Dispute Resolution and Arbitration Commons^™

Room For Me? - An Analysis Of Whether Mediation Is A Viable Solution To School Bullying, Angelique Palmer

Cardozo Journal of Conflict Resolution

This Article will review recent efforts to utilize mediation as a solution to bullying, and evaluate whether common approaches to its use and implementation have proven to be an effective solution to the bullying epidemic. Part I of this Article provides an overview of bullying and the current state of the problem in America today. Part II discusses the current legal climate and underlying motivations in legislative change and development. It goes on to offer a synopsis of the state of the law and the scope of its reach to address and remedy the problem of bullying. Part III offers …

Mediator Ethical Breaches: Implications For Public Policy, Sharon Press

Faculty Scholarship

Court-connected mediation, which includes both court mandated and court encouraged mediation, has become a well-established part of the judicial system in the United States. There are many public policy implications of this phenomenon. These include the underlying goals of the development of court-connection mediation and the responsibility to the public once a court-connected mediation program is established to ensure that the public has access to quality providers of mediation services. Once a court-connected mediation program has established qualifications and ethical standards for mediators, there is a public policy obligation for there also to be a mechanism to educate, reprimand or …

Beyond International Commercial Arbitration? The Promise Of International Commercial Mediation, S. I. Strong

Faculty Publications

Although international commercial arbitration has long been the preferred means of resolving cross-border business disputes, the international corporate community has become increasingly concerned about increasing costs, delays and procedural formalities. As a result, parties are looking for other means of resolving cross-border business disputes. One of the more popular alternatives is mediation. Advocates of mediation extol its many benefits, including its ability to resolve disputes more quickly and with fewer costs and formalities than other alternatives. However, very little research exists on how mediation operates in the international commercial context. This Essay therefore considers whether and to what extent international …

Anti-Arbitration Injunctions In Cases Involving Investor-State Arbitration: British Caribbean Bank Ltd. V. The Government Of Belize, S. I. Strong

Faculty Publications

Over the last few years, the international legal community has become increasingly interested in anti-arbitration injunctions, which are analogous to antisuit injunctions except that the former prohibits the initiation or continuation of an arbitration while the latter focuses on judicial actions. At this point, very few courts have actually issued an injunction of this type. Nevertheless, a number of commentators have expressed concern about these mechanisms, since they can wreak havoc with contractual or treaty-based expectations about how a particular dispute is to be resolved. Indeed, some scholars and practitioners would prefer that these sorts of injunctions be made universally …

Barnacles, Aristocracy And Truth Denial: Three Not So Beautiful Aspects Of Contemporary Mediation, James Coben

Faculty Scholarship

In this article, I examine the themes of self-determination, mediator neutrality, and party empowerment by exploring three separate topics: barnacles, aristocracy and truth denial.

The first topic, barnacles, refers to the surprising and myriad number of ways that mediation has fully integrated (insinuated) itself into the U.S. litigation system. Institutionalization, some might argue, is "beautiful;" indeed, widespread, systematic use of mediation is often offered evidence of success. But I want to explore a different perspective on the same development-how institutionalization leads to rule exploitation and spawns its own unique litigation ironies. The second topic, aristocracy, refers to the documentation and …

Innovation, Dispute Resolution & Access To Justice: Needs Assessment 2014, Nicole Aylwin, Trevor C. W. Farrow

Commissioned Reports, Studies and Public Policy Documents

The Winkler Institute is pleased to announce the launch of an innovation, dispute resolution and access to justice needs assessment. This needs assessment, funded primarily by the Law Foundation of Ontario, will examine current innovation practices and future needs in dispute resolution — all with a view to bridging the current knowledge gap around justice sector innovation in Canada.

A Framework For Advancing Negotiation Theory: Implications From A Study Of How Lawyers Reach Agreement In Pretrial Litigation, John Lande

Cardozo Journal of Conflict Resolution

The prevailing negotiation theory tries to fit lots of square pegs into just two round holes-adversarial or cooperative bargaining. In the real world, negotiation comes in many different shapes, not just circles and squares. This Article demonstrates that the two "round holes" in current negotiation theory are poorly defined and do not reflect the reality of much pretrial negotiation. It argues that it is time to replace the system of theoretical models with a flexible framework that can accommodate virtually all legal negotiations, including those that do not fit into any pre-defined model.

