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Jed D. Melnick Annual Symposium: Presumptive Adr And Court Systems Of The Future, Cardozo Journal Of Conflict Resolution

2020–2021 Flyers

On Friday, October 23, 2020, the Cardozo Journal of Conflict Resolution hosted the Melnick Annual Symposium on “Presumptive ADR and Court Systems of the Future.” This Symposium was inspired by Chief Judge Janet DiFiore’s bold new Presumptive ADR initiative for the New York Courts.

After a keynote address by Chief Judge DiFiore, six different panels examined the obstacles and opportunities in a historic move towards presumptive, mandatory and highly recommended ADR and mediation, in the United States and around the world.

Pepperdine Dispute Resolution Law Journal Contents & Masthead, Savannah Billingham-Hemminger

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Interpretation Of Pathological Arbitration Agreements: Non-Existing And Inaccessible Elements, Morten Frank

Pepperdine Dispute Resolution Law Journal

In the following, I will initially present the terminological and analytical framework for handling pathological arbitration agreements (Part II). Against this background, I will analyze case law from USA (Part III), Singapore and Hong Kong (Part IV), and England (Part V) in order to establish under which circumstances Solution 1, Solution 2 and Solution 3 apply in respect of arbitration agreements containing non-existing and inaccessible elements. Finally, Part VI considers an adjoining—although fundamentally different—interpretation situation across jurisdictions. Part VII provides a summary as well as concluding remarks on the drafting of arbitration agreements.

The Use Of Alternative Dispute Resolution To Reduce The Perception Of Partiality In The Courts, In Order To Encourage International Entrepreneurship In Countries With National Ownership Requirements, Daniela Romagnoli

Pepperdine Dispute Resolution Law Journal

Countries that require international entrepreneurs to have a national partner (national ownership requirements (NOR)) in order to open up a new venture within their borders, run the risk of becoming less desirable to do business in. One reason for this is that some investors and international entrepreneurs may be wary of possible conflict being solved in a court system that shows a positive bias towards its citizens. This paper looks at the experiences of five international entrepreneurs involved in small and medium-size enterprises (SMEs) in Kenya and explores how their experiences have become a warning to others who see potential …

An Empirical Study Of Reforming Commercial Arbitration In China, Mimi Zou

Pepperdine Dispute Resolution Law Journal

This paper examines recent reforms to the regulatory and institutional framework of commercial arbitration in China, based on an empirical study conducted between 2018 and 2019 of semi-structured interviews with over 80 actors, including Chinese lawmakers and policymakers, judges, arbitration institutions, legal practitioners, academic researchers, and companies and users of arbitration. The author has also consulted a variety of primary materials including publicized laws, regulations and policies, official reports, data and statistics, and internal guidelines and policy documents of the various actors that were interviewed for this study.

Statements Of The Arbitration Decision According To Jordanian Law And French Law “A Comparative Study”, Noor Issa Al-Hendi

Pepperdine Dispute Resolution Law Journal

This study deals with the statements of the arbitration decision in a comparative study between the Jordanian arbitration law and the French Procedures law, by revising the legal texts related to specific statements required in the arbitration decision, according to each of them. This study also clarifies the implications of the omissions of these statements n in the arbitration decision.

Global Dispute Resolution Conference: Reflections, Trends, And Continued Development, Alexine Carr, Sukhsimranjit Singh

Pepperdine Dispute Resolution Law Journal

The Global Dispute Resolution Conference brought together scholars, students, attorneys, and professionals from across the country. Co-hosted by Pepperdine’s Straus Institute for Dispute Resolution and Prince Mohammad Bin Fahd University, the event drew perspectives from a wide range of cultures, areas of ADR, and career experiences. Grouped into two full days with distinct focuses, the conference covered topics from commercial ADR to the significance of history, culture, and faith. To open the discussion, Professor Muamar Salameh of PMU spoke to the audience on the importance of accepting the global differences in legal systems within international dispute resolution. His remarks were …

Jeff Trueman’S Study On Nightmares Of “Positional” Tactics In Mediation, John M. Lande

Faculty Blogs

This post reports on an excellent study about the challenges of lawyers, mediators, and insurance claims professionals in mediation. His findings are consistent with my observations about the emotional pains of positional negotiation. Many of the cases in his study involve insurance, which are supposedly “money-only cases” because the parties generally haven’t had a prior relationship and have no interest in a future relationship. But Jeff found that emotions and relationships actually can be very important in these cases – the professionals’ emotions and relationships with each other.

Donna Shestowsky’S Presentation On Litigants’ Views Of Court Adr Options, John M. Lande

Faculty Blogs

This post hightlights findings from Donna Shestowsky’s research finding that litigants seem to be unaware of ADR options, and that knowing about some of these options improves their opinions of the court itself. Surprisingly, having a lawyer did not make litigants more aware of ADR options, even when those options were offered by the court system.

