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Ancient And Comely Order: The Use And Disuse Of Arbitration By New York Quakers, F. Peter Philips

Articles & Chapters

From the late 17th century, the Religious Society of Friends (“Quakers”) observed a method of resolving disputes arising within congregations that was scripturally based, and culminated in final and binding arbitration. The practice of Quaker arbitration gradually disappeared during the late 19th and early 20th centuries, and few modern Quakers are even aware of it. This article traces that decline and notes similarities with mercantile arbitration. In both religious and mercantile arbitration, a defined community valued the goal of avoiding group disruption more than the goal of vindicating individual legal rights. In both cases, members of the community applied distinct …

...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 …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 17, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Mediating Discovery Disputes: When "Meet And Confer" Alone Is Not Enough, Marian Riedy, Nancy Greenwald

Cardozo Journal of Conflict Resolution

It is universally agreed that mediation can be a very effective tool for resolving a civil lawsuit. For this reason, to save the parties' time and expense, and to conserve judicial resources, a large majority of jurisdictions require the parties to participate in mediation or another ADR technique before proceeding to trial. Mediation is not commonly employed, however, as a method of resolving discovery disputes. This article proposes that mediation, properly adjusted to account for the differences between the "endgame" and the discovery phase, can and should be used more widely as an efficient and cost-effective alternative to court orders …

The Psychology And Neurobiology Of Mediation, Elizabeth E. Bader

Cardozo Journal of Conflict Resolution

This article grew out of a moment in mediation when a party became furious with me after receiving the opening offer from the other side. As I tried to understand what was happening, I suddenly realized it was not about the offer at all. It was about him. He feared a loss of "face" in front of the other parties.

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

Cardozo Journal of Conflict Resolution

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 …

Saving Mr. Banks And Other Interest-Based Negotiations, Michael Rogers

Cardozo Journal of Conflict Resolution

The goal of this article is to encourage the use of interestbased negotiations. Some of the stories included will be familiar; others will be fresh. In Getting to Yes, Fisher and Ury identify four principles of negotiation ("principled negotiation") that can be employed effectively in almost any type of dispute resolution: (1) Separate the people from the problem; (2) Focus on interests rather than positions; (3) Invent options for mutual gain; and (4) Insist on using objective criteria. Because focusing on interests is the second step identified in Getting to Yes, and inventing options for mutual gain is the …

The War On American Diplomacy: Isis, Al-Qaeda, And Taliban's Sustained Attacks On Peaceful U.S. Missions Abroad, Justus Reid Weiner

Cardozo Journal of Conflict Resolution

According to the American Foreign Service Association, seventy-six U.S. diplomats were killed between the years of 1973 and 2013 during peaceful missions abroad, amounting to over forty deaths. These diplomats were beacons of peace in their respective regions, maintaining peaceful relations amongst each other's countries and mitigating conflict without the use of violence. Continued attacks on diplomats are a demonstration of violence not only against them as individuals, but against peace around the globe. The most obvious way to resolve this conflict is to acknowledge the innumerous terror attacks that have taken place and take active steps to resolve the …

A Conversation Between Hon. Daniel Weinstein And Kenneth Feinberg, Moderated By Lela Love, Kenneth R. Feinberg, Daniel Weinstein, Lela Love

Cardozo Journal of Conflict Resolution

On October 8, 2015, the Benjamin N. Cardozo School of Law's Mediation Clinic celebrated its 30th Anniversary. In honor of this auspicious occasion, two leading alternative dispute resolution ("ADR") masters, the Honorable Daniel Weinstein (Ret.) and Kenneth Feinberg, Esq., convened for a conversation about their remarkable experiences in the ADR field. Feinberg has overseen the administration of settlement funds designed to help the victims of some of the largest disasters in United States history, including the September 11th victim compensation fund and the the BP oil spill. Weinstein is one of the preeminent mediators of large complex disputes, a founder …

Enhancing The Community Relations Service Arsenal: A Restorative Justice Solution For Community Conflicts With Local Law Enforcement That Have A Race-Relations Basis, David B. Rabbani

Cardozo Journal of Conflict Resolution

This Note proposes that restorative justice should be incorporated by the CRS to promote fairness and to foster a change in the definition of success for the agency to include more permanent and inspiring solutions that have the potential to prevent conflict in other parts of the country. Part A of Section II provides background on the shooting of Michael Brown and the reaction in both Ferguson and the U.S. in general along with perceptions and facts about race-relations in Ferguson. Part B of Section II focuses on the CRS and its creation, history, and methods. Part C of Section …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 17, Iss. 3

Cardozo Journal of Conflict Resolution

No abstract provided.

