Dispute Resolution and Arbitration Commons^™

The Public Believes Predispute Binding Arbitration Clauses Are Unjust: Ethical Implications For Dispute-System Design In The Time Of Vanishing Trials, Victor D. Quintanilla, Alexander B. Avtgis

Fordham Law Review

Drawing on these findings, we discuss the pressing need for a wider ethic that applies to transactional attorneys who design binding arbitration clauses within adhesion contracts. We also draw lessons from behavioral legal ethics and social psychology. These lessons reveal that this wider ethic may be endangered by the situational influences that currently operate within law firms (and in-house) due to these two intersecting patterns. We discuss ways of altering the regulatory environment to encourage the wider ethic to flourish.

Restraining Lawyers: From “Cases” To “Tasks”, Morris A. Ratner

Fordham Law Review

These regulatory and market mechanisms for restraining lawyers share a common thread but differ in their purposes, efficacy, and fairness. Despite these differences, the growing intensity of their focus, and their possible amplification of each other, suggest the possibility of the emergence of new professional norms that call on litigators to think more deeply and inclusively about value from the perspective of court and client when making litigation choices.

Closure Provisions In Mdl Settlements, D. Theodore Rave

Fordham Law Review

Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties—the defendant and the lead …

The Public Believes Predispute Binding Arbitration Clauses Are Unjust: Ethical Implications For Dispute-System Design In The Time Of Vanishing Trials, Victor D. Quintanilla, Alexander B. Avtgis

Fordham Law Review

Drawing on these findings, we discuss the pressing need for a wider ethic that applies to transactional attorneys who design binding arbitration clauses within adhesion contracts. We also draw lessons from behavioral legal ethics and social psychology. These lessons reveal that this wider ethic may be endangered by the situational influences that currently operate within law firms (and in-house) due to these two intersecting patterns. We discuss ways of altering the regulatory environment to encourage the wider ethic to flourish.

Restraining Lawyers: From “Cases” To “Tasks”, Morris A. Ratner

Fordham Law Review

These regulatory and market mechanisms for restraining lawyers share a common thread but differ in their purposes, efficacy, and fairness. Despite these differences, the growing intensity of their focus, and their possible amplification of each other, suggest the possibility of the emergence of new professional norms that call on litigators to think more deeply and inclusively about value from the perspective of court and client when making litigation choices.

Closure Provisions In Mdl Settlements, D. Theodore Rave

Fordham Law Review

Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties—the defendant and the lead …

The Bellwether Settlement, Adam S. Zimmerman

Fordham Law Review

This Article examines the use of bellwether mediation in mass litigation. Bellwether mediations are different from bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether mediations, the parties instead rely on a representative sample of settlement outcomes overseen by judges and court-appointed mediators.

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney

Faculty Scholarship

Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …

Foreclosure Diversion And Mediation In The States, Alan M. White

Georgia State University Law Review

The recent mortgage foreclosure crisis, whose economic effects are well known, transformed state legal structures governing the mortgage foreclosure process. What had been a relatively routine system of default judgments and auction sales has evolved into a negotiation and workout practice in which homeowners contest foreclosures, demand loan modifications and short sales, and propose other alternatives to foreclosures.

A profusion of state laws and court orders were adopted between 2008 and 2014 with the aim of promoting negotiated foreclosure alternatives. These laws have produced a variety of experiments in the “laboratories of democracy.” The defaults—whether home loans are renegotiated, defaults …

Negotiating And Mediating Brexit, Horst Eidenmüller

Pepperdine Law Review

The United Kingdom will leave the European Union. Brexit will involve many complex negotiations. This article analyses the negotiation position of the parties (UK, EU, Member States) based on a set of four key negotiation factors: agreement options, nonagreement alternatives, interests, and perceptions. A special focus here is on the effect of triggering the formal withdrawal process under the Treaty on European Union’s Article 50 on the non-agreement alternatives of the parties. The article considers the likely negotiation strategy of the UK against this background. It further discusses strategic negotiation moves already made by the parties and moves likely to …

Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum

Maryland Law Review

The U.S. healthcare system has a problem: hundreds of thousands of people die each year, and over a million are injured, by medical mistakes that could have been avoided. Furthermore, over ninety percent of these patients and their families never learn of the errors or receive redress. This problem persists, despite myriad reforms to the medical malpractice system, because of lawmakers’ dominant focus on reducing providers’ liability insurance costs. Reform objectives are beginning to change, however, and the vehicle for implementing these changes is alternative dispute resolution (“ADR”). Historically, legislatures deployed ADR to curb malpractice litigation and restrict patients’ access …

The Settlement Of Investment Disputes: A Discussion Of Democratic Accountability And The Public Interest, Lise Johnson, Brooke Guven

Columbia Center on Sustainable Investment Staff Publications

In this briefing note, CCSI considers the threats to principles of good governance, including government accountability, respect for the rule of law, transparency, and respect for citizens’ rights and interests under domestic law and international human rights norms, that are posed by the settlement of treaty-based investor-state disputes. The authors also consider the exacerbated threats posed by the settlement of disputes that include government counterclaims, and highlight the need for the ISDS reform agenda to include a focus on these issues.

