Dispute Resolution and Arbitration Commons^™

Eleven Bid Ideas About Conflict: A Superficial Guide For The Thoughtful Journalist, Leonard L. Riskin

Journal of Dispute Resolution

In case you are wondering how something like this could possibly be reported in a local newspaper, I can tell you two reasons: First, the story takes place in Columbia, Missouri, a small town with a big journalism school and two daily newspapers; these factors combine to produce hordes of desperate reporters and reporting students.' Second, as I show below, if the reporter has sophisticated vision, this case has the potential to provide a good deal of valuable material.

News Coverage And Social Protest: How The Media's Protect Paradigm Exacerbates Social Conflict, Douglas M. Mcleod

Journal of Dispute Resolution

Past research on media coverage of social protests has yielded evidence of a protest paradigm: a set of news coverage patterns that typifies mainstream media coverage. This coverage generally disparages protesters and hinders their role as vital actors on the political stage. The lack of respect for the value of social protest inherent in such coverage has created frustration among the protesters, which has in turn contributed to dysfunctional confrontations. However, under certain conditions, journalists will deviate from the protest paradigm. Such aberrations were found in the Los Angeles Times' coverage of the May 1, 2006, "Day without Immigrants" demonstrations. …

Faa And The Userra: Pro-Arbitration Policies Can Undermine Federal Protection Of Military Personnel, Laura Bettenhausen

Journal of Dispute Resolution

According to the United States Supreme Court, statutory claims may be the subject of an arbitration agreement contained in an individual employment contract. In Garrett v. Circuit City Stores, Inc., the United States Court of Appeals for the Fifth Circuit analyzed whether claims brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA) are subject to arbitration under the Federal Arbitration Act (FAA). The applicability of the FAA to employment contracts is an integral part of the analysis in this case. To determine whether arbitration is an appropriate forum for the plaintiff's claim, discussion of both the structure and …

News Coverage, The Expansion Of Discourse, And Conflict, Philip Seib

Journal of Dispute Resolution

The universe of news cultures--comprising providers and consumers-has never been static. It perpetually evolves, sometimes in small increments, sometimes with dazzling leaps. We are now in one of the latter phases, with new technologies driving change at high speed. This alteration of the news universe is a mix of reshaping and expansion, and it has a profound effect on social and political life throughout much of the world. It has particular impact on how policy makers and the public evaluate and respond to conflict.

Too Many Motions For Vacatur Of Commercial Arbitration Awards - The Eleventh Circuit Sanctions Unwary Litigants, Christopher Mckinney

Journal of Dispute Resolution

In B.L. Harbert Int'l. v. Hercules Steel Co., the Eleventh Circuit Court of Appeals seemed angered by what they deemed to be another frivolous appeal of a commercial arbitration award. Upon this provocation, the court warned litigants that future baseless appeals would be met with sanctions. By making sanctions a real threat, the court has attempted to promote some goals of arbitration, including finality, but any benefits derived may be offset by the increased confusion the holding has created. Further, the court's mandate represents a divergence from Eleventh Circuit precedent, as past decisions indicated a willingness to hear new arguments …

Wanted: Leaders, Journalists, Scholars, And Citizens With The Right Stuff: A Reflection On Conflict, Journalism, And Democracy, Edmund B. Lambeth

Journal of Dispute Resolution

The purpose of this article is to describe, frame, and place the new initiative in the larger context of what can be done when professions and the institutions they inhabit and serve encounter internal stress and/or external conflict.

Little Fish In A Big Sea: Should Consumer Protection Statutes Override Class Arbitration Waivers, A, Thomas Wilmowski

Journal of Dispute Resolution

As arbitration agreements have become increasingly commonplace in dealings between large companies and their subscribers, courts have taken a strong interest in protecting consumer rights. As part of this protection, courts have to apply federal statutes, protecting the right to treble damages and recovery of attorney's fees in the context of mass arbitration agreements. The difficulty comes in attempting to allow companies to exercise their freedom of contract while protecting consumers with little bargaining power. Although other courts have largely favored arbitration, and upheld its applicability, a clash remains between consumer protection statutes and the waiver of those statutory rights …

When Lawyers Move Their Lips: Attorney Truthfulness In Mediation And A Modest Proposal, Don Peters

Journal of Dispute Resolution

This article examines whether the punch line that you can tell when lawyers are lying by confirming that their lips are moving applies to their conduct when negotiating in mediations. General surveys of lawyer honesty suggest that this perception probably does apply to the way lawyers negotiate in mediations. Only 20% of people surveyed in a 1993 American Bar Association poll described the legal profession as honest, and that number fell to 14% in a 1998 Gallup poll.' A more recent poll revealed that one-third of the American public believes that lawyers are less truthful than most people.