A Survey Of Beliefs And Priorities About Access To Justice Of Family Law: The Search For A Multidisciplinary Perspective, Peter Salem, Michael Saini

Cardozo Journal of Conflict Resolution

Within the last decade, the term "Access to Justice" has grown in popularity among legal commentators, scholars, family justice reformers, government policy makers, and the media. But with all of this new attention, there remains no common understanding or definition of Access to Justice and its potential implications for children and families in domestic relation courts. The purpose of this cross-sectional online survey was to explore the meaning of Access to Justice according to legal, mental health, and dispute resolution professionals in various countries. The sample included 442 respondents (e.g., judges, lawyers, custody evaluators, mediators, family court services, court administrators, …

Parentage Without Gender, Joanna L. Grossman

Cardozo Journal of Conflict Resolution

This essay will explore the origins of parentage law, the questions raised by modern families, and the impact of the Obergefell ruling. When we remove gender from questions of parentage, what remains?

Set Another Place At The Table: Child Participation In Family Separation Cases, Stacey Platt

Cardozo Journal of Conflict Resolution

The issue of child participation in family separation cases divides judges, lawyers, child advocates, and mental health professionals. Broadly, the differing perspectives can be explained as follows: the anti-participation perspective is concerned about harming children by placing them in the middle of their parents' disputes, pressuring them to choose sides, and relying too much on children's unreliable opinions and sometimes whimsical positions; the pro-participation perspective is concerned about ensuring a just process in which children are provided the opportunity to be heard before decisions are made that will impact them directly and significantly, as children and beyond.

Both sides raise …

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

Cardozo Journal of Conflict Resolution

Recent polls indicate that the U.S. population is getting less religious and more secular. This seems to mirror the nation'sand 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.

A Special Approach To Mediation For Moslem Clients, Nadia Shahram

Cardozo Journal of Conflict Resolution

The general saying "one size fits all" does not apply in the mediation setting. No mediation model advocates one strict approach for all mediations. In fact, each model offers a variety of styles to employ when working with clients, each with strengths applicable to specific situations. Mediators know how to adapt to the different circumstances of each client. They know that one size does not fit all.

Resolving Multicultural Family Disputes In New York: A Clash Of Courts And Cultures, Alla Roytberg

Cardozo Journal of Conflict Resolution

In this Article, I will discuss my experiences with litigated cases involving multi-cultural families. I will then analyze how issues of cultural sensitivity can be addressed and honored during a mediation between the parties, with the help of an experienced, culturally sensitive mediator.

Fifteenth Annual International Advocate For Peace Award Honoring Peter, Paul And Mary, Melanie Leslie, Lela Love, Lara Traum, Peter Yarrow, Noel Paul

Cardozo Journal of Conflict Resolution

On February 22,2016, the Cardozo Journal of Conflict Resolution presented its fifteenth annual International Advocate for Peace Award to Peter, Paul and Mary, the legendary peace-activist folk music trio. What follows is a transcription of the award ceremony, including Peter Yarrow's acceptance speech on behalf of the trio.

Of Grids And Gatekeepers: The Socioeconomics Of Mediation, Robert Rubinson

Cardozo Journal of Conflict Resolution

Mediation scholars have long debated which mediator "style" or "model" is correct. The origin of the debate arises from a foundational piece of scholarship by Leonard Riskin. Riskin proposed a "grid" of mediator orientations comprised of what came to be known as "facilitative mediation" and "evaluative mediation." A more recent addition to the grid-and one that is almost universally recognized as a distinct model-is "transformative mediation." These three models are so embedded in the literature of mediation that they have been called "the big three."

This Article will survey these issues in three parts. First, it will offer an overview …

Reform Of Family Justice: Children's Dispute Resolution In Hong Kong, Katherine Lynch

Cardozo Journal of Conflict Resolution

This article discusses evolving family justice system reforms in Hong Kong and the inherent problems that persist with the system, particularly as they relate to the resolution of disputes involving children.1 9 The important initiatives of the Hong Kong Judiciary are highlighted (including the various mediation practice directions issued and pilot schemes established), along with challenges of legislative reform in the family justice area. Underlying all of this are the various paradigm shifts occurring within family justice systems, including the emergence of the "shared or joint parental responsibility" concept, the increased use of ADR processes for children's issues outside of …

Reducing Recidivism Of Violent Offenders Through Victim-Offender Mediation: A Fresh Start, Laura Ravinsky

Cardozo Journal of Conflict Resolution

This Note will examine how VOM between victims and violent offenders improves the criminal justice system and reduces recidivism. The Note will propose that there is a better remedy for violent crime than punitive prison sentences absent genuine efforts to reform. In Section II, this Note will discuss the breakdown of the U.S. criminal justice system, particularly the excessive incarceration rate and the ineffectiveness of the current retributive scheme, followed by a history and overview of VOM. Next, it will discuss the issue of prison recidivism, how it affects our society on both a social and economic level, and the …