Submission Regarding Amendments To The Icsid Arbitration Rules, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In March 2017, CCSI submitted comments to the ICSID Secretariat regarding proposed revisions to ICSID’s arbitration rules. CCSI’s submission provided illustrative suggestions for amendments regarding the following issues: recognizing and safeguarding of the rights and interests of non-parties; improving transparency of the dispute resolution process; promoting transparency of ownership over investments; preventing actual and apparent conflicts of interest; addressing concerns raised by third-party funding; ensuring legitimacy of settlement agreements; and ensuring legitimacy of the rule revision process itself.

Public Consultation On A Multilateral Reform Of Investment Dispute Settlement, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In March 2017 CCSI made a submission to the European Commission (EC) in response to its “Public consultation on a multilateral reform of investment dispute settlement.” CCSI’s submission consisted of a response to the form questionnaire created by the EC and a supplementary “Position Paper” to explain in greater depth CCSI’s views on the EC’s proposed Multilateral Investment Court (MIC).

In its Position Paper, CCSI emphasizes the importance of international investment and international law to sustainable development objectives. The submission stresses, however, that the EC’s proposed MIC does not address, and therefore does not remedy, the most problematic aspects of …

Have The Singapore Courts Faltered In The Enforcement Of Arbitration Agreements?, Darius Chan

Research Collection Yong Pung How School Of Law

No abstract provided.

A Coming Of Age For Mediation In Singapore? Mediation Act 2016, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

The Mediation Act 2016 was recently passed by the Singapore Parliament and is soon to come into operation. This legislative comment compares the Act’s key provisions to the common law principles concerning confidentiality and admissibility, enforcement of mediated settlement agreements and stay of proceedings pending mediation. It argues that the Act has refined the common law in certain areas, but has brought about greater uncertainty in other aspects. It also discusses how the major provisions are likely to be applied by the court in light of similar developments in other jurisdictions.

Towards A Harmonised Approach To Mediation Legislation In Asia?, Nadja Alexander

Research Collection Yong Pung How School Of Law

In the past few years Singapore has been busy revising, refining and extending its dispute resolution offerings in cross-border litigation, arbitration and mediation. In 2017 Singapore offers international parties a full suite of dispute resolution services for commercial cross-border disputes.

2017 Exchanged Figures Chart, Edmund P. Edmonds

Annual Exchanged Figures Charts

No abstract provided.

Drop Everything And Read Noam’S Masterpiece Right Now, John Lande

Faculty Blogs

This post describes Noam Ebner’s article, Negotiation is Changing. He argues that people’s everyday behaviors have changed in recent years, and that “people-as-negotiators, and therefore negotiation itself, have also undergone significant change.” He describes how people’s bodies are physiologically changing, how we are changing our behaviors, how we are being changed by our new behaviors, and how we are interacting in new ways. He illustrates his thesis by describing changes in behavioral, psychological, and emotional elements of negotiation including attention, communication, empathy, and

Moving Negotiation Theory From The Tower Of Babel Toward A World Of Mutual Understanding Summary, John M. Lande

Faculty Blogs

Our current negotiation theory needs improvement. As we develop better negotiation theory, we should start by appreciating the valuable work that has been done by our predecessors. Moving forward, we should acknowledge that scholars are subject to the same cognitive biases that we document in our work. For example, it is easy to fall prey to the status quo and confirmatory biases that keep us from developing better understandings of negotiation. Thus we should take conscious action to carefully consider how traditional ways of thinking distort our understandings and whether there are better ways to understand negotiation. This is particularly …

Applying Motivational Interviewing To Parenting Act Mediation: The Promise Of The Process., Kristen M. Blankley, Lisa M. Pytlikzillig, Kathryn Speck

Lisa PytlikZillig Publications

Motivational Interviewing (MI) is a research-based method of helping people engage in behavior change. MI tools and strategies have been used successfully to help people tackle drug and alcohol addiction, weight loss, and other unhealthy behaviors. MI methods aim to uncover and support a person's desire to change while simultaneously respecting an individual's autonomy. Historically, Ml has been employed in support settings, such as counselors working with clients. In Nebraska, probation officers now employ MI practices to help encourage positive changes while still maintaining accountability if people choose not to follow the terms of their probation.

