Dispute Resolution and Arbitration Commons^™

Remarks, John H. Jackson

Georgetown Law Faculty Publications and Other Works

The limits of international trade must be understood within the context of the institutional framework of the WTO, in particular, the decision-making and dispute settlement processes. The WTO dispute settlement rules are contained in the Dispute Settlement Understanding (DSU), which is Annex 2 to the WTO agreement. The DSU includes some comments on the philosophy, the direction and the purposes of the dispute settlement procedures. Article 3.2 of the DSU has some very interesting phrases. One of those phrases (roughly paraphrased) says, ''None of the reports of the dispute settlement procedure should result in a change, addition, or subtraction from …

Better Settle Than Sorry: The Regret Aversion Theory Of Litigation Behavior, Chris Guthrie

Vanderbilt Law School Faculty Publications

Legal scholars have developed two dominant theories of litigation behavior: the Economic Theory of Suit and Settlement,which is based on expected utility theory, and the Framing Theory of Litigation, which is based on prospect theory. While Professor Guthrie acknowledges the explanatory power of these theories, he argues that they are flawed because they portray litigants solely as calculating creatures. These theories disregard any role emotion might play in litigation decision making. Guthrie proposes a mplementary theory-the Regret Aversion Theory of Litigation Behavior-that views litigants as both calculating and emotional creatures. With roots in economics, cognitive psychology, and social psychology, the …

Advising Clients To Apologize, Jonathan R. Cohen

UF Law Faculty Publications

The article argues that lawyers should consider the possibility of advising clients to apologize for harms they commit, as in some cases apology may best serve their client's interests. The articles discusses some of the pros and cons to apology in the legal setting, as well as barriers that may inhibit apologies.

Dispute Resolution In China After Deng Xiaoping: "Mao And Mediation" Revisited, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

This Article presents portions of a book tentatively entitled "Bird in a Cage: Legal Reform in China After Mao." The book explores the Western vantage point from which I have viewed institutions for dispute resolution, the imprint on them of the traditional and more recent Maoist past, the disorderly context of rapid economic and social change in which they must operate today, and the larger law reforms of which they are part. Against that background it examines the operation of extrajudicial mediation and the courts. The scope of this Article is more limited.

I have not speculated here about appropriate …

Getting Along: The Evolution Of Dispute Resolution Regimes In International Trade Organizations, Andrea Kupfer Schneider

Michigan Journal of International Law

In the face of the remarkable growth of international organizations in the last fifty years, scholars in multiple disciplines have sought to explain why and how states cooperate. Dispute resolution is one of the most crucial components of international cooperation. Examining the dispute resolution regimes of international organizations in light of these theories can inform and help reform these evolving regimes.

A Model For Arbitration: Autonomy, Cooperation And Curtailment Of State Power, Kenneth

Fordham Urban Law Journal

As compared with the formal pleadings, massive discovery, aggressive motion practice, and endless appeals of litigation, arbitration is undoubtedly more efficient as a dispute resolution mechanism. However, efficiency is only one of many advantages of arbitration. Arbitration empowers disputing parties, promotes individual autonomy and cooperation, and curtails the power of government in the process. Still, the state should not wholly limit its involvement in arbitral processes; the courts do and should have a substantial role in determining the enforceability of arbitration agreements and awards in a few select contexts. Overall, courts should enforce arbitration agreements and only limit enforceability that …

Precedent Lost: Why Encourage Settlement, And Why Permit Non-Party Involvement In Settlements?, Leandra Lederman

Articles by Maurer Faculty

No abstract provided.

Which Cases Go To Trial?: An Empirical Study Of Predictors Of Failure To Settle, Leandra Lederman

Articles by Maurer Faculty

No abstract provided.

