Dispute Resolution and Arbitration Commons^™

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Using The Terms Integrative And Distributive Bargaining In The Classroom: Time For Change?, Rishi Batra

Journal of Dispute Resolution

The terms “integrative bargaining” and “distributive bargaining” have been with us in the dispute resolution literature since at least the 1960's, when A Behavioral Theory of Labor Negotiations was first published in 1965 by Richard Walton and Robert McKersie. While the terms were popularized by these two authors, the authors themselves acknowledged the long line of predecessors, including Mary Parker Follett, who led them to promote these categories. Since that time, “integrative” and “distributive” have been with us, and have captured the imagination of scholars, trainers, and practitioners, while remaining popular in the dispute resolution literature today. Despite the proliferation …

Novel Negotiation, Rebecca Hollander-Blumoff

Journal of Dispute Resolution

Over the past half-century, the study of negotiation has blossomed into a robust discipline – negotiation and conflict resolution are recognized fields, with dedicated courses of study, experts, and institutional capital. The field has been inherently interdisciplinary from the outset, combining elements from fields including, but not limited to, economics, political science, law, psychology, anthropology, and sociology. At the University of Missouri Law School’s Tower of Babel symposium in the fall of 2016, the program focused on whether it is possible or even desirable to unify a discipline that is ineluctably diverse. Furthermore, if unification is a desired goal, how …

The Definition Of Negotiation: A Play In Three Acts, Noam Ebner, John Lande, David Matz, Andrea Kupfer Schneider

Journal of Dispute Resolution

This Article is based on a conversation between Andrea, Noam, and David as they drove to the airport following the Tower of Babel symposium. Then, John metaphorically joined the ride and participated in the quest to find a good definition of negotiation.

A “Grand” Unified Negotiation Theory . . . In Context, Adrian Borbély, Noam Ebner, Chris Honeyman, Sanda Kaufman, Andrea Kupfer Schneider

Journal of Dispute Resolution

Negotiation research began in the 20th century and is continuing apace. It is pursued from the perspectives of several disciplines including psychology, organizational behavior, labor relations, decision sciences, game theory, communications, legal studies, international relations, public policy, and others. Added to these are best practices from several fields engaged in intervention in conflicts. By now we have accumulated a considerable volume of wisdom regarding what drives people and entities to negotiate, how they behave when doing so, how they should handle negotiations to obtain specific results, and how to help disputants resolve to come to joint, mutually satisfactory decisions. However, …

Building Negotiation Theory From Real-Life Negotiations, John Lande

Journal of Dispute Resolution

For this symposium on improving negotiation theory, Professors David Matz and Adrian Borbély wrote an excellent article advocating the use of full-length accounts of actual negotiations to develop more realistic negotiation theory. They propose using “full-length accounts databases against which to measure good practice prescriptions.” Their article illustrates how we can use rich data from actual negotiations to build and ultimately test negotiation theories. Based on their reading of full-length accounts of negotiations, they suggest five key variables that are critical in understanding negotiation: “ghosts,” history, interactions, uncertainty, and power. Their observations provide a useful framework for further analysis and …

How To Learn About Negotiation From Full Length Descriptions Of Real Events, Adrian Borbély, David Matz

Journal of Dispute Resolution

This Article discusses book-length accounts of real negotiations and their value for understanding the process of negotiation. We focus much attention on an excellent example, Thirteen Days in September by Lawrence Wright, which is a rich account of the negotiation in 1978 involving US President Jimmy Carter, Egyptian President Anwar Sadat, and Israeli Prime Minister Menachem Begin. We are interested in the usefulness and challenges of using such detailed accounts of historical negotiations to build theory. We find it significant that book length detailed accounts of single negotiations have not been on any of the many negotiation syllabi we had …

Negotiation Is Changing, Noam Ebner

Journal of Dispute Resolution

Many changes – those we notice, and those that escape our attention until we are quite a ways down a new path – are only the tip of the iceberg of the change that individuals and society are experiencing as a result of the technological developments of the past couple of decades. Introducing technology into every area of our lives, every aspect of our work, and every pocket of our clothes has far-reaching effects, which researchers are only just now uncovering.

We are not only changing our behaviors; we are being changed by our new behaviors: We now conduct our …

Arbitration For The “Afflicted” — The Viability Of Arbitrating Defamation And Libel Claims Considering Ipso’S Pilot Program, Emma Altheide

Journal of Dispute Resolution

Filing suit for defamation or libel is signing up for an expensive and time-consuming endeavor. If it proceeds to trial, this type of litigation comes with high costs for both sides: potentially millions of dollars in legal fees, and years of court battles. Average judgments against defendant publishers are high, often because uncapped punitive damages are available. Plaintiffs may wait years to receive a judgment, only to spend a significant portion on attorneys’ fees. Given the inefficiency of the courts in handling defamation and libel claims, how might an alternative forum provide for a quicker process, with lower costs for …

Should They Listen To Us? Seeking A Negotiation / Conflict Resolution Contribution To Practice In Intractable Conflicts, Chris Honeyman, Sanda Kaufman, Andrea Kupfer Schneider