Mediation is all about …

Reshaping Third-Party Funding, Victoria Sahani

Faculty Scholarship

Third-party funding is a controversial business arrangement whereby an outside entity—called a third-party funder—finances the legal representation of a party involved in litigation or arbitration or finances a law firm’s portfolio of cases in return for a profit. Attorney ethics regulations and other laws permit nonlawyers to become partial owners of law firms in the District of Columbia, England and Wales, Scotland, Australia, two provinces in Canada, Germany, the Netherlands, New Zealand, and other jurisdictions around the world. Recently, a U.S.-based third-party funder that is publicly traded in England started its own law firm in England. In addition, some U.S. …

The New Era Of Doing Business With Iran: Iran’S International Commercial Transactions And Global Security, John Changiz Vafai

Pace International Law Review

On January 17, 2016, in a statement following his signing of the Joint Comprehensive Plan of Action (JCPOA) with Iran, President Obama addressed that country’s people, stating that “yours is a great civilization, with a vibrant culture that has so much to contribute to the world – in commerce, and in science and the arts.” While the former U.S. President’s evaluation of the Iranian people’s greatness is indisputable, there are questions concerning doing business with Iran which transcend conventional legal issues and commercial problems.

Given the juxtaposition of Iran’s duopolistic government structure and ideologically oriented decision-making processes, questions arise as …

What Is Negotiation, Anyway?, John M. Lande

Faculty Blogs

This is a particularly useful article for the first class or two of a negotiation course, guaranteed to stimulate a spirited discussion.

Conference Of Soviet And American Jurists On The Law Of The Sea And The Protection Of The Marine Environment, Milton Katz, Richard R. Baxter, O. V. Bogdanov, William E. Butler, Thomas M. Franck, Richard Frank, P. P. Gureev, John L. Hargrove, L. A. Ivanaschenko, Y. Kasmin, V. A. Kiselev, B. M. Klimenko, H. G. Knight, O. S. Kolbasov, A. L. Kolodkin, V. M. Koretsky, F. N. Kovalev, V. N. Kudrjavtsev, B. A. Kuvshinnikov, M. I. Lazarev, A. L. Makovsky, Charles W. Maynes, P. A. Moiseev, John N. Moore, A. P. Movchan, T. M. Starzhina, Robert E. Stein, Grigory I. Tunkin, E. T. Usenko, A. F. Vysotsky, A. K. Zhudro

Georgia Journal of International & Comparative Law

Included in the papers for the Conference of Soviet and American Jurists on the Law of the Sea and the Protection of the Marine Environment:

Introduction by Milton Katz and Richard R. Baxter, p. 1

Freedom of Scientific Research in the World Ocean by A.F. Vysotsky, p. 7

The International Law of Scientific Research in the Oceans by Richard R. Baxter, p. 27

Responsibility and Liability for Harm to the Marine Environment by Robert E. Stein, p. 41

Liability for Marine Environment Pollution Damage in Contemporary International Sea Law by A. L. Makovsky, p. 59

Protection of the Marine Environment …

Reclaiming Attention In The Digital Generation Negotiation, Lauren A. Newell

Law Faculty Scholarship

This chapter considers the relationship between information and communication technologies ("ICTs") and attention and the consequences of this relationship for the "Digital Generation" negotiators of the future. It proceeds in three parts. The first part explores the mechanics of attention and the importance of attention in negotiation. The second part, directed to elder generations of negotiators, aims to help these negotiators understand how ICTs affect the Digital Generation’s attentional capacity. The third part, directed to Digital Generation negotiators, offers practical suggestions for improving their focused attention.

Online Dispute Resolution: Stinky, Repugnant, Or Drab?, Robert J. Condlin

Faculty Scholarship

No abstract provided.

What Difference Does Adr Make? Comparison Of Adr And Trial Outcomes In Small Claims Court, Lorig Charkoudian, Deborah Thompson Eisenberg, Jamie Walter

Faculty Scholarship

This study compares the experience of small claims litigants who use alternative dispute resolution (“ADR”) to those who proceeded to trial without ADR. ADR had significant immediate and long-term benefits, including improved party attitudes toward and relationship with each other, greater sense of empowerment and voice, increases in parties taking responsibility for the dispute, and increases in party satisfaction with the judiciary. Cases that settled in ADR also were less likely to return to court for an enforcement action within the next year.

Ohio State Journal Of Dispute Resolution Symposium: A Memorial To Chris Fairman, Roberto L. Corrada

Sturm College of Law: Faculty Scholarship

I wanted to thank a few people for inviting me here and allowing me to pay homage to my old friend Chris Fairman and to strike a personal note of opening to this symposium. First, thanks to Garry Jenkins, now the Dean at Minnesota, for reaching out to me after we saw each other last year at Chris's memorial service in Austin. I would also like to thank Professor Sarah Rudolph Cole for reaching out to the broader community immediately after Chris's passing away. Finally, I'd like to thank the students of the JDR for pulling this symposium together and …

Disability Accessibility Guidebook For Mediators, Martha Simmons, David Lepofsky

Books

ADRIC launched this important new guidebook during the ADRIC 2017 Conference when co-author Martha Simmons presented a session on the topic. It was a resounding success.

This guidebook discusses the importance of accessibility in mediation and provides concrete suggestions to increase access to the mediation process.