Dispute Resolution and Arbitration Commons^™

Thou Shalt Love Thy Neighbor: Rluipa And The Mediation Of Religious Land Use Disputes, Jeffrey H. Goldfien

ExpressO

Religious land use disputes are characterized by high levels of conflict and the potential to seriously undermine social capital in affected communities. Contemporary land use procedures reflect an antiquated heritage and reliance upon adversarial means that are inadequate to successfully resolve these socially complex local conflicts. While there are practical obstacles, mediation holds advantages over these existing procedures in terms of dispute resolution, and has greater potential to preserve and build social capital at the local level. This article examines the theoretical justification for mediation in this context, and argues for moving beyond the status quo.

Reforming Udrp Arbitration: The Suggestions To Eliminate Potential Inefficiency, Soohye Cho

Cornell Law School Inter-University Graduate Student Conference Papers

Even though the Internet has become an integral part of daily life, resolving legal disputes via Internet still remains in the development stage. The legal framework for regulating such Online Dispute Resolution (ODR) has not been established since the Virtual Magistrate Project offered the early ODR program began in 1995. Still, resolving disputes through Internet has been increasing dramatically, especially in the area of Domain Name Disputes. After the Internet Corporation for Assigned Names and Numbers (ICANN) adopted the Uniform Domain Name Dispute Resolution Policy (UDRP) in 1999 , this procedure has been regarded as the most successful ODR to …

Arbitration Costs And Contingent Fee Contracts, Christopher R. Drahozal

Vanderbilt Law Review

A common criticism of arbitration is that its upfront costs (arbitrators' fees and administrative costs) may preclude consumers and employees from asserting their claims. Some commentators have argued further that arbitration costs undercut the benefits to consumers and employees of contingent fee contracts, which permit the claimants to defer payment of attorneys' fees and litigation expenses until they prevail in the case (and if they do not prevail, avoid such costs altogether). This paper argues that this criticism has it exactly backwards. Rather than arbitration costs interfering with the workings of contingent fee contracts, the contingent fee mechanism provides a …

On-Line But Out Of Touch: Analyzing International Dispute Resolution Through The Lens Of The Internet, Benjamin J.C. Wolf

Cardozo Journal of International and Comparative Law

The note explores the evolution and challenges of international dispute resolution, particularly arbitration, in the context of the internet's impact on global trade. It highlights how arbitration, while effective, faces new complexities such as jurisdictional disputes and enforcement difficulties due to the internet's borderless nature. The author argues that while arbitration remains a vital method for resolving international disputes, it must adapt to the unique challenges posed by digital transactions to ensure continued effectiveness.

The Role Of International Arbitrators, Susan Franck

Scholarly Articles in Law Reviews & Journals

With the advent of the global economy, arbitration has become the preferred mechanism for resolving international disputes. Today international arbitrators resolve billions of dollars worth of disputes.' Arbitration has taken on such prominence in the international context that commentators express "little doubt that arbitration is now the first-choice method of binding dispute resolution" and has "largely taken over litigation."'

Anchoring, Information, Expertise, And Negotiation: New Insights From Meta-Analysis, Chris Guthrie, Dan Orr

Vanderbilt Law School Faculty Publications

In this article, we conduct a meta-analysis of studies of simulated negotiations to explore the impact of an initial "anchor," typically an opening demand or offer, on negotiation outcomes. We find that anchoring has a significant impact on the deals that negotiators reach. We also explore whether negotiator experience and the information environment mitigate the influence of anchoring. We conclude by offering prescriptive advice, both "offensive" and "defensive," to negotiators.

Building The Emotionally Learned Negotiator, Erin Ryan

Faculty Publications

No abstract provided.

Mobile Mediation: How Technology Is Driving The Globalization Of Adr, Nadja Alexander

Research Collection Yong Pung How School Of Law

Mediation has made it to Hollywood. The opening scene of the romantic comedy, The Wedding Crashers (2005), features a hilarious attempt at divorce mediation. The mediation scene does not demonstrate any mediation skills to be emulated, and the film itself, apart from the opening scene, has nothing to do with mediation. Nevertheless one cannot ignore the power of the borderless dream machine called Hollywood. The Hollywood film industry does more than export films and fantasies around the world; it is a driving force in the globalization of the themes with which it deals. When mediation becomes one of those themes …

The Unexplored Option: Jewish Settlements In A Palestinian State, David M. Phillips

ExpressO

The withdrawal of Israeli settlers and soldiers from the Gaza Strip, the recent Hamas victory in the Palestinian Authority elections, and the results of the Israeli elections in which the newly-formed Kadima Party received a plurality of the votes have all focused attention upon the fate of Israeli Jewish settlements on the West Bank. Most parties consider the continued existence of the settlements as precluding a peaceful resolution of the Israeli-Palestinian conflict and their establishment as having violated international law. The assumption that their presence precludes peace is premised primarily on the assumption that Israeli settlements will eventually mean Israeli …

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

ExpressO

The communitarian conception of dispute-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 honestly, construct agreements from the perspective of their common interests and resolve differences according to objectively derived and jointly agreed upon substantive standards. This is supposed to take the hard edge off their disputing and make it less antagonistic, less competitive, less deceptive, less manipulative and less mean-spirited than it otherwise might be. This is a wonderfully inspiring view and it would be a source of great …

Statutory Misconstruction: How The Supreme Court Has Created A Federal Arbitration Law Never Enacted By Congress, Margaret L. Moses

ExpressO

The Supreme Court has so significantly rewritten the Federal Arbitration Act (FAA) over the last twenty-five years that today it bears little resemblance to the statute enacted by Congress in 1925. Adopted as a simple procedural Act to enforce arbitration agreements, the FAA was intended to be applicable only in federal court. Today, the statute is a substantive statute applicable in both state and federal courts, which broadly pre-empts state law. The statute’s pre-emption of state law has recently been confirmed and expanded in the Court’s decision in Buckeye Check Cashing v. Cardegna (Feb. 2006).

Although the thrust of the …

At The Crossroads Of Legitimacy And Arbitral Autonomy, Thomas E. Carbonneau

ExpressO

No abstract provided.

Assigning The