Dispute Resolution and Arbitration Commons^™

Minding The Gap: A Call For Standardizing Pre-Dispute Arbitration Clauses In Otc Derivative Transactions, Zachary E. Davison

NYLS Law Review

No abstract provided.

The Future Of Sharia Law In American Arbitration, Erin Sisson

Vanderbilt Journal of Transnational Law

A rising tide of Islamophobia in the United States has led, in recent years, to state-level efforts to prohibit the application of Sharia law in American courts. While these bans have been largely unsuccessful as legislation--the U.S. Tenth Circuit Court of Appeals has even declared one such ban unconstitutional--the growing uneasiness among Americans regarding the application of Sharia law persists. Similar tensions have been addressed in Canada and the United Kingdom through reform of the application of Sharia law in alternative dispute resolution (ADR) mechanisms. By taking a critical look at the American ADR system through the lens of Canadian …

Ethics And Matrimonial Representation Annotated Bibliography, Barbara Glesner Fines, Nancy Levit

Faculty Works

No abstract provided.

Disappearing Claims And The Erosion Of Substantive Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. Because privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. Here, I argue that the Court’s recent arbitration jurisprudence undermines the substantive law itself.

While this shift from dispute resolution in courts—the …

The Smith Case: Is The Glass Half Full?, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Many in our ADR community have already chosen to side with one of the choruses of polarized voices that are either supportive of or critical of the recent judicial decision In re Cody W. Smith. In that decision, Chief United States Bankruptcy Judge Jeff Bohm disallowed the trustee’s appointment of a mediator, because, inter alia, the trustee didn’t first secure the approval of the presiding bankruptcy judge. A cursory read of Judge Bohm’s decision mistakenly leads us to believe that the case is just about a bankruptcy trustee’s obligation to follow section 327(a) of the Bankruptcy Code, …

Investment Arbitration In East Asia And The Pacific A Statistical Analysis Of Bilateral Investment Treaties, Other International Investment Agreements And Investment Arbitrations In The Region, Sandra Friedrich, Claudia T. Salomon

Articles

Many countries in the East Asian and Pacific (EAP) region have strengthened their networks of bilateral investment treaties (BITs) and other international investment agreements (IIAs). This growth in investment protection instruments not only illustrates the region's continued attractiveness to foreign investors, but also reflects a shift of several developing EAP countries from having been predominantly recipients of foreign investment in the past, toward becoming important sources of foreign investment abroad. Reflecting trade and investment patterns, as of December 2014, EAP countries concluded a total of at least 712 BITs and 69 other IlAs. On the heels of this development, the …

When “Yes” May Actually Mean “No”: Rethinking Informed Consent To Adr Processes, Elayne E. Greenberg

Faculty Publications

(Excerpt)

It is time for us to rethink how to achieve meaningful party consent to ADR processes such as mediation and arbitration. I, along with my colleagues Professors Jeff Sovern, Paul F. Kirgis and Yuxiang Liu, recently contributed to the growing body of research finding that a party’s consent to use an ADR process rather than utilizing a court to resolve the dispute is too often neither informed nor consensual. In our empirical study “’Whimsy Little Contracts’ With Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements,” we found a paucity of consumer awareness and understanding of arbitration …

Federal Civil Litigation At The Crossroads: Reshaping The Role Of The Federal Courts In Twenty-First Century Dispute Resolution, Edward D. Cavanagh

Faculty Publications

The Federal Rules of Civil Procedure were promulgated in 1938 to provide the “just, speedy, and inexpensive determination” of all civil actions. The underlying theme of the Federal Rules is that meritorious litigants should have their day in court. To that end, the Federal Rules eliminated procedural pitfalls, including highly technical forms of action inherited from common law, that rewarded mastery of pleading techniques over the substantive merits of claims. The Federal Rules also introduced a simplified pleading system, commonly denominated as “notice pleading,” thereby easing the heavy burden imposed on the parties. The factual details of the case could …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 16, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Judges As Gatekeepers To Mediation: The Russian Case, Kathryn Hendley

