Dispute Resolution and Arbitration Commons^™

Kukin Program Newsletter – Fall 2018, Kukin Program For Conflict Resolution

Kukin Program Newsletters

The Kukin Program Newsletter – Fall 2018 celebrates the achievements and recent activities of the Kukin Program, including faculty updates and notable events. Highlights include Professor Lela Porter Love’s recognition as a top global thought leader in mediation, an in-depth program on the repeal of "Don't Ask, Don't Tell" featuring insights from Colonel Linell A. Letendre, and Leymah Gbowee’s International Advocate for Peace Award. Professor Donna Erez-Navot shares her expertise in mediation for estate disputes, and there’s a spotlight on impactful alumni and faculty contributions, including recent publications and student successes.

Kukin Program Newsletter – Spring 2018, Kukin Program For Conflict Resolution

Kukin Program Newsletters

The Kukin Program Newsletter – Spring 2018 showcases the impactful work of the Kukin Program and its members. Highlights include upcoming events like the panel on the repeal of "Don't Ask, Don't Tell" and a symposium on international mediation agreements. The Cardozo Journal of Conflict Resolution’s 2017 Melnick Symposium featured Michael Tsur, who shared negotiation insights. Faculty and alumni updates celebrate achievements such as advocacy efforts for mediation in New York and competition successes by the ADR Honor Society. With contributions from dedicated faculty, alumni, and students, the Kukin Program continues to advance conflict resolution education and practice.

The Politics Of Access: Examining Concerted State/Private Enforcement Solutions To Class Action Bans, Myriam E. Gilles

Articles

Procedural and substantive constraints on the ability of ordinary people to access the civil justice system have become all too commonplace. The “justice gap” owes much to cuts in funding for legal aid and court administration, heightened pleading standards, ever-rising costs of discovery, increasingly restrictive views on standing to sue, and the co-opting of small claims court by businesses seeking to collect debts, among other obstacles in the path to the courthouse. But the most consequential impediment, surely, is the enforcement of mandatory arbitration clauses with class action bans, which bar consumers and employees from bringing or being represented in …

Dispute System Design Can Help: To Bring About The Future Envisioned By Gpc Participants, We Need To Change The Structure Of What We Do, Lela P. Love, Lisa Blomgren Amsler, Mansi Karol

Articles

No abstract provided.

Class Dismissed: Compelling A Look At Jurisprudence Surrounding Class Arbitration And Proposing Solutions To Asymmetric Bargaining Power Between Parties, Matthew R. Hamielec

Chicago-Kent Law Review

Class actions and arbitrations have existed since the United States’ inception. Since the mid-twentieth century, both Congress and the U.S. Supreme Court have helped arbitration blossom from litigation’s overshadowed alternative to a prominent means of resolving disputes. Soon, the commercial industry proceeded to incorporate arbitration provisions in their consumer and employment contracts. That way, when a dispute arose between the business and a person, the business would arbitrate with claimants individually. Plaintiffs’ attorneys who favored collective action proceedings like class actions, however, pushed for courts’ allowance of class arbitration—a class proceeding conducted within an arbitration’s confines.

Corporations litigated such class …

Communitarianism And The Roberts Court: The Sequel, Robert M. Ackerman, Adam G. Winn

Law Faculty Research Publications

No abstract provided.

Towards Ocean Peace: Resolving Disputes Cooperatively And Empathetically Through Negotiation, Nayha Acharya

Articles, Book Chapters, & Popular Press

Oceans have immeasurable value. They are replete with natural resources and food sources; they enable transportation and recreation; they regulate earth’s climate. In sum, they make invaluable contributions to our physical, economic, and political well-being. And wherever there is something valuable, there are disputes over how that value should be maintained, grown, owned, and distributed. Internationally, disputes over maritime boundaries, access routes, drilling rights, and resource exploration are prolific. A sizeable bulk of international litigation is generated by ocean disputes. In the domestic context, disagreement among stakeholders as to environmental quality and pollution, natural resource management and conservation, geo-engineering, and …

Mediating Towards Forgiveness & Family Reconciliation In Divorce; Select Issues In Dispute Resolution: Apology & Forgiveness, Selina J. Shultz

Pepperdine Dispute Resolution Law Journal

This paper examines the importance of forgiveness and the rebuilding of trust in the reconciliation of the family during and after a divorce, and contemplates the mediator’s role in leading the parties in this direction.

