Dispute Resolution and Arbitration Commons^™

Promise And Peril: Doctrinally Permissible Options For Calibrating Procedures Through Contract,, Henry Allen Blair

Faculty Scholarship

For a long time, arbitration was the only game in town for parties who wanted more flexibility in the adjudication of their disputes. They faced a dichotomous choice between accepting the public court system and its attendant procedural rules or opting out entirely and resolving their disputes in arbitration. Private process, however, "has migrated in surprising ways into the public courts: despite public rules of procedure, judicial decisions increasingly are based on rules of procedure drafted by the parties . . . ." This sort of private procedural ordering gives parties the ability to unbundle the off-the-rack procedures applied in …

An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster

Articles by Maurer Faculty

This study examines a legal experiment that occurred during the height of the global financial crisis. As markets from the United States to Europe to the Global South shook, one country – the United Arab Emirates – found itself on the brink of economic collapse. In particular, in 2009 the U.A.E’s Emirate of Dubai was contemplating defaulting on $60 billion of debt it had amassed. Recognizing that such a default would have cataclysmic reverberations across the globe, Dubai’s governmental leaders turned to a small group of foreign lawyers, judges, accountants, and business consultants for assistance. Working in a coordinated fashion, …

Finra Dispute Resolution Task Force Releases Its Final Report, With Support For Mediation And Live Hearings, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Late in 2015, the FINRA Dispute Resolution Task Force, a group formed solely for the purpose of systematically assessing and critiquing securities arbitration, released its Final Report and Recommendations. The report contains 51 individual recommendations designed to improve FINRA's heavily-regulated dispute resolution program. Some recommendations offer specific details on implementation; others urge conceptual reform of a particular aspect of the arbitration process but leave FINRA to take care of fleshing out the details.

This article briefly describes the task force's formation; highlights its key recommendations (such as requiring mediation before arbitration of all claims-- subject to party opt-out, and introducing …

Nelson Mandela As Negotiator: What Can We Learn From Him?, Harold I. Abramson

Scholarly Works

This article considers how “the greatest negotiator of the twentieth century,” Nelson Mandela, approached negotiating the unbanning of the African National Congress (ANC), the dismantling of apartheid, and his own freedom after twenty-seven years of imprisonment. He employed classically good negotiation practices in the face of intense and violent opposition while confined in prison for life. If he could be successful, why cannot lawyers succeed when facing less daunting disputes?

This article focuses on the period starting in 1985, when Mandela refused an offer to be released if he would condemn violence, until 1990, when President de Klerk gave his …

...Because It’S Not Just About Money, Elayne E. Greenberg

Faculty Publications

(Excerpt)

When lawyers represent their clients in party-decided dispute resolution processes such as negotiation or mediation, lawyers have a unique opportunity to work with their clients to help shape a comprehensive settlement beyond just a monetary settlement. This is an opportunity to address the client’s human and core concerns and to help their client secure their personalized sense of justice. However, lawyers and mediators who myopically seek to resolve every legal conflict by just monetary resolution are akin to the carpenter who sees everything as a nail because the only tool available is a hammer. This column invites you to …

The Power Of Empathy, Elayne E. Greenberg

Faculty Publications

(Excerpt)

As colleagues in the dispute resolution field, we have likely participated in the ongoing, often heated debate about the role, if any, of empathy in dispute resolution. There are those colleagues who believe that empathy will only muck up what is really important, the bottom-line number and your evaluation about how to get there. On the other side of this controversy, there are seasoned colleagues who regularly use empathy as dispute resolution currency, often at the risk of being marginalized as “touchy feely” by those who don’t understand its value. To help us get past each other’s anecdotal justifications …

A User's Guide To Easier Flood Insurance: A Look Into The History Of Flood Insurance Claims Dispute Processing And Suggestions For Improvement, Courtney Lauer

Journal of Dispute Resolution

In 2012, Superstorm Sandy alone produced 144,484 claims for federal flood insurance coverage under the National Flood Insurance Program (NFIP). The NFIP was created under the National Flood Insurance Act of 1968, and was designed to limit the impact of flooding on both private and public structures. The NFIP’s self-stated goal was to decrease the socioeconomic effects of natural disasters by encouraging the purchase of flood insurance and general risk insurance.

