Dispute Resolution and Arbitration Commons^™

Inherently Unneutral Investment Treaty Arbitration: The Formation Of Decisive Arguments In Jurisdictional Determinations, Relja Radovic

Journal of Dispute Resolution

The legitimacy crisis of investment treaty arbitration is much discussed, often challenging the neutrality of that system as a whole. Besides concentrating on the direction in which cases are being decided, or in which the law is being interpreted, the neutrality of investment treaty arbitration as a system can also be discussed from the perspective of its foundations. This article looks at the arbitral use of the two basic ideals of investment treaty arbitration, namely the legalistic and teleological notions, in the formation of decisive arguments, in the particular context of jurisdictional decisions. It examines to what extent the two …

State Legislative Update, Ryan Corrigan, Samantha Groark, Alison Matusofsky, John Roark, Joshua Sieg

Journal of Dispute Resolution

No abstract provided.

Adr That Is Out Of This World: A Regime For The Resolution Of Outer-Space Disputes, George Khoukaz

Journal of Dispute Resolution

The United States’ interest in enlarging and increasing its presence in outer space is an extension of its current geographically extensive military presence around the globe. These outer-space exploratory goals are compared to the expansionist aspirations of ocean-born European empires of the 17th and 18th centuries; and therefore project a future where nations will compete over space-control to gain a geostrategic advantage on Earth.

Seeking Recognition And Enforcement Of Foreign Court Judgments And Arbitral Awards In Egypt And The Mashriq Countries, Nicolas Bremer

Journal of Dispute Resolution

Asserting a claim in an international transaction is often complex. If a transaction involves parties from different countries, the venue of dispute resolution will often be in a jurisdiction different from that where enforcement may have to be sought. In such a case, any ruling obtained will have to be recognized by the competent authority of the country where enforcement is sought (known as requested country). Obtaining recognition of a foreign ruling in the Middle East and North Africa is considerably challenging. Despite some progress having been made over the last decade, local courts are still rather reserved towards foreign …

Mediating Farm Nuisance: Comparing New Jersey, Missouri, And Iowa Right To Farm Laws And How They Utilize Mediation Techniques, Gina Moroni

Journal of Dispute Resolution

Is it a right to farm, or a right to be a bad neighbor? The ability to sue a neighbor who farms claiming nuisance is largely dependent on each state’s right to farm law. Just because there is a nuisance claim that can be filed in court does not necessarily mean the complaint should be heard in court. Instead, mediation can be a low cost, confidential, and even binding alternative which helps parties resolve their disputes in creative ways. Section II of this Comment examines what right to farm laws do, the agricultural dynamics that led to the creation of …

Online Dispute Resolution For Divorce Cases In Missouri: A Remedy For The Justice Gap, Danielle Linneman

Journal of Dispute Resolution

This Comment will analyze the use of ODR for divorce disputes in Missouri by first explaining the use of ODR and then analyzing its evolution. How ODR has grown on a global level and entered the realm of family law will also be viewed, as well as how other countries have used ODR to successfully resolve divorce case disputes. Recent proposals in the United States for use of ODR programs to resolve domestic disputes will be discussed, before evaluating how ODR programs could be implemented into Missouri’s legal system as a way to begin shaping the future of America’s family …

Nudging Civil Justice: Examining Voluntary And Mandatory Court Mediation User Experience In Twelve Regions, Shahla F. Ali

Cardozo Journal of Conflict Resolution

Nudge theory suggests that positive reinforcement to encourage compliance is at least as effective, if not more effective, than traditional directions issued through legislation. This Article tests nudge theory in the context of court mediation reform by examining whether, and if so how, light nudges encouraging voluntary mediation have a differential effect on civil justice outcomes as compared with more robust nudges through mandated mediation processes. A statistical analysis of 2016-2017 civil justice indicators in twelve regions suggests light nudges, (voluntary court mediation programs, or (self-directed resolution), on average associated with higher overall jurisdictional scores for efficiency and non-discrimination. In …

Faith-Based Mediation In The Pakistan-India Conflict, Sarah Khan

Cardozo Journal of Conflict Resolution

Section II of this Note explores the background history of Muslims and Hindus in India, the partition, and some of the most prominent issues that stand in the way of resolution. Section III discusses how religious mediation methods have been, and continue to be, used successfully in the contexts of other countries and conflicts. Section IV proposes that these methods be applied in the Pakistan-India situation to target specific issues facing the two countries, while incorporating the already proposed solutions that are on the table by politicians today.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 19, Iss. 3

Cardozo Journal of Conflict Resolution

No abstract provided.

