Dispute Resolution and Arbitration Commons^™

Forgetfulness, Fuzziness, Functionality, Fairness And Freedom, In Dispute Resolution, Jeffrey W. Stempel

Scholarly Works

Professor Subrin is a self-professed traditionalist who has been one of the most forceful defenders of what I might term neo-traditional “Clarkian” litigation. By that, I mean the model of civil disputing in which litigation is a primary vehicle. More important, the litigation is based on notice pleading, broad discovery, and a preference for adjudication on the merits.

Key Subrin works over the years have focused on the historical path of the Clarkian model, which served to fuel much of the law revolution of the mid-Twentieth Century, to the “new era” of civil procedure and dispute resolution that dominated the …

The Exercise Of Contract Freedom In The Making Of Arbitration Agreements, Thomas E. Carbonneau

Faculty Scholarship

A universal principle of contemporary arbitration law is that contract plays a vital role in the governance of arbitration. The vitality of that role can vary by legal system, court,statute, or treaty. Nonetheless, party agreement often provides the most significant rules for regulating arbitrations and conducting arbitral proceedings. This is especially true in international commercial arbitration. There, the lack of a functional transborder legislativeand adjudicatory process made contract the principal source of law for internationalcommercial transactions and arbitrations. Although law-making is more possible withinindividual national legal systems, the rule of contract freedom is also firmly established inmatters of domestic arbitration. …

Policy Recommendations For Dispute Prevention And Dispute Settlement In Transatlantic Relations: Legal Perspectives, George A. Bermann

Faculty Scholarship

The concrete case studies and general policy analyses that were the subject of inquiry in the conferences culminating in the present volume have predictably generated a series of distinctly legal – as well as political – reflections on dispute prevention and dispute settlement in the transatlantic arena. One of the merits of the dual (concrete and abstract) approach that has been adopted for these conferences is its capacity to provide a check against the risks that would result either from divorcing this study from the realities of disputes or from relying exclusively on potentially idiosyncratic dispute scenarios. The recommendations to …

The First International Competition For Online Dispute Resolution: Is This Big, Different And New?, Benjamin G. Davis, Franklin G. Snyder, Kay Elkins Elliott, Peter B. Manzo, Alan Gaitenby, David Allen Larson

Faculty Scholarship

In February of 2002, the International Competition for Online Dispute Resolution (ICODR) was held to address the issue of new uses of technology is dispute resolution. This article describes the competition with individual presentations from the perspectives of a problem drafter, a coach, a participant, the evaluators, and an organizer. In the conclusion, the author presents some observations on why this International Competition for Online Dispute Resolution is big, different, and new.

Dr Ethics Book Brings It All Together, Jonathan R. Cohen

UF Law Faculty Publications

Dispute resolution practice has changed dramatically over the past several decades. The traditional litigation model has increasingly given way to a “multi-door” vision of varied dispute resolution practices. With that functional change in how we process disputes has come a pressing need to address the varied ethical challenges of these varied practices. Dispute Resolution Ethics is a marvelous contribution toward that effort.

The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin

UF Law Faculty Publications

This Article proposes that introducing mindfulness meditation into the legal profession may improve practitioners' well-being and performance and weaken the dominance of adversarial mind-sets. By enabling some lawyers to make more room for - and act from - broader and deeper perspectives, mindfulness can help lawyers provide more appropriate service (especially through better listening and negotiation) and gain more personal satisfaction from their work.

Part I of this article describes a number of problems associated with law school and law practice. Part II sets forth a variety of ways in which lawyers, law schools, and professional organizations have tried to …

Legislating Apology: The Pros And Cons, Jonathan R. Cohen

UF Law Faculty Publications

Should apologies be admissible into evidence as proof of fault in civil cases? While this question is a simple one, its potential ramifications are great, and legislative and scholarly interest in the admissibility of apologies has exploded. Shortly after the idea of excluding apologies from admissibility into evidence was raised in academic circles three years ago, it rapidly spread to the policy arena. For example, California and Florida enacted laws in 2000 and 2001 respectively excluding from admissibility apologetic expressions of sympathy ("I'm sorry that you are hurt") but not fault-admitting apologies ("I'm sorrythat I injured you") after accidents. Eight …

Mediating Disputes In Managed Care: Resolving Conflicts Over Covered Services, Nancy Neveloff Dubler

Journal of Health Care Law and Policy

No abstract provided.