Calming The Chaos: A Complexity Science Approach To Dispute Resolution On A Macro And Micro Level, Martha E. Simmons

Pepperdine Dispute Resolution Law Journal

The aim of this paper is to provide readers with a starting point from which to examine the extent to which their own areas of legal research can benefit from a complexity lens. The current research focuses on family law merely to provide an illustration. This work is particularly inspired by the research conducted by Glouberman and Zimmerman, who examined the medical system on both a systemic and individual patient level from a complexity lens. It is from this foundation that this paper examines the legal system from both a systemic and individual dispute level, with a focus on complexity.

Inside The Arbitrator's Mind, Susan Franck

Scholarly Articles in Law Reviews & Journals

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

Realizing Dispute Resolution: Meeting The Challenges Of Legal Realism Through Mediation, Robert Rubinson

All Faculty Scholarship

No abstract provided.

Issues Concerning Enforcement And Dispute Resolution, Sean Flynn

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Mediation As Regulation: Expanding State Governance Over Private Disputes, Lydia Nussbaum

Utah Law Review

Across the United States, state legislatures are issuing new mediation mandates that govern how private parties resolve their disputes. Legislatures embed these mediation mandates into specific statutory regimes ranging from foreclosure to health care to insurance coverage. Rather than leave decisions about ADR design to other state institutions, like courts or administrative agencies, legislatures increasingly retain that authority and formalize the mediation process with legal requirements that regulate parties’ behavior and influence mediation outcomes. This Article explains how legislatures wield mediation as a regulatory tool in this latest phase of mediation’s institutionalization. It argues that statutory mediation mandates should be …

The Hopes And Fears Of All The Years: 30 Years Behind And The Road Ahead For The Widespread Use Of Mediation, Lela P. Love, Ellen A. Waldman

Articles

Looking through the windshield in 1985, the dispute resolution community was enthusiastic about mediation's promise: the promise of a radically different paradigm premised on party-driven resolution and collaborative decision-making. Peering ahead, mediation's pioneers anticipated a quiet revolution in conflict management toward more therapeutic and democratic processes. What do events in the last three decades tell us about the high and low points — the successes and failures — in the journey of that endeavor? Looking forward, how might we best align reality with our highest aspirations and avoid the disappointing troughs we encountered in those past decades? This article addresses …

The Day Doctrine Died: Private Arbitration And The End Of Law, Myriam E. Gilles

Articles

This story begins in 1980, when a budding anti-lawsuit movement found an energetic champion in a new conservative President. Over time, the movement became a dominant feature of political life, as its narrative of activist judges, jackpot justice, and a thriving lawsuit industry stirred partisan passions. And yet, some thirty years on, it is clear that the primary legacy of the anti-lawsuit movement is the movement itself--not legislative achievements, which have been few and far between, but committed adherents, including future Supreme Court Justices, lower court judges, and business leaders.

Meanwhile, and also in the early 1980s, federal courts began …

Predicting Outcomes In Investment Treaty Arbitration, Susan Franck

Scholarly Articles in Law Reviews & Journals

Crafting appropriate dispute settlement processes is challenging for any conflict-management system, particularly for politically sensitive international economic law disputes. As the United States negotiates investment treaties with Asian and European countries, the terms of dispute settlement have become contentious. There is a vigorous debate about whether investment treaty arbitration (ITA) is an appropriate dispute settlement mechanism. While some sing the praises of ITA, others offer a spirited critique. Some critics claim that ITA is biased against states, while others suggest ITA is predictable but unfair due to factors like arbitrator identity or venue. Using data from 159 final cases derived …

Settling The Long War: Alternative Dispute Resolution And The War On Terror, Matthew P. Chiarello

William & Mary Law Review

No abstract provided.

Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Individualized Injunctions And No-Modification Terms: Challenging "Anti-Reform" Provisions In Arbitration Clauses, Myriam E. Gilles

Articles

The Supreme Court’s recent decisions in AT&T Mobility v. Concepcion and American Express v. Italian Colors have considered only whether class actions for monetary damages may be barred by arbitration clauses requiring individual adjudication. The Justices have not examined the enforceability of arbitration clauses or arbitral rules which explicitly prohibit claimants from seeking or arbitrators from granting broad injunctive relief in an individual dispute. I term these "anti-reform" provisions because they broadly prohibit an individual arbitral claimant from seeking to end a practice, change a rule, or enjoin an act that causes injury to itself and to similarly-situated non-parties. This …

