Dispute Resolution and Arbitration Commons^™

Conflict, Climate Change, And Environmental Catastrophe: How Mediators Can Help Save The Planet, Kenneth Cloke

Cardozo Journal of Conflict Resolution

The recent oil spill by British Petroleum in the Gulf of Mexico highlights an escalating set of difficulties in our responses to environmental catastrophes, with echoes that resonate and reverberate with experiences responding to Hurricane Katrina in New Orleans, earthquakes in Haiti and Peru, firestorms in Russia, flooding in Pakistan, the tsunami in Indonesia, and others.

Citizen David Tames Gas Goliaths On The Marcellus Shale Stage: Citizen Action As A Form Of Dispute Prevention In The Internet Age, Elisabeth N. Radow

Cardozo Journal of Conflict Resolution

"Water, water everywhere and not a drop to drink." This could soon become the lament of millions of people who derive their drinking water from sources located near the latest natural gas boom site in the East, known as the "Marcellus Shale" region. Drilling is underway in Pennsylvania and West Virginia, but not yet in New York. The focus here is New York.

2010 Annual Symposium: Keynote Speech, Joseph A. Siegel

Cardozo Journal of Conflict Resolution

Thank you very much to the Board of the Cardozo Journal of Conflict Resolution for inviting me here today. I am honored to be speaking at this conference and participating in an event with so many distinguished experts in the conflict resolution field. I spend most of my time working on the challenging issue of climate change and, as we all know, energy is both a significant part of the problem and a significant part of the solution. I often have the opportunity to speak at and attend conferences on climate and energy and I like to monitor over time …

The Brains Behind Mediation: Reflections On Neuroscience, Conflict Resolution And Decision-Making, Daniel Weitz

Cardozo Journal of Conflict Resolution

On September 13, 1848, an explosives charge sent a three-foot tamping iron about an inch in diameter through the head of Phineas Gage. Although Gage survived, the tamping iron, which entered just under the left eye and exited through the frontal portion of his head, destroyed his prefrontal cortex. Prior to the accident, Gage was a popular foreman of a railroad construction crew. After the accident, he was a tactless, profane, and impulsive man with a dramatically altered personality.

Comments To The Consumer Financial Protection Bureau In Connection With Its Review Of Arbitration For Consumer Financial Products Or Services, Edna Sussman

Cardozo Journal of Conflict Resolution

This report is submitted by the Dispute Resolution Section of the New York State Bar Association to provide background and highlight issues the Bureau may wish to consider in fulfilling its charge. The report takes no position as to the appropriate treatment of consumer disputes, but strongly supports a thorough examination of dispute resolution processes to ensure that they are in the public interest and fair to consumers.

International Advocate For Peace Award Acceptance Speech, Abigail E. Disney

Cardozo Journal of Conflict Resolution

In a few weeks, we will all be gathering around our mothers to celebrate one of the most shamelessly trumped-up, commercialized and corny-and I might add, one of my very favorite-holidays on the American calendar: Mother's Day. I do not want to sound cynical; it is truly a wonderful thing for us to stop and honor those women in our lives who have shaped us, for better or for worse. And who does not love a little tribute made out of glitter and doilies and Elmer's glue?

Contracting For Arbitration In Custody Disputes: Parental Autonomy Vs. State Responsibility, Christina Fox

Cardozo Journal of Conflict Resolution

New York and New Jersey are so close in location, but so far apart in their respective policies toward binding arbitration in child custody matters. Even though most family law matters now involve forms of alternative dispute resolution ("ADR"), courts are deeply divided on whether binding arbitration should be allowed in child custody disputes, and over which standard to adopt in reviewing custody arbitration awards. While New York has repeatedly disallowed binding arbitration in child custody, New Jersey has recently joined other states in approving binding arbitration and enforcing a parent's contractual determination of his child's welfare. The question is …