Proposing A Constructivist Approach To Resolving Trade Conflicts Under The African Continental Free Trade Area Agreement (Afcfta): A Cross-Jurisdictional Analysis, Oluwayesi Sanni

LLM Theses

Essentially a research of an interdisciplinary nature, this thesis seeks to carefully combine budding thoughts from two different areas of scholarship in order to present a unique underlying perspective. On the one hand, there is the study of conflict and its resolution from such intrinsic standpoint as to appreciate it as constitutive of the Society with the aim of achieving more wholesome outcomes that accentuates the uniqueness of each society. On the other hand, the recent coming to force of AfCFTA has left so much for scholars to grapple with, including how its dispute settlement regime could reflect more on …

They Should Call It Negotiation School, Not Law School, John Lande

Faculty Blogs

Considering that lawyers spend much more time negotiating than going to trial, I offered suggestions for fundamentally reorganizing law school curricula and policies. This somewhat mischievous thought experiment includes ideas that are too radical for any law school to consider given the deeply entrenched institutionalization of legal education. But it is useful to ponder how law schools generally do a poor job of preparing students for the reality of practice and how schools might reform their curricula to do a better job.

Confessions And Redemption—And Politics—For An Un-Neutral Person Who Mediates, Marjorie Corman Aaron

Faculty Articles and Other Publications

Within ADR’s house, and now in our arbitration and mediation rooms, we mediators, court ADR administrators, process designers,and arbitrators can construct and conduct processes that reflect moral values our law makers seem to have abandoned.

Blockchain, Disintermediation And The Future Of The Legal Professions, Paola Heudebert, Claire Leveneur

Cardozo International & Comparative Law Review

Will the 2020s herald the death warrant of the legal professions? If we listen to blockchain technology's most devout advocates, the answer is a resounding yes. Blockchain is often proclaimed as the ultimate tool for allowing unrestrained exchanges between contracting parties with no preexisting relationships, thus suppressing the need for intermediaries. In other words, blockchain could be a "trust machine," which could open up the possibility of conducting transactions in full confidence, without the risk of nonperformance or misguidance. However, it is utopian idealism to assume that blockchain technology could enable pure and total disintermediation. All trusted third parties cannot …

To Boycott Proceedings Or Not? Recourse Against Arbitral Awards On Jurisdictional Grounds By Different Categories Of Respondents Under The Model Law, Darius Chan, Claire Neoh

Research Collection Yong Pung How School Of Law

The remedies that award debtors have under Articles 16(3), 34 and 36 of the Model Law, and more critically the inter-relationship between those remedies, has attracted much debate. Yet there is a dearth of analysis on how the availability of each remedy may differ according to the award debtor’s degree of participation in the arbitral pro- cess. Such analysis carries significant practical value for parties in considering whether and to what extent they should participate in any arbitral process when they harbour jurisdictional objections. This article distils Singapore’s experience, describing how Singapore has implemented the ‘choice of remedies’ principle for …

Mediation: The New Normal?, Nadja Alexander

Research Collection Yong Pung How School Of Law

Imagine a tightrope walker, walking along a tightrope, holding a long, light rod. To help her balance, the performing artist continually moves the rod, changing the angle of the rod to maintain a constant – her balance in space. If she were to hold the rod in a fixed position, what would happen? She would fall off. In other words, the variation of the rod has the function of maintaining the deeper continuity which enables the artist to make it to the other end, alive. In this essay, the tightrope walker offers a metaphor for dispute resolution systems. In order …

Law And Covid-19, Aurelio Gurrea-Martinez, Yihan Goh, Mark Findlay

Research Collection Yong Pung How School Of Law

This book is a collection of essays from scholars at Singapore Management University School of Law analysing the challenges and implications of COVID-19 from the perspective of different areas of law, including private law, corporate law, insolvency law, data protection, financial laws, public law, privacy law, commercial law, constitutional law, law and technology, and dispute resolution. It also analyses how the COVID-19 pandemic will affect the judicial system, the study of law, and the future of the legal profession. Beyond considerations of the pandemic’s influence on law and legal service delivery the authors consider how law can help facilitate the …

Mediation, The Rule Of Law, And Dialogue, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this paper the author urges discussion on the legitimacy of mediation processes, a discussion that is not prevalent in legal scholarship. The author argues that mediation outcomes can be inconsistent with the rule of law given that the same case can have a different outcome depending on whether it is litigated or mediated. On the other hand, crucial and valuable aspects of mediation can result in a presumption of legitimacy. With the rule of law critique in mind, the author discusses how dialogue theory can be used to improve upon the mediation process.