Union Co-Ops And The Revival Of Labor Law, Ariana R. Levinson

Cardozo Journal of Conflict Resolution

This article, as the first to identify and suggest solutions for the numerous labor law issues that must be addressed when establishing a union co-op, contributes to the existing literature on workerownership and cooperative economics. This article proceeds in four sections. The first section provides background about what union co-ops are, why unionization makes sense in the co-op setting, and the initiative to scale up union cooperatives. The second section, drawing on original interview data, provides background about the Cincinnati Union Co-op Initiative and Our Harvest, the first union worker-owned co-op that the Cincinnati Union Co-op Initiative incubated. The third …

Judicial Mediation: From Debates To Renewal, Jean-François Roberge, Dorcas Quek Anderson

Cardozo Journal of Conflict Resolution

Judicial mediation involving a judge acting as a mediator in a court dispute has been implemented in many jurisdictions worldwide as a way to overcome access to justice challenges. This innovation has raised many debates on the changing role of the judge built on either its congruence with or divergence from judicial adjudication. Over the years, these debates have become increasingly stagnant. The evolving vision on access to justice brings an opportunity to draw from the earlier debates and forge a different way forward. This paper argues that a coequality approach to understanding judicial mediation is a better way to …

Mediation Capacity Building With Liberian Diaspora Communities: Some Observations, Maria R. Volpe, Bradley L. Roth

Cardozo Journal of Conflict Resolution

The focus of this article will be on elucidating an initiative that has involved multiple partnerships, sensitivity to cultural differences, local-global interactions, work with diaspora communities, adaptation of mediation training programs, dedicated volunteerism, and concerns about sustainability. Central to all of the activities is an explicit resolve by the mediators involved to understand and appropriately respond to the parties' contexts when providing mediation expertise. John Paul Lederach has referred to this method as a mix of prescriptive and elicitive approaches. In sum, the trainers used their expertise as both mediators and trainers to be conscious of and sensitive to the …

Lessons From The South China Sea Ruling: Med-Arb As The Recommended Dispute Resolution Method For Asia's Maritime Disputes Under Unclos, Julia Y. Yang

Cardozo Journal of Conflict Resolution

-This Note discusses the weaknesses of the current default dispute resolution method implemented by UNCLOS. Part II of this Note illustrates the recent history and the nature of the South China Sea dispute and the legal context provided by UNCLOS for maritime disputes in Asia. Part III will discuss the inadequacy of the current default adjudication method implemented by UNCLOS. Part IV recommends the adoption of med-arb as the ideal dispute resolution method and a requirement to show consent before parties engage in proceedings for maritime dispute resolutions in Asia.

In Loving Memory Of Gretchen Kail (1972-2019)

Cardozo Journal of Conflict Resolution

The Cardozo Journal of Conflict Resolution would like to dedicate this issue to Gretchen Kail. Throughout her time on the Journal, Gretchen was an inspiration to us all. She worked very hard to upkeep the reputation of our Journal and achieved the success of publishing her Note, Access to Justice: Accelerating the Abandonment of FGM/C, in Volume 19, Issue 3 of this Journal. Gretchen will always be a part of our Journal's family and we will miss her dearly. All of our editors would like to extend our sincerest condolences to Gretchen's family and friends by remembering and celebrating her …

Indirect And Invisible Organizational Costs: Making Informed Decisions About Litigation And Settlement, Michaela Keet, Heather Heavin, Shawna Sparrow

