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Masthead, Cardozo Journal Of Conflict Resolution, Vol. 19 (2017–18)

Cardozo Journal of Conflict Resolution

No abstract provided.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 19, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Litigation Risk Assessment: A Tool To Enhance Negotiation, Michaela Keet

Cardozo Journal of Conflict Resolution

This paper begins with a discussion of how "good" and "bad" predictions about litigation risk can affect a negotiation process. It explores how thorough predictions are often missing in the way that lawyers and clients prepare for, and navigate through, their negotiations. Drawing on a recent study of lawyers and law students, this paper summarizes a simple framework for conducting a thorough risk assessment, and then examines the way that it can be used to support the pursuit of settlement. Two conclusions emerge from the study, and in particular from the observation of how law students negotiated a hypothetical civil …

Why Arbitration Clauses May Make Sense In Cyber Insurance Policies, Andrew Nadolna, Adrienne Publicover, Daniel Garrie

Cardozo Journal of Conflict Resolution

In this Article, we will argue that policyholders should ask for an arbitration clause in their cyber policies and negotiate over the terms. We will also argue that insurers should offer more options in this space. In this regard, modular arbitration clauses can prove useful for both sides and lead to an effective dispute resolution mechanism for dealing with what may turn out to be a flood of cyber coverage disputes.

We will start with a discussion of the principal objections policyholders often have to mandatory arbitration clauses. Then we will discuss why some of these objections may cut differently …

Mediation Ethics: A Camp Courthouse Colloquy, United States Court Of Appeals For The Second Circuit, Robert Katzmann, Kathleen M. Scanlon, John Feerick

Cardozo Journal of Conflict Resolution

On January 18, 2017, the United States Court of Appeals for the Second Circuit held its first Court Appeals Mediation Program "Courthouse Colloquy." The subject of the colloquy was mediation and ethics. What follows is a transcript of the discussions.

Seventeenth Annual International Advocate For Peace Award Honoring Dr. Rajiv Shah, Rajiv Shah, Melanie Leslie, Lela P. Love, Benjamin Dynkin

Cardozo Journal of Conflict Resolution

On April 6, 2017, the Cardozo Journal of Conflict Resolution presented the Seventeenth Annual International Advocate for Peace Award to Dr. Rajiv Shah. What follows is a transcription of the award ceremony, including Dr. Shah's acceptance speech.

Rwanda And The Kigali International Arbitration Centre: The Future Faces Of East African Arbitration And Growth, Jeremy Cantor

Cardozo Journal of Conflict Resolution

Part I is a brief introduction to the Note. Part II is a brief background of Rwandan history and the country's push for economic growth. Furthermore, Part II elaborates on the history, the current status of Rwanda's judicial system, and on the KIAC. Part III explains why arbitration is fitting for Africa as a whole and why it is more fitting for East Africa specifically. In particular, the Note explains why Kigali is the proper choice of seat6 and KIAC the proper institution, and analyzes certain problems preventing the growth of African arbitration. Lastly, Part IV proposes how to effectuate …

Early Non-Military Intervention To Prevent Atrocity Crimes, Sarah Lesser

Cardozo Journal of Conflict Resolution

This Note explores the possibility of victim-offender mediation or negotiation as a means of early non-military intervention for atrocity crimes, in situations in which indicators from Risk Factor 7 of the U.N. Framework of Analysis are present, and argues that the international community should turn to such forms of mediation and negotiation more often in order to prevent atrocities. Section II provides a brief history of atrocity prevention, and explores other proposals for early warning and non-military intervention. This section also highlights the shortcomings of existing atrocity prevention models. Section III evaluates situations in which victim-offender mediation and negotiation have …

Independent Contractors Or Employees? Why Mediation Should Be Utilized By Uber And Its Drivers To Solve The Mystery Of How To Define Working Individuals In A Sharing Economy Business Model, Ethan Rubin