Cardozo Journal of Conflict Resolution

In this Article, I investigate the role of judges in mediation in Russia. Using a mixed-methods approach that draws on my fieldwork in Russian courts as well as a 2013 survey of Russian judges, I explore their attitudes towards mediation and their willingness to recommend it to litigants. I use the survey data to inquire into the factors that tend to predict both their attitudes and behavior vis-avis mediation. The analysis reveals a remarkable division between judges' attitudes and their behavior. The surveyed judges are generally enthusiastic about the introduction of mediation, but this enthusiasm is not always reflected in …

Reorienting Restorative Justice: Initiating A New Dialogue Of Rights Consciousness, Community Empowerment And Politicization, Thalia González

Cardozo Journal of Conflict Resolution

For the last three decades scholars have explored the practice of restorative justice as a crime control mechanism in a multitude of settings. Much of the discourse has focused on restorative justice as an alternative to traditional punitive and retributive criminal justice processes. Whether restorative or punitive, criminal justice processes that seek to address harm are not apart, above, or outside social, cultural and political relations. This Article seeks to initiate a new dialogue of justice and argues that the ontology of restorative justice should to be viewed to include a liberatory moment of politicization focused on promoting equality and …

Quintessential Intractability: Attractors And Barriers In The Palestinian-Israeli Conflict, Samuel (Muli) Peleg

Cardozo Journal of Conflict Resolution

Intractable conflicts are those that linger despite the parties' understanding that they would be better off resolving their disagreements in negotiation. The obvious ensuing question is why these conflicts persist when rational considerations indicate they should cease. A valuable way to examine this ostensible paradox is through the lens of Dynamical Systems Theory ("DST") and specifically by applying the concept of conflict attractors, which are "patterns of thinking, feeling and acting ... pulling ... toward a negative, destructive state that becomes self-organizing and selfperpetuating." The DST frame is particularly useful to observe intractable conflicts since it focuses on nonlinear, multi-dimensional …

Beginning With Yes: A Review Essay On Michael Wheeler's The Art Of Negotiation: How To Improvise Agreement In A Chaotic World, Leonard L. Riskin

Cardozo Journal of Conflict Resolution

This Review Essay describes the book, introduces a new system for understanding models of negotiation, and uses it to explain and expand upon some of the ideas in The Art of Negotiation. Then it suggests a different title for Wheeler's book, and describes recent efforts to connect improv with negotiation and mediation training and practice. I mean to honor Wheeler's important work by extending it.

"It Doesn't Seem Very Fair, Because We Were Here First": Resolving The Sioux Nation Black Hills Land Dispute And The Potential For Restorative Justice To Facilitate Government-To-Government Negotiations, Rita Lenane

Cardozo Journal of Conflict Resolution

Part II of this Note outlines the historical background of the Black Hills land claim. Part III describes the legal avenues taken by the Sioux in the past and those currently open to them, examining the different ways that Native Americans can pursue land claims and the potential each branch of government has to resolve the conflict. Part IV discusses President Barack Obama's unique relationship to the Indian community, and explores the ideals and goals of restorative justice, proposing that these ideas can usefully be incorporated into a comprehensive negotiation between the federal government and the Sioux, comparing the positive …

The Bomb Keeps The Lights On: The Use Of Final-Offer Arbitration In Failed Retransmission Consent Negotiations, Daniel J. Weiss

Cardozo Journal of Conflict Resolution

This Note will consider the imposition of binding arbitration in instances of failed retransmission consent negotiations between broadcasters and cable companies. It will first consider the FCC's authority to do so under the Communication Act of 1934 and the ADRA. Central to this discussion will be the debate and legislative history surrounding the 1992 Act and the way that mandatory binding arbitration has been used other contexts by the Commission. Further, this Note will explore the specific type of arbitration to be employed by the FCC in event the Commission finds they have the authority to mandate such a procedure. …

Sleeping? Comatose? Only Mandatory Consideration Of Mediation Can Awake Sleeping Beauty In The European Union, Giuseppe De Palo, Romina Canessa

