student dispute resolution skills and enabling them to promote therapeutic outcomes.

Reining In Recalcitrant Broker-Dealers: Customers Negotiating With Broker-Dealers To Arbitrate Before Seeking Interpleader, Rushelle Bailey

Cardozo Journal of Conflict Resolution

This Note assesses whether it is appropriate for a brokerdealer to commence an interpleader action in response to receiving a restraining notice on the customer's account, despite the existence of a pre-dispute arbitration clause. If not, what are the consequences, and what are the appropriate dispute resolution methods for resolving any dispute that might arise regarding the restraining notice on the customer's account? Part II of this Note presents the issue that arises when a restraining notice is served on a customer's account under the control of a broker-dealer. A description is given of the regulation of broker-dealers and their …

Classwide Arbitration: A Method Of Resolving The "Natural" Food Label Litigations, Angelina Dalia

Cardozo Journal of Conflict Resolution

This Note discusses how classwide arbitration in food labeling disputes can better serve as a resolution method for both parties. Part I will review the current legal landscape surrounding food labeling litigations and the limitations of the FDA's regulatory and enforcement power. It will analyze how the lack of regulation has led to the recent surge in food labeling class actions. Part II will introduce the general benefits and downfalls of mandatory arbitration in comparison to litigation as a means of legal remedy. Furthermore, it will describe the recent trend of incorporating mandatory arbitration clauses and class action waivers in …

Enactment Of Apology Legislation In Hong Kong: Report And Second Round Consultation, Lisa Wong, Kit Wah Cecilia Wong Ng, Hing Cheung Thomas Au, Nadja Alexander, Lok Kwan David Dai, Hing Fung Leung, Wai Hung Francis Law, Queenie Lau, Ting Kwok Iu, Shing Ping James Chiu, Shahla Ali, Michael Beckett, Thomas Edward Kwong

Research Collection Yong Pung How School Of Law

Nadja Alexander was contributor to the Report of the Department of Justice of Hong Kong as Chair of the Working Group.In the report published by the Working Group on Mediation of the Department of Justice in 2010, it was recommended, among others, that the question of whether there should be an apology or legislative provisions dealing with the making of apologies for the purpose of enhancing settlement deserves further consideration. In 2012, for Secretary for Justice established the Steering Committee on Mediation ("Steering Committee") with a view to further promoting the development of mediation in Hong Kong. The regulatory Framework …

Arbitrator Behaviour In Asymmetrical Adjudication (Part Two): An Examination Of Hypotheses Of Bias In Investment Treaty Arbitration, Gus Van Harten

Osgoode Hall Law Journal

This article reports on a study of potential systemic bias in the resolution of ambiguous legal issues by investment treaty arbitrators. It outlines tentative but significant findings that the arbitrators in general tended to favour (1) foreign investors over states overall, (2) foreign investors from major Western capital-exporting states over other foreign investors, and, albeit based on more limited data, (3) the United States as a respondent state over other respondent states. The evidence is derived from an extensive content analysis of the arbitrators’ resolution of fourteen legal issues that are contested among arbitrators or in secondary literature. The findings …

Panel 3: Litigation Funding As A Tool For Collective Actions And Arbitrations, Anthony J. Sebok

Articles

The article explores innovative models of litigation funding, particularly third-party financing, and their implications for access to justice and legal efficiency. It examines how different jurisdictions, such as Quebec and Australia, have implemented funding mechanisms to address gaps in legal representation and the challenges of aggregating claims. The analysis highlights the potential benefits of these models, including increased access to justice and economic efficiency, while also addressing concerns about legitimacy, corruption, and systemic biases.

