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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 …

A New Legal Framework For Employee And Consumer Arbitration Agreements, Imre S. Szalai

Cardozo Journal of Conflict Resolution

This Article is divided into three main sections. The first section provides an overview of the FAA, and the second section explores how arbitration clauses with oppressive terms give rise to multiple harms. The concluding section of the Article demonstrates the many problems that arise from a court's mere severance of harsh terms, and discusses how the history, policy, and text of the FAA require courts to adopt an invalidation approach. As a result of the automatic and complete invalidation of the entire arbitration agreement for containing a harsh term, a consumer or employee, like the victims of sexual harassment …

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.

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 20 (2018–19)

Cardozo Journal of Conflict Resolution

No abstract provided.

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 …

Authority-Based Mediation, Amos Gabrieli, Nourit Zimerman, Michal Alberstein

Cardozo Journal of Conflict Resolution

The paper describes and defines, for the first time, a unique mediation procedure-the authority-based mediation. This procedure was developed by one of the authors of this paper, and is characterized by handling highly complex conflicts in multi-party disputes, which are mostly referred to mediation by the court. Authoritybased mediation is conducted in an evaluative manner, combining in-depth legal discussion with a soft dialog that relates to emotions and interests and results in a settlement, usually following one extended mediation meeting.

Based on a combination of observations conducted in the mediation room and reflections of the mediator himself in relation to …

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. …

Public Policy Under Article V(2)(B) Of The New York Convention: Is There A Transnational Standard?, Nivedita Chandrakanth Shenoy

Cardozo Journal of Conflict Resolution

This paper focuses on Article V(2)(b) of the Convention under which recognition and enforcement of an arbitral award may be refused if the competent authority in the country where recognition and enforcement is sought finds that "the recognition or enforcement of the award would be contrary to the public policy of that country." Article V is addressed to the States in which recognition and enforcement is sought and the language in Article V(2)(b) indicates an intention to provide ultimate control to that State to decide whether it will admit a foreign arbitral award into its legal order and use its …

Developing Communities Of Dialogue, Jonathan R. Cohen

Cardozo Journal of Conflict Resolution

We live in an age where American political discourse has become highly antagonistic. Such hostile discourse may influence not just our politics but also our private lives, for the abrasiveness that we witness in political life can readily spill over into our homes, our schools, and the other realms that we inhabit. How can we resist the spread of such antagonism? This Essay makes two basic claims. First, it is important that we consider dialogue as both an individual phenomenon and as a community-based phenomenon. How we speak with one another is a function of both our individual proclivities and …

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 …

When Immediate Responses Fail, Shai Dothan

Vanderbilt Journal of Transnational Law

Tit-for-tat is a strategy of immediate and proportional responses. Game theorists showed that this strategy often leads to fruitful cooperation. Indeed, many legal regimes resemble a tit-for-tat strategy and benefit from its ability to avoid unnecessary conflicts. But in situations of uncertainty--when actors cannot be sure about the actions of their adversaries--a tit-for-tat strategy would destroy cooperation and lead to continuous clashes. Because tit-for-tat responds immediately, a single mistake about the intentions of the adversary can lead to retaliation and start an endless string of counterstrikes. When uncertainty prevails, a strategy of many-tits-for-many-tats is optimal. Actors applying this strategy study …

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 …

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 …

Is Disgorgement A Penalty In The Antitrust-Enforcement Realm?: Exploring Mediation As The Ftc's Response To Kokesh In The Context Of Reverse Payment Settlements, Jennifer Kim

Cardozo Journal of Conflict Resolution

This Note seeks to answer the following question: How can the FTC respond to the potential influence of Kokesh by utilizing mediation to settle with and recover monetary relief from brand drug companies? Part II of this Note discusses the FTC's role in competition cases historically, as well as the Commission's proactive pursuit of monetary remedies, primarily disgorgement relief. It also provides a general overview of the Hatch-Waxman Act and its influence on the rise of patent infringement litigation, which, in effect, resulted in the rise of "pay-for-delay" settlements between brand and generic drug companies. Part III dissects the Supreme …

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 …

Utilizing Adr Between Automakers, The European Union, And The United Kingdom To Avoid Automobile Tariff Increases Arising From Brexit, Nicholas Gliagias

