Dispute Resolution and Arbitration Commons^™

Client Problem-Solving: Where Adr And Lawyering Skills Meet, Katherine R. Kruse, Bobbi Mcadoo, Sharon Press

Faculty Scholarship

Influenced by critiques of legal education, law schools are scrambling to offer more and better opportunities for experiential education. To fulfill the new demands for experiential education, one obvious place to turn is clinic pedagogy, which has developed methodologies for teaching students in the real-practice settings of in-house clinics and externships. As the interest in experiential education broadens, a wider spectrum of teaching methodologies comes under the experiential tent, creating opportunities to tap new sources of guidance for reshaping legal education.

This article turns the spotlight on one of these other, less obvious resources within legal education: the alternative dispute …

The Testamentary Foundations Of Commercial Arbitration, Peter B. Rutledge

Scholarly Works

This Article offers the first systematic treatment of the relationship between commercial arbitration and testamentary arbitration. (By testamentary arbitration, I mean an arbitration clause contained in a will requiring beneficiaries to resolve differences over the estate by means of an enforceable decision by a private party rather than judicial resolution in a probate court.) Recent scholarship and jurisprudence have questioned the enforceability of these arrangements as incompatible with the requirement of a written "agreement" between parties to the arbitration. Contrary to these views, close examination of the historical record of testamentary arbitration leading to the Federal Arbitration Act's enactment reveals …

Minding The Gap: A Call For Standardizing Pre-Dispute Arbitration Clauses In Otc Derivative Transactions, Zachary E. Davison

NYLS Law Review

No abstract provided.

When “Yes” May Actually Mean “No”: Rethinking Informed Consent To Adr Processes, Elayne E. Greenberg

Faculty Publications

(Excerpt)

It is time for us to rethink how to achieve meaningful party consent to ADR processes such as mediation and arbitration. I, along with my colleagues Professors Jeff Sovern, Paul F. Kirgis and Yuxiang Liu, recently contributed to the growing body of research finding that a party’s consent to use an ADR process rather than utilizing a court to resolve the dispute is too often neither informed nor consensual. In our empirical study “’Whimsy Little Contracts’ With Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements,” we found a paucity of consumer awareness and understanding of arbitration …

Making Peace With Your Enemy: Nelson Mandela And His Contributions To Conflict Resolution, Jean R. Sternlight, Andrea Schneider, Carrie Menkel-Meadow, Robert Mnookin, Richard Goldstone, Penelope Andrews

Articles & Chapters

This is a transcription of the tenth anniversary celebration of the Saltman Center for Conflict Resolution at the William S. Boyd School of Law, University of Nevada, Las Vegas. The event was held in honor of NelsonMandela, and included a panel discussion about his contributions to the dispute resolution field.

Panelists included Dean Penelope Andrews of the University of Cape Town Faculty of Law, Prof. Carrie Menkel-Meadow of the U.C. Irvine School of Law, Prof. Robert Mnookin of Harvard Law School, and Judge Richard Goldstone, a former member of the Constitutional Court of South Africa.

An introduction was made by …

Client Science: Bad News And The Fully Informed Adr Client, Marjorie Corman Aaron

Faculty Articles and Other Publications

Professor Aaron comments that this piece, excerpted from: “Bad News and the Fully Informed Client,” the first chapter of her book, Client Science, addresses the lawyer’s challenge when counseling clients where “bad” news— negative, pessimistic or unwelcome developments or analysis—must be conveyed, whether or not within an ADR process. “As a mediator of civil cases, I suspect that mediation involves a higher than average percentage of cases involving ill-counseled clients or ‘difficult clients’ who may fairly be characterized as ‘counseling-resistant’ despite the best efforts of skilled lawyers. When the lawyer explains ‘bad news’ about case developments or likely outcomes, he …

Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande

Faculty Publications

Although the ostensible purpose for pretrial litigation is to prepare for trial, such preparation is inextricably intertwined with negotiation because the expected trial outcome is a major factor affecting negotiation. Indeed, since most litigated cases are settled, good litigators prepare for negotiation at least as much as trial. The lawyers interviewed for this article, who were selected because of their good reputations, described how they prepare for both possibilities. They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases, …

The Evolution And Decline Of The Effective-Vindication Doctrine In U.S. Arbitration Law, Okezie Chukwumerije

Pepperdine Dispute Resolution Law Journal

This article offers information on the history, significance and role of the effective-vindication doctrine in U.S. arbitration law in promoting access to justice. It analyzes the significance of broad policy implications regarding the interpretation of the Federal Arbitration Act (FAA) by the Court facilitating the arbitration of commercial disputes and protecting the statutory rights of consumers in the context of the U.S. Supreme Court's decision in Green Tree Financial Corp. v. Randolph.