Lawyers' Representation Of Clients In Mediation: Using Economics And Psychology To Structure Advocacy In A Non-Adversarial Setting, Jean R. Sternlight

Scholarly Works

Many believe that lawyers' adversarial methods and mindsets are inherently inconsistent with mediation. Lawyers' emphasis on advocacy and winning is seen as ill-suited to mediation's nonadversarial, problem-solving approach to dispute resolution. Yet, as mediation grows increasingly common, lawyers are frequently accompanying their clients to mediation and often play a critical and direct part in the process. Particularly where disputes are complex or involve relatively large sums of money, it is likely that one or both disputants will be represented by an attorney at the mediation. This Article argues that attorneys need not and ought not to abandon their advocacy or …

An Examination Of The Developments In Chapter 19 Antidumping Decisions Under The North American Free Trade Agreement (Nafta): The Implications And Suggestions For Reform For The Next Century Based On The Experience Of Nafta After The First Five Years, Kenneth J. Pippin

Michigan Journal of International Law

This paper describes the themes in the Chapter 19 antidumping panel decisions that have developed over the first five years of NAFTA. Part I provides a brief overview of the Chapter 19 panel process and the method of antidumping determinations for each NAFTA party. Part II presents statistics on the number and types of antidumping panel decisions made under the first five years of NAFTA. Finally, Part III explores the most significant themes in the antidumping Chapter 19 panel decisions and discusses their implications for reforming the Chapter 19 panel process.

Fundamental Misconceptions About Mediation Advocacy, Richard M. Markus

Cleveland State Law Review

This article discusses the need for mediation courses in law school. It begins by describing the initial resistance to implementing trial advocacy courses, and how that area eventually grew into its current prolific state. The article then moves to the need for more mediation courses, as well as why mediation should be used more frequently in dispute resolution generally. Next, the author discusses and corrects the primary misconceptions about litigation mediation, including: 1) mediation advocacy is much like trial advocacy, 2) all mediations are substantially the same, 3) mediations are desirable whenever they occur in the resolution process, 4) mediation …

Where's The Beef? Mad Cows And The Blight Of The Sps Agreement, Ryan D. Thomas

Vanderbilt Journal of Transnational Law

This Note will first outline the SPS Agreement itself--specifically, Part II attempts to present the relevant articles in a manner providing the necessary background for understanding the WTO dispute panel and Appellate Body decisions. Next, Part III discuss and critique, the dispute panel and Appellate Body decisions, specifically, noting the shortcomings of these decisions in the context of the SPS Agreement and its utility as a precedent of international dispute resolution in the area of international regulation of drugs and feedstuffs. Next, I will addresses the likely effect of these decisions upon a possible WTO resolution of the SRM dispute …

The Right Mix, Richard C. Reuben

Faculty Publications

This edition of Dispute Resolution Magazine explores several aspects of the problem. It begins with a debate between Jean Sternlight and Theodore 0. Rogers over the propriety of mandatory predispute arbitration processes in the consumer and employment contexts, followed by a proposal by Terry Trantina for a "constructive compromise" regarding the general validity of arbitration agreements in contracts of adhesion.

This trio of essays is followed by articles on two major arbitration reform efforts. The first, by Thomas J. Stipanowich and J. Clark Kelso, discusses the rise of protocols and other industry standards intended to bring fairness to the arbitratica …

Mediation In Environmental Conflicts: The Belgian Methodology, Catherine Zwetkoff

RISK: Health, Safety & Environment (1990-2002)

Dr. Zwetkoff analyzes the effectiveness and feasibility of using traditional ADR techniques to resolve environmental disputes in Belgium.

Failing Faith In Litigation? A Survey Of Business Lawyers' And Executives' Opinions, John M. Lande

Faculty Publications

To provide a more systematic assessment of contemporary faith in litigation, this article looks at a particular context-- business litigation--and analyzes the opinions of three groups of respondents: lawyers in private law firms who do commercial litigation (“outside counsel”), lawyers employed in business firms who do some litigation (“inside counsel”), and nonlawyer executives in business firms (“executives”). These groups have the greatest exposure to litigation in the corporate setting; furthermore, because they play powerful roles in our political, economic, and social life as well as the legal system, their opinions influence public opinion more generally.