Cardozo Journal of Conflict Resolution

When anticipating litigation costs for organizations, lawyers and clients tend to focus on direct litigation costs, while overlooking the impact of process costs. In making an evaluation whether to litigate or settle, we assert that lawyers should account for indirect organizational costs within any cost-benefit analysis. This article reviews organizational literature and empirical studies in order to present a template of three spheres of impact: business opportunity, reputation, and organizational psychology. With greater awareness, organizational lawyers can identify and weigh these costs, with the objective of helping their clients better understand the financial impact of dispute resolutions for the organization. …

Evaluating Employment Arbitration: A Call For Better Empirical Research, Samuel Estreicher, Michael Heise, David Sherwyn

Cornell Law Faculty Publications

Since at least 1991, issues surrounding mandatory arbitration of employment and other disputes have intrigued, perplexed, angered, gratified, and confounded academics, politicians, lawyers, and others. As with many legal issues, the first wave of scholarly work centered on the law. As the law has pretty much settled, academics have turned to empirical work, focusing on how employment arbitration works, and how it compares to employment litigation. In part due to pressure from California legislation, the American Arbitration Association (“AAA”), the nation’s leading provider of arbitration services, opened access to its data base. Owing to inevitable data limitations, most analyses have …

"Arbitration Schmarbitration": Examining The Benefits And Frustrations Of Defining The Process, Jean R. Sternlight

Nevada Law Journal

No abstract provided.

Re-Inventing Arbitration: How Expanding The Scope Of Arbitration Is Re-Shaping Its Form And Blurring The Line Between Private And Public Adjudication, Deborah R. Hensler, Damira Khatam

Nevada Law Journal

Contemporary academic research and scholarship are highly specialized. Legal scholarship on arbitration reflects this trend. There is extensive literature on domestic arbitration jurisprudence, on international commercial arbitration practice, and on investor-state arbitration procedure, and there are debates about the appropriate use of arbitration within all of these domains. But few of the participants in these debates are attentive to developments outside their own domains, and there are few examples of scholarship surveying trends across the three domains. Undertaking that analysis reveals important similarities in the challenges facing arbitration in each domain and in the responses to these challenges. Looking across …

Arbitration's Dark Shadow, Benjamin P. Edwards

Nevada Law Journal

Arbitration has expanded broadly, removing disputes involving entire industries from judicial review. The absence of judicial review plunges these disputes and industries into the shadow. This shadow causes the public to lose sight of vital information about industry practices and arbitrators to gradually lose sight of the law. Federal intervention may be necessary to restore consumer protections, including customer choice, to bring these disputes out of the shadows.

Evolution Of The Arbitration Forum As A Response To Mandatory Arbitration, Teresa J. Verges

Nevada Law Journal

No abstract provided.

Arbitration, What Is It Good For?, Thomas O. Main

Nevada Law Journal

In the lead piece of this symposium, Hensler and Khatam bring into relief two paradoxes in contemporary arbitration policy and practice.1 First, arbitration is beset by hyperspecialization into segmented domains, yet is plagued by reforms that transcend those boundaries. Second, arbitration seeks all the virtue of formal adjudication without the process, yet process is the principal virtue of formal adjudication.

Hensler and Khatam invite readers to think broadly about contemporary arbitration policy and practice. Accepting that invitation, I briefly explore four areas of inquiry that can be reduced to the interrogatives Why?, What?, When?, and Who?, respectively. All four questions …

Response: Public Litigation, Private Arbitration?, David L. Noll

Nevada Law Journal

How should disputes be allocated between litigation and arbitration? Given strong incentives for many actors to arbitrate everything, the question turns fundamentally on the scope of arbitration under the applicable law. In Re-Inventing Arbitration: How Expanding the Scope of Arbitration Is Re-Shaping Its Form and Blurring the Line Between Private and Public Adjudication, Professor Deborah Hensler and Damira Khatam posit that the ‘public’ or ‘private’ nature of a dispute provides the key to whether it belongs in arbitration. While arbitration of private disputes is ok, disputes with “public policy dimensions” belong in the courts. Hensler and Khatam therefore suggest that …

The Blurring Of The Public/Private Distrinction Or The Collapse Of A Category? The Story Of Investment Arbitration, Guillermo J. Garcia Sanchez

Nevada Law Journal

No abstract provided.