The Idea And The Use Of Mediation And Collaborative Dispute Resolution In Due Process Disputes, Katherine Mcmurtrey

Journal of Dispute Resolution

This Comment discusses the future of alternative dispute resolution in special education conflicts by first examining a brief history of the IDEA and the areas it covers. Due process complaints under the IDEA and mediation as a solution to due process complaints will then be addressed. Then, it will focus on mediation and its impact on parents and schools, particularly the advantages and disadvantages of mediation, and the presence of attorneys in mediation. Finally, it will look towards collaborative law, when two attorneys and their clients collaborate to reach an agreement, and the future of collaborative dispute resolution in the …

The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross

Brooklyn Journal of Corporate, Financial & Commercial Law

Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.

More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms’ duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …

Decriminalizing Violence: A Critique Of Restorative Justice And Proposal For Diversionary Mediation, M. Eve Hanan

All Faculty Scholarship

The movement to reduce over-prosecution and mass incarceration has focused almost exclusively on non-violent offenders despite data showing that over half of all prisoners incarcerated within the United States are sentenced for crimes of violence. As a consequence of the focus on nonviolent offenses, the majority of current and future defendants will not benefit from initiatives offering alternatives to criminal prosecution and incarceration.

A discussion of alternatives to the criminal justice system in cases of violent crime must begin by acknowledging that violent crime is not monolithic. Many incidents meet the statutory elements of a violent crime, that is, the …

Mediation Goes Global In Singapore, George S. C. Lim, Eunice Chua

Research Collection Yong Pung How School Of Law

Singapore has positioned itself as an international dispute resolution hub in Asia by providing a complete suite of services for international arbitration, international litigation and mediation through the Singapore International Arbitration Centre (“SIAC”), the Singapore International Commercial Court (“SICC”) and the Singapore International Mediation Centre (“SIMC”). SICC and SIMC build on Singapore’s reputation for quality legal services, including its status as the most preferred seat of arbitration in Asia and the third most preferred seat of arbitration in the world.[1] They bring more options to parties facing cross-border disputes who need tailored solutions that meet their needs.

Mediation Goes Global In Singapore, George S. C. Lim, Eunice Chua

Research Collection Yong Pung How School Of Law

Singapore has positioned itself as an international dispute resolution hub in Asia by providing a complete suite of services for international arbitration, international litigation and mediation through the Singapore International Arbitration Centre (“SIAC”), the Singapore International Commercial Court (“SICC”) and the Singapore International Mediation Centre (“SIMC”). SICC and SIMC build on Singapore’s reputation for quality legal services, including its status as the most preferred seat of arbitration in Asia and the third most preferred seat of arbitration in the world.[1] They bring more options to parties facing cross-border disputes who need tailored solutions that meet their needs.

C-Drum News, Fall 2015

The C-DRUM News

No abstract provided.

Mandatory Process, Matthew J.B. Lawrence

Indiana Law Journal

This Article suggests that people tend to undervalue their procedural rights—their proverbial “day in court”—until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance— their perception of unfairness and accompanying negative emotional reaction—win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this happens, people will waive their procedural rights …

Saltman Center For Conflict Resolution Tenth Anniversary Honors Nelson Mandela, Jean R. Sternlight

Nevada Law Journal

No abstract provided.

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

Nevada Law Journal

No abstract provided.

The Investigation Procedures Of The United Nations Office Of Internal Oversight Services And The Rights Of The United Nations Staff Member: An Analysis Of The United Nations Judicial Tribunals’ Judgments On Disciplinary Cases In The United Nations, Tamara A. Shockley

Pace International Law Review

An employee of an international organization misappropriates over one million dollars from a United Nations Peace-Keeping Mission’s designated for procurement of supplies. As a staff member of an international organization, he or she has functional immunity and cannot be investigated by the local jurisdiction or by authorities in his home country. Is this the “perfect crime”? Taking into consideration that these misappropriated funds are contributions from Member States of the United Nations, is there any recourse to investigate the facts of the incident to determine culpability?

International organizations have a legal obligation to ensure compliance with internal regulations, rules and …

Dispute Resolution, Insurance, And Points Of Convergence, Robert H. Jerry Ii

Journal of Dispute Resolution

This essay explores the intersection of dispute resolution and insurance. I come to the intersection from the perspective of insurance law, where statutes, administrative rules, and common law regulate the industry and the policyholder-insurer relationship. At its core, the business of insurance offers individuals, businesses, and other kinds of organizations a risk management alternative which enables them to acquire some measure of control over an uncertain future. But when a loss occurs, the business of insurance becomes the business of claims processing and, when disagreements arise, dispute resolution. Surprisingly, the academic study of insurance law has not borrowed heavily from …

Introducing The 'New Handshake' To Expand Remedies And Revive Responsibility In Ecommerce, Amy J. Schmitz