Ending A Mud Bowl: Defining Arbitration’S Finality Through Functional Analysis, Amy J. Schmitz

Faculty Publications

The Federal Arbitration Act (FAA) and Uniform Arbitration Act (UAA), on the state level, prescribe a nearly identical procedural and remedial scheme for promoting independent, self-contained arbitration. To that end, both acts curtail courts' review of arbitration awards, by limiting the grounds for vacating awards to those aimed at ensuring only basic procedural fairness. Nonetheless, seemingly "pro-arbitration" impulses have driven some courts' eager application, or misapplication, of the FAA/UAA statutory scheme to enforce dispute resolution agreements that reject the acts' limited review prescriptions. This Article tackles this arguable abuse of the FAA/UAA scheme, by proposing a functional analysis for defining …

Health Plan Internal Consumer Dispute Resolution Practices: Highlights From A National Study, Naomi Karp, Erica Wood

Journal of Health Care Law and Policy

No abstract provided.

A Culture Of Conflict: Lessons From Renegotiating Health Care, Leonard J. Marcus

Journal of Health Care Law and Policy

No abstract provided.

Making It Up As They Go Along: The Role Of Law In Securities Arbitration, Barbara Black, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

What is the current role of the law in securities arbitration? Given the difficulties investors would encounter in pleading and proving their claims in court, they may well be better off in a system where less attention is paid to the law and more to the equities of the actual dispute before the arbitration panel. While this is not a system where accountability and predictability of results can be achieved, investors may, in fact, fare better than they might expect. It follows then that if equitable considerations enhance rather than subtract from investors' chances of recovery, then investors need not …

Icann's "Uniform Dispute Resolution Policy"- Causes And (Partial) Cures, A. Michael Froomkin

Articles

No abstract provided.

Fast, Cheap & Out Of Control: Lessons From The Icann Dispute Resolution Process, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

Some people have argued that the uniform dispute resolution process used by ICANN to resolve domain name disputes would be a good model for internet disputes generally. This article argues the opposite: the UDRP teaches sobering lessons about the consequences of privatized dispute resolution processes. The lessons include: the questionable legitimacy of privately-adopted substantive standards; the danger of unprincipled choice of law decisions to fill in the gaps in that private law; unreconciled splits among arbitrators as to the meaning of the standards; and a tendency to expand beyond the narrow jurisdictional limits of the policy. The UDRP also demonstrates …

The Ballad Of Transborder Arbitration, Thomas E. Carbonneau

Faculty Scholarship

International commercial arbitration (ICA) is many things positive. Because business transactions cannot take place without a functional system of adjudication,ICA has enabled parties to engage in and pursue international commerce. As a result, it has had an enormous impact upon the international practice of law, the structuring of a de facto international legal system, and the development of a substantive world law of commerce. In a word, ICA has been a vital engine in the creation of a transborder rule of law. Furthering this design, the arbitral "method"has even been applied to the unruly political problems that attend international trade …

Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham

Journal of Dispute Resolution

In this commentary, I suggest that we can get a broader picture of the research agenda to address these policy issues by refining our notions of self-determination. In addition to self-determination over process and outcome in the individual case, we need to start examining who has control over design of the dispute system as a whole. First, this commentary addresses the difference between self-determination at the case level and self-determination in dispute system design and how these two separate dimensions of self-determination can help us distinguish among different uses of mediation and arbitration. Second, using this framework, I attempt to …

Perceptions About The Wto Trade Institutions, John H. Jackson

Georgetown Law Faculty Publications and Other Works

This article, based on a lecture given at the inauguration ceremony for the new Advisory Centre on WTO Law, describes the broader world trading landscape into which this new Centre emerges. Taking into account the possible implications of the events on September 11, this article provides a brief analysis of the current trade policy climate, asserting the necessity of institutions for the successful functioning of markets. After a short institutional history of the GATT/WTO, the author describes the importance of institutional rules, treaty text, and practice for the success of the WTO and presents the current debate over what the …