Cardozo Journal of Conflict Resolution

A 2014 European Parliament-commissioned study, "Rebooting the Mediation Directive: Assessing the Limited Impact of Its Implementation and Proposing Legislative and Non-Legislative Measures to Increase the Number of Mediations in the EU," ("Rebooting Study") has initiated a much needed review and debate on effective mediation policy. The Rebooting Study, which recommended mandatory mediation for EU litigants with an ability to opt-out and enforcement of the 2008 EU Mediation Directive's Balanced Relationship Target Number ("BRTN") concluded, among other findings, that despite increased awareness of mediation and numerous studies and assessments, which have proved its benefits, mediation still remains largely under-utilized as a …

Mediator Misunderstanding Of Bargaining Basics: Heading In An Ugly Direction, Joseph B. Stulberg

Cardozo Journal of Conflict Resolution

A mediator facilitates bargaining conduct among negotiating parties. She conducts the session in a way that is designed to improve everyone's understanding of the situation, promote thoughtful problem solving, and develop settlement terms acceptable to all. When performing her tasks, a mediator must prefer or promote a particular bargaining approach by and among the parties. The only question is: which bargaining theory and approach should she privilege?

The Mediation Witches, Eric R. Galton

Cardozo Journal of Conflict Resolution

At first, the relationship probably seemed like a good idea. The law, bellicose, arrogant, and generally unloved, needed a kinder, gentler, more humanistic side. Mediation, the lah-di-dah flower child of peace rallies and community centers, needed a more serious and credible business angle if it was to continue its gettingpeople-together endeavors.

The Repeat Player Effect In Child Protection Mediation: Dangers Of And Protections Against Second-Class Justice For Marginalized Parties, Donna Erez-Navot

Cardozo Journal of Conflict Resolution

This Article will be structured as follows: Part I of this Article will introduce some of the basic and problematic phenomenon including the repeat player effect, cooptation and others that arise in the legal system. In Part II, there will be specific attention to these phenomenon applied in various well-researched dispute resolution areas including criminal, child protection, employment and arbitration contexts. Part III of this Article gives a broad introduction into court annexed mediation and child protection mediation in general. Part IV of this Article will focus on the specific effects of repeat player, cooptation, and others in Family Court …

Fourteenth Annual International Advocate For Peace Award Honoring Judge Daniel Weinstein, Matthew Diller, Lela Love, Paula Shulman, David Carden, Daniel Weinstein, Laila Ollapally, Hagit Shaked-Gvili, Sherif Elnegahy, Ihsanullah Khan, Andrew W. Lee, Ximena Bustamante, Farshad Ghodoosi

Cardozo Journal of Conflict Resolution

On March 16, 2015, the Cardozo Journal of Conflict Resolution presented its annual International Advocate for Peace Award to the Honorable Daniel Weinstein (ret.). What follows is a transcription of his public address at the Benjamin N. Cardozo School of Law.

Judicial Conflict Resolution (Jcr): A New Jurisprudence For An Emerging Judicial Practice, Michal Alberstein

Cardozo Journal of Conflict Resolution

In the past few decades, the role of judges has changed dramatically, yet its nature has remained largely unexplored. To date, most cases settle or reach plea-bargaining, and the greater part of judges' time is spent on managing cases and encouraging parties to reach consensual solutions. Adjudication based on formal rules is a rare phenomenon which judges mostly avoid. This Article argues that the various Conflict Resolution methods, which are used outside the courtroom, as alternatives to adjudication, could have a strong and positive influence, both theoretical and practical, on judicial activities inside the courts. Theoretically, the Article develops a …

Copyright Alert System: Six-Strikes And Forced Arbitration Might Not Be The Answer, Brett Schiff