The Metaphysics Of Arbitration: A Reply To Hensler And Khatam, Hiro N. Aragaki

Nevada Law Journal

No abstract provided.

A Blueprint For Online Dispute Resolution System Design, Amy J. Schmitz

Faculty Publications

A great deal of discussion focuses on how arbitration and similar private dispute resolution harms consumers, and how businesses seek ways to avoid helping consumers. It is often assumed that companies and consumers are on opposing “teams.” In reality, however, consumers and companies enjoy more commonalities than contradictions. Both benefit when deals go well and disputes are resolved quickly and cheaply. The problem is that face-to-face dispute resolution can be costly in terms of time and money. Furthermore, getting lawyers involved may inspire gamesmanship and adversarial antics aimed to protect one’s reputation for staying “strong” and refusing to settle or …

Acts Like A Lawyer, Talks Like A Lawyer…Non-Lawyer Advocates Representing Parties In Dispute Resolution, Elayne E. Greenberg

Faculty Publications

(Excerpt)

What are the ethical implications for lawyer mediators, arbitrators and dispute resolution providers when the lines between the roles of lawyers and the non-lawyers who are representing clients in dispute resolution become blurry? Traditionally, non-lawyer advocates (hereinafter NARs) have represented clients in the negotiations, mediation and arbitration of legal matters without cause for concern. Yes, labor union representatives, sports agents, and special education advocates are three familiar examples of non-lawyers who represent clients in negotiations, mediations and arbitrations, informing clients of their legal rights. Routinely, the lawyers and neutrals presiding over the dispute resolution procedure have warmly welcomed these …

Ethics Meets The “O” In Dr, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Lawyers, the menu of justice options available to resolve your clients’ legal disputes has now expanded to include online dispute resolution processes. Online dispute resolution (ODR) is an umbrella term that may be used to describe the use of technology to help expedite legal case management, replicate existing dispute resolution processes online, such as by utilizing video conferencing for arbitration and mediation (“replication ODR”); or to help streamline or even resolve legal claims through the use of algorithms (“algorithm ODR” or “algorithm- based ODR”). Even though ODR is fast becoming a regular part of legal practice, generally, and dispute …

... Because "Yes" Actually Means "No": A Personalized Prescriptive To Reactualize Informed Consent In Dispute Resolution, Elayne E. Greenberg

Faculty Publications

This paper proposes a radical departure from the status quo approach to securing a client’s informed consent about settlement options and refocuses informed consent practice back to what informed consent is about, the client. As it exists today, the status quo approach to securing a client’s informed consent about whether or not to use an alternative dispute resolution procedure to resolve the client’s case is inadequate. It thwarts a client’s right to exercise party self- determination and stymies a client’s ability to make informed justice choices. Lawyers, courts, ADR providers and neutrals routinely provide litigants with generic information about the …

Resolving Self-Driving Car Patent Conflicts: Arbitration In Waymo V. Uber And Future Autonomous Vehicle Patent Disputes, Ilya Gorelik

Cardozo Journal of Conflict Resolution

Waymo and Uber should have entered into a mutually agreed upon arbitration agreement to resolve their patent claims, and future conflicting self-driving car developers should consider doing the same. Uber was already willing to enter arbitration, and while Waymo resisted being forced into arbitration in the past, it would have the opportunity to influence the terms of the arrangement. Arbitration would benefit both Waymo and future patent holders, as well as Uber and future parties accused of patent infringement, as it would provide a cheaper alternative to litigating those claims while also keeping the procedure more confidential, providing Waymo a …

Utilizing Adr As A Vehicle For Effective Communication And Success Of Payment In Urgent Care, Stephanie R. Goldberg

Cardozo Journal of Conflict Resolution

Section II of this Note provides background on urgent care and ADR. Section III will elaborate on current payment procedures and explain some of the pitfalls that create a need for a supplementary payment solution. Section IV lays out a four-step plan incorporating a logical progression of ADR techniques that would enable quality of care and ease and success of financial arrangements, and vastly improved patient-provider relations. The feasibility of this plan will be demonstrated through application of its steps to hypothetical examples, representative of various realistic patient experiences, in Section V. This plan is intended to aid the millions …