Dispute Resolution and Arbitration Commons^™

Wisdom And Conflict Resolution: A Possible Framework For Integrated Practice, Rachel Goldberg, Brian Blancke

Cardozo Journal of Conflict Resolution

What would it look like to practice in a way that fully supported not only the cognitive and emotional intelligence of practitioners and parties, but their somatic and spiritual intelligence as well? Good practice is more than strong technique and knowledge. Good work depends on intention, presence, and a connection with parties. The authors argue that for interveners and parties, conflict involves all four dimensions of human understanding. Given the systemic nature of conflict intervention, the authors explore what multi-dimensional practice might look like, and propose a new multi-dimensional framework grounded in current work. The article includes practice examples showing …

Mediation Over Prosecution: The Right Approach To Increasing School Attendance In Baltimore City, Franklin Branch

Student Articles and Papers

No abstract provided.

Cruises, Class Actions, And The Court, David Korn, David Rosenberg

University of Michigan Journal of Law Reform Caveat

As the Carnival Triumph debacle splashed across the national consciousness, lawyers shook their heads. Sensationalist news coverage exposed common knowledge in the legal community: cruise passengers have little recourse against carriers, and, as a result, they often bear the brunt of serious physical and financial injuries. Cruise lines, escaping legal accountability for their negligence, sail off undeterred from neglecting passenger safety on future voyages. While its previous decisions helped entrench this problem, a recently argued case presents the Supreme Court with another opportunity to address it.

Why American Express V. Italian Colors Does Not Matter And Coordinated Pursuit Of Aggregate Claims May Be A Viable Option After Concepcion, Gregory C. Cook

University of Michigan Journal of Law Reform Caveat

This Comment suggests that the upcoming decision by the Supreme Court in American Express Co. v. Italian Colors Restaurant will not change the class action landscape. While the plaintiff bar contends that certain public policy goals will be lost as a result of American Express and AT&T Mobility LLC v. Concepcion, this Comment argues that, in the correct circumstances, coordinated individual arbitrations can address at least some of these public policy goals and plaintiff counsel should focus on such coordination efforts (including, for instance, ethically recruiting actually-injured plaintiffs, the use of common plaintiff counsel, the use of common experts, and …

Paradox Lost: The Potential Of Restorative Attorney Discipline — With A Cautionary Call For Making Distinctions, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

At&T Mobility And Faa Over-Preemption, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The Supreme Court's recent arbitration law decisions reflect the Court's strong support for arbitration agreements, but also severely limit the states’ powers to police the fairness of arbitration. In particular, the Court’s decision in AT&T Mobility v. Concepcion, LLC expands the FAA preemption doctrine beyond its prior boundaries, signaling how far the Court is willing to go to support arbitration clauses at the expense of states’ rights and the values of federalism. This article explores the impact of AT&T Mobility on the preemption of state arbitration law, and the concomitant impact on the balance between state and federal power in …

Investor Protection Meets The Federal Arbitration Act, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

In the past three decades, most recently in AT&T Mobility LLC v. Concepcion, the United States Supreme Court has advanced an aggressive pro-arbitration campaign, transforming the Federal Arbitration Act (FAA) into a powerful source of anti-consumer substantive arbitration law. In the aftermath of AT&T Mobility, which upheld a prohibition on class actions in a consumer contract despite state law that refused to enforce such provisions on unconscionability grounds, efforts have been made to prohibit investors from bringing class actions or joining claims, including claims under the Securities Exchange Act of 1934 (the Exchange Act). In the most egregious example to …

The Revolution In Family Law Dispute Resolution, John M. Lande

Faculty Publications

This article surveys a wide range of procedures that divorcing parties now use, including self-representation. Lawyers sometimes provide “unbundled” legal services to help parties who want to divide responsibilities for legal tasks between themselves and their lawyers. Parties often use mediation, arbitration, and private judging. Norms for lawyers’ professional roles have emphasized the importance of cooperation and some lawyers offer “planned early negotiation” processes such as Collaborative and Cooperative Law. Family courts engage in a wide range of activities beyond traditional litigation and adjudication. Many courts manage or mandate parent education and services related to domestic violence. Courts regularly appoint …

Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong

Faculty Publications

This essay considers the tension between the autonomous theory of international commercial arbitration and the more interactive theory advanced by Gary Born during his keynote address at the recent “Border Skirmishes” symposium at the University of Missouri School of Law. In his presentation, Born considered the relationship between litigation and international commercial arbitration and distinguished between permissible “border crossings” and impermissible “border incursions.” This essay considers how these concepts play out both in routine interactions between courts and tribunals and more in difficult scenarios, such as those involving anti-suit injunctions. The discussion also presents statistics concerning the amount of ancillary …

