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Full-Text Articles in Dispute Resolution and Arbitration

Arbitration As An Alternative To Judicial Settlement: Some Selected Perspectives, Mashall E. Lippman May 2025

Arbitration As An Alternative To Judicial Settlement: Some Selected Perspectives, Mashall E. Lippman

Maine Law Review

The increasing interest in arbitration as a means of judicial reform has been largely due to the fact that arbitration provides a forum for dispute settlement apart from the traditional judicial system. In other words, arbitration is regarded as a useful reform measure primarily because it affords potential litigants a forum other than the already over-burdened courts. Little consideration has been given to the possibility that in some areas arbitration may in fact be both a better forum and a better method of resolving disputes than the traditional judicial system. This article will discuss three areas, areas which are susceptible …


The Adr Movement: Theoretical Aspects And Practical Potential, Craig A. Mcewen Oct 2024

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 Oct 2024

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 Oct 2024

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 …


Dispute Settlement Mechanisms Under The Free Trade Agreement, Ton J.M. Zuijdwijk Oct 2024

Dispute Settlement Mechanisms Under The Free Trade Agreement, Ton J.M. Zuijdwijk

Maine Law Review

The purpose of this paper is to review the dispute settlement mechanisms that are contained in the Canada-United States Free Trade Agreement. The two countries reached agreement on the main features of the Free Trade Agreement on October 3, 1987. Thereafter, the elements of the Agreement were converted into the legal text of the Free Trade Agreement and signed by Prime Minister Mulroney and President Reagan on January 2, 1988. Legislation implementing the Free Trade Agreement has been introduced in the Parliament of Canada and in the United States Congress. In Canada the ordinary rules for legislative enactments will apply. …


Canadian Acceptance Of International Commercial Arbitration, John E.C. Brierly Oct 2024

Canadian Acceptance Of International Commercial Arbitration, John E.C. Brierly

Maine Law Review

A few years ago it would have been impossible to speak of Canadian "acceptance" of international commercial arbitration. Canada had not adhered to any international convention on arbitration, and Canadian legislation did not specifically regulate arbitration in commercial dealings or when it involved some non-national element. There was no federal enactment on the subject. Canadian provincial legislation, whether the civil law of Quebec or the common law of the rest of Canada, had not greatly evolved from the 19th century position expressed in legislation based upon the legal traditions of France and the United Kingdom of the same period. No …


A Canadian Perspective On U.S. Administered Protection And The Free Trade Agreement, Alan M. Rugman Oct 2024

A Canadian Perspective On U.S. Administered Protection And The Free Trade Agreement, Alan M. Rugman

Maine Law Review

The negotiation of the Canada-United States Free Trade Agreement over the 1986-1988 period builds upon over 130 years of bilateral trade and investment policy. With Canada's economy being roughly one-tenth the size of that of the United States, the negotiation of commercial arrangements to govern the bilateral trade and investment relationship assumes great importance in the smaller partner. The size asymmetry means that Canada, as the smaller nation, needs to secure a rules-based system rather than a power-based system in its trading relationship with the United States, which accounts for nearly 80% of its exports. Canada is also the largest …


The Reception Of Arbitration In United States Law, Thomas E. Carbonneau Oct 2024

The Reception Of Arbitration In United States Law, Thomas E. Carbonneau

Maine Law Review

The willingness of any national legal system to endorse the process of arbitral adjudication can be measured by whether its governing statutory law and accompanying case law sustain the validity of arbitration agreements and limit judicial supervision of arbitral proceedings and awards—in effect, whether the laws of a nation establish a cooperative relationship between the courts and the arbitral process. On both scores, United States law on arbitration evinces a clear determination to support the process. The development of the law has given the framework of arbitral adjudication its necessary systemic autonomy. Since 1970, when the United States ratified the …


Alternative Dispute Resolution In International Trade And Business, Thomas E. Carbonneau Oct 2024

Alternative Dispute Resolution In International Trade And Business, Thomas E. Carbonneau

Maine Law Review

This workshop, which was held at the University of Maine School of Law on May 27, 1987, consisted of an informal discussion among an interdisciplinary group of experts. The purpose of the workshop was to generate ideas and recommendations regarding the utility of alternative dispute resolution (ADR) in international trade and business, with special reference to Canadian-United States trade relations. The discussion also explored the possible commonalties of domestic and international dispute resolution in the hope of developing a basis for a generic alternative dispute resolution methodology.