Cardozo Journal of Conflict Resolution

Ongoing technological advancements are imminent and new forms of media will increasingly be created further broadening one's ability to share both his or her own intellectual property and the intellectual property of others almost instantaneously. Rising piracy and the growing use of peer-to-peer ("P2P") file-sharing resulted in representatives from the Motion Picture Association of America ("MPAA"), the Recording Industry Association of America ("RIAA"), and the nation's five largest Internet Service Providers ("ISPs")-AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon-joining forces. The Copyright Alert System ("CAS"), similar to foreign copyright enforcement graduated response systems, is the privatized, contractual United States graduated …

Welcome To The Jungle, Where The Rent Is Too Damn High: Using Rent Regulation In New York City To Maintain An Affordable Housing Stock, Gabrielle Denaro

Cardozo Journal of Conflict Resolution

First, this Note describes and explains the difference between rent control and rent stabilization in New York City. Then, the history of rent control and rent stabilization laws is discussed, followed by an analysis of the arguments of those both for and against the preservation of rent regulation. Further, this Note discusses the issue of gentrification. Finally, this Note proposes an idea for an arbitration forum, and explains the logistics of how it would work and how it could benefit the system overall.

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 17 (2015-16)

Cardozo Journal of Conflict Resolution

No abstract provided.

How To Conduct Effective Telephone And E-Mail Negotiations, Charles B. Craver

Cardozo Journal of Conflict Resolution

In this article, we will explore the ways in which negotiators use telephone and e-mail exchanges to consummate deals. Which factors should they consider when they talk on the telephone? What issues do cell phones raise that are not associated with traditional landlines? How do e-mail interactions differ from in-person and telephonic dealings? What can individuals do to optimize their use of these bargaining channels?

Jury Glasses: Wearable Technology And Its Role In Crowdsourcing Justice, Anjanette H. Raymond, Scott J. Shackelford

Cardozo Journal of Conflict Resolution

This Article explores the growing development of wearables and immersive technology within the field of dispute resolution. It provides a hypothetical example of how these existing technologies could be used in combination with data gathering, analytics, and artificial intelligence to transform the justice system. The Article then explores the age-old limitations and biases that exist within the justice system and suggests the use of the newest technology could lessen the impact of these limitations and biases. Finally, the Article suggests a marriage of technology, dispute resolution, and the crowd that may produce outcomes that should be supported by the judiciary …

"Pay-For-Delay" Settlements Post-Actavis: Why Mediation Can Tackle The "Unreasonable" Antitrust Settlements, Sheena Ching

Cardozo Journal of Conflict Resolution

This Note discusses the benefits that mediation can have on the reverse payment settlement and antitrust debate, and how it can satisfy the "rule of reason" requirement post-Actavis. Accordingly, Section II discusses the legislative history and policy of the Hatch-Waxman Act. It elaborates on the pioneer drug development process and how the combination of legislation and the inherent nature of drug development resulted in "pay-for-delay" settlements. Section III discusses majority and dissenting opinions in the landmark Supreme Court case FTC v. Actavis as well as the circuit split decisions that led up to the Court's ultimate ruling and …

Mediation: The Best And Worst Of Times, Jacqueline Nolan-Haley

Faculty Scholarship

At this period in the evolution of dispute resolution, mediation is in a unique time zone, similar to what Dickens described in a Tale of Two Cities, as the best and worst of times, the seasons of Light and Darkness. It is the best of times, the season of Light and a time of joy in honoring human connections, as mediation is widely embraced in the public and private sectors. From government agencies and courts to corporations and United Nations peacemaking units, mediation offers a vision of hope in the midst of drowning bureaucracies, clogged dockets, corporate scandals and ethnic …

Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra

Faculty Articles

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …

A Window Into The Soul Of International Arbitration: Arbitrator Selection, Transparency And Stakeholder Interests, Catherine A. Rogers

Faculty Scholarship

New Zealand Law Foundation International Dispute Resolution Lecture 2013, delivered at Stone Lecture Theatre, University of Auckland Faculty of Law, 26 November 2013. This essay derives from that lecture, which considers the important issue of arbitrator selection, appointment and challenge standards and procedures, and introduces the Arbitrator Intelligence project - a proposed solution for informational asymmetries that can affect the fairness of arbitrator selection and appointment.