Arbitration Of International Oil, Gas, And Energy Disputes In Latin America, Alexia Brunet, Juan Agustin Lentini

Northwestern Journal of International Law & Business

An increase in global reliance on fossil fuels has prompted greater discussion on energy security. For the United States, interest has focused on ensuring that countries in the Western Hemisphere, which currently supply roughly half of U.S. imports of crude oil and petroleum products, remain stable sources of energy. While concerns have focused on political instability and a rising interest in the hemisphere's energy resources by China and India, the conversation centers on a hemispheric trend toward resource nationalism. Resource nationalism is exemplified by the global trend of placing the world's oil reserves under the control of national oil companies …

Mcmahon Turns Twenty: The Regulation Of Fairness In Securities Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

I believe that current regulation of securities arbitration does ensure that it is fair to investors. Part II of this Commentary explores the various sources of law, including the FAA, which could require fairness in securities arbitration. It revisits the first critical assumption of the McMahon Court, that the FAA's provisions for post-award judicial review protect investors from an unfair arbitration process. This Part demonstrates that, while the FAA does require “fundamental fairness” in arbitration, courts loosely construe that requirement and find most arbitration proceedings meet it easily. Part IIII of this Commentary explores SEC oversight of securities arbitration, particularly …

Alternative Dispute Resolution In Georgia, Douglas H. Yarn

Faculty Publications By Year

No abstract provided.

Restorative Justice As Internalization Of The Rule Of Law: Combining Restoration With Retribution In The Film Festen, Michal Alberstein

Cardozo Journal of Conflict Resolution

In this paper, I will use a film analysis to explore the potential of restorative justice processes as a more comprehensive, mature approach to the phenomenon of crime. By following the microlevel transformations within the family trial/victim-offender mediation in the film, I will try to develop a notion of law that incorporates the retributive elements into a broader framework of restoration and amendment. I will use cultural analysis as a foundation for the theoretical argument and also offer an "appropriate justice," inter-cultural formula for addressing crime in a comprehensive manner.

Restorative Justice In Post-Disaster Situations: Untapped Potential, Maria R. Volpe

Cardozo Journal of Conflict Resolution

Post-disaster situations can provide a wide range of opportunities for restorative justice. Depending on the nature of the disaster, man-made or natural, the potential of using restorative justice practices to assist in rescue, recovery, and rebuilding efforts can be significant. The challenges, however, can be even more significant.

My interest in examining restorative justice efforts in post-disaster situations grew out of my earlier research on dispute resolution responses to 9/11. In the aftermath of the 9/11 terrorist attacks, countless questions arose about the role and relevance of dispute resolvers. 9/11 also triggered a wide range of hate crimes, which seemed …

Exploring The Limits Of The Restorative Justice Paradigm: Restorative Justice And White-Collar Crime, Zvi D. Gabbay

Cardozo Journal of Conflict Resolution

Part I of this article introduces the restorative justice paradigm. It defines restorative justice and its basic values and principles and presents two theories which illustrate the goals of restorative interventions and the basic requirements for their commencement. Part II introduces white-collar crime and focuses on high-profile white-collar crime committed by corporate executives. This part discusses the centrality of white-collar crime within the criminal justice system and society in general and reviews the latest developments in legislation and sentencing policies on white-collar crime. Part III argues that the restorative justice paradigm should be applied to high-profile white-collar crime as a …

Bargaining With A Hugger: The Weaknesses And Limitations Of A Communitarian Conception Of Legal Dispute Bargaining, Or Why We Can't All Just Get Along, Robert J. Condlin

Cardozo Journal of Conflict Resolution

The communitarian conception of bargaining now popular with legal academics presupposes a world in which people are always at their best. Clients and lawyers share information about themselves and their situations candidly and fully, construct agreements from the perspective of their common interests and resolve differences according to objectively derived and jointly agreed upon substantive standards. They "connect" as persons and in the process convert what in lesser hands might be a form of stylized combat into a kind of joint venture, and sometimes even a lasting friendship. This, in turn, takes the hard edge off their disputing and makes …

A Tribute To Louis Sohn - Is The Dispute Settlement System Under The Law Of The Sea Convention Working?, Bernard H. Oxman

Articles

No abstract provided.

Does International Arbitration Need A Mandatory Rules Method?, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

The role of mandatory rules in international arbitration remains a persistent source of debate. The basic problem is a straightforward one: contractual arbitration arises as a matter of the parties’ consent, but the resolution of contractual disputes can implicate mandatory rules of law that are not waivable and are typically designed to protect broader public rights. The literature has often presented the issue in terms of conflict between the authority of the state and the party-derived authority of the arbitrator. Asserting an independent public duty to protect national mandatory laws as well as the enforceability of arbitral awards, some writers …

News Reporting And Its Impact On Conflict, Richard C. Reuben

Faculty Publications

This symposium seeks to bridge this important gap in our social understanding of conflict by stimulating a sustained discussion among scholars about its contours. The task is important and timely, worthy of effort on both the media and the conflict sides of the equation.

