Dispute Resolution and Arbitration Commons^™

The "Nature" Of Legal Dispute Bargaining, Robert J. Condlin

Cardozo Journal of Conflict Resolution

The longstanding debate over the relative merits of adversarial and communitarian theories of legal dispute bargaining has been in somewhat of a holding pattern for several years, but recent research in the field of cognitive neuroscience may break this logjam. Laboratory experiments and case studies in that field have shown how dispositions and capacities for social cooperation inherited from natural selection and evolution predispose humans to configure disputing as a mixture of argument over factual reality, disagreement over the interpretation of normative standards, and a search for impartial resolutions that protect the interests of everyone involved equally. This neurobiological inheritance …

The Historical Basis Of Securities Arbitration As An Investor Protection Mechanism, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Why do broker-dealers fear a legal system in which the firms' customers have a unilateral right to demand arbitration of disputes? That scenario would return the industry to the pre-McMahon years, when, because the enforceability of PDAAs with respect to federal securities laws was in doubt, most brokerage customers had such a unilateral right. In fact, the pre-McMahon history of securities arbitration, written about only sparsely, reveals that, today, the primary stakeholders in the process--investors and brokerage firms--have lost sight of the original reason why the securities industry heavily relied on arbitration to resolve industry disputes. While offering a speedy, …

Remedy Realities In Business-To-Consumer Contracting, Amy J. Schmitz

Faculty Publications

Professor Jean Braucher greatly contributed to the exploration of consumer and contract law by questioning how the law operates in the real world and highlighting the importance of “law in action.” In recognition of that contribution, this Article focuses on law in action with respect to consumers’ quest to obtain remedies regarding their business-to-consumers (“B2C”) contracts. Currently, consumers often have no practical recourse with respect to B2C purchase problems due to the complexity, cost, and inconvenience of the processes for obtaining remedies. Accordingly, stated legal rights become meaningless for individuals living in the real world. This Article, therefore, explores access …

Realizing Rationality: An Empirical Assessment Of International Commercial Mediation, S. I. Strong

Faculty Publications

For decades, parties, practitioners and policymakers have believed arbitration to be the best if not only realistic means of resolving cross-border business disputes. However, the hegemony of international commercial and investment arbitration is currently being challenged in light of rising concerns about increasing formalism in arbitration. As a result, the international community has sought to identify other ways of resolving these types of complex commercial matters, with mediation reflecting the most viable option. Numerous public and private entities have launched initiatives to encourage mediation in international commercial and investment disputes, and the United Nations Commission on International Trade Law (UNCITRAL) …

International Implications Of The Will As An Implied Unilateral Arbitration Contract, S. I. Strong

Faculty Publications

In his article, The Will As An Implied Unilateral Arbitration Contract, Professor Gary Spitko offers an intriguing and innovative argument about how arbitration provisions in wills can be enforced even over the objection of a beneficiary and even in cases where the beneficiary seeks to set aside the will in its entirety. While I do not agree with all of the assertions in that Article (for example, the conclusion that "a consensus is developing that a testator may not compel arbitration of contests to her will"' appears somewhat premature, given a number of probate cases not discussed by Professor Spitko …

Texas Advance Directives Act: Nearly A Model Dispute Resolution Mechanism For Intractable Medical Futility Conflicts, Thaddeus Pope

Faculty Scholarship

Increasingly, clinicians and commentators have been calling for the establishment of special adjudicatory dispute resolution mechanisms to resolve intractable medical futility disputes. As a leading model to follow, policymakers both around the United States and around the world have been looking to the conflict resolution provisions in the 1999 Texas Advance Directives Act (‘TADA’). In this article, I provide a complete and thorough review of the purpose, history, and operation of TADA. I conclude that TADA is a commendable attempt to balance the competing goals of efficiency and fairness in the resolution of these time-sensitive life-and-death conflicts. But TADA is …