Arbitration Of Trust Disputes: Two Bodies Of Law Collide, S. I. Strong

Faculty Publications

This article considers the various issues that arise when two separate bodies of law – trust law and arbitration law – collide, using recent developments in the field of international commercial arbitration to address some of the more intransigent problems facing trust arbitration. The article focuses on five areas of concern: the potential for impermissible ouster of the courts, the operability and effectiveness of the arbitration provision, the extent to which the arbitration provision is binding on the party against whom arbitration is asserted, proper representation of parties and arbitrability. In so doing, this article introduces a number of new …

Public Civil Discourse: A New Domain For Dispute Resolution, Richard C. Reuben

Faculty Publications

We in dispute resolution can view civil discourse about public issues - a direct, deliberative way of exercising democracy itself - as a new but related field in which we can apply our skills and services, and this theme edition of Dispute Resolution Magazine is intended to help those of us in dispute resolution cross the isthmus into what for many of us is the new world of civil discourse.

Unchecked: How Frazier V. Citifinancial Eliminated Judicially Created Grounds For Vacatur Under The Federal Arbitration Act, Sean C. Wagner

Oklahoma Law Review

No abstract provided.

The Arbitration Fairness Act: It Need Not And Should Not Be An All Or Nothing Proposition, Martin H. Malin

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana.

Employment Arbitration 2011: A Realist View, Laura J. Cooper

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana.

Employment Arbitration: The Voice Of (Mostly Vicarious) Experience, Theodore J. St. Antoine

Book Chapters

At the 1999 Annual Meeting of the National Academy of Arbitrators (NAA), Dennis Nolan gave a provocative, influential address on the Academy’s future. He concluded that if the organization was to survive and remain a vibrant force for workplace justice, to the mutual benefit of employers and employees, it must expand beyond its traditional role in labor arbitration based on collective bargaining. According to Nolan, the Academy should also encompass employment arbitration in the nonunion context. Like many good advocates, he may have slightly overstated his case. Although subsequent changes in admission standards now allow the counting of 10 employment …

Article Iii Judicial Power And The Federal Arbitration Act, Roger J. Perlstadt

UF Law Faculty Publications

Arbitrators determine facts and apply law to those facts to bindingly resolve disputes between two or more parties, a task normally reserved for judges. The Federal Arbitration Act (FAA) makes agreements to arbitrate disputes enforceable, including disputes that would normally be heard by an Article III judge, such as those arising under federal law or between parties of diverse citizenship. Accordingly, disputes subject to an arbitration agreement brought before a federal court for adjudication must instead, pursuant to the FAA, be resolved by an arbitrator. Yet, while Article III ostensibly mandates that life-tenured and salary-protected judges decide such disputes, arbitrators—selected …

Conflicts As Inner Trials: Transitions For Clients, Ideas For Lawyers, Jonathan R. Cohen

UF Law Faculty Publications

As times of transition, conflicts often produce significant inner trials for parties. This paper categorizes some of the more common inner trials parties in conflict face (e.g., coping with loss, strong emotions, uncertainty, etc.) and suggests that, as liminal times in people’s lives, some conflicts may also hold within them important opportunities for learning, growth and self-definition. This paper also offers some ideas for how lawyers might best assist clients during such transitions.

Interference Of The Court Of The Seat With International Arbitration, The Symposium, Giulia Carbone

Journal of Dispute Resolution

This article looks upon two fundamental questions: (1) whether arbitrators should comply with a local court's order aimed at suspending or interrupting the running of arbitral proceedings, and (2) what type of remedies should a party receive when courts unjustly interfere with their right to arbitrate. This article will explore these two questions in four parts. Part II focuses on the interference with international commercial arbitration by the court at the place of the arbitration. It does so by taking into account ICC cases, some relevant national judgments, and deals with the solutions offered by Articles 8 and 16 of …

Two Steps Forward, One Step Back: Must The District Court Issue A Stay After A Decision Adverse To Arbitration Is Appealed, And To What Extent Are Arbitration Clauses Applied Retroactively Note, Benjamin Faber

Journal of Dispute Resolution

By creating new rules to fill in the gaps left by the FAA, the federal circuit courts may have muddied the waters of how and why parties assent to arbitration, and the ramifications of their decisions could change how and why parties bind themselves and each other to arbitration in the future. This note will address these issues in six remaining parts. Part II will briefly outline the pertinent facts of Levin." Part III addresses the circuit split on whether federal courts should issue an automatic stay of legislation pending an appeal to compel arbitration under § 16(a)(1)(A) of the …

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps Symposium, S. I. Strong

Journal of Dispute Resolution

Finally, the purpose of this Article is not to provide answers to particular questions, since far too much depends on the individual facts and circumstances of a particular dispute to allow for abstract generalizations. Instead, the goal is to identify a useful framework for analysis of matters relating to international commercial arbitration so that newcomers and infrequent participants in this area of law can approach their specific concerns with a higher degree of understanding and sophistication.

