Dispute Resolution and Arbitration Commons^™

Who Can Be Against Fairness? The Case Against The Arbitration Fairness Act, Peter B. Rutledge

Cardozo Journal of Conflict Resolution

In this brief essay, I hope to lay out the case against the Arbitration Fairness Act. Part I of this Article addresses the "findings" on which the act is premised. It explains how in several respects the current research on arbitration flatly contradicts the premises animating those findings (in other respects, the data is incomplete, so the "findings" at best are better described as "untested hypotheses" or "assumptions"). Part II of this Article explains why postdispute arbitration is not a viable alternative to our present system of enforceable predispute arbitration clauses.

2007 Cardozo International Advocate For Peace Award: Acceptance Speech, Jeffrey Sachs

Cardozo Journal of Conflict Resolution

The Eighth International Peace Award Recipient

The Psychic Life Of Denial, Susan Derwin

Cardozo Journal of Conflict Resolution

Holocaust deniers have an investment in taking a defensive stance. Theodor Adorno noted that to haggle about how many millions of innocent people were murdered in the Holocaust is degrading. Haggling about numbers is central to holocaust denial. Deborah Lipstadt's investigation of the nuances and varieties of deniers' claims across cultures makes it evident that, whatever their political or ideological objectives, deniers undertake their haggling in response to what they perceive to be an aggressive manipulation of history. Deniers charge that the manipulators are the Jews, who have inflated the number of Jewish deaths during World War II to garner …

Developing Better Lawyers And Lawyering Practices: Introduction To The Symposium On Innovative Models Of Lawyering, John M. Lande

Faculty Publications

This article provides an overview of a symposium sponsored by the University of Missouri Center for the Study of Dispute Resolution in 2007 that featured leading practitioners and scholars to analyze innovative models of lawyering, including Collaborative Law and other processes. The authors include David Hoffman, Nancy Welsh, Julie Macfarlane, Richard Shields, Pauline Tesler, Scott Peppet, Forrest ("Woody") Mosten, Jeanne Fahey, Kathy Bryan, Lawrence McLellan, and John Lande. The articles address issues including: teaching law students to "feel" like lawyers and not just "think" like them, using "conflict resolution advocacy" (which is not necessarily oriented to the courts), developing lawyers' …

Crossing Borders Into New Ethical Territory: Ethical Challenges When Mediating Cross-Culturally, Harold Abramson

Scholarly Works

No mediator wants to be charged with cultural imperialism when mediating private international disputes. And yet, mediators run this risk whenever the mediator resists doing what the parties want done. This cultural challenge is different than what mediators customarily encounter. Instead of the gap arising between the parties, the gap is between the mediator and the parties. In this article, I will consider how a mediator might ethically bridge mediator-parties gaps while generally avoiding the harsh charge of cultural imperialism. Through a hypothetical in which a mediator's values clash with the values of the parties, I will develop a four …

Tort Arbitrage, Robert J. Rhee

UF Law Faculty Publications

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the empirical world. This Article models the interaction of settlement dynamics and the theory of negligence. It shows that tort claims are systematically devalued during settlement relative to the legal standard. Central to this thesis is a proper conception and accounting of cost. Cost is typically viewed as the transaction cost of litigation processing. Cost, however, encompasses more than this. Each dispute has a cost of resolution, defined as the discounting effect of risk on legal valuation. A spread between the parties' …

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Colliding Worlds Of Dispute Resolution: Towards A Unified Field Theory Of Adr, David A. Hoffman

Journal of Dispute Resolution

In the essay that follows, I advocate for greater acceptance of the diversity of belief and practice in the field of dispute resolution and contend that the unifying elements of law and dispute resolution practice predominate over those elements that divide practitioners. After providing definitions of some of the primary forms of dispute resolution (in Part II), the article describes tensions in the Alternative Dispute Resolution (ADR) field (in Part III), quoting some of the harsh criticism that mediators, Collaborative practitioners, and other dispute resolvers have leveled at each other. Part III also expresses the concern that demonization and harsh …

Beyond The Box Score: A Look At Collective Bargaining Agreements In Professional Sports And Their Effect On Competition, Ryan T. Dryer

Journal of Dispute Resolution

Most sports fans have at least the limited understanding that collective bargaining agreements govern the employer-employee relationships between the owners of professional sports teams and players' associations. Indeed, sports have become a big business in the United States, and the media coverage of sports has extended beyond reporting statistics and scores to include all dealings associated with the business.' Every year (at various times depending on the sport), fans are bombarded with numbers detailing signing bonuses, salary cap implications, arbitration results, incentive-laden contracts, and a multitude of other terms that boggle the mind of the layperson. As most sports fans …

An Introduction To Representative Negotiation, Trevor C. W. Farrow

Articles & Book Chapters

No abstract provided.