Medical Malpractice Arbitration: Not Business As Usual, David Larson, David Dahl

Faculty Scholarship

There is an interesting exception to businesses’, employers’, and service providers’ seemingly universal embrace of arbitration processes, particularly mandatory pre-dispute arbitration. Although it may be difficult to believe given arbitration’s current popularity, not everyone requires his or her clients to sign mandatory pre-dispute arbitration agreements. In fact, some service providers prefer to avoid arbitration regardless of whether it is arranged pre- or post-dispute. So which merchants or service providers are choosing to forgo arbitration and, more importantly, why do they dislike arbitration? And do politics have anything to with their choices? Physicians are not, shall we say, the world’s greatest …

Designing Emotional And Psychological Support Into Truth And Reconciliation Commissions, Verlyn F. Francis

Osgoode Legal Studies Research Paper Series

Truth and reconciliation commissions are a dispute resolution process used to attempt reconciliation of disputants after internal conflicts and civil wars. A large component of this transitional justice process involves truth-telling by perpetrators and victims.

Using the example of the South African Truth and Reconciliation Commission, this article argues that successful reconciliation depends on the design of the process. It is important for the designers of conflict resolution process to balance individual and institutional interests while ensuring all stakeholders are at the design table. Since truth-telling in these circumstances usually involves recalling and testifying about traumatic events, it is important …

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Cardozo Journal of Conflict Resolution

If Donald Trump, in kicking off his campaign for the White House, was saying "what everyone is thinking" about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales-some as old as The Flood. This article reconsiders news stories-and the storytelling …

A Genesis Of Conflict: The Zero-Sum Mindset, Jonathan R. Cohen

UF Law Faculty Publications

Parties in conflict often operate under the assumption that for one party to win, the other party must lose. This concept, known as the “zero-sum mindset,” can lead to undesirable results, both because it can make disputes harder to resolve and because people holding such beliefs are more likely to get into conflicts to begin with. Over the past several decades, legal educators specializing in dispute resolution have worked hard to challenge that mindset. This task is not simple, for framing conflict in zero-sum terms has very deep cultural roots tracing back at least to the Biblical stories in Genesis. …

Llcs And The Private Ordering Of Dispute Resolution, Peter Molk, Verity Winship

UF Law Faculty Publications

An emerging question in U.S. business law is how the organizational documents of a business entity set the rules for resolving internal disputes. This practice is routine in commercial contracts, which may specify where or how disputes must be resolved. Recent use of litigation provisions in corporation charters and bylaws have sparked controversy, ultimately leading to legislative action to preserve shareholder suits from contractual waiver. Yet despite accounting for the majority of business organizations and sharing features with corporations, non-corporate business entities and their internal dispute resolution process have been largely ignored. How do these non-corporate entities set ex ante …

Practical Challenges, One Crucial Skill: Knowing How, When, And Why To Go Into Caucus, Kelly Browe Olson

Law Faculty Scholarship

No abstract provided.

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, …

Multicultural Adr And Family Law: A Brief Introduction To The Complexities Of Religious Arbitration, Michael J. Broyde

Faculty Articles

Recent polls indicate that the U.S. population is getting less religious and more secular. This seems to mirror the nation’s— and its laws’—movement away from reflecting certain traditional values. While these movements have left some members of the religious population in a precarious situation, surrounded by a society whose values are changing before their eyes, it has also caused the religious to cling tighter to their respective faiths and become more entrenched in the values they assert.

As the government has, slowly but surely, aligned itself with the popular shift away from traditional religious values, the pleas of the religious …

From Conflict To Community: The Contribution Of Circle Process In Moving From Dysfunction And Polarization To Dialogue And Understanding In Direct Public Engagement In Local Government Decision-Making, Howard J. Vogel

Mitchell Hamline Law Review

No abstract provided.

Cultivating Courageous Communities Through The Practice And Power Of Dialogue, Robert R. Stains

Mitchell Hamline Law Review

No abstract provided.

Introduction: An Intentional Conversation About Public Engagement And Decision-Making: Moving From Dysfunction And Polarization To Dialogue And Understanding, Jessica Dubois, Sharon Press

Mitchell Hamline Law Review

No abstract provided.

Ally-Ship And Dispute Resolution Practitioners: A Continuum, Benjamin Lowndes, Sharon Press

Mitchell Hamline Law Review

No abstract provided.

