Dispute Resolution and Arbitration Commons^™

Keeping Big Issues Off The Table: The Supreme Court On Entrepreneurial Discretion And The Duty To Bargain, James Friedman

Maine Law Review

Over the past decade a number of major American industries have declined or radically restructured in the face of foreign competition. In 1982, for example, more than 1.2 million American workers were either temporarily or permanently laid off as companies curtailed operations or moved abroad. Two hundred thousand people lost their jobs in 1982 due to plant shutdowns. In recent times the steel and auto industries have provided the most visible examples of massive cutbacks in employment, but jobs have also disappeared in other industries such as electrical manufacturing, machine manufacturing and textiles. Although much public debate and disagreement exists …

Youth Program Fy2024 Evaluation Report December 2024, Madhawa Palihapitiya, Karina Zeferino

Massachusetts Office of Public Collaboration Publications

The Youth Conflict Resolution & Restorative Practices Program (Youth Program or Program), administered by the Massachusetts Office of Public Collaboration (MOPC) in collaboration with 10 community mediation centers (Centers), aims to reduce youth conflict and/or violence through a social and emotional learning (SEL) and positive youth development framework. This approach leverages mediation and restorative practices to equip youth with essential SEL skills and improve school climate. This FY2024 program evaluation report assesses the Youth Program’s effectiveness across multiple domains, including school climate, student SEL competencies, engagement/awareness, training, and resources.

Russia’S Undermining Of International Arbitration: A Pattern Of Subversion, Joseph E. Samuels

Cardozo Journal of Conflict Resolution (CJCR) Blog

Over the last few years, Russia has engaged in undermining the international arbitration system. This pattern culminated in a landmark ruling by the Supreme Court of the Russian Federation on July 26, 2024, effectively restricting the enforcement of international arbitration awards against Russian parties when rendered by arbitrators from “unfriendly” states. The path to this decision began with Russia’s 2020 amendments to its Arbitrazh (Commercial) Procedure Code. The addition of Article 248 allows the courts to assume jurisdiction over disputes covered by an arbitration agreement,[3] where the agreement becomes unenforceable due to “obstacles in access to justice”.

The print edition …

Enforceability Of Consumer Arbitration Agreements In Missouri, Bobbie L. Crew

Law Student Works

Arbitration is a form of alternative dispute resolution in which parties agree to "choose one or more neutral third parties to make a final and binding decision [to] resolv[e] the dispute" outside of court. Courts generally cannot overturn a binding decision made under a valid arbitration agreement. Arbitration may be used to resolve a variety of disputes, but this Pathfinder explores the enforceability of arbitration agreements in the consumer context. Consumer arbitration agreements are made between a business offering a product or a service and its direct consumer. Businesses are increasingly including arbitration provisions in their Terms & Conditions and …

How Attorneys Can Be Quasi-Mediators, John Lande

Faculty Publications

This distills insights from a forthcoming article, How Can You Turn Adversarial Attorneys into Quasi-Mediators? The article is a Theory Meets Practice column in CPR’s Alternatives magazine that summarizes a discussion with members of the Association of Attorney-Mediators.

Attorneys acting as quasi-mediators prefer to be cooperative and use mediation techniques but they aren’t neutral. They tailor their actions based on their clients’ preferences and the other side’s approach. Another term for quasi-mediators is “good lawyers.”

Based on the forthcoming article and the Real Practice Systems Project Menu of Mediation Checklists, this two-page article lists things that mediators can do to …

New Legal Realism At 20: Rethinking Law In An Era Of Populism And Social Movements, Jeffrey Omari, Pablo Rueda-Saiz, Richard Ashby Wilson