Foreword, Charles S. Colgan Oct 2024

Foreword, Charles S. Colgan

Maine Law Review

The Free Trade Agreement concluded between the United States and Canada, and signed on January 2, 1988, has a number of features that distinguish it among the trade agreements of the United States. It eliminates all tariffs, reduces restrictions on business travel, and establishes ground rules for trade in services and for foreign investment. In this latter respect, the Agreement is unique among major international trade agreements of the world. But one of the most enduring aspects of the Agreement is likely to be the provisions establishing a series of dispute settlement mechanisms. This last observation would probably surprise almost …


Introduction To Symposium: Alternative Dispute Resolution In Canada-United States Trade Relations, George J. Mitchell Oct 2024

Introduction To Symposium: Alternative Dispute Resolution In Canada-United States Trade Relations, George J. Mitchell

Maine Law Review

The Alternative Dispute Resolution (ADR) movement in law arose domestically as the pressures on our court system threatened to deprive individual citizens of their "day in court." Maine is a leader in the development and elaboration of the principles and practicalities that must be mastered for ADR mechanisms to function. The University of Maine School of Law symposium examining the application of ADR principles to international disputes focuses specifically on the trade relationship between the United States and Canada. But its examination of both the innovations and limitations of ADR to the resolution of international disputes is broader than this …


C-Drum News, Fall 2019 Oct 2019

C-Drum News, Fall 2019

The C-DRUM News

No abstract provided.


Final Report And Collaborative Action Plan, Maryland Commission On The School-To-Prison Pipeline And Restorative Practices Dec 2018

Final Report And Collaborative Action Plan, Maryland Commission On The School-To-Prison Pipeline And Restorative Practices

C-DRUM Publications

Report to the Maryland Governor and General Assembly Pursuant to House Bill 1287 (2017).


C-Drum News, Fall 2018 Oct 2018

C-Drum News, Fall 2018

The C-DRUM News

No abstract provided.


Amending Maine's Plain Language Law To Ensure Complete Disclosure To Consumers Signing Arbitration Contracts, Andrew R. Sarapas Mar 2018

Amending Maine's Plain Language Law To Ensure Complete Disclosure To Consumers Signing Arbitration Contracts, Andrew R. Sarapas

Maine Law Review

Arbitration has been defined as an informal procedure used by disputants to resolve their differences in a forum other than a court of law. By agreeing to arbitration, the parties submit their disputes to selected arbitrators, whose reasoning and final decisions or awards supplant the judgment of the established judicial tribunals. Further, the decisions of arbitrators are usually binding and enforceable in courts. Although arbitration has been lauded for being less expensive and time-consuming than litigation, consumers arbitrating disputes with large companies may not be playing on a level field. It is important, however, to distinguish arbitration from mediation. Arbitrators, …


Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr. Nov 2017

Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr.

Maine Law Review

With these words of prophecy the Commission to Study the Future of Maine's Courts launched its discussion of alternative dispute resolution (ADR). Although conceding that “the adversary process ... has served the people of the state well” and acknowledging that “the state must continue to provide a forum for forceful advocacy that produces a definite and binding judicial decision” the Commission asked the Maine judicial and legislative branches to embrace ADR. For the last dozen years, the Author has been the Supreme Judicial Court's (SJC's) liaison to its ADR Planning and Implementation Committee and Chair of the Court's Advisory Committee …


Often Wrong, Never In Doubt: How Anti-Arbitration Expectancy Bias May Limit Access To Justice, Becky L. Jacobs Oct 2017

Often Wrong, Never In Doubt: How Anti-Arbitration Expectancy Bias May Limit Access To Justice, Becky L. Jacobs