When People Are The Means: Negotiating With Respect, Jonathan R. Cohen

UF Law Faculty Publications

Most scholarship on negotiation ethics has focused on the topics of deception and disclosure. In this Article, I argue for considering a related, but distinct, ethical domain within negotiation ethics. That domain is the ethics of orientation. In contrast to most forms of human interaction, a clear purpose of negotiation is to get the other party to take an action on one's behalf, or at least to explore that possibility. This gives rise to a core ethical tension in negotiation that I call the object-subject tension: how does one reconcile the fact that the other party is a potential means …

The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh

Faculty Scholarship

Ethical codes for mediators describe party self-determination as “the fundamental principle of mediation,” regardless of the context within which the mediation is occurring. The definition of self-determination, however, is a matter of dispute. Based on a review of the debate surrounding the promulgation and revision of ethical codes for court-connected mediators in Florida and Minnesota, this Article demonstrates that a vision of self-determination anchored in party-centered empowerment is yielding to a vision that is more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through …

Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel

Scholarly Works

One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One …

The Institutionalization Of Mediation Developments In The Usa, Australia And Germany (In German), Nadja Alexander

Research Collection Yong Pung How School Of Law

No abstract provided.

And Now A Word About Secular Humanism, Spirituality, And The Practice Of Justice And Conflict Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The papers presented in this Dialogue raise very important and moving questions about the relationship of spirituality, moral values, and religion to the practice of law generally, and the practice of conflict resolution specifically. In this Commentary, I want to focus on two related questions: First, where do our moral values, spirituality, and sense of communion or connection come from? And second, how do values derived from various sources of secular humanism inform our practices? For some of us, organized religion is not the primary source of our commitment to the "moral" values that inform our legal and conflict resolution …

Ethics In Adr: The Many "Cs" Of Professional Responsibility And Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I have been teaching both alternative dispute resolution ("ADR") and professional responsibility for a long time, and I will devote the majority of this essay to reporting on some of the enormous changes and developments in this field. However, I will begin with a mea culpa at a higher level of ethical consciousness than the rules that govern us, or are about to govern us, typically use. I have spent the last five years of my life writing ethical rules for ADR, and I am worried about the future of this field. There are many changes occurring in ADR, and …

Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen

UF Law Faculty Publications

In this Article, I focus on injuries committed by members of organizations, such as corporations, and examine distinct issues raised by apology in the organizational setting. In particular, I consider: (i) the process of learning to prevent future errors; (ii) the divergent interests stemming from principal-agent tensions in employment, risk preferences and sources of insurance; (iii) the non-pecuniary benefits to corporate morale, productivity and reputation; (iv) the standing and scope of apologies; and (v) the articulation of policies toward injuries to others.

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

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.

Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben

Faculty Publications

Under the traditional bipolar model, civil dispute resolution is generally divided into two spheres: trial, which is public in nature and therefore subject to constitutional due process, and alternative dispute resolution (ADR), which is private in nature and therefore not subject to such constraints. In this article, Professor Richard Reuben proposes a unitary understanding of public civil dispute resolution, one that recognizes that ADR is often energized by state action and thus is constitutionally required to comply with minimal but meaningful due process standards. Depending upon the process, such standards might include the right to an impartial forum, the right …

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel

Scholarly Works

Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …

Mothers And Fathers Of Invention: The Intellectual Founders Of Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

When we think of the "founding" of the ADR movement (particularly, but not exclusively, in law), from when do we date it? Whom do we think of as our leaders? Many of us think of Frank Sander and the "multi-door courthouse" suggested by his famous paper, delivered at the Pound Conference on the Causes of Popular Dissatisfaction with the Administration of Justice in 1976. For others, the publication of Roger Fisher and William Ury's "Getting to Yes," signaled an interest in a changed paradigm for engaging in legal negotiations. Some may associate ADR's nascency with early practical efforts to institutionalize …

A Problem Of Process In Wto Jurisprudence: Identifying Disputed Issues In Panels And Consultations, Glenn R. Butterton

Articles

No abstract provided.