Cardozo Journal of Conflict Resolution

In order to ensure that there are new and stable trade agreements to replace the previous trade agreements, mediation strategies between automakers, the European Union, and the UK should be explored so that new tariffs on cars do not negatively and drastically change the UK's economic landscape after Britain exits from the European Union. In Part II, this Note discusses the pre-Brexit and current tariff situation in the UK as a member of the European Union, explains what mediation is, the methods of mediation, the history of mediation, and the benefits of using mediation. Part III discusses the implications of …

Proposing A Federal Post-Natural Disaster Mediation Program, Michelle Shaykevich

Cardozo Journal of Conflict Resolution

Section II explores the history of state and federal natural disaster mediation programs. Currently, there are three primary disaster mediation processes used by states. First, and most common, are ad-hoc programs. These programs are developed after a natural disaster has occured. Second is a program utilized exclusively by North Carolina, whereby an institutional organization maintains a "state of readiness" in the event of a declared disaster. The third type is a mediation program that is run by the state but specifically excludes the mediation of flood insurance claims. Regarding federal post-natural disaster mediation programs, Section II discusses current legislative and …

Access To Justice: Accelerating The Abandonment Of Fgm/C, Gretchen Kail

Cardozo Journal of Conflict Resolution

This Note discusses the role comprehensive legislation traditionally plays through a top-down approach and proposes the use of bottom-up approaches to better leverage national laws and new legal norms to support collective societal action. The discussion views legislation and FGM/C through a social norm lens: "a comprehensive, multi-sectorial, culturally sensitive approach that incorporates a social perspective to impact collective change."

Section II of this Note defines FGMIC as a health issue, a human rights violation, and a social norm. Section III discusses relevant international and regional human rights frameworks; state obligations; divergent views on the effects and usefulness of national …

The Devil's Advocate Also Wears Prada: The Impracticality Of Adr In Counterfeiting Disputes And The Prospect Of Arbitration, Anan Kahari

Cardozo Journal of Conflict Resolution

The purpose of this Note is to posit that arbitration, tailored for counterfeiting disputes, could potentially serve as a reliable method for fashion companies to combat counterfeiting. Part II discusses the background of IP rights and the relationship between counterfeiting and fashion. Part III highlights the traditional advantages of ADR and how some of those advantages may become disadvantages when applied to counterfeiting disputes. Lastly, Part IV argues that arbitration can be designed to be applicable to counterfeiting disputes described in this Note.

Stakeholder Dialogues And Virtual Reality For The German Energiewende, Arne Spieker

Journal of Dispute Resolution

The German energy system is in a complete overhaul. In the future energy will mainly derive from renewable sources. While in general this is largely socially accepted, new long-range power-lines, needed to distribute that energy, disquiet local communities and lead to political friction. Using stakeholder dialogues, responsible authorities and transmission operators try to direct escalating debates back onto a constructive track. This Article describes the inclusion of public participation in the recently adopted grid expansion acceleration act (NABEG) and a best practice stakeholder dialogue for a high voltage d.c. link. It contextualizes those efforts into the broader debate over citizen …

Facilitators’ Report: A Restorative Review Of The In-Custody Death Of Jason Leblanc, Jennifer Llewellyn, Jacob Mcissac, Heather Mcneil

Reports & Public Policy Documents

This report has been prepared by the process facilitation team made up of: Jennifer Llewellyn, Jake MacIsaac, Heather McNeil. The central parties to the process have reviewed the report for accuracy. The parties committed at the outset of the process to share the facts of what happened in this case and the justice process they undertook together to learn from what happened and to ensure that these lessons contribute to improving the lives of individuals and families in Nova Scotia. As such, this report does not make findings of fact or recommendations. It describes the situation, the parties involved, the …

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.

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 …

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Title Page

Journal of Dispute Resolution

No abstract provided.

Introduction To “Dispute Resolution And Political Polarization", Rafael Gely

Journal of Dispute Resolution

Dispute resolution practitioners and scholars know conflict. In fact, some would say that we love conflict. And yet, despite our affinity with conflict, the polarization that is evident in today’s public space has been disconcerting. While we generally operate in a space where we are constantly exploring options, seeking compromise, helping participants explore their interests and finding ways to move towards agreement, what seems like an inability to even engage in any kind of dialogue is troubling. These and other related concerns led the editors of the Journal of Dispute Resolution to solicit contributions from seven well-known conflict resolution scholars …