Maine Law Review

While there long have been “alternatives” to the traditional trial for those seeking to resolve disputes, the so-called “litigation explosion” in the 1970s inspired a campaign for reform of the administration of justice that resulted in the modern ADR movement. The movement had many disparate goals, not the least of which was to improve public access to justice. At the historic 1976 National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (Pound Conference), Harvard Law Professor Frank E.A. Sander first posited the concept of a “comprehensive justice center,” more famously referred to as a “multi-door courthouse,” …


C-Drum News, Fall 2017 Oct 2017

C-Drum News, Fall 2017

The C-DRUM News

No abstract provided.


Online Dispute Resolution: Stinky, Repugnant, Or Drab?, Robert J. Condlin Jan 2017

Online Dispute Resolution: Stinky, Repugnant, Or Drab?, Robert J. Condlin

Faculty Scholarship

No abstract provided.


Europe's Role In Alternative Dispute Resolution: Off To A Good Start?, Maud Piers Jul 2014

Europe's Role In Alternative Dispute Resolution: Off To A Good Start?, Maud Piers

Journal of Dispute Resolution

ADR has become a topical issue in contemporary European procedural private law. Over the past fifteen years, European lawmakers have displayed particular interest in extra-judicial dispute resolution methods as part of a broader effort to promote better access to justice. For example, Directive 2008/52 sets out a framework for the use of mediation in cross-border disputes on civil and commercial matters. The European Commission's influential Recommendations 98/257 and 2001/310, which respectively deal with out-of-court dispute settlements and consensual dispute mechanisms, constitute a starting point for constructing a new approach to ADR. In March of 2013, the European Parliament and the …


Overview Of International Arbitration In The Intellectual Property Context, Kenneth R. Adamo Jan 2011

Overview Of International Arbitration In The Intellectual Property Context, Kenneth R. Adamo

Global Business Law Review

Resolving intellectual property rights (“IPR”) issues through alternative dispute resolution (“ADR”) proceedings was a technique long-developing in many major countries. Despite the earlier presence of the Arbitration Act in United States law, the subject of use of arbitration in IPR situations, especially regarding U.S. patents, remained an open and contested issue, until the original addition of 35 U.S.C. § 294 to the U.S. Patent Act in 1982. U.S. law is now resolved in the availability of IPR arbitration as an ADR tool, either through a “pre-problem” contract, such as a license, or as a “post-problem” mechanism elected and/or established by …


An End To Grazing Lease Litigation: An Examination Of Alternative Dispute Resolution Schemes That Could Resolve The Overgrazing Dispute On State And Federally Owned Rangelands In The Western United States, Jamie Pool Sep 2009

An End To Grazing Lease Litigation: An Examination Of Alternative Dispute Resolution Schemes That Could Resolve The Overgrazing Dispute On State And Federally Owned Rangelands In The Western United States, Jamie Pool

Pace Environmental Law Review

No abstract provided.


The (New) Ethics Of Collaborative Law, Scott R. Peppet Jan 2008

The (New) Ethics Of Collaborative Law, Scott R. Peppet

Publications

No abstract provided.


Principles For Policymaking About Collaborative Law And Other Adr Processes, John M. Lande Jan 2007

Principles For Policymaking About Collaborative Law And Other Adr Processes, John M. Lande

Faculty Publications

This Article articulates a set of principles for policymaking about alternative dispute resolution (ADR) to promote values of process pluralism, choice in dispute resolution processes, and sound decision making. It argues that policymakers should use a dispute system design (DSD) framework in analyzing policy options. DSD involves systematically managing a series of disputes rather than handling individual disputes on an ad hoc basis. It generally includes assessing the needs of disputants and other stakeholders, planning to address those needs, providing necessary training and education for disputants and dispute resolution professionals, implementing the system, evaluating it, and making periodic modifications as …


Adr Clause By Any Other Name Might Smell As Sweet: England's High Court Of Justice Queens Bench Attempts And Fails To Define What Is Not An Enforceable Adr Clause - Cable 7 & (And) Wireless Plc V. Ibm United Kingdom Ltd, An, Alyson Carrel Jul 2003