A "Party Satisfaction" Perspective On A Comprehensive Mediation Statute, Chris Guthrie, James Levine

Vanderbilt Law School Faculty Publications

During the past fifteen years, the alternative dispute resolution movement has greatly altered the legal landscape. Courts, legislatures and administrative agencies have enacted more than 2000 laws dealing with mediation and other dispute resolution processes. The National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Bar Association Section of Dispute Resolution have recently formed a unique partnership to assess whether a model or uniform mediation statute might remedy some of the problems caused by the current patchwork of often confusing and conflicting mediation laws. The task of drafting a comprehensive mediation statute poses many challenges. The drafters …

Confidentiality In Mediation, Jaime Alison Lee, Carl Giesler

All Faculty Scholarship

As mediation has become a more widely practiced method of dispute resolution, many jurisdictions have enacted rules forbidding participants to divulge information discussed during the mediation. Two recent cases, Paranzino v. Barnett Bank and Bernard v. Galen Group, are among the first to deal with the enforcement of such rules by judicial sanction. In both cases, participants in judicially required mediations were severely sanctioned for breaching confidentiality in violation of mediation rules and/or court orders.

Contracting Access To The Courts: Myth Or Reality? Bane Or Boon?, Jeffrey W. Stempel

Scholarly Works

Many scholars of the dispute resolution system perceive a sea change in attitudes toward adjudication that took place in the mid-1970s. Among the events of the time included the Pound Conference, which put the Chief Justice of the United States and the national judicial establishment on record in favor of at least some refinement, if not restriction, on access to courts. In addition, Chief Justice Burger, the driving force behind the Pound Conference, also used his bully pulpit as Chief Justice of the Supreme Court to promote ADR, particularly court-annexed arbitration. The availability of judicial adjuncts such as court-annexed arbitration …

A More Complete Look At Complexity, Jeffrey W. Stempel

Scholarly Works

The ability of courts to successfully resolve complex cases has been a matter of contentious debate, not only for the last quarter-century, but for most of the twentieth century. This debate has been part of the legal landscape at least since Judge Jerome Frank's polemic book from which this Symposium derives its title, and probably since Roscoe Pound's famous address to the American Bar Association. During the 1980s and 1990s in particular, the battlelines of the pro-and anti-court debate have been brightly drawn. Some commentators, most reliably successful plaintiffs' counsel and politically liberal academics, defend the judicial track record in …

Mediation In Kentucky: Where Do We Go From Here?, Vanessa Mitchell

Kentucky Law Journal

No abstract provided.

How Will Lawyering And Mediation Practices Transform Each Other?, John M. Lande

Faculty Publications

This article sketches out some aspects of both lawyering and mediation practice that may be affected by development of a litimediation culture. Part II examines the growth of the private market for mediation and an accompanying specialization of mediation practice. These changes seem likely to require mediators to develop market niches with identifiable characteristics of their mediation practices. Simultaneously, lawyers, as regular buyers of mediation services, will be expected to recognize and make decisions based on significant distinctions between mediation providers.

Thinking Of Mediation As A Complex Adaptive System, J.B. A. Ruhl

Vanderbilt Law School Faculty Publications

This article uses my work on complex adaptive systems to think about how litigation and mediation differ in terms of adaptive qualities, suggesting that mediation is indeed a more adaptive mode of dispute resolution in certain contexts.

Public Justice: Toward A State Action Theory Of Alterative Dispute Resolution, Richard C. Reuben

Faculty Publications

Various forms of alternative dispute resolution (ADR) are increasingly taking the place of litigation to resolve disagreements among parties. ADR is frequently imposed by court rule or legislative command for certain types of cases, or compelled by courts when private parties contract to use ADR. To date, ADR doctrine has focused on the structural issues attendant to bringing these processes into the mainstream of American dispute resolution. This Article contends that courts must now address the question of whether ADR-both court-related and contractual-can constitute state action, and therefore be subject to constitutional restraints. The author surveys the history and modern …

Arbitration: Kentucky Courts Should Not Liberally Vacate Awards--Carrs Fork V. Kodak Mining, William G. Fowler Ii

Kentucky Law Journal

No abstract provided.