Unconscionable Construction: How The Ninth Circuit Evades The Faa By Severing Arbitration Agreements As Unconscionable Note, Daniel B. Mitchell

Journal of Dispute Resolution

Bridge Fund Capital Corp. v. FastBucks Franchise Corp. illustrates a recent manifestation of an ongoing judicial hostility to arbitration. As the Supreme Court has developed its FAA jurisprudence to limit the severance of arbitration agreements, many lower courts have continued to develop legal justifications to circumvent these restrictions. The FAA's savings clause does afford some latitude for severance of arbitration agreements, but the Supreme Court has not yet defined the limits of the savings clause, nor whether the general contract defense and their justifications are sufficient to supersede FAA policy. Bridge Fund shows how the doctrine of unconscionability it being …

New Use Of The Doctrine Of Unconscionability To Invalidate Arbitration Agreements In Consumer Contracts, The Note, Valerie Dixon

Journal of Dispute Resolution

Manfredi v. Blue Cross and Blue Shield suggests that this old judicial hostility is alive and well in Missouri jurisprudence. In an effort to level the playing field between parties of unequal bargaining power, Missouri courts have applied the unconscionability doctrine as a way to sidestep the United States Supreme Court's asserted policy favoring arbitration over litigation.7 This note considers the new approach of Missouri courts in invalidating arbitration agreements through the doctrine of unconscionability in the consumer context.

Claim-Suppressing Arbitration: The New Rules, David S. Schwartz

Indiana Law Journal

Binding, pre-dispute arbitration imposed on the weaker party in an adhesion contract—so-called “mandatory arbitration”—should be recognized for what it truly is: claim-suppressing arbitration. Arguments that such arbitration processes promote access to dispute resolution have been refuted and should not continue to be made without credible empirical support. Drafters of such arbitration clauses are motivated to reduce their liability exposure and, in particular, to eliminate class claims against themselves. Furthermore, claim-suppressing arbitration violates two fundamental principles of due process: it allows one party to the dispute to make the disputing rules; and it gives the adjudicative role to a decision maker …

Reading Ricci And Pyett To Provide Racial Justice Through Union Arbitration, Michael Z. Green

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana

The Irony Of At&T V. Concepcion, Colin P. Marks

Indiana Law Journal

This Essay explores the possible dual readings of Concepcion in light of the FAA and its interpretation, including Supreme Court precedents. This Essay concludes that though there is support for interpreting the Concepcion decision narrowly, it is more likely that a broader interpretation was intended, but the metes and bounds of this opinion have yet to be explored. Nonetheless, under this broad interpretation, the effect on consumers will be to discourage individuals from seeking redress for their claims. Indeed, the decision may actually encourage businesses to breach contractual obligations with impunity when the individual sums owed are too small to …

Freedom And Governance In U.S. Arbitration Law, Thomas E. Carbonneau

Faculty Scholarship

Arbitration has long served as a contractual substitute for judicial litigation. It provided a workable and effective form of adjudication in ancient societies and among religious groups, much as it does in contemporary times. Its long-standing appeal resides in enabling parties to choose a private adjudicatory mechanism based upon expertise and expedition that delivers fair, affordable, and enforceable outcomes. Arbitral adjudication effectively intermediates between the need for functional trial procedures and the imperative of safeguarding legal rights. Rights cannot be vindicated if the applicable hearing mechanisms are inaccessible and inefficient. The protracted puffery of lawyers is not a feasible solution …

Tribal Rituals Of The Mdl: A Comment On Williams, Lee, And Borden, Repeat Players In Multidistrict Litigation, Myriam E. Gilles

Articles

No abstract provided.

Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong

Faculty Articles

National courts are becoming increas­ingly involved with international commercial arbitration. Although this observa­tion may be disheartening to those who support the autonomy of the international arbitral regime, the continued interaction between courts and tribunals is less troubling to those who view international commercial arbitration as a "hybrid" method of dispute resolution, with numerous opportunities for permissible "border crossings. "

That is not to say that courts can or should become involved with every as­pect of arbitration. Instead, impermissible "border incursions" diminish the effec­tiveness of international commercial arbitration and could erode public or private support for the international arbitral regime. Therefore, …

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong

Faculty Articles

Thus, this Article aims to provide newcomers to and infrequent users of international commercial arbitration with a brief introduction to the relationship between international arbitral proceedings and U.S. federal courts. Limitations of space mean that a great deal has necessarily been left out of this discussion. For example, this Article does not describe processes internal to the arbitration, in­stead focusing solely on the interaction between tribunal, parties and court. Fur­thermore, the text often skips over basic propositions of U.S. law that are well­-established in the domestic realm so as to concentrate more heavily on elements that are unique to international …

Arbitration Agreements That Discriminate In The Selection And Appointment Of Arbitrators, Jeff Dasteel

Richmond Journal of Global Law & Business

No abstract provided.