Mediation At The End Of Life: Getting Beyond The Limits Of The Talking Cure, Thaddeus Mason Pope, Ellen A. Waldman

Faculty Scholarship

Mediation has been touted as the magic band-aid to solve end-of-life conflicts. When families and health care providers clash at the end of life, bioethicists and conflict theorists alike have seized upon mediation as the perfect procedural balm. Dissonant values, tragic choices, and roiling grief and loss would be confronted, managed, and soothed during the emotional alchemy of the mediation process. But what is happening in a significant subset of end-of-life disputes is not mediation as we traditionally understand it. Mediation's allure stems from its promise to excavate underlying needs and interests, identify common ground, and push disputants toward more …

Foreign Direct Investment, Investment Treaty Arbitration, And The Rule Of Law, Susan Franck

Scholarly Articles in Law Reviews & Journals

In the last decade, there has been a surge in the number of multi-lateral and bilateral investment treaties governments have signed; meanwhile there have been dramatic increases in the amount of foreign direct investment (FDI); and, more recently, the number of claims brought under investment treaties has spiked. This Article examines the relationship amongst these factors and is the first to review the emerging empirical economic literature investigating whether investment treaties achieve their goal of promoting FDI. The Article then specifically evaluates the impact that the procedural right to arbitrate investment claims plays in the process of promoting FDI and …

Arbitration Of Nursing Home Claims: Oklahoma Goes Its Own Way, Stanley A. Leasure

Oklahoma Law Review

No abstract provided.

Confirming Arbitration Awards: Taking The Mystery Out Of A Summary Proceeding, Susan Wiens, Roger S. Haydock

William Mitchell Law Review

No abstract provided.

What Process Is Due In The Adjudication Of Erisa Claims?, 40 J. Marshall L. Rev. 811 (2007), Mark D. Debofsky

UIC Law Review

No abstract provided.

Scholarship Advice For New Law Professors In The Electronic Age, Nancy Levit

Faculty Works

The article suggests that the legal academy is in a time of transition between promotion and tenure rules based on traditional methods of publication and contemporary electronic and interdisciplinary possibilities for publication. While a number of articles contain recommendations for newer law professors about the process of scholarship, most of those articles are between five and twenty years old and do not address publishing in the age of blogs, expedited reviews, electronic submissions, and open-access databases.

The substance and length of what law professors write, the formats in which they do so, and the fora in which they publish are …

When Lawyers Move Their Lips: Attorney Truthfulness In Mediation And A Modest Proposal, Donald C. Peters

UF Law Faculty Publications

This article examines whether the punch line that you can tell when lawyers are lying by confirming that their lips are moving applies to their conduct when negotiating in mediations. General surveys of lawyer honesty suggest that this perception probably does apply to the way lawyers negotiate in mediations. Only 20% of people surveyed in a 1993 American Bar Association poll described the legal profession as honest, and that number fell to 14% in a 1998 Gallup poll. However, research demonstrates a connection between honest negotiating and perceived effectiveness. A study of 5,000 Denver and Phoenix lawyers found that honest, …

Following The Script: An Empirical Analysis Of Court-Ordered Mediation Of Medical Malpractice Cases, Ralph Peeples, Catherine Harris, Thomas Metzloff

Journal of Dispute Resolution

Court-ordered mediation of civil cases has become an accepted part of the litigation process in a number of states and in some federal courts.' The widespread growth of court-ordered mediation is not difficult to explain. First of all, the process appears to produce settlements, although because most cases settle anyway, it is difficult to say that court-ordered mediation reduces trial rates. It does, however, at least provide a structured opportunity for settlement discussions, if the parties are so inclined. Second, court-ordered mediation is a process usually paid for by the parties themselves. From the courts' perspective, it is not a …

Public Relations Perspective To Manage Conflict In A Public Health Crisis, A, Qi Qiu, Glen T. Cameron

Journal of Dispute Resolution

The present study particularly focuses on the SARS outbreak in China because it was a major battlefield against the disease that largely affected the fate of the worldwide SARS crisis. Framing analysis of media coverage of the SARS epidemic and organization information from the WHO is used to dissect specific conflicts and strategies involved in China's SARS crisis. The discussion finishes with a checklist for planning strategic communication and conflict management during public health crises.

Whither Community Justice?: The Rise Of Court-Connected Mediation In The United States, Colleen M. Hanycz

Articles & Book Chapters

This paper traces the development of mediation in the United States along two distinct paths: the court-connected paradigm and the community justice paradigm. In the former, as a child of the labour arbitration movement, the link between mediation and the law appears to have been forged at conception. In the latter, we see two distinct branches: the 'Community Mediation Center' model and the neighborhood Justice Center' model. Of those illustrations of community justice, only the first has been strongly connected to the law and legal institutions, while the second strand has retained its institutional independence. These neighbourhood justice centres appear …

Privatizing Antidiscrimination Law With Arbitration: The Title Vii Proof Problem, Stephen A. Plass

Montana Law Review

Privatizing Antidiscrimination Law

Empiricism And International Law: Insights For Investment Treaty Dispute Resolution, Susan Franck

Scholarly Articles in Law Reviews & Journals

While scholars in the United States increasingly focus on the empirical dimension of legal scholarship, there have been challenges in using empiricism to explore international legal issues. Rather than relying on logic or instinct alone, empirical methodologies can provide scholars with tools to gain new facts, see existing ideas through a different lens, and engage in a more nuanced analysis of international law phenomena. There appears to be a natural synergy between empiricism and international investment treaty dispute resolution. With calls for trade time outs by U.S. presidential candidates, there is interest in how investment treaties function, whether they achieve …