Growing Pains And Coming-Of-Age: The State Of International Arbitration In India, Jory Canfield

Pepperdine Dispute Resolution Law Journal

The article offers information on the history, development and significance of international arbitration in India. It analyzes the decision of the Indian Supreme Court in the case of Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., which marks the era of major changes in Indian law regarding international arbitration. It mentions that development of Indian arbitration law enhances global standards and attitudes toward international dispute resolution in India.

Blending The Law, The Individual, And Traditional Values To Create An Effective Adr System: A Study On The Adr Processes In Rwanda And Nicaragua, Sarah Yance

Pepperdine Dispute Resolution Law Journal

This article offers information on the history, development and significance of the adoption and implementation of the alternative dispute resolution (ADR) techniques in Nicaragua and Rwanda. The ADR system addresses the issues of women and children suffering from domestic abuse and from the repercussions of the Rwandan Genocide and helps in rebuilding and restoring traditional values of family and community in the context of human rights.

Luck V. Justice: Consent Intervenes, But For Whom?, Jennifer W. Reynolds

Pepperdine Dispute Resolution Law Journal

Consent in civil settlements should improve access to and delivery of justice by making luck (chance, contingencies, arbitrariness) less significant in process and outcomes. Consent-based processes and private settlement are supposed to support justice by redistributing decision-making power away from judicial-coercive authorities to the people most affected by the dispute. But consent today has become little more than a pro forma process lever for bypassing regulation, litigation, and other more formal structures. No longer does consent serve as a reliable bulwark against luck distortions and arbitrariness in legal systems. Opening shrink-wrap (consent to arbitrate!), being shunted into compulsory mediation (consent …

A Tightrope Over Both Your Houses: Ensuring Party Participation And Preserving Mediation's Core Values In Foreclosure Mediation, Heather Scheiwe Kulp

Pepperdine Dispute Resolution Law Journal

The article focuses on the laws made for regulating the party's participation in preserving the principles of mediation for the resolution of disputes related to the foreclosure crisis. Topics discussed include the impact of the foreclosure crisis on the housing and domestic markets, the impact of foreclosures on the sales and price value of the houses and the impact of the foreclosure crisis on the economic conditions of the local communities.

The Use Of Mediation To Settle Prisoner Grievances In Federal Court, Michelle Burns

Pepperdine Dispute Resolution Law Journal

This article discusses the importance of mediation and mediation-like alternative dispute resolution (ADR) methods used by the U.S. federal district courts to settle prisoner litigation claims. Topics discussed include laws made for the prisoners for filing their claims in the Federal District Courts under Section 1983, the role of ADR in resolving prisoner grievances and the role of ADR in settling the disputes related to prisoner civil rights.

Uniform Alternative Dispute Resolution: The Answer To Preventing Unscrupulous Agent Activity, Scott Kestenbaum

Pepperdine Dispute Resolution Law Journal

This Note addresses whether there should be an arbitration and mediation section added to both the Uniform Athlete Agent Act (UAAA), and Sports Agent Responsibility and Trust Act (SPARTA) to establish a uniform dispute resolution process for dealing with unscrupulous acts of athlete agents. This issue is distinctive because while all four professional sports leagues’ players associations have specific arbitration procedures in their athlete agent regulations, the two statutes governing athlete agent conduct do not adopt a uniform policy relating to arbitration procedures. This Note addresses the prior history of state and federal legislation pertaining to an athlete agent, including …

Don't Tread On Me: The Need For An Alternate Dispute Resolution Process For The Creators And Uploaders Of User-Generated Content, Scott A. Tarbell

Pepperdine Dispute Resolution Law Journal

This article analyzes the current position that UGC site users find themselves in relation to their ability to dispute copyright infringement claims. Part II discusses the introduction and purpose of the DMCA along with the statutory provisions and case law relevant to the subject. Part III covers the underlying issues encumbering the current appeals process for the OSPs as dictated under the DMCA, and why changes are required. Part IV advocates for a new dispute process, one in favor of online alternative dispute resolution (OADR), and explains how this new paradigm would produce more equitable results for UGC site users. …

Online Alternative Dispute Resolution And Why Law Schools Should Prepare Future Lawyers For The Online Forum, Jordan Goldberg

Pepperdine Dispute Resolution Law Journal

Goldberg discusses traditional law school curriculums and how the addition of ADR courses has supplemented the traditional law school curriculum in a way that helps law schools achieve educational and academic recommendations, suggested by various studies including the Carnegie Report and the Best Practices for Legal Education. The author then shows that the effects of globalization and the increased use of technology in daily life have caused a higher demand for OADR in legal practice. Further, because there is a growing use of technology in K-12 curriculums and the nation’s youth are becoming more technologically savvy every year, it is …

All In The Family: The Influence Of Social Networks On Dispute Processing (A Case Study Of A Developing Economy), Manuel A. Gómez

Georgia Journal of International & Comparative Law

No abstract provided.