The author begins by exploring the …

Ascertaining The Proper Law Of An Arbitration Agreement: The Artificiality Of Inferring Intention When There Is None, Darius Chan, Jim Yang Teo

Research Collection Yong Pung How School Of Law

The common law choice of law principles for determining the proper law of an arbitration agreement previously thought to be settled by the English Court of Appeal’s decision in Sulamérica v. Enesa [2013] 1 W.L.R. 102 have now been thrown into disarray after a recent string of three judgments: starting with the Singapore Court of Appeal’s decision in BNA v. BNB [2019] S.G.C.A. 84, followed by two decisions from the English Court of Appeal in Kabab-Ji v. Kout Food Group [2020] EWCA Civ 6 and Enka Insaat Ve Sanayi A.S. v. OOO ‘Insurance Company Chubb’ [2020] EWCA Civ 574.This article …

Transactional Interest And Risk Assessment, John Lande

Faculty Blogs

This post describes how the LIRA can be adapted for transactional negotiations.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Restorative Practices In Baltimore City Schools: Research Updates And Implementation Guide, Open Society Institute-Baltimore, Deborah Thompson Eisenberg, Anastasia W. Smith

C-DRUM Publications

Baltimore City Public Schools (City Schools) and other school districts across the United States are implementing restorative practices (RP) to improve school climate by building meaningful relationships in school communities, reframing school discipline, and supporting student safety, well-being, and success. This transformational approach centers student voice and agency, and enhances students’ engagement and participation in their own learning. The Center for Dispute Resolution at the University of Maryland Francis King Carey School of Law and Open Society Institute – Baltimore (OSI) collaborated to create The Restorative Practices in Baltimore City Public Schools: Research Updates and Implementation Guide. The purpose of …

Reflections On Untethered Philosophy, Settlements, And Nondisclosure Agreements, Marjorie Corman Aaron

Faculty Articles and Other Publications

The potentially harmful consequences of nondisclosure agreements in private settlements are troubling. They are a legal system problem, however, for which ADR is not to blame. Unless NDAs were prohibited for all legal claims, prohibiting them in mediated settlements would create greater incentives for pre-litigation direct settlements. The result would be less, not more, public awareness of (alleged) misdeeds.

Circuit Split Deepened By Second Circuit's 'Functional' Test Application In Recent Section 1782 Ruling, Peter B. Rutledge, Emina Sadic Herzberger

Popular Media

Federal law authorizes district courts to order discovery for use in a proceeding before a "foreign or international tribunal." While that law, 28 U.S.C. § 1782, permits interested persons to request such discovery, neither the statutory language nor Supreme Court jurisprudence definitively resolves whether private arbitral tribunals fall within its scope. Unsurprisingly, the lack of clear guidance on this matter has triggered a circuit split, with the Second and Fifth Circuits generally declining to extend § 1782 to private arbitral tribunals while the Fourth and Sixth Circuits broadly interpret the statutory language to apply § 1782 to private arbitral tribunals. …

12 September 2020: The Singapore Convention On Mediation Comes Into Force, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the potential impact of the Singapore Convention on Mediation is analysed.

Taking Disputes Online In A Pandemic-Stricken World: Do We Necessarily Lose More Than We Gain?, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

Online dispute resolution (ODR) used to be a secondary feature of the courts, arbitration institutions and mediation providers. ODR systems involving problem diagnosis, facilitation and online adjudication were primarily utilised for low value claims and not extended to all legal claims. Private mediation was largely conducted only on online platforms to bridge physical distances. However, the COVID pandemic has very abruptly compelled the courts and other dispute resolution practitioners to shift face-to-face processes to the virtual environment. ODR is likely to be the mainstream, and no longer the alternative, way of managing disputes in the immediate future.

The rapid migration …

Japan-Singapore Joint Mediation Protocol Announced, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this post, the potential impact of the Japan-Singapore Joint Mediation Protocol is analysed.

What’S A Bottom Line?, John M. Lande

Faculty Blogs

During the life cycle of a case, lawyers start with vague and tentative bottom lines, and they develop more precise and confident bottom lines as the case progresses. People typically are not candid with others – and sometimes even with themselves – about their real walkaway point (or “trip wire”) for ending negotiations. Indeed, “bottom line” claims are standard negotiation gambits using wildly inflated numbers that experienced negotiators and mediators routinely assume to be false.

Batna May Be Less Important Than You Think – And Teach, John M. Lande

Faculty Blogs

When bargaining in the shadow of the law, the expected court outcome (aka BATNA value) is only part of the more important consideration for negotiators – their bottom lines.

A Matter Of Interpretation? Understanding And Applying Mediation Standards For The Cross-Border Enforcement Of Mediated Settlement Agreements, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

This article focuses on the future role to be played by mediation standards in view of the signing of the Singapore Convention on Mediation. It argues that the convention has elevated the standing of mediation standards from soft regulatory codes to quasi-legal grounds impacting the enforcement of mediated settlements. However, the inherently generalized nature of mediation standards does not render them amenable to contextualized interpretation. More significantly, the courts may adopt the wrong frame when construing mediation standards. It is therefore imperative that the mediation community find ways to bridge frames and facilitate the cross-border understanding of standards.

What Users Say About Technology In Mediation: 2020 Sidra Survey, Part 3, Nadja Alexander, Allison Goh

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the use and appreciation of technology in mediation among client users is analysed.