Formal Training Does Not Always Eliminate Gender-Based Negotiation Differences, Charles B. Craver

Cardozo Journal of Conflict Resolution

For over forty years, I have taught Legal Negotiation courses to second and third year law students. I have also taught Effective Legal Negotiation skills to over 95,000 attorneys in continuing legal education courses and in-house law firm courses in over forty states and in countries around the world. When I initially began to teach negotiation skills to practicing attorneys, law firm partners often asked me whether I thought female students could negotiate as effectively as male students. Because I also teach Employment Discrimination Law, I was concerned that partners with such stereotypical beliefs might overtly or even subconsciously discriminate …

Gendered Differences In Negotiation: Advancing An Understanding Of Sources, Effects, And Awareness, Stacy M. Roberts

Cardozo Journal of Conflict Resolution

Conversations about gendered differences in negotiation have been around for decades. However, recent research about these gendered differences is expanding our understanding of gender stereotypes and role expectations in negotiation. This article reviews some of this research and discusses how awareness of gendered differences can be advantageous to both male and female negotiators.

One's self-identity hinges on more than just gender; for example, cultural values, economic class, ethnic origin, geographic location, group affiliations, hobbies, language and dialect, national citizenship, occupation, personal values, race, religion, self-interests, sexual orientation, social status, etc., also play parts in forming one's self identity. These factors …

Land Use Consultations Advancing Therapeutic Jurisprudence: Ripe For Clinical Trials, Michael N. Widener

Cardozo Journal of Conflict Resolution

This paper proposes educating law students in the processes of therapeutic justice through service as a neutral in land use controversies, and in the process, improving law student dispute resolution skills and enabling them to promote therapeutic outcomes.

Sixteenth Annual International Advocate For Peace Award Honoring Benjamin "Ben" Ferencz, Lara Traum, Melanie Leslie, Lela P. Love, Benjamin Taylor, Toby Golick, Benjamin Ferencz

Cardozo Journal of Conflict Resolution

On April 11, 2016, the Cardozo Journal of Conflict Resolution presented its sixteenth annual International Advocate for Peace Award to Ben Ferencz. What follows is a transcription of the award ceremony, including Ben Ferencz's acceptance speech.

Reining In Recalcitrant Broker-Dealers: Customers Negotiating With Broker-Dealers To Arbitrate Before Seeking Interpleader, Rushelle Bailey

Cardozo Journal of Conflict Resolution

This Note assesses whether it is appropriate for a brokerdealer to commence an interpleader action in response to receiving a restraining notice on the customer's account, despite the existence of a pre-dispute arbitration clause. If not, what are the consequences, and what are the appropriate dispute resolution methods for resolving any dispute that might arise regarding the restraining notice on the customer's account? Part II of this Note presents the issue that arises when a restraining notice is served on a customer's account under the control of a broker-dealer. A description is given of the regulation of broker-dealers and their …

Classwide Arbitration: A Method Of Resolving The "Natural" Food Label Litigations, Angelina Dalia

Cardozo Journal of Conflict Resolution

This Note discusses how classwide arbitration in food labeling disputes can better serve as a resolution method for both parties. Part I will review the current legal landscape surrounding food labeling litigations and the limitations of the FDA's regulatory and enforcement power. It will analyze how the lack of regulation has led to the recent surge in food labeling class actions. Part II will introduce the general benefits and downfalls of mandatory arbitration in comparison to litigation as a means of legal remedy. Furthermore, it will describe the recent trend of incorporating mandatory arbitration clauses and class action waivers in …

Taiwan's Path To Independence: Resolving The "One China" Dispute, Kristine Yeh Koopman

Cardozo Journal of Conflict Resolution

This Note discusses the historical and legal contexts within which Taiwan is arguably its own state, and advances the notion that members of the international community must finally take a definitive stance as to whether Taiwan is its own sovereign state in order to resolve the "one China" dispute, rather than choosing to remain supposedly impartial. Section II of this Note provides an overview of Taiwan's path to statehood, democracy, and independence. Section III then examines the status of Taiwan in international settings and legal contexts, and highlights Taiwan's claims of independence, as well as China's claims for reunification. Lastly, …

Utilizing Adr In Domestic Adoptions For Same-Sex Couples, Nicole Hertzberg

Cardozo Journal of Conflict Resolution

This Note addresses the intricacies involved in same-sex couples, now legally married, overcoming state-placed legal obstacles in order to adopt children. The simple answer is to wait and see what the Supreme Court has to say about same-sex adoption. However, it is more complicated than that. Firstly, it took two years for Obergefell to reach the Supreme Court from the District Court, and it took this country two hundred and thirty nine years to legalize same-sex marriage. In other words, it might be years until the Supreme Court addresses this issue. Secondly, if this issue is litigated in court, the …