The Improbable Birth And Conceivable Death Of The Securities Arbitration Clinic, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This Article explores the birth, life, and possible death of securities arbitration clinics (SACs) in the United States. Part II of this Article describes the history of the securities arbitration clinic in the United States. Part III describes how a SAC operates and how SAC students help investors. Part IV reviews the pedagogical advantages and disadvantages of a SAC, and addresses the reluctance of many law schools to embrace this type of clinic. Part V concludes by predicting whether these clinics have a future in light of the modern challenges to clinical legal education.

Open-Minded Listening, Jonathan R. Cohen

UF Law Faculty Publications

Parties in conflict do not typically listen to one another well. On a physical level they hear what their counterparts say, but on a deeper level they do not truly absorb or think seriously about their counterparts’ words. If they listen at all, they listen with an ear toward how they can refute rather than toward what they may learn. This article explores how we might change this. In contrast to prior research examining external aspects of listening (e.g., how being listened to influences the speaker), this article probes the internal side of listening, specifically, whether the listener will allow …

Intersection Of Patent Infringement And Antitrust Liability In Abbreviated New Drug Application Litigation, The, Kevin E. Noonan

Journal of Dispute Resolution

A battle has been raging, over the past ten years, regarding the competing interests of patent protection and antitrust prohibitions in the specialized area of law concerned with patented drugs regulated by the Food and Drug Administration ("FDA").' The contestants are the Federal Trade Commission ("FTC") and parties to Abbreviated New Drug Application (ANDA) litigation, which are a branded drug company and a generic challenger.

Ethics Consultations And Conflict Engagement In Health Care, Charity Scott

Faculty Publications By Year

This article explores the intersection of two professional fields - bioethics and clinical ethics consultation in health care on one hand, and alternative dispute resolution ("ADR") and conflict management on the other - which until recent years remained relatively unknown to each other. It marries the literatures and lessons of these two fields in order to promote the quality of ethics consultations in hospitals and other health care organizations. * Increasingly, health care ethics committees and consultants acknowledge the need to employ the frameworks, approaches, and tools of good conflict management to do their work effectively. Similarly, conflict specialists and …

“A Different Day In Court”: Exploring The Place Of Judicial Mediation In Ontario’S Alternative Dispute Resolution Landscape, Nicole Aylwin, Trevor C. W. Farrow

Articles & Book Chapters

In January 2011, the Ontario Bar Association established a taskforce to explore the question of how judicial dispute resolution could improve access to justice in Ontario. In their recently released final report, the taskforce offers some compelling conclusions. In particular, the report recommends that JDR be formally recognised as part of the alternative dispute resolution options available in Ontario since it would provide litigants the opportunity to receive their “day in court” without the necessity of a costly trial.This article elaborates on the findings of the report and places them within the larger context of current research and Canadian policy …

No Career Ladders For Mediators: A Failure Of The Field, David Matz

Center for Peace, Democracy and Development Publications

As a field, mediation has excellent training and education and excellent service delivery. But it has no career path from the completion of education to a case flow practice. There is no apprenticeship process, there is no way to gain experience with significant cases, there is no structure for serious supervision, there is no way to establish a reputation for professional competence. The result is the loss of many talented, particularly young, mediators. One major cause is a failure to attract cases valued at more than small claims level and less than, say, $100,000. The field needs to focus on …

Status And Contract In An Emerging Democracy: The Evolution Of Dispute Resolution In Ghana, Paul F. Kirgis

Faculty Law Review Articles

Ghana is one of the developing world’s success stories. The first sub-Saharan colony to gain independence, it is a stable democracy experiencing sustained economic growth. Yet as Ghana reaches for the material gains of participation in modern commercial life, its dual legal systems—the system of customary adjudication by traditional authorities and the formal court system—have come under increasing pressure. New legal developments have truncated the authority of traditional decisionmakers, while an overburdened court system lacks the resources to fill the resulting adjudicative gaps. To solve the problem, Ghana is now experimenting with a system of quasi-public dispute resolution, including contractual …

The Concerted Protected Activity Loophole: How The Nlrb Is Undermining The Federal Policy Favoring Arbitration By Invalidating Class Action Waivers, Thomas E. Robins

Arbitration Law Review (2009 - Present)

No abstract provided.