Cardozo Journal of Conflict Resolution

In an effort to do so, each section of this Note will address a different issue of the ongoing disputes between Uber and its drivers and suggest potential solutions for both parties. Section II focuses on the differences between Uber and its drivers' points of view on whether Uber drivers should be considered employees or independent contractors via National Labor Relations Board ("NLRB") terminology. Section III discusses why it is difficult to label Uber and its drivers under traditional employment law terminology, as well as failures to do so through negotiation, litigation, and arbitration. Section IV proposes that with an …

Developing Improved Tactics For Advance Pricing Agreements To Decrease Negotiation Lead Time, Ryan Vines

Cardozo Journal of Conflict Resolution

This Note seeks to investigate the inefficiencies of the Advance Pricing Agreement negotiation process and how inequitable negotiations adversely affect the American taxpaying community, and small and medium sized corporations. The results of this investigation point to the necessity for the IRS to collect data and perform trend analyses. Although marginal improvements have been made by the Advance Pricing and Mutual Agreement ("APMA") Office, the data show that the real issues of Advance Pricing Agreement negotiations have yet to be resolved. The current practices and procedures of a typical Advance Pricing Agreement negotiation does not promote horizontal equity among taxpayers. …

Alternative Dispute Resolution: A Critical Reconsideration, Richard Delgado

SMU Law Review

No abstract provided.

Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green

SMU Law Review

In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the power differentials exacerbated by informal dispute resolution, and the article contributed immediately to a surge of robust critiques of the increasing use of alternative dispute resolution for those most vulnerable in our society.

More than thirty years after the Delgado article, a community of respected and prominent ADR and discrimination …

Implicit Bias And Prejudice In Mediation, Carol Izumi

SMU Law Review

Mediators aspire and endeavor to meet their ethical duty of “neutrality” in mediation. Yet their ability to actually conduct mediations without bias, prejudice, or favoritism toward any party is extraordinarily difficult, if not impossible. Research shows that unconscious mental processes involving stereotypes and attitudes affect our judgments, perceptions, and behavior toward others. Implicit bias, the automatic association of stereotypes and attitudes with social groups, may produce discriminatory responses toward parties despite a mediator’s best efforts at creating an outwardly even-handed process. Even the most well-intentioned and egalitarian mediators must actively engage in bias reduction strategies to mitigate prejudice in mediation.

Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy Welsh

SMU Law Review

Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their proposals have gained widespread adoption in the courts.

Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the opportunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and …

Critical Procedure: Adr And The Justices’ “Second Wave” Constriction Of Court Access And Claim Development, Eric K. Yamamoto

SMU Law Review

Expansive alternative dispute resolution (ADR) was the centerpiece of efficiency-based procedural reforms in the 1980s and early 1990s. ADR and other reforms collectively altered the litigation landscape, at times for the better. Yet some scholars raised early questions about ADR’s effect on systemic litigation fairness and the ability of the disenfranchised to assert and maintain claims in court. Amid second wave procedural changes, commencing around the mid-2000s, a Justice Scalia-led majority significantly expanded the grasp of compelled, private, and individualized arbitration. Under the shroud of efficiency, that Court majority imposed those second wave changes by judicial fiat, bypassing formal rulemaking. …

Does Alternative Dispute Resolution Facilitate Prejudice And Bias? We Still Don’T Know, Gilat J. Bachar, Deborah R. Hensler

SMU Law Review

By the time Professor Richard Delgado and his colleagues wrote their seminal article on the risk of alternative dispute resolution (ADR) facilitating prejudice, ADR programs were well-established in the United States, supported by legislative and court mandates, private contracts, and U.S. Supreme Court decisions. Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution and Delgado’s subsequent review article, ADR and the Dispossessed: Recent Books About the Deformalization Movement, were cited hundreds of times by scholars and practitioners but did little to stop the movement to substitute mediation, arbitration, and other dispute resolution procedures for public adjudication. …

Contextual Analysis In Arbitration, Pat K. Chew

SMU Law Review

The arbitration process is embedded in a much larger context than the four walls in which the arbitration occurs. Exploring and studying that context—including the arbitral institution, the arbitrators, each party, the arbitration process, and the broader cultural and political environment—inform what actually occurs and to what extent one party may have inherent advantages over the other. This article illustrates this contextual analysis in two diverse settings: domestic employment arbitrations and international trade arbitrations. These analyses reveal one party’s advantages over the other, which are explained in part by market and cultural forces in which these arbitrations are embedded. Interdisciplinary, …