...Because It’S Not Just About Money, Elayne E. Greenberg

Faculty Publications

(Excerpt)

When lawyers represent their clients in party-decided dispute resolution processes such as negotiation or mediation, lawyers have a unique opportunity to work with their clients to help shape a comprehensive settlement beyond just a monetary settlement. This is an opportunity to address the client’s human and core concerns and to help their client secure their personalized sense of justice. However, lawyers and mediators who myopically seek to resolve every legal conflict by just monetary resolution are akin to the carpenter who sees everything as a nail because the only tool available is a hammer. This column invites you to …

Utilizing Adr In Domestic Adoptions For Same-Sex Couples, Nicole Hertzberg

Cardozo Journal of Conflict Resolution

This Note addresses the intricacies involved in same-sex couples, now legally married, overcoming state-placed legal obstacles in order to adopt children. The simple answer is to wait and see what the Supreme Court has to say about same-sex adoption. However, it is more complicated than that. Firstly, it took two years for Obergefell to reach the Supreme Court from the District Court, and it took this country two hundred and thirty nine years to legalize same-sex marriage. In other words, it might be years until the Supreme Court addresses this issue. Secondly, if this issue is litigated in court, the …

Unlock The Music: Replacing Compulsory Music Licenses With Free Market Negotiation, Karen (Kai-Wen) Hsieh

Cardozo Journal of Conflict Resolution

To understand the impact that compulsory licenses have on the music industry, Section II of this Note focuses on the three major licenses for music compositions-the mechanical license, the performing rights license, and the sync license. Section III discusses why compulsory licenses no longer benefit the music industry and why free market negotiation is the superior approach. This section will also address the potential problems arising from free market negotiation, such as the power imbalance in negotiations between major record labels and new artists. Finally, Section IV proposes online mediation to remedy the difficulties that may occur due to unrestricted …

It Takes A Village: Using Seniors To Help Divorcing Families, Forrest S. Mosten, Lara Traum

Cardozo Journal of Conflict Resolution

The wisdom of an underappreciated elderly population can offer invaluable assistance to underserved pro-se litigants facing family conflict. This Article will uncover the confluent needs of the family court system and the growing elderly population in the United States. Section II of this Article will explain the struggles of the family court system, outline the historic role of the elderly in addressing family conflict, propose the creation of an Elder Volunteer Corps to address these communal needs, and discuss the benefits of creating such a corps. Section III will suggest logistical approaches to forming an Elder Volunteer Corps, focusing on …

Time To Pay College Athletes? Why The O'Bannon Decision Makes Pay-For-Play Ripe For Mediation, Andrew Steckler

Cardozo Journal of Conflict Resolution

Between the mounting pressure of public opinion, and continuing litigation in which various plaintiffs are seeking to take advantage of the player-friendly language in O'Bannon, the power dynamic in college athletics is shifting back towards the players. The previously uneven playing field is leveling. This Note examines how to inject mediation into the "pay-for-play" debate to better serve the interests of the NCAA, the major conferences (Big 10, SEC, ACC, Big 12, and Pac-12), and the student-athletes in the wake of O'Bannon. While litigation was necessary to start the process, ultimately, it will be up to the NCAA …

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 …

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 Scrivener's Dilemma In Divorce Mediation: Promulgating Progressive Professional Parameters, Robert K. Collins

Cardozo Journal of Conflict Resolution

This Article starts with an examination of one state's relatively recent contribution to the controversy over divorce mediator drafting, and then tours the nation to illuminate the confusing array of approaches to this issue that have been adopted in different jurisdictions. It then steps back to examine the role that lawyers have traditionally played in assisting or impeding access to justice for divorcing couples, and explores why divorce mediation can now offer a more appropriate approach than classic lawyering to marital reorganization. It concludes with an endorsement of attorneymediators acting as scriveners for their clients, and explores an approach that, …

Saturns For Rickshaws: Lessons For Consumer Arbitration And Access To Justice, Peter B. Rutledge

Scholarly Works

Companies are increasingly requiring consumers to agree to arbitrate disputes they may have over the products or services they purchase. Pre-dispute arbitration agreements are controversial especially for consumer disputes, where, it is feared, consumers will not represent themselves and neither will lawyers come forward because of the small stakes involved in individual claims. Dean Rutledge addresses in this chapter whether consumer arbitration processes can be designed to provide greater access to justice for consumers.

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 …

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 …

International Arbitration, Manuel Liatowitsch, Jeffrey Rosenthal, Christopher P. Denicola, Elizabeth M. Hanly, Mauricio Becerra De La Roca Donoso, Diepiriye Anga, James Menz, Guido Carducci, Medhavi Singh, Hanns-Christian Salger

The International Lawyer

No abstract provided.