Psychology, Economics, And Settlement: A New Look At The Role Of The Lawyer, Chris Guthrie, Russell Korobkin

Vanderbilt Law School Faculty Publications

Law and economics models of litigation settlement, based on the behavioral assumptions of rational choice theory, ignore the many psychological reasons that settlement negotiations can fail, yet they accurately predict that vast majority of lawsuits will settle short of formal adjudication. What explains this? We present experimental data that suggests lawyers might evaluate the settlement vs. adjudication decision from a perspective more closely akin to "rational choice theory" than will non-lawyers and, consequently, increase the observed level of settlement. We then evaluate whether the hypothesized difference between lawyers and non-lawyers is likely to lead to more efficient dispute resolution, concluding …

Sica: The First Twenty Years, Constantine N. Katsoris

Fordham Urban Law Journal

This Article provides a broad overview of the topic of securities arbitration. It expresses the views of litigants from both sides of the spectrum. It argues that the public must trust in the integrity of the SRO (self-regulatory organization) arbitration process for securities arbitration to remain the basically mandatory system that it is today. The Article traces the evolution of arbitration rules in effect at various SROs. It then examines the Uniform Code of Arbitration in detail, and the SRO Codes. It explores the role of the American Arbitration Association (AAA), the NYSE Symposium, the Ruder Report and the Role …

Terrorism And Hostages In International Law: A Commentary On The Hostages Convention 1979, Christopher L. Blakesley

Scholarly Works

In this piece, Professor Blakesley reviews “Terrorism and Hostages in International Law: A Commentary on the Hostages Convention 1979” by Joseph J. Lambert.

Bootstrapping And Slouching Toward Gomorrah: Arbitral Infatuation And The Decline Of Consent, Jeffrey W. Stempel

Scholarly Works

The Seventh Amendment to the Constitution preserves for litigants a right to a jury trial in actions at law. The right to a jury trial does not attach for equitable actions, but in cases presenting claims for both legal and equitable relief a right to a jury trial exists for common questions of fact. Although many modern statutes and claims did not exist in 1791, the Amendment has been interpreted to require a jury trial of statutory claims seeking monetary damages, the classic form of legal relief, so long as there is a relatively apt analogy between the modern statutory …

Representation Of Parties In Arbitration By Non-Attorneys, Constantine N. Katsoris

Fordham Urban Law Journal

The issue of the representation of clients in legal or quasi legal proceedings by non-attorneys has been a troubling one. Not only are such services being offered by non-attorneys in the form of transactional services, i.e., advising, drafting deeds and documents, etc., but has spread to actual representation of parties before administrative agencies. Moreover, as more and more disputes are being resolved through alternative dispute mechanisms, such as arbitration, non-attorneys are also representing clients in such proceedings in civil litigation-often involving complex issues and significant sums of money-against other litigants who are usually represented by skilled attorneys. The ABA recently …

Report Of The Securities Industry Conference On Arbitration On Representation Of Parties In Arbitration By Non-Attorneys

Fordham Urban Law Journal

The following is a Report prepared by the Securities Industry Conference on Arbitration ("SICA" or "Conference") concerning non-attorney representation in arbitration. The report is the result of a study, conducted by SICA over the past two years, on the practices and activities of individuals and organizations ("Non-Attorney Representatives" or "NARs") that provide public customers an alternative to representation by attorneys in disputes between customers and broker/dealers. The study was prompted by complaints concerning the quality of such representation; and, raised questions as to whether the activities of NARs constituted the unauthorized practice of law, and whether the interests of investors …