Faculty Publications

There was a time when individuals would meet in person to make purchases and do deals. They would discuss the terms, assess the trustworthiness and character of their contracting partners, and conclude the deal with a handshake. The handshake helped ensure the enforcement of the deal without need for the rule of law or legal power. That handshake was one’s bond — it was a personal trust mark. With the emergence of eCommerce, however, that handshake has nearly disappeared along with the sense of responsibility it inspired. Accordingly, this article discusses how this has impacted consumers’ access to remedies regarding …

Increasing Innovation In Legal Process: The Contribution Of Collaborative Law, Martha Emily Simmons

PhD Dissertations

This dissertation examines the role of innovation in resolving complex disputes, using Collaborative Law as its case study. Innovation, for the purposes of this research, can be defined as applied creativity that leads to optimal resolution for clients. The process of innovation is required to resolve complex problems, which are increasingly prevalent in legal, economic and social spheres. Collaborative Law indeed has the capacity to resolve such issues in the legal realm. Collaborative Law is a process by which parties and their lawyers enter into a binding contract that limits the representation to a facilitative problem-solving process with the intent …

“A Jewish And Democratic State:” Reflections On The Fragility Of Israeli Secularism, Zvi Triger

Pepperdine Law Review

An essay is presented in which the author explores fragility of Israeli secularism related to Jewish religion. Topics discussed are the impact of religious monopoly over personal status in Israel on Israeli secularism, the origination of religious monopoly over personal status during the Ottoman Empire's rule over Palestine, and dispute resolution of domestic cases in communities' and tribes' religious tribunals under their religious laws.

Justice Scalia's Hat Trick And The Supreme Court's Flawed Understanding Of Twenty-First Century Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

In this article, I report on the results of my close examination of more than two dozen opinions the Court has handed down interpreting the FAA--arising primarily from commercial, consumer, employment, or securities disputes--since the beginning of the twenty-first century only fifteen years ago.19 I focus on cases in which the Court was asked to decide a question of arbitrability--whether a claim is arbitrable or whether an agreement to arbitrate is enforceable under FAA section 2. I have concluded that these decisions are built on a narrative of an arbitration process that no longer exists, although it may have existed …

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 …

Mandatory Process, Matthew B. Lawrence

Faculty Articles

This Article suggests that people tend to undervalue their procedural rights—their proverbial “day in court”—until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance— their perception of unfairness and accompanying negative emotional reaction—win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this happens, people will waive their procedural rights …

The Future Of Sharia Law In American Arbitration, Erin Sisson

Vanderbilt Journal of Transnational Law

A rising tide of Islamophobia in the United States has led, in recent years, to state-level efforts to prohibit the application of Sharia law in American courts. While these bans have been largely unsuccessful as legislation--the U.S. Tenth Circuit Court of Appeals has even declared one such ban unconstitutional--the growing uneasiness among Americans regarding the application of Sharia law persists. Similar tensions have been addressed in Canada and the United Kingdom through reform of the application of Sharia law in alternative dispute resolution (ADR) mechanisms. By taking a critical look at the American ADR system through the lens of Canadian …

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 …

Federal Civil Litigation At The Crossroads: Reshaping The Role Of The Federal Courts In Twenty-First Century Dispute Resolution, Edward D. Cavanagh

Faculty Publications

The Federal Rules of Civil Procedure were promulgated in 1938 to provide the “just, speedy, and inexpensive determination” of all civil actions. The underlying theme of the Federal Rules is that meritorious litigants should have their day in court. To that end, the Federal Rules eliminated procedural pitfalls, including highly technical forms of action inherited from common law, that rewarded mastery of pleading techniques over the substantive merits of claims. The Federal Rules also introduced a simplified pleading system, commonly denominated as “notice pleading,” thereby easing the heavy burden imposed on the parties. The factual details of the case could …

Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra

Faculty Articles

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …

“Throwing The Baby Out With The Bathwater”: Parenting Coordination And Pennsylvania’S Decisions To Eliminate Its Use, Sophie B. Mashburn

Journal of Dispute Resolution

Parenting coordination is a relatively new ADR practice utilized by courts to assist in resolving high conflict divorce cases. Though considered controversial by some, it can also serve as an effective tool for divorced parents who struggle with regular co-parenting decisions. Parenting coordination is defined as: A child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s needs, and with prior approval of the parties and/or court, making …

"Sticky" Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

Scholarly Works

We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. After the Supreme Court’s decision in Concepcion, commentators predicted that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent across …