Articles

This Article critically examines the New Legal Realism (NLR) movement on its twentieth anniversary and illuminates its distinctive intellectual contributions. In evaluating NLR's unique methodological and substantive contributions, we explore the movement's relationship to other interdisciplinary theories and empirical approaches to law. NLR approaches show a commitment to a comparative, cross-national exploration of legal phenomena while allowing for grounded generalizations about the relationship between law and society. NLR approaches embrace a diverse range of methods and emphasize the importance of "looking up, down, and sideways." Notably, NLR embraces both "top-down" and "bottom-up" methods, providing comprehensive insights into the intricate interactions …

How Adr Can Be Implemented As A Useful Tool With Contract Disputes Between Agents And Their Clientele, Leora Perlstein

Cardozo Journal of Conflict Resolution (CJCR) Blog

The entertainment, sports, and arts industry is a fast-paced and profitable field that draws in a wide range of stakeholders, such as producers, artists, labels, and agents. Contracts play a vital role in safeguarding the interests of all parties in the entertainment industry; they clarify the terms of agreement, protect intellectual property rights, and offer a framework for resolving disputes. Although the idea behind contracts sounds positive and secure for a client, there are darker portrayals of the arts and entertainment industries— or, for example, a record company— which may try to stifle a young artist’s creativity through deception in …

Book Review: Transformative Negotiation: Strategies For Everyday Change And Equitable Futures, Peter R. Reilly

Faculty Scholarship

This volume makes an immense contribution to the field of negotiation and to dispute resolution more generally. The book covers a vast amount of ground, effectively connecting theory to practice and harnessing large amounts of research to support its arguments and advice. Perhaps most importantly, this reviewer found reading the book to be—as the title suggests—a transformative experience.

Section 1: Defining Arbitration And Addressing Structural Bias, Nancy A. Welsh

Faculty Scholarship

The Supreme Court’s jurisprudence pursuant to the Federal Arbitration Act (FAA) has successfully encouraged the use of arbitration to resolve disputes of all types, including those arising out of contracts of adhesion. Meanwhile, with one very limited exception, neither Congress nor the Supreme Court has done anything to assure those bound by adhesive contracts that the required arbitration process will be fair, impartial, and consistent with due process principles. The FAA does not even include a definition of arbitration to guide arbitration providers and individual arbitrators. This chapter proposes the addition of a definition of arbitration to the FAA to …

Human Rights Forum Shopping In Transnational Sport Disputes, Ilias Bantekas

Brooklyn Journal of International Law

Professional athletes must adhere to the dispute resolution mechanisms contained in their agreements with sport governing bodies (SGBs). These typically provide for SGB institutional arbitration with appeals against such awards to CAS, although in some instances direct recourse to CAS is also possible. These mechanisms do not cater for attendant human rights claims arising from the underlying dispute. This article suggests that a variety of sui generis forum shopping possibilities are available to address this deficit. Applicants may approach national courts with a sufficient jurisdictional link to the SGB in question by raising constitutional (and by extension human rights) and …

Does The Loss Of Chance Doctrine Have A Chance In International Sport Arbitration?, Dmitry A. Pentsov

Brooklyn Journal of International Law

The Article analyzes whether and, if so, how, the loss of chance doctrine providing the basis for claims against person who deprived victims of a chance of occurrence of a certain result or decreased this chance could be used in international sport arbitration at the Court of Arbitration for Sport (CAS). It provides a comparative analysis of applicability of this doctrine under English law, French law, and the law of the State of New York to sport competitions and outlines potential problems of utilizing this doctrine in the CAS arbitration through domestic law based on choice-of-law rules. The Article argues …

A New Governance Framework In Cross-Border Tax Policymaking, Tamir Shanan, Doron Narotzki, Noam Zamir

Brooklyn Journal of Corporate, Financial & Commercial Law

The first tax treaty can probably be traced to the end of the 19th century: the treaty between the Swiss Federal Council (on behalf of the Canton of Vaud) and Great Britain. However, most tax scholars refer to the period following World War I, including the work of the League of Nations, as the formative period in which the international tax regime was founded. In the 1920s, the League of Nations formed a committee of four renowned economists that was asked to formulate a set of rules that would assist states in allocating taxing rights of cross-border income and gains …