Do Alternative Dispute Resolution Procedures Disadvantage Women And Minorities?, Charles Craver

SMU Law Review

When different legal controversies arise, parties frequently employ alternative dispute resolution procedures to resolve them. Yet some members of ethnic minority groups and women may seek judicial proceedings out of a concern that their ethnicity or gender may undermine their ability to achieve beneficial bargaining outcomes through ADR. This article addresses the real and perceived challenges of ethnic minorities and women in ADR. It draws upon decades of research into dispute resolution bargaining processes to illustrate that most traits associated with ethnicity and gender are irrelevant today with respect to ADR. When persons are taught even minimally about the bargaining …

Dispute System Design And Bias In Dispute Resolution, Lisa Blomgren Amsler, Alexander B. Avtgis, Michael Scott Jackman

SMU Law Review

This article examines the role of mediator race and gender in perceptions of procedural justice as measure of accountability and representative bureaucracy in a national mediation program for complaints of employment discrimination at a large federal organization, the United States Postal Service. Mediation represents a forum of accountability in which employees may hold an employer accountable for violating federal law prohibiting forms of employment discrimination, in this case, race discrimination, sex discrimination, and sexual harassment. Representative bureaucracy theory suggests passive or symbolic representation when the demographics of public officials should mirror those of the public they serve. Some research suggests …

The Right To Regulate In Investor-State Arbitration: Slicing And Dicing Regulatory Carve-Outs, Vera Korzun

Vanderbilt Journal of Transnational Law

This Article examines the "right to regulate" as the power of a sovereign state to adopt and maintain government measures for public welfare objectives. It explores how claims by foreign investors in investor-state dispute settlement (ISDS) may interfere with the state's ability to regulate, and how the state can protect its right in international investment agreements. The Article first explains the structure of modern international investment law and dispute resolution. It next turns to the right to regulate and explores why regulatory disputes represent a major challenge for ISDS. It continues by analyzing how exceptions, exclusions, and other safeguard provisions …

Clear Statement Rules And The Integrity Of Labor Arbitration, Stephen F. Ross, Roy Eisenhardt

Faculty Scholarship

Under the common law, employment contracts are submitted to civil courts to resolve disputes over interpretation, breach, and remedies. As an alternative, parties in labor contexts can agree to resolution by an impartial arbitrator, whose decision is reviewed deferentially by judges. Where employees are subject to rules of a private association, they are often contractually obligated to submit their claims to an internal association officer or committee; the common law provides for judicial review more limited than a civil contract but more searching than is the case for an impartial labor arbitrator. Recently, the National Football League and its players …

Negotiating While Female, Andrea Kupfer Schneider

SMU Law Review

Why are women paid less than men? Prevailing ethos conveniently blames the woman and her alleged inability to negotiate. This article argues that blaming women for any lack of negotiation skills or efforts is inaccurate and that prevailing perceptions about women and negotiation are in-deed myths. The first myth is that women do not negotiate. While this is true in some lab studies and among younger women, more recent workplace data calls this platitude into question. The second myth is that women should avoid negotiations because of potential backlash. Although women in leadership do face an ongoing challenge to be …

The Lost Promise Of Arbitration, Sarah Rudolph Cole

SMU Law Review

This article disputes the notion that arbitration, a historically informal process, tends to disadvantage minority disputants or provide them with quick decisions tainted by prejudice. Responding to Richard Delgado’s seminal work, Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, this article attempts to shed greater light on the benefits of modern arbitration for minority disputants. Although still capable of improvement, arbitration may well provide greater protections to minority disputants than does litigation. Since Delgado first wrote his article, the use of arbitration as a primary dispute resolution mechanism has increased dramatically, particularly among businesses and …

Taking Charge 2017: Satisfaction Of Residents Of Lincoln, Nebraska, Lisa M. Pytlikzillig, Janell C. Walther, Jake Kawamoto

Lisa PytlikZillig Publications

Between June and August of 2017, a satisfaction survey was completed by more than 1,200 randomly-selected Lincolnites (a random sample, yielding confidence intervals ranging from +/- 1-3% for the full sample, and +/- 2-8% at the district level, at the 95% confidence level1). Listed below are the main findings from that survey, including those obtained from examining the overall sample, and from comparisons among Lincoln’s four City Council Districts.