Adr Clause By Any Other Name Might Smell As Sweet: England's High Court Of Justice Queens Bench Attempts And Fails To Define What Is Not An Enforceable Adr Clause - Cable 7 & (And) Wireless Plc V. Ibm United Kingdom Ltd, An, Alyson Carrel

Journal of Dispute Resolution

The High Court of Justice Queens Bench Division in England issued a ruling that provides sweeping support for the use of Alternative Dispute Resolution (ADR) in private pre-dispute contract clauses.' While this support might seem to aid in developing the growing ADR movement in England, the judge may have put the cart before the horse by enforcing a non-descript and broad ADR contract clause that lacks the specificity needed to ensure a fair outcome. This decision could be detrimental for disputing parties and the future of the ADR movement itself.


Dancing With The One That Brung Us - Why The Texas Adr Community Has Declined To Embrace The Uma, Brian D. Shannon Jan 2003

Dancing With The One That Brung Us - Why The Texas Adr Community Has Declined To Embrace The Uma, Brian D. Shannon

Journal of Dispute Resolution

I readily acknowledge that the UMA is a bold and noble project, and it is certainly the result of substantial effort and compromise. Indeed, I largely concur with the sentiment of Philip Harter that "[tihe UMA is the product of heroic effort that brought together many interests and perspectives to thrash out a workable framework for mediation." That being said, however, much of the Texas mediation community, of which I am a part, has largely opposed enactment of the UMA's framework for our state. As I have written previously, the Alternative Dispute Resolution Section of the State Bar of Texas …


Inevitability Of The Eclectic: Liberating Adr From Ideology, The, Jeffrey W. Stempel, Kimberlee K. Kovach Jul 2000

Inevitability Of The Eclectic: Liberating Adr From Ideology, The, Jeffrey W. Stempel, Kimberlee K. Kovach

Journal of Dispute Resolution

In this essay, I continue to argue against such rigid characterization of the mediation enterprise and in favor of what I term an "eclectic" approach to mediation. The eclectic style is one in which a mediator - while maintaining neutrality and impartiality at all times - attempts to both assist the disputants in finding acceptable solutions on their own and also remains free to provide necessary guidance as to the outcomes that might obtain in the legal regime that will govern their dispute should no agreement result from the mediation. In short, my view of good mediation practice is one …


Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P, Love Jul 2000

Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P, Love

Journal of Dispute Resolution

The thesis of this essay is that when mediators try to resolve a controversy by providing their analysis fo the legal - or other- merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral's judgment, award or opinion to determine or jump-start a resolution. That add-on activity to mediation should be called by its proper name. This essay will not review the many reasons that a single neutral combining the roles of facilitator and evaluator is problematic, since that has been done extensively elsewhere.' Instead, in part one, we highlight …


Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande Apr 2000

Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande

Faculty Publications

Do you believe in mediation? That may seem like an odd question. Normally one thinks of ‘believing in‘ (or having faith in) things like magic, God, or the market. These are typically things that are beyond verifiable human knowledge (such as magic and God) and/or deeply held values (such as whether the market is a better mechanism than government for managing the flow of goods and services). At first blush, one might not think that mediation would fall into either category. There have been numerous empirical studies about many different aspects of mediation, so one can confidently say, for example, …


Toward More Sophisticated Mediation Theory, John M. Lande Jan 2000

Toward More Sophisticated Mediation Theory, John M. Lande

Faculty Publications

In the lead article in this symposium, Professor Jeffrey Stempel provides a very thoughtful analysis of the mediation field. He focuses on the debate over facilitative and evaluative mediation and he is critical of many of the arguments made by proponents of facilitative mediation. I have expressed some similar concerns, and I generally agree with his analysis (with a quibble here and there). I do think that the facilitation-evaluation debate has been productive (though admittedly wearisome), and that proponents of facilitative mediation deserve more credit than he gives them in his article.