The Demise Of Class Actions Will Not Be Televised, Benjamin Sachs-Michaels

Cardozo Journal of Conflict Resolution

As evidenced by two recent Cardozo Journal of Conflict Resolution articles, class action waivers in arbitration clauses are currently a hot topic in the field of conflict resolution. With increasing frequency, arbitrators and courts are presented with class action waivers in compulsory arbitration agreements prohibiting the aggregation of claims. This Note argues that some courts have reversed course in their treatment of class action waivers contained in arbitration clauses. There is a new movement to find class waivers, and the arbitration clauses that harbor them, unenforceable. This Note further argues that while plaintiffs uniformly oppose class action waivers, defendants widely …

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 13 (2011-12)

Cardozo Journal of Conflict Resolution

No abstract provided.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 13, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Mediation: A Revolutionary Process That Is Replacing The American Judicial System, Richard M. Calkins

Cardozo Journal of Conflict Resolution

It has been said that the American judicial system is the finest yet devised by mankind. It seeks the truth in all instances and to do justice to all who enter its hallowed halls. Indeed, Americans not only have the right of access to civil courts but also to be judged by their peers in all federal courts and in most state courts. So fundamental is the right to trial by jury that it is enshrined in the Bill of Rights to the United States Constitution. The Seventh Amendment assures that all persons being heard in federal courts have the …

Can The Leopard Change His Spots?! Reflections On The 'Collaborative Law' Revolution And Collaborative Advocacy, Dafna Lavi

Cardozo Journal of Conflict Resolution

Much has been written about the social contribution of the ADR movement, and the many and diverse ways to implement it. This article focuses on collaborative law, one of the newer methods adopted by this movement, and observes that the full impact and implications of this movement have not yet been explored. One of the compelling implications discussed in this article is the collaborative law revolution.

This article presents both the observable and latent aspects of this revolution. According to this article, the main contribution of the revolution is in signaling a change in the design and conceptualization of the …

Alternative Dispute Resolution Expands Into Pre-Trial Practice: An Introduction To The Role Of E-Neutrals, Allison O. Skinner

Cardozo Journal of Conflict Resolution

Alternative dispute resolution is a viable tool for case management. The use of a third party neutral for resolving discovery disputes and related pre-trial issues offers litigants an alternative for managing the pre-trial phase of a lawsuit in an efficient manner. Alternative dispute resolution is expanding into pre-trial practice in response to two forces: 1) Judicial budgetary constraints; and 2) E-discovery. Both factors require litigants to approach discovery in a manner that meets Federal Rule of Civil Procedure 1-"just, speedy and inexpensive determination of every action and proceeding"-and Federal Rule of Civil Procedure 37-"Failure to Make Disclosures or to Cooperate …

Methodology In Action: On Consistency, Accuracy And Proficiency In Mediation, Ran Kuttner

Cardozo Journal of Conflict Resolution

Over seventeen years have passed since the first edition of Bush & Folger's The Promise of Mediation. Edited by Bush and Folger together with Dorothy Della Noce, Transformative Mediation: A Sourcebook - Resources for Conflict Intervention Practitioners and Programs offers a new and important contribution to our understanding of the promise of mediation, this time not necessarily because of the particular ideology of the transformative approach, but because of the manner in which this volume demonstrates how mediation scholarship can further develop mediation proficiency. The promise of mediation and the future of its institutionalization as a respected, distinct profession …

Courageous Conversations: Aligning The Occupy Wall Street And The Mediation Movements, Raymond Shonholtz

Cardozo Journal of Conflict Resolution

Originally prepared as a speech for the Oregon Mediation Conference, November 2011, the following has been modified for a wider audience concerned about the role of mediators and the mediation movement in relation to the Occupy Wall Street Movement ("OWS"). The author's intent is to provide a context for supporting the "courageous conversations" (theme of the Oregon Mediation Association Conference) of OWS by mediation and change management experts. The following was written a month after the Oregon Mediation Association speech and reflects comments made to the author to elaborate on the mediating modalities that might be useful to both OWS …