Overall Satisfaction Ratings

• On average, Lincoln residents reported greater satisfaction than dissatisfaction with most City services in 2017. The average levels of satisfaction were significantly above 3.0 (neutral) for 20 …

Can't We All Get What We Want?: The Use Of Tiered Dispute Resolution As A Means Of Sustaining Free Market Channel-Sharing Arrangements Resulting From The Fcc's 2016 Incentive Auction, Daniel Spencer

Cardozo Journal of Conflict Resolution

This Note will first discuss the history of the FCC's regulatory authority, including its prior allocations of spectrum and the power under which it has the authority to repurpose the 600 MHz spectrum band. Next, this Note will detail the procedures that will be used in the upcoming Incentive Auction, and explore the options posed to broadcasters. In particular, it will emphasize the viability of one option-the ability to channel share-as the most economically efficient use of spectrum in certain cases. This Note will then propose the inclusion of tiered dispute resolution clauses within channel-sharing arrangements to help preemptively resolve …

Suspended Sentence Contingent Upon Participation In Victim Offender Mediation For Juveniles Who Commit Violent Crimes, Lindsay Goldbrum

Cardozo Journal of Conflict Resolution

This Note discusses the potential benefits of implementing a system of suspended sentences for juveniles convicted of violent crimes contingent upon participation in victim offender mediation. Section II discusses the background of mediation, restorative justice, and victim offender mediation. Section III discusses the need for reform and shortcomings of the current juvenile justice system. Section IV proposes the system of suspended sentences for juveniles convicted of violent crimes contingent upon participation in victim offender mediation, and discusses the various benefits to be achieved through victim offender mediation.

Using Crisis Negotiation Team Methods To Decrease Violence In Prisons, Emily Katz

Cardozo Journal of Conflict Resolution

Part I of this Note introduces the Crisis Negotiation Teams and explains when, how, and why they were formed. Part I also discusses what factors ultimately lead teams to successful and safe negotiations. Part II discusses the current structure in place in today's prisons and the consequences prison experiences have on the inmates. Additionally, Part II discusses prison guard training, as well as the effects this training is having on both inmates and guards alike. Part III offers some suggestions on how to fix issues within prisons, specifically the guard and inmate relationship, by using procedures currently in use by …

One Country, Two Systems: Hong Kong's Unique Status And The Development And Growth Of Arbitration In China, Jiali (Keli) Huang

Cardozo Journal of Conflict Resolution

This Note evaluates the future of arbitration in China and Hong Kong as the two approach their twentieth year working toward reunification under the implications of the "one country, two systems" model, which was implemented in Hong Kong when Hong Kong's sovereignty was transferred back to China in 1997. First, this Note explains Hong Kong's unique identity, the factors that triggered the Umbrella Movement and the Fishball Revolution, and Hong Kong's current relationship with China. Second, this Note provides a broad overview of the development of arbitration in China. Third, this Note describes the arbitral history between China and Hong …

Don’T Pull The Plug On Bioethics Mediation: The Use Of Mediation In Health Care Settings And End Of Life Situations, Amy Moorkamp

Journal of Dispute Resolution

A hefty decision, such as the life or death of a loved one, requires more than a few minutes of deliberation and a handful of outside consultations. Delicate, emotional, and potentially contentious medical decisions compel a structured, compassionate approach to produce quality and well-informed results. Due to the magnitude of the decision being made, as well as the abundance of other considerations, (emotional, religious, historic, financial, etc.) the case for a creative, problem-solving process of dispute resolution, such as mediation, is ripe.

This Comment will explore the use of mediation in bioethical disputes. In Part II, the Comment will give …

Issues Concerning Enforcement And Dispute Resolution, Sean Flynn

Scholarly Articles in Law Reviews & Journals

No abstract provided.