The Revolution In Law Through Arbitration, Thomas E. Carbonneau

Faculty Scholarship

My subject is arbitration. I explore how its re-emergence during the last forty years has revolutionized the thinking about, and the practice of, law. The development of a "strong federal policy favoring arbitration" cast aside traditional acceptations about law and adjudication. The rule of law-the human civilization associated with law and the legal process-has been profoundly, perhaps irretrievably, altered by the rise of arbitration. The landmark cases in labor and employment arbitration- Alexander v.Gardner-Denver Company (the "old time religion") and Gilmer v. Interstate/JohnsonLane Corporation (the "new age" thinking)- attest to the enormous distance that separates past and present concepts of …

Challenges Facing Investment Disputes: Reconsidering Dispute Resolution In International Investment Agreements, Susan Franck

Contributions to Books

International investment and international investment agreements have experienced a particular level of growth in the past few decades. With that growth and the granting of affirmative dispute resolution rights to foreign investors, international investment conflict has become increasingly highlighted; and one particular methodology - namely investment treaty arbitration - has become particularly visible. Reliance on this single option for resolving conflict has a unique set of systemic implications. This chapter therefore takes a more systemic look at investment treaty conflict and, in an effort to provide an appropriate historical and doctrinal framework, approaches to dispute resolution broadly. It asks for …

Technology Mediated Dispute Resolution Can Improve The Registry Of Interpreters For The Deaf Ethical Practices System: The Deaf Community Is Well Prepared And Can Lead By Example, David Allen Larson, Paula Gajewski Mickelson

Faculty Scholarship

The work of American Sign Language (ASL)/English interpreters is filled with complex interpersonal, linguistic and cultural challenges. The decisions and ethical dilemmas interpreters face on a daily basis are countless and the potential for disagreement regarding those decisions is great. Technology Mediated Dispute Resolution (TMDR) processes can be particularly helpful when misunderstandings and conflicts arise. Technology Mediated Dispute Resolution is a more inclusive phrase than Online Dispute Resolution (ODR) and includes cellular telephones, radio frequency devices, and satellite communication systems. The Deaf Community has learned to adapt and rely upon a variety of technologies and, because many Deaf individuals already …

Dealing Fairly With Estate And Trust Beneficiary Complaints, Robert Whitman

Faculty Articles and Papers

No abstract provided.

Buying Witness Silence: Evidence-Suppressing Settlements And Lawyers' Ethics, Jon Bauer

Faculty Articles and Papers

Lawyers frequently draft settlements that impede other parties' access to relevant evidence through clauses that prohibit the plaintiff from disclosing information to anyone with a claim against the defendant or forbid all discussion of the facts underlying the dispute. This Article argues that lawyers who negotiate these noncooperation agreements violate Rule 3.4(f) of the Model Rules of Professional Conduct, which prohibits requesting someone other than the lawyer's own client to withhold relevant information from another party, and Model Rule 8.4(d), which prohibits conduct prejudicial to the administration of justice. The conventional wisdom among practitioners and legal ethics scholars has been …

Tipping The Scale To Bring A Balanced Approach: Evidence Disclosure In Chinese International Arbitration, Bryant Yuan Fu Yang, Diane Chen Dai

Washington International Law Journal

Due to the ever-increasing trade between China and the rest of the world, commercial disputes have risen dramatically. Many foreign companies choose to resolve these disputes through arbitration to circumvent the Chinese courts and to retain more autonomy and control. Arbitration itself can also be a problem because rules and laws differ, depending on the jurisdiction and the institution involved. Under China’s civil law tradition, arbitrators are restricted in their ability to force parties to disclose evidence that may be detrimental to their case. Additionally, arbitrators have no authority to obtain evidence from uncooperative third parties. This Article seeks to …

The Illusion Of Transformative Conflict Resolution: Mediating Domestic Violence In Nicaragua, Raquel Aldana, Leticia M. Saucedo

Buffalo Law Review

No abstract provided.

Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel

Scholarly Works

The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling commercial matters among commercial actors. While the "old" system involved parties who were relatively equal in bargaining power and knowledge, these systems for mass arbitration lack a freely entered bargain and resemble more closely, contracts of adhesion. Privatized arbitration resolves issues of both statutory and substantive law, and there is a strong argument, given the inexperience of …

Introduction: Collaboration Good Or Bad: How Is It Working On The Colorado River?, Jean R. Sternlight

Scholarly Works

This is an introduction to articles submitted as part of the Saltman Center for Conflict Resolution’s Symposium, Collaboration and the Colorado River. The Symposium focused on the uses of collaboration to resolve environmental and natural resource disputes pertaining to the Colorado River.

This written version of the conference now builds upon the live event. We are most fortunate that many (unfortunately not all) of the speakers were able to contribute articles to comprise this written version of the Symposium. In their papers, presenters have expanded on their oral remarks and responded to points made by others during the conference.

Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine

Articles

"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …

Conflicts Of Interest And Disclosures: Are We Making A Mountain Out Of A Molehill, David Allen Larson

Faculty Scholarship

The ethical standards governing conflicts of interest disclosure requirements for arbitrators and mediators are numerous and varied. In spite of the considerable attention that conflict of interest questions attract, both the extent to which an arbitrator must disclose past, present, and potential conflicts of interest and the consequences of a failure to make an appropriate disclosure remain unclear. This article examines disclosure requirements themselves, as well as the sanctions and penalties that may result from a failure to disclose information concerning a neutral's impartiality. Particular attention is paid to what generally is regarded as the most extreme consequence of failure; …

The (New) Ethics Of Collaborative Law, Scott R. Peppet

Publications

No abstract provided.

E-Disclosure In International Arbitration, Robert H. Smit, Tyler B. Robinson

Faculty Scholarship

Electronically stored documents, in particular, emails, have rapidly become perhaps the most important source of evidence in commercial business disputes of virtually every kind. In the United States, new rules of court procedure seek to address the scope and conduct of discovery of electronic documents, which present unique challenges for litigants that discovery rules and principles designed with hardcopy documents in mind are ill-equipped to address. The same issues arise for international commercial arbitration but no guidelines tailored to the unique nature of international arbitration have yet been devised. This article surveys the unique issues and problems that arise in …

International Commercial Arbitration And International Courts, Mark L. Movsesian

Faculty Publications

The editors of this symposium have asked us to address an interesting question. Why hasn't international commercial arbitration’s (ICA's) success been repeated in the context of international courts? In the last few decades, states have created scores of permanent tribunals with jurisdiction to resolve disputes about international law. By and large, though, states have not been as receptive to the rulings of these tribunals. What accounts for this comparative lack of hospitality? Why do states treat ICA and international adjudication so differently?

In this essay, I offer an explanation. States treat ICA and international adjudication differently because they are categorically …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 9, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Mitigating Disaster: A Communitarian Response, Robert M. Ackerman

Cardozo Journal of Conflict Resolution

In this essay, I present a communitarian view as to how we might best respond to disaster, and in particular, to losses suffered by the direct victims of disaster. My focus will be on financial compensation to disaster victims, which admittedly occupies only a small part of the spectrum of disaster response. Emergency "first responder" activities are matters about which I have no expertise; volunteering at my local food bank hardly qualifies me to advise FEMA or the Red Cross. The blunders for which these organizations have recently been responsible are apparent, and so are some of their causes, but …

Mediation: The Common Sense Solution To Solving The Myriad Choice Of Law Issues In Complex Aviation Accident Cases, Michael J. Holland

Cardozo Journal of Conflict Resolution

Six minutes after Swissair First Officer Stefan Loew advised Canadian air traffic control authorities that Swissair Flight 111 had declared an emergency, that electric power had been lost and that the crew was attempting to prepare the cabin for an emergency landing by using flashlights, Swissair Flight 111, an MD-11 aircraft, plunged into the Atlantic Ocean some nine miles off the coast of Peggy's Cove, Nova Scotia, resulting in the death of 215 passengers and 14 crewmembers abroad the ill-fated flight.

Reducing Estate And Trust Litigation Through Disclosure, In Terrorem Clauses, Mediation And Arbitration, Jonathan G. Blattmachr

Cardozo Journal of Conflict Resolution

This Article discusses how litigation relating to the administration of estates and trusts might be reduced through by careful planning prior to the property owner's transfer of wealth during lifetime or at death. As the article details, litigation involving trust and estate matters often involves an emotional element not present in most other legally disputed matters. That also suggests that methods to reduce the risk of such litigation occurring may be unique to such matters. In Part 1, certain background matters relating to the climate for such litigation are presented. In Part 2, the historic "tool" of a disinheritance clause …

Adr - Appropriate Disaster Recovery, Michael Tsur

Cardozo Journal of Conflict Resolution

The legal system may be as old as society itself. Since the dawn of civilization, man has incorporated law and judgment as primary tools to help regulate both civil and criminal aspects of social life. Both ancient and modern societies are often historically evaluated by the structure and quality of their legislative and judicial systems. People seem to have been caught in dispute ever since they began living together and effective dispute resolution was necessary for fundamental social structure and order.

Denying Genocide: Law, Identity And Historical Memory In The Face Of Mass Atrocity Conference, Belinda Cooper

Cardozo Journal of Conflict Resolution

In 2006, France's lower house of parliament, the National Assembly, adopted a bill that would have made it a crime to deny that the Turks committed genocide against the Armenians during and after World War I. Almost simultaneously, Turkish writers and scholars, including Nobel Prize winner Orhan Pamuk, were being charged by Turkish authorities for precisely the opposite "crime": calling the killing of Armenians by Turks a genocide and, in the process, "denigrating Turkishness.'' These two diametrically opposed events provided an illustrative backdrop to the Denying Genocide: Law, Identity and Historical Memory in the Face of Mass Atrocity conference at …