Next Steps In Online Courts: Accelerating Access To Justice Through Court Technology, J.J. Prescott

Articles

For more than a decade, state courts have been expanding access to justice by adopting online dispute resolution (ODR) platforms and other outward-facing communication technologies. At a deep level, these reforms aim at improving society by bolstering the rule of law. At a surface level, these innovations recognize that the justice system works better when courts and law are easier and less costly to understand and use. In important respects, these efforts have been a success. The accessibility of many state courts is considerably more robust today than it was ten years ago, at least for small-stakes cases, like traffic …

Quantifying And Measuring The Use Of Adr Methods In International Cultural Property Disputes, Isioma Okocha

Cardozo Journal of Conflict Resolution (CJCR) Blog

The use of alternative dispute resolution mechanisms to retrieve illegally acquired cultural artifacts, looted colonial-era art, and other cultural property obtained through dubious means has increased. Alternative Dispute Resolution methods such as negotiation, mediation, and arbitration have been used to resolve international cultural property disputes. International institutions have made efforts to facilitate the return of cultural property. The United Nations Educational, Cultural, and Scientific Organization (UNESCO) established the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation (ICPRCP) in 1978. Additionally, UNESCO adopted the Convention on the Means of Prohibiting and Preventing …

The Role Of Mediation In Resolving First Amendment Disputes, Particularly In Cases Involving Freedom Of Speech Or Religion, Brian Lakhtarnik

Cardozo Journal of Conflict Resolution (CJCR) Blog

The First Amendment of the United States Constitution reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In other words, all U.S. residents are guaranteed freedom of expression, religious practices, and free assembly. This article explores how Alternative Dispute Resolution could be applied to First Amendment conflicts, particularly in disputes over freedom of speech.

The print edition of the issue has also been …

Empowering Ukraine’S First Legal Responders: Ukrainian-Us Collaboration And Clinics, Susan Felstiner, Davida Finger, Michelle Greenberg-Kobrin, Maria Tsypiashchuck

Articles

At the onset of the full-scale Russian war of aggression against Ukraine, U.S. law clinic professors worked alongside the leadership of the Association of Legal Clinics of Ukraine. The mutual objective was to support Ukrainian law professors and facilitate the continued legal education of their students, particularly the acquisition of skills typically taught in law clinics. Ultimately, the online partnership that developed focused on skills training and included seven Ukrainian law schools, faculty from over six U.S. law schools and one private law firm, and USAID Justice for All Activity in Ukraine. The overall goals of this collaboration were to …

Frand Arbitration Will Destroy Frand, Barbara Lauriat

Michigan Technology Law Review

Standard essential patent-licensing disputes have been raising the costs of business in the telecommunications industry for over a decade. As technology and interconnectivity extend beyond mobile phones into the Internet of Things (“IoT”), the number of these disputes will only increase. While many academics, policymakers, and stakeholders support arbitration to resolve these disputes, this article warns of the potential long-term consequences of doing so on a large scale.

Standard Setting Organizations usually require the owners of patented technology included in industry standards to commit to licensing on Fair, Reasonable, and Non-discriminatory (“FRAND”) terms to avoid potential abuse of their market …

The Sec As An Entrepreneurial Enforcer, James J. Park

Northwestern University Law Review

The truth of disclosures by public companies is policed by both private plaintiffs and the Securities and Exchange Commission (SEC). The courts and many commentators have viewed the SEC as a more responsible enforcer than private litigants. Entrepreneurial enforcers with a profit motive have an incentive to advance questionable legal theories to expand the reach of Rule 10b-5, the primary federal prohibition of securities fraud. In contrast, the conventional view is that a public enforcer will bring straightforward cases against public companies. This Article argues that this perception is dated, and that the SEC has become more entrepreneurial in its …

South Korea’S Financial Supervisory Service Mediating Disputes Over Hong Kong-Tied Equity-Linked Security Losses, Michele Kallo