Mismatch.Com: Online Dispute Resolution And Divorce, Rebecca Brennan

Cardozo Journal of Conflict Resolution

This Note proposes that online dispute resolution (ODR) is a particularly therapeutic method of negotiating and settling a divorce, and in some circumstances may be a more appropriate method than traditional face-to-face mediation sessions. Part I will discuss divorce and its psychological and emotional consequences. Part II will discuss therapeutic jurisprudence and why it is especially beneficial as applied to the dissolution of marriages. Part III will discuss ODR in general, its development, and its application to a variety of legal fields. Part IV will discuss the advantages and disadvantages of ODR, particularly with regards to therapeutic jurisprudence and divorce …

A Solution To Holdouts In The National Football League: How Salary Arbitration Can Limit A Growing Problem, Roger Quiles

Cardozo Journal of Conflict Resolution

This Note will explore the intricacies of Major League Baseball's salary arbitration system, as established in the league's CBA with the MLB Players' Association (hereinafter, "MLBPA"), in order to create a suitable and similar forum for the NFL. The MLB salary arbitration model is not perfectly transposed to the NFL, but can be slightly modified to reflect the differences between the sports. The primary difference is that the NFL establishes a salary cap that a team's payroll may not exceed, whereas MLB teams can carry as big of a payroll as they want. Though the salary cap raises several questions …

Red Card Racism: Using The Court Of Arbitration For Sport (Cas) To Prevent And Punish Racist Conduct Perpetrated By Fans Attending European Soccer Games, Alexander Wynn

Cardozo Journal of Conflict Resolution

This Note proceeds in three sections. Part I describes the extent to which racism infects European soccer, the processes by which Uefa addresses violations of the Uefa Statutes and CAS' contributions to sports mediation and arbitration. Part II contextualizes Uefa's governing authority within statutory and case law from the E.U. and the United Kingdom [hereinafter "U.K."] as legal frameworks through which to explore possible reasons why Uefa rarely imposes substantial sanctions on member associations or teams whose fans perpetrate racist acts. Finally, Part III explores the reasons why CAS is better able to address and punish racism in European soccer …

Chapter 25. International Investment Arbitration: Winning, Losing And Why, Susan Franck, Karl P. Sauvant, Lisa Sachs, Ken Davies, Ruben Zandvliet, Gary Clyde Hufbauer, Laza Kekic, Nathan M. Jensen, Edmund J. Malesky, Reuven S. Avi-Yonah, Jose Guimon, Lorenzo Cotula, Christian Bellak, Markus Leibrecht, Terutomo Ozawa, Michael Mortimore, Carlos Razo, Premila Nazareth Satyanand, Gert Bruche, Anne Van Aaken, Jürgen Kurtz, Kathryn Gordon, Joachim Pohl, Veljko Fotak, William L. Megginson, Charles Kovacs, Mark Plotkin, David N. Fagan, Subrata Bhattacharjee, Armand Claude De Mestral, Jason Webb Yackee, Kevin P. Gallagher, Lauge N. Skovgaard Poulsen University College London, Hans Smit, Michael D. Nolan, Frederic G. Sourgens, Luke Eric Peterson, Gus Van Harten, Alexandre De Gramont

Contributions to Books

Succinct yet insightful reports are most welcome – especially in our era, distracted as it is by a rising tide of shallow commentary. For those who care about foreign direct investment (FDI), the premier reports are Columbia FDI Perspectives, published every few weeks by the Vale Columbia Center on Sustainable International Investment. Since the first issue (here republished as chapter 2) appeared in November 2008, the Perspectives have adhered to a format of about two pages, authored by a leading expert, on an FDI question of immediate interest. Consequently, there is no better way to keep abreast of changing trends …

Lawfare: A War Worth Fighting, Paul Williams

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Introduction, The .Xxx Factor, Rita Rodin Johnston

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Legal Framework For Space Projects In Europe: Aspects Of Applicable Law And Dispute Resolution, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Space projects in Europe take place in a complicated environment involving many public, private and intergovernmental actors, where the participation of the private sector, as independent space operators or as sub-contractors to others, is usually subsumed under the label of 'the space industry,' producing hardware, software and services to be used in outer space, in support of space activities, or using products, data or information generated with the help of space activities.