Operation Arbitration: Privatizing Medical Malpractice Claims, Myriam E. Gilles

Articles

Binding arbitration is generally less available in tort suits than in contract suits because most tort plaintiffs do not have a pre-dispute contract with the defendant, and are unlikely to consent to arbitration after the occurrence of an unforeseen injury. But the Federal Arbitration Act applies to all "contract[s] evincing a transaction involving commerce, " including contracts for healthcare and medical services. Given the broad trend towards arbitration in nearly every other business-to-consumer industry, coupled with some rollbacks in tort reform measures that have traditionally favored medical professionals in the judicial system, it is very possible that we may witness …

Conflating Politics And Development? Examining Investment Treaty Arbitration Outcomes, Susan Franck

Scholarly Articles in Law Reviews & Journals

International dispute settlement is an area of ongoing evaluation and tension within the international political economy. As states continue their negotiations for the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), the efficacy of international arbitration as a method of dispute settlement remains controversial. Whereas some sing its praises as a method of protecting private property interests against improper government interference, others decry investment treaty arbitration (ITA) as biased against states. The literature has thus far not disentangled how politics and development contribute to investment dispute outcomes. In an effort to control for the effect of internal …

The Ohio State University Dispute Resolution In Special Education Symposium Panel, Robert Dinerstein

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Success And Failure In Adr: A Dialogue Between Partners, Lela P. Love, Joseph B. Stulberg

Articles

Love and Stulberg critically discuss policy, scholarly, and practice developments in four areas of program development in the area historically referenced as alternative dispute resolution (ADR): the range of process options; the impact of court procedures on ADR program development and practice; the nature of ADR scholarship and training; and the general public's receptiveness to or rejection of the normative principles that structure ADR collaborative processes. Their concluding remarks suggest that the promise of ADR, particularly of the mediation process, remains inspiring to many, even if its effective implementation remains uneven.

Crowd-Classing Individual Arbitrations In A Post-Class Action Era, Myriam E. Gilles, Anthony J. Sebok

Articles

Class actions are in decline, while arbitration is ascendant. This raises the question: will plaintiffs' lawyers skilled in bringing small value, large-scale litigation-the typical consumer, employment, and antitrust claims that have made up the bulk of class action litigation over the past forty years-hit upon a viable business model which would allow them to arbitrate one-on-one claims efficiently and profitably? The obstacles are tremendous: without some means of recreating the economies of scale and reaping the fees provided by the aggregative device of Rule 23, no rational lawyer would expend the resources to develop and arbitrate individual, small-value claims against …

The Asbca's Path To The Mega Adr In Computer Sciences Corporation, Paul Williams, Reba Ann Page

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Killing Them With Kindness: Examining "Consumer-Friendly" Arbitration Clauses After At&T; Mobility V. Concepcion, Myriam E. Gilles

Articles

The article focuses on the U.S. Supreme Court case AT&T Mobility LLC v. Concepcion, in which California's "Discover Bank rule" was struck by the Court under the Federal Arbitration Act, which was upheld by the California Supreme Court in the court case Discover Bank v. Superior Court. It provides information that the rule is a judge-made rule which depicts that class action waivers are unforceable in arbitration agreements if such agreements are mentioned in standard form consumer contracts.

Prospects For Satisfactory Dispute Resolution Of Private Commercial Disputes Under The North American Free Trade Agreement, Jonathan I. Miller

Pepperdine Law Review

No abstract provided.

After Class: Aggregate Litigation In The Wake Of At&T; Mobility V Concepcion, Myriam E. Gilles, Gary Friedman

Articles

Class actions are on the ropes. Courts in recent years have ramped up the standards governing the certification of damages classes and created new standing requirements for consumer class actions. Most recently, in Wal-Mart v Dukes, the Supreme Court articulated a new and highly restrictive interpretation of the commonality requirement of Rule 23(a). But all of this pales in comparison to the Court's April 2011 decision in AT&T Mobility v Concepcion, broadly validating arbitration provisions containing class action waivers. The precise reach of Concepcion warrants close scrutiny. Our analysis suggests that following Concepcion, some plaintiffs will be able to successfully …

A Reflection On American Justice At A Crossroads: A Public And Private Crisis, Maureen A. Weston

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …

American Justice At A Crossroads: Remarks Of Thomas J. Stipanowich, Thomas J. Stipanowich

Pepperdine Dispute Resolution Law Journal

In April, 2010, a prominent group of judges, attorneys, academics, private dispute resolution professionals, and policymakers gathered to reflect upon the current state and future of the American justice system. A symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR Institute). This special symposium edition of the Journal is comprised of select papers and speeches presented at that event and provide thoughtful …