Cardozo Journal of Conflict Resolution (CJCR) Blog

Since January 8, 2024, South Korea’s financial regulator, Financial Supervisory Service (FSS), has investigated major Korean banks for selling high-risk equity-linked securities (ELS) products linked to Hong Kong’s Hang Seng China Enterprises Index (HSCEI), which resulted in substantial financial losses among South Korean investors. An ELS is a derivative product that promises returns if the underlying asset—in this case, the HSCEI—stays above a specified “knock-in” level until it matures. Due to the severe decline in the HSCEI, many ELS products have seen drastic devaluations, leading to significant losses for investors, including those who are risk averse. Investors aged 65 and …

Adr In The Digital Age: How Online Platforms Are Better Suited To Resolve Disputes Than Traditional Forums, Matthew Zelman

Cardozo Journal of Conflict Resolution (CJCR) Blog

Since Covid-19 remote work has been increasing astronomically in the US. According to a Gallup poll, even now that Covid-19 is in the past, approximately 27% of workers are fully remote, 53% hybrid, and 21% fully on site. While there are significant benefits to working from home, there are detriments including losing key relationships with coworkers. As people could not physically see their coworkers in person and grow and learn from each other’s body language and personal observations, they started losing respect for each other. This led to an increase in conflicts amongst remote workers with one survey finding that …

Luxury, Legacy, And Resolution: Adr In The World Of Branded Residences, Michael J. Brinn

Cardozo Journal of Conflict Resolution (CJCR) Blog

As of mid-2023, there were 690 completed branded residence schemes across the world, with over 600 schemes in the pipeline expected to be delivered by 2030. Branded residences have become increasingly popular in the luxury real estate market, offering a unique blend of high-end living and hotel-like amenities. These developments, often associated with renowned hotels, present an attractive proposition for buyers seeking both a personal retreat and an investment opportunity. The rental programs offered by developers and branding partners in these luxury projects is one of the main attractive aspects for buyers. It offers the owner the best of both …

Creating Educational Value By Teaching Law Students To Be Quasi-Mediators, John Lande

Faculty Publications

Most mediation courses currently focus primarily on mediators’ perspectives and interventions during mediation sessions. Under the traditional view, mediators are the intervenors, and the parties, attorneys, and other participants in mediation sessions are the intervenees.

This article argues that mediation courses should provide balanced instruction of the roles of both mediators and attorneys by teaching students how to function as “quasi-mediators” when representing clients in mediation. As quasi-mediators, attorneys look for opportunities to reach reasonable agreements whenever appropriate, and they use mediation techniques to move the process in that direction. But they do not surrender their loyalty to their clients …

Is Parenting Authority A Usurpation Of Judicial Authority? Harmonizing Authority For, Benefits Of, And Limitations On This Legal-Psychological Hybrid, Joi T. Montiel

Tennessee Journal of Law and Policy

A “Parenting Coordinator” assists high-conflict parents in resolving disputes that arise in the parents’ efforts to jointly parent their children after a divorce. The Parenting Coordinator simultaneously educates the parents so as to minimize the degree and frequency of future conflict. While Parenting Coordination is not mediation or arbitration, it is also not counseling. Instead, Parenting Coordination is a “legal-psychological hybrid.” A trial court’s delegation to one in this hybrid role the power to determine a fit parent’s access to her child is arguably an improper delegation of judicial authority. While thirteen states have comprehensive schemes setting out their Parenting …

Who Invented It? Streamlining Determination Of Patent Inventorship, Henry H. Perritt, Jr.