Journal of Dispute Resolution

Conflict resolution (CR) has had its successes, particularly in what has become common negotiation and mediation practice in divorce, civil litigation, and small to medium scale public policy disputes. Yet despite these practical inroads and increasingly successful dissemination of the ideas of our field, CR practitioners in politics and policy (and other fields) are still conspicuous by their absence in the largest, most consequential conflicts. Negotiation remains the vehicle for addressing international conflicts nonviolently. However, as of 2007 when we first questioned the relative lack of practical impact (at the highest levels) of negotiation scholarship, the international relations practitioners did …

Crossfertilizing Isds With Trips, Peter K. Yu

Faculty Scholarship

In the past few years, investor-state dispute settlement (ISDS) has garnered considerable scholarly, policy and media attention. Such attention can be partly attributed to the negotiation of the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership (TTIP). It can also be attributed the growing use of ISDS to address international disputes involving intellectual property investments. Recent examples include Philip Morris’s now-failed attempts to challenge the tobacco control measures in Australia and Uruguay and Eli Lilly's equally unsuccessful effort to invalidate the patentability requirements in Canada.

Written for a symposium on investor-state arbitration, this article focuses on the growing use …

Class Action-Barring Mandatory Pre-Dispute Consumer Arbitration Clauses: An Example Of (And Opportunity For) Dispute System Design?, Nancy A. Welsh

Faculty Scholarship

Ultimately, this essay will conclude that a private, ad hoc dispute system design process did lead to the insertion of class action waivers in mandatory pre-dispute consumer arbitration clauses. In-house and outside counsel certainly played key roles in initiating this process, but it is unclear that any individual lawyers could claim credit or responsibility as "designers." The representatives of dispute resolution organizations, meanwhile, played supporting roles-as providers of information and as amici in Supreme Court litigation. The essay will consider whether dispute resolution professionals could have managed their role in the process differently-and if so, why they would have managed …

Inside The Arbitrator's Mind, Chris Guthrie, Susan D. Franck, Anne Van Aaken, James Freda, Jeffrey J. Rachlinski

Vanderbilt Law School Faculty Publications

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

Dispute Resolution And Spiritual Congruity, F. Peter Philips

Articles & Chapters

A survey of various conflict resolution approaches suggests a correlation between spiritual traditions and conflict resolution strategies. Moreover, Western societies' approaches to dispute resolution appear incongruent with stated spiritual and cultural values.

Labor And Employment Arbitration Today: Mid-Life Crisis Or New Golden Age?, Theodore J. St. Antonie

Articles

The major developments in employer-employee arbitration currently do not involve labor arbitration, that is, arbitration between employers and unions. The focus is on employment arbitration, arbitration between employers and individual employees. Beginning around 1980, nearly all the states judicially modified the standard American doctrine of employment-at-will whereby, absent a statutory or contractual prohibition, an employer could fire an employee "for good cause, for no cause, or even for cause morally wrong." Under the new regime, grounded in expansive contract and public policy theories, wrongfully discharged employees often reaped bonanzas in court suits, with California jury awards averaging around $425,000." Many …

Japan’S Adr System For Resolving Nuclear Power-Related Damage Disputes, Daniel H. Foote

Articles

This paper has dual aims. First, it introduces the Nuclear Power-Related Damage Claim Resolution Center, established in 2011 to handle disputes arising out of the March 2011 meltdown at the Fukushima Daiichi nuclear power plant. After first examining the genesis of that Center, this paper describes its structure and roles and discusses its performance, including the challenges it has faced and the accomplishments it has achieved. Second, this paper seeks to place that Center into the broader context of the overall development of alternative dispute resolution (ADR) in Japan and to assess its impact. Two major themes recur throughout this …

Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael J. Yelnosky

Roger Williams University Law Review

No abstract provided.

Amazon's Antitrust Paradox, Lina M. Khan

Faculty Scholarship

Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and expand widely instead. Through this strategy, the company has positioned itself at the center of e-commerce and now serves as essential infrastructure for a host of other …

Arbitration As Wealth Transfer, Deepak Gupta, Lina M. Khan

Faculty Scholarship

Over the last few decades, the Supreme Court has steadily expanded the reach of forced arbitration clauses – clauses that companies embed in the fine print of standard-form contracts to deny consumers and workers the right to band together to sue those corporations in court. While the Court’s decisions that set this trend in motion trace back to the 1980s, the real game changers have been more recent: 2010’s Rent-A-Center v. Jackson, holding that arbitration clauses must be enforced even when they are part of an illegal contract; 2011’s AT&T Mobility v. Concepcion, granting companies the unfettered right …

The Role Of National Courts At The Threshold Of Arbitration, George A. Bermann

Faculty Scholarship

There is a broad consensus that national courts of the arbitral seat have some kind of role to play during the pendency of an arbitration, though the exact contours of that role may differ from jurisdiction to jurisdiction. Similarly, it seems clear that national courts have a role to play on a post-award basis. While jurisdictions may vary as to the extent of control in annulment actions, the New York Convention brings a high degree of consensus over the role of courts in the recognition and enforcement of foreign awards, even though the Convention may receive different interpretations in different …