Dispute Resolution and Arbitration Commons^™

Legal Barriers To Supply Chain Connectivity In Asean, Locknie Hsu

Research Collection Yong Pung How School Of Law

This is an Interim Report published pursuant to a Tier 1 research grant from SMU, examining legal barriers to doing business in ASEAN countries. The Interim Report presents research material and findings on such barriers and a number of actionable preliminary recommendations for policy-makers to consider and utilise. The main areas of barriers examined are corporate, trade, investment, land use, dispute settlement and legal information barriers encountered in the region. The Final Report is expected to be published in March 2018.

Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green

Faculty Scholarship

In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the power differentials exacerbated by informal dispute resolution, and the article contributed immediately to a surge of robust critiques of the increasing use of alternative dispute resolution for those most vulnerable in our society.

More than thirty years after the Delgado article, a community of respected and prominent ADR and discrimination scholars, …

Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy A. Welsh

Faculty Scholarship

Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their proposals have gained widespread adoption in the courts.

Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the opportunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and …

Washoe Cty. Sch. Dist. V. White, 133 Nev. Adv. Op. 43 (June 29, 2017), Margarita Elias

Nevada Supreme Court Summaries

Kara White (“White”) was terminated from her role as elementary school principal after the school district’s decision to terminate her was affirmed in an arbitration hearing. White filed a motion to vacate the award in district court. The district court granted White’s motion, holding that (1) the arbitrator exceeded his authority, (2) the arbitrator manifestly disregarded NRS 391.3116, and (3) the award was arbitrary and capricious. The school district appealed to the Supreme Court of Nevada, which reversed the district court’s ruling.

The Centrist Case Against Current (Conservative) Arbitration Law, Stephen J. Ware

Florida Law Review

In The Politics of Arbitration Law and Centrist Proposals for Reform, I explained how issues surrounding consumer and other adhesive arbitration agreements became divisive along predictable political lines (progressives vs. conservatives) and proposed an intermediate (or centrist) position to resolve those issues. However, The Politics of Arbitration Law did not argue the case for my proposals. It left those arguments for this Article, which makes the case against current (conservative) arbitration law, and a third article, which will make the case against progressive proposals to reform arbitration law. In other words, this Article stands out from the many other …

Mlb Calendar 2016-2017, Edmund P. Edmonds

MLB Calendars

No abstract provided.

Ethics In International Arbitration: A Critical Examination Of The Lcia General Guidelines For The Parties' Legal Representatives, Vincent S. Dattilo

Georgia Journal of International & Comparative Law

No abstract provided.

A Case Against Collaboration, Rachel Rebouché

Maryland Law Review

In family law, as in other legal disciplines, the use of alternative dispute resolution has dramatically increased. In a process called collaborative divorce, separating spouses hire attorneys who agree to work together—almost entirely outside of the court system—to reach a settlement ending the marriage. A team of experts, including mental health professionals, financial neutrals, and parenting coordinators, helps the parties resolve conflicts and settle property, support, and custody disputes. For divorcing couples, the collaborative process promises emotional healing and avoidance of contentious litigation. Advocates for collaborative divorce describe the transformational effects of the process in an evangelical tone.

But collaborative …

What Theory Do Practitioners Want?, John M. Lande

Faculty Blogs

There isn’t a single negotiation theory – it comes from many different sources. For example, one person said that labeling using conceptual frameworks, such as Roger Fisher’s and Daniel Shapiro’s five core concerns, can be useful in understanding and dealing with emotions. Others pointed to the value of procedural justice, human needs, and social value theories. Social value theory involves people’s orientations about resource allocation.

The Virtue Of Process: Finding The Legitimacy Of Judicial Fact-Finding In Personal Injury Litigation, Nayha Acharya

PhD Dissertations

This thesis is an inquiry into the legitimacy of judicial fact-finding in civil litigation. Judges make authoritative factual findings in conditions of uncertainty and the decision-making process cannot, and does not, guarantee the accuracy of those outcomes. Given the inevitable risk of error, on what basis is the authority of judicial fact-finding legitimate? This project provides a framework of procedural legitimacy that bridges two unavoidable aspects of adjudication: factual indeterminacy and the need for justifiably authoritative dispute resolution. This work draws of the legal theories of Lon Fuller and Jurgen Habermas to substantiate the notion of procedural legitimacy in the …

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 …

Report On The 2016 Rent Court Adr Pilot For The District Court Of Maryland In Baltimore City, Center For Dispute Resolution At The University Of Maryland Baltimore

C-DRUM Publications

No abstract provided.