University of Miami Law Review

Disputes over inventorship are common in industries where new technology is important. Patents are invalid unless correct inventors are named on the patent, even when all the inventors have assigned their rights to the enterprise applying for a patent. The complexity of modern technology is such that an invention qualifying for a patent rarely is the work of only one individual. Employees and former employees frequently claim that they have been left off patent applications wrongfully. Patent law provides a variety of ways to correct inventorship both while such applications are being prosecuted in the U. S. Patent and Trademark …

Defining The Scope Of Section 1 Of The Federal Arbitration Act: Recent Judicial Interpretations And Implications For The Gig Economy, Charlie Wiener

Cardozo Journal of Conflict Resolution (CJCR) Blog

Section 1 of the Federal Arbitration Act states that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Since the turn of the millennium, the courts have found reason to define the exact limits of the scope of this exception. Notably, Circuit City Stores v. Adams, 532 U.S. 105 (2001), held that the exception in Section 1 must be read narrowly only to include transportation workers, otherwise the enumeration of seamen and railroad employees would not make sense.

The print edition of the issue …

The International Longshoremen’S Association Strike & Removing Public And Political Pressures From The Bargaining Table, Jilly Horowitz

Cardozo Journal of Conflict Resolution (CJCR) Blog

The International Longshoremen’s Association (“ILA”) is the labor union that represents dockworkers in ports along the East Coast and Gulf of Mexico. The management counterpart to the ILA is the United States Maritime Alliance (“USMX”) which represents the various employers associated with the East and Gulf Coast ports. The most recent ILA-USMX master contract, or collective bargaining agreement, ran from October 1, 2018 to September 30, 2024 (the “2018 Agreement”). As ILA workers prepared for a new contract, their two main concerns were securing pay increases and continuing assurances that human jobs would not be replaced by automation.

The print …

Leveling The Playing Field For Racial Justice In The Civil Litigation System, Suzette M. Malveaux

Scholarly Articles

Under the weight of the #MeToo movement and severe public pressure, Congress stopped this unseemly practice for a subset of Americans—those challenging sexual assault and harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), passed in 2022, gives these victims a choice of whether to challenge sexual misconduct in court or in arbitration. Such ubiquitous take-it-or-leave-it contracts are now unenforceable, giving this narrow swath of the population the power to decide for themselves how to challenge such outrageous wrongdoing. In Expanding the Ban on Forced Arbitration, Michael Z. Green argues that race discrimination claims should …

The Adr Movement: Theoretical Aspects And Practical Potential, Craig A. Mcewen

Maine Law Review

My mission in this paper is to draw upon what we know from the active and lively domestic dispute resolution movements in the United States, Canada, and beyond to identify some of the prospects for and potential problems in developing a dispute resolution system for Canadian-United States trade disputes. Alternative dispute resolution (ADR) is flourishing in the 1980's. Increasing numbers of individuals as well as public and private programs identify their work as alternative dispute resolution. These include private mediation practitioners, ADR partners in major law firms, private organizations such as EnDispute, which will arrange mini-trials and other dispute resolution …

Privatizing Dispute Resolution Under The Free Trade Agreement: Truth Or Fancy?, Leon E. Trakman

Maine Law Review

Replete with evidence of extensive forum shopping, unending discovery procedures, and countless delays in the formal adjudicatory process, the case for an alternative, more specialized medium for the resolution of trade disputes between the United States and Canada has grown more pressing. The problem, however, is in being convinced that the alternative, embodied in the proposed Canada-United States Free Trade Agreement, addresses the deficiencies in the existing medium for dispute resolution without introducing greater social and personal costs of its own. A government, in distancing itself from dispute resolution, also separates itself from the process through which social problems are …

Dispute Resolution Provisions Of The Canada-United States Free Trade Agreement, David P. Cluchey

Maine Law Review

Dispute resolution is a major focus of the recently signed Canada-United States Free Trade Agreement. This focus was heavily influenced by two factors. The first is a significant continuing concern about the dispute resolution procedures and mechanisms under the General Agreement on Tariffs and Trade (GATT). The second factor is the general Canadian perception that trade proceedings under United States law are substantially influenced by political concerns and that under a trade agreement, Canadian businesses would need some protection from United States trade regulation. The general dispute resolution provisions of the Free Trade Agreement, which are found primarily in Chapter …