Resolving Divisive Social Issues: A Case Study Of The Minnesota Child Custody Dialogue, Mariah Levison

Mitchell Hamline Law Review

No abstract provided.

The Execution Of An Arbitration Provision As A Condition Precedent To Medical Treatment: Legally Enforceable? Medically Ethical?, Marc D. Ginsberg

Mitchell Hamline Law Review

No abstract provided.

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 …

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

Elisabeth Haub School of Law Faculty Publications

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 …

Panel 2: Issues In China For U.S. Businesses, Dan Harris, Cedric Lam, Ling Zhao, Lara Miller, Stephen Lamar

Cardozo Journal of International and Comparative Law

The symposium examines the challenges of enforcing intellectual property (IP) rights in China, particularly for U.S. companies, and highlights the efforts of organizations like the American Apparel and Footwear Association (AAFA) and the International Anti-Counterfeiting Coalition (IACC) to address counterfeit goods on platforms like Alibaba. It underscores the complexities of protecting IP in China despite relatively straightforward registration processes.

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

Scholarly Works

In this article, Professor Hanan explores the issues surrounding reforms to the criminal justice system, juveniles, and conflict resolution. She asserts that enthusiasm for restorative justice as the best method of out-of-court dispute resolution in criminal cases should be tempered in favor of mediation, which is neutral because it does not assume that the accused is guilty and that "healing" or repair is warranted. Because decriminalization is not complete and the state retains jurisdiction, Professor Hanan argues for a neutral mediation program, which should (1) function to reduce overall contact with the criminal courts and (2) include procedural safeguards in …

Hurrah For The Consumer Financial Protection Bureau: Consumer Arbitration As A Poster Child For Regulation, Jean R. Sternlight

Scholarly Works

Drawing on economic, psychological and philosophical considerations, this Essay considers whether consumers should be "free" to "agree" to contractually trade their opportunity to litigate in a class action for the opportunity to bring an arbitration claim against a company. The Essay suggests that by looking at the CFPB's regulation through these three lenses, one sees that the regulation is desirable—even a poster child—for the potential value of regulation when market forces are not sufficient to protect individual or public interests.

Implementation Of Arbitration Decisions In Domestic Law, J. Scott Wilkie

Articles & Book Chapters

Arbitration, even if it seems simply providing for the possibility of arbitration, is increasingly attracting attention as a possible means to discipline the resolution of otherwise potentially intractable international tax controversies concerning the allocation of taxing rights under tax treaties.While perceived, though not without reservation, to be a potential welcome addition to a typical mutual agreement procedure (MAP) patterned on article 25 (“the MAP article”) of the OECD Model Tax Convention on Income and Capital(“the OECD Model”) in the form of article 25(5), other provisions of article 25, notably its “interpretive” and “application,”and “legislative”,aspects and contemplated recourse to a “joint …

Variations On A Theme By Sander: Does A Mediator Have A Philosophical Map?, Sharon Press, Joseph B. Stulberg

Faculty Scholarship

Can a mediator play a constructive role in helping citizens confront and resolve the most divisive issues of our times? We believe the answer is affirmative, but we worry that such a view, though richly grounded in our historical tradition, is now neither widely endorsed nor effectively implemented.

We belong to a group of dispute resolution professionals who learned both from mentors and experience that ADR—and mediation, in particular-offers a philosophical map for conducting problem—solving activities among fellow citizens that systematically supports and advances our most noble aspirations for a fair society. Be it the urban riots of the 1960s …

Athletes Have Rights Too, Right? Investigating The Extreme Unfairness In Sports' Purported Supreme Authority - Why The International Court Of Arbitration For Sport Fails To Reign Supreme, Zachary Gotlib

Cardozo Journal of International and Comparative Law

The note argues that the Court of Arbitration for Sport (CAS), despite its role as a leading body in international sports dispute resolution, fails to achieve true supremacy due to systemic unfairness. CAS lacks key principles of fairness, particularly in its treatment of individual athletes compared to powerful entities like teams and leagues, hindering its ability to be recognized as a supreme judicial body.

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 …