Timor-Leste V. Australia: "Guerrilla Tactics" And Schoolyard Bullies In State Arbitration, Sarah Whittington

Arbitration Law Review (2009 - Present)

No abstract provided.

Could Commercial Arbitration Help Settle A Historic Conflict Between The Israelites And Palestinians?, Evan Goldsmith

Arbitration Law Review (2009 - Present)

No abstract provided.

International Commercial Arbitration In Central Asia, W. E. Butler

Arbitration Law Review (2009 - Present)

No abstract provided.

Ebay's De Facto Low Value High Volume Resolution Process: Lessons And Best Practices For Odr Systems Designers, Louis F. Del Duca, Colin Rule, Kathryn Rimpfel

Arbitration Law Review (2009 - Present)

No abstract provided.

Too Darn Bad: How The Supreme Court's Class Arbitration Jurisprudence Has Undermined Arbitration, Adam Raviv

Arbitration Law Review (2009 - Present)

No abstract provided.

Mediator Ethical Breaches: Implications For Public Policy, Sharon Press

Arbitration Law Review (2009 - Present)

No abstract provided.

Adr And The Extraction Of Coal Bed Methane From Split-Ownership Estates, Alyssa Looney

Arbitration Law Review (2009 - Present)

No abstract provided.

"Prepare For Trouble, And Make It Double": The Fourth Circuit Continues Downward Iteration Of Duplicitous Test For Manifest Disregard, Garrett Lent

Arbitration Law Review (2009 - Present)

No abstract provided.

Biased? Prove It: Addressing Arbitrator Bias And The Merits Of Implementing Broad Disclosure Standards, Lindsay Melworm

Cardozo Journal of International and Comparative Law

The note examines the varying disclosure requirements for arbitrators in the United States and internationally, focusing on the standards for determining when an arbitral award may be vacated due to arbitrator partiality or bias. It highlights the tension between ensuring impartiality and maintaining the finality of arbitration decisions, advocating for broad initial disclosures to uphold the integrity and fairness of the process while preserving party autonomy.

The Implications Of Recent Icsid Arbitrator Disqualifications For Latin America, Nora Ciancio

Arbitration Law Review (2009 - Present)

No abstract provided.

Vacating Legally-Erroneous Arbitration Awards, Stephen J. Ware

Arbitration Law Review (2009 - Present)

In the United States, arbitrators’ decisions are legally binding. Courts generally confirm and enforce, rather than vacate, arbitration awards. Suppose, however, that the arbitration award is very different from the judgment a court would have rendered had the dispute been litigated, rather than arbitrated. And suppose this is because the arbitrator did not correctly apply the law. If the party that lost in arbitration (the party that would have done better with a correct application of law) asks a court to vacate the award because it is legally erroneous, will the court vacate or confirm the award? And does the …

Adhesive Arbitration: The Sustainable Grace For The Future Of The World's Most Profitable Sports Leagues, Evan Goldsmith

Arbitration Law Review (2009 - Present)

No abstract provided.

Arbitration Agreements: The Perfect Defense For Law School Deceit, Jeremy Alm

Arbitration Law Review (2009 - Present)

No abstract provided.

An Alternative Approach To Justice: The Past, Present, And Future Of The Mediation Program At The U.S. District Court For The Southern District Of New York, Rebecca Price

Arbitration Law Review (2009 - Present)

The practice of mediation has gone through enormous change in the last twenty-five years. No longer simply an "alternative," mediation has in some settings become commonplace. At the same time, many courts across the country struggle to maintain staffing and support for programs that offer alternatives for dispute resolution. While private mediation firms have seen an increase in cases, some academics and practitioners question whether mediation has been co-opted by a litigation model such that it no longer serves as a meaningful alternative.

The Mediation Program at the U.S. District Court for the Southern District of New York, which has …

Combating Structural Bias In Dispute System Designs That Use Arbitration: Transparency, The Universal Sanitizer, Lisa Blomgren Amsler

Arbitration Law Review (2009 - Present)

No abstract provided.