Such private, semi-private and quasi-private actors use contracts as the main mechanism to protect their interests, the freedom to contract within the rule oflaw being the paramount overarching …

Music To Everyone's Ears: Binding Mediation In Music Rights Disputes, Matthew H. Ormsbee

Cardozo Journal of Conflict Resolution

Litigation has been the mainstay of copyright disputes since America's earliest copyright statute first permitted a cause of action for copyright infringement in 1790. While alternative dispute resolution ("ADR") has become more prevalent in other areas of the law, many copyright attorneys and their clients do not typically consider ADR processes a viable option because these processes are still relatively new to copyright law.

This Note proposes greater use of binding mediation, a specialized ADR process, in music rights disputes, which are fundamentally copyright infringement disputes. Section I discusses the background of copyright litigation and modern application of ADR in …

East Meets West: Introducing Sharia Into The Rules Governing International Arbitrations At The Bcdr-Aaa, Elana Levi-Tawil

Cardozo Journal of Conflict Resolution

As the size and complexity of international commercial transactions grow, parties to international commercial transactions are increasingly utilizing Alternative Dispute Resolution ("ADR") methods, specifically international commercial arbitration, to resolve the disputes that arise. However, since international commercial players first began to use international commercial arbitration to resolve these disputes, transnational recognition and enforcement of foreign arbitral awards has been a major issue. Since 1958, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"), an agreement executed by the United Nation's General Assembly, has vastly expanded the recognition and enforcement of foreign arbitral …

Salary Caps In Professional Sports: Closing The Kovalchuk Loophole In National Hockey League Player Contracts, Simon Bernstein

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Deliberative Look At Alternative Dispute Resolution And The Rule Of Law, A, Peter Muhlberger

Journal of Dispute Resolution

This paper critiques the foundations of Aragaki's analysis, but also gives credit on the importance of dealing with people as less than fully rational. The critique suggests, again, a deep commonality between DD and ADR and potential improvements to both approaches. True collaboration between these approaches, however, requires some re-theorizing of both, including a reconsideration of rationality itself. This paper will sketch some ways in which this might be achieved and, in particular, how DD theory and research may prove helpful for ADR.

A Case Study Investigating The Interpretation And Implementation Of The Transformative Mediation Technique, Chuks Petrus Nweke

Walden Dissertations and Doctoral Studies

For decades, unresolved conflicts have negatively influenced the general public through increased violence, overwhelming the judicial system. A literature review suggested that between 15% and 20% of conflicts result in an impasse. This study was designed to understand how the implementation and application of the transformative meditation technique (TMT) is used to resolve conflicts. The purpose of this qualitative case study was to investigate the interpretation and implementation of TMT. This qualitative case study was grounded in the conceptual framework of interest-based negotiation (IBN) principles. The research questions focused on mediators' perceptions, interpretations, and depth of knowledge, as well as …

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Alternative Dispute Resolution And The Rule Of Law In International Development Cooperation, James Michel

Journal of Dispute Resolution

This paper briefly reviews the concept of development and related international cooperation. It then examines how the rule of law has been addressed in development programs and offers some thoughts about the contribution of ADR for advancing the rule of law and, in turn, contributing to human security, wellbeing, and dignity.

Japan's Business Revitalization Adr: An Economic Savior Or A Convenient Excuse To Avoid Bankruptcy?, Naoko Okamoto

Cardozo Journal of Conflict Resolution

This Note analyzes Japan's newly enacted "Business Revitalization Alternative Dispute Resolution" (ADR) and its effectiveness in revitalizing the Japanese economy. Due to ADR's economic and procedural ease, Business Revitalization ADR has been employed by companies undergoing revitalization processes and negotiating with creditors in extending debt payments. Nonetheless, ADR proceedings, specifically mediation between creditors and debtors, create only short-term economic value. Because of cultural characteristics of mediation and the nature of mediation in the business context in Japan, Business Revitalization ADR may be subject to abuse by companies that should have gone bankrupt. In fact, many companies may save themselves from …