Alternative Dispute Resolution Landscape: An Overview Of Adr In The Maryland Court System, Maryland Administrative Office Of The Courts, Center For Dispute Resolution At The University Of Maryland

C-DRUM Publications

No abstract provided.

Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly

Faculty Scholarship

According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”

However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument …

From Integration To Multiculturalism: Dr. King's Dream Fifty Years Later, Al Sturgeon

Pepperdine Dispute Resolution Law Journal

The author offers information on transformation from integration to multiculturalism in the U.S. He states that tolerance became a popular term following the victories achieved in the Civil Rights Era and choice between segregation and integration was a familiar topic of the Era. He mentions that a call for integration to the multiculturalism movement underlies an attempt to move beyond legal recognition to an appreciation of differences.

Sino-American Contract Bargaining And Dispute Resolution, Garrick Apollon

Pepperdine Dispute Resolution Law Journal

The article offers information on international trade disputes between the U.S. and China. Topics include economic interdependency of Sino-American trade, cross-legal and cross-cultural relationships between the U.S. and China, and the historical and cultural preference for Alternative Dispute Resolution (ADR) in China. Other topics include learning of cross-cultural management and international business negotiation.

Even Adr Must Pay Its Dues: An Analysis Of The Evolution Of The Internal Revenue Service's Adr Programs And Where They Still Need To Grow, Stephen Folan

Pepperdine Dispute Resolution Law Journal

The article offers information on the evolution, development and effectiveness of the alternative dispute resolution (ADR) programs in the Internal Revenue Service (IRS) appeals system. It analyzes the history of the IRS's post-appeal mediation and arbitration systems and advocates adoption of its contemporary commercial arbitration principles to increase the ADR program's desirability for both the taxpayers and the IRS. It proposes cost-effective measures for dispute resolution processes.

In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program , Thomas J. Stipanowich

The Journal of Business, Entrepreneurship & the Law

The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …

Mediator Ethical Breaches: Implications For Public Policy, Sharon Press

Faculty Scholarship

Court-connected mediation, which includes both court mandated and court encouraged mediation, has become a well-established part of the judicial system in the United States. There are many public policy implications of this phenomenon. These include the underlying goals of the development of court-connection mediation and the responsibility to the public once a court-connected mediation program is established to ensure that the public has access to quality providers of mediation services. Once a court-connected mediation program has established qualifications and ethical standards for mediators, there is a public policy obligation for there also to be a mechanism to educate, reprimand or …

The Trouble With Categories: What Theory Can Teach Us About The Doctrine-Skills Divide, Linda H. Edwards

Scholarly Works

We might not need another article decrying the doctrine/skills dichotomy. That conversation seems increasingly old and tired. But like it or not, in conversations about the urgent need to reform legal education, the dichotomy’s entailments confront us at every turn. Is there something more to be said? Perhaps surprisingly, yes. We teach our students to examine language carefully, to question received categories, and to understand legal questions in light of their history and theory. Yet when we talk about the doctrine/skills divide, we seem to forget our own instruction.

This article does not exactly take sides in the typical skills …

Adr Cases, Jacob Glasser

Law Student Publications

Description of recent case law regarding alternative dispute resolution.

Let Us Reason Together: The Role Of Process In Effective Mediation, Howard W. Cummins

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

C-Drum News, Fall 2013

The C-DRUM News

No abstract provided.

‘Translating The Terrain’ Over Cultural Myths And Mistaken Assumptions, Marjorie Corman Aaron

Faculty Articles and Other Publications

Lawyers must recognize that, outside of the legal practice, people lack shared knowledge about its workings. Thus, the “lawyer-translator” must supply basic, missing knowledge of legal process, practice, and culture for her words to make sense. Without some of that knowledge, the lawyer’s words lack meaning.

Globalization And Financial Dispute Resolution: Examining Areas Of Convergence And Informed Divergence In Financial Adr, Shahla F. Ali

Journal of Dispute Resolution

The global reach of the financial crisis calls for renewed investigation on the impact of globalization on international legal practice. Part One of this paper examines the theoretical perspectives on the impact of globalization on international legal practice. Part Two provides a global review of financial dispute resolution programs, including arbitration models and ombudsman systems, developed to address the financial complaints of retail investors that intensified during and after the financial crisis. Australia, the United Kingdom, the United States, Singapore and Hong Kong are featured because they each reflect either the ombudsman or arbitration model of financial dispute resolution. Part …