Achieving Justice Through Adr: An Analysis Of The Korean Mediation System, Yonghwan Choung

Maurer Theses and Dissertations

The purpose of this research is to reconsider Korean judicial mediation as a part of alternative dispute resolution (“ADR”) and to discuss the possible legal transition of Korean judicial mediation into private sector mediation.

Similar to other states’ judicial problems, Korea has also faced overloaded case dockets, congestion of the civil process, an expensive legal process, and emotional stress on parties during the procedures. The Korean judicial authority continuously developed the Korean mediation programs, which can be categorized as court-related mediation, including court-annexed and court-connected mediations. Based on enactment of the Judicial Conciliation of Civil Disputes Act of 1990 (“JCCDA”) …

Managing The Inter-Cultural Dimensions Of A Mediation Effectively: A Proposed Pre-Mediation Intake Instrument, Dorcas Quek Anderson, Diana Knight

Research Collection Yong Pung How School Of Law

Being a culturally responsive mediator has become increasingly challenging amidst the growing cultural complexity within many societies. Drawing on the existing research on culture and the authors’ experiences of mediating disputes amongst diverse disputants in Australia and Singapore, this paper proposes an emic-constructivist approach for the mediator to understand the individual disputant’s unique cultural preferences. It also recommends bringing forward the exercise of understanding cultural preferences through conducting pre-mediation intake interviews. It is argued that this approach enables the mediator to embrace the parties’ cultural complexity and to design the mediation process based on their rich milieu of preferences. Finally, …

Med-Arb Adoption In Securities Law Disputes: Advantages And Costs, Hyung Kyun Kwon

Concordia Law Review

This Article considers the adoption of a hybrid method of Alternative Dispute Resolution (ADR)—Med-Arb—in securities law disputes. Because securities law ADR is currently monopolized by claims that proceed through arbitration, this Article argues that the benefits of settling a claim through mediation are being lost. Med-Arb allows parties to access the benefits of both mediation and arbitration with potentially lower economic costs and the assurance of finality of the dispute. This Article therefore presents how best to use Med-Arb to successfully resolve securities law disputes.

A Longitudinal And Experimental Study Of The Impact Of Knowledge On The Bases Of Institutional Trust, Lisa M. Pytlikzillig, Christopher D. Kimbrough, Ellie Shockley, Tess M.S. Neal, Mitchel Herian, Joseph A. Hamm, Brian H. Bornstein, Alan Tomkins

Lisa PytlikZillig Publications

This study examined a knowledge-centered theory of institutional trust development. In the context of trust in water regulatory institutions, the moderating impact of knowledge was tested to determine if there were longitudinal changes in the bases of institutional trust as a function of increases in knowledge about a target institution. We hypothesized that as people learn about an institution with which they were previously unfamiliar, they begin to form more nuanced perceptions, distinguishing the new institution from other institutions and relying less upon their generalized trust to estimate their trust in that institution. Prior to having specific, differential information about …

Mediation And International Investment: A Chinese Perspective, Wang Guiguo, He Xiaoli

Maine Law Review

The most important feature of the contemporary world is globalization with a high degree of economic interdependence among nations, which includes breaking down national economic barriers as well as the increasing cross-border economic exchanges and transactions of goods, services, and capital, not only in a large scale but also at a high frequency. The spread of market economy across the globe has created a global market, which effectively allocates resources and distributes them at a global level. It was the development of technology relating to information, transportation, and communications, such as the internet and teleconferencing, that enabled the effective and …

How Should Bare Arbitration Clauses Be Enforced By The Courts?, Darius Chan

Research Collection Yong Pung How School Of Law

No abstract provided.

The Bellwether Settlement, Adam S. Zimmerman

Fordham Law Review

This Article examines the use of bellwether mediation in mass litigation. Bellwether mediations are different from bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether mediations, the parties instead rely on a representative sample of settlement outcomes overseen by judges and court-appointed mediators.

The Public Believes Predispute Binding Arbitration Clauses Are Unjust: Ethical Implications For Dispute-System Design In The Time Of Vanishing Trials, Victor D. Quintanilla, Alexander B. Avtgis

Fordham Law Review

Drawing on these findings, we discuss the pressing need for a wider ethic that applies to transactional attorneys who design binding arbitration clauses within adhesion contracts. We also draw lessons from behavioral legal ethics and social psychology. These lessons reveal that this wider ethic may be endangered by the situational influences that currently operate within law firms (and in-house) due to these two intersecting patterns. We discuss ways of altering the regulatory environment to encourage the wider ethic to flourish.

Restraining Lawyers: From “Cases” To “Tasks”, Morris A. Ratner

Fordham Law Review

These regulatory and market mechanisms for restraining lawyers share a common thread but differ in their purposes, efficacy, and fairness. Despite these differences, the growing intensity of their focus, and their possible amplification of each other, suggest the possibility of the emergence of new professional norms that call on litigators to think more deeply and inclusively about value from the perspective of court and client when making litigation choices.

Closure Provisions In Mdl Settlements, D. Theodore Rave

Fordham Law Review

Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties—the defendant and the lead …

The Public Believes Predispute Binding Arbitration Clauses Are Unjust: Ethical Implications For Dispute-System Design In The Time Of Vanishing Trials, Victor D. Quintanilla, Alexander B. Avtgis

Fordham Law Review

Drawing on these findings, we discuss the pressing need for a wider ethic that applies to transactional attorneys who design binding arbitration clauses within adhesion contracts. We also draw lessons from behavioral legal ethics and social psychology. These lessons reveal that this wider ethic may be endangered by the situational influences that currently operate within law firms (and in-house) due to these two intersecting patterns. We discuss ways of altering the regulatory environment to encourage the wider ethic to flourish.

Restraining Lawyers: From “Cases” To “Tasks”, Morris A. Ratner

Fordham Law Review

These regulatory and market mechanisms for restraining lawyers share a common thread but differ in their purposes, efficacy, and fairness. Despite these differences, the growing intensity of their focus, and their possible amplification of each other, suggest the possibility of the emergence of new professional norms that call on litigators to think more deeply and inclusively about value from the perspective of court and client when making litigation choices.

Closure Provisions In Mdl Settlements, D. Theodore Rave

Fordham Law Review

Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties—the defendant and the lead …

The Bellwether Settlement, Adam S. Zimmerman

Fordham Law Review

This Article examines the use of bellwether mediation in mass litigation. Bellwether mediations are different from bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether mediations, the parties instead rely on a representative sample of settlement outcomes overseen by judges and court-appointed mediators.

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney

Faculty Scholarship

Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …

Foreclosure Diversion And Mediation In The States, Alan M. White

Georgia State University Law Review

The recent mortgage foreclosure crisis, whose economic effects are well known, transformed state legal structures governing the mortgage foreclosure process. What had been a relatively routine system of default judgments and auction sales has evolved into a negotiation and workout practice in which homeowners contest foreclosures, demand loan modifications and short sales, and propose other alternatives to foreclosures.

A profusion of state laws and court orders were adopted between 2008 and 2014 with the aim of promoting negotiated foreclosure alternatives. These laws have produced a variety of experiments in the “laboratories of democracy.” The defaults—whether home loans are renegotiated, defaults …

Negotiating And Mediating Brexit, Horst Eidenmüller

Pepperdine Law Review

The United Kingdom will leave the European Union. Brexit will involve many complex negotiations. This article analyses the negotiation position of the parties (UK, EU, Member States) based on a set of four key negotiation factors: agreement options, nonagreement alternatives, interests, and perceptions. A special focus here is on the effect of triggering the formal withdrawal process under the Treaty on European Union’s Article 50 on the non-agreement alternatives of the parties. The article considers the likely negotiation strategy of the UK against this background. It further discusses strategic negotiation moves already made by the parties and moves likely to …

Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum

Maryland Law Review

The U.S. healthcare system has a problem: hundreds of thousands of people die each year, and over a million are injured, by medical mistakes that could have been avoided. Furthermore, over ninety percent of these patients and their families never learn of the errors or receive redress. This problem persists, despite myriad reforms to the medical malpractice system, because of lawmakers’ dominant focus on reducing providers’ liability insurance costs. Reform objectives are beginning to change, however, and the vehicle for implementing these changes is alternative dispute resolution (“ADR”). Historically, legislatures deployed ADR to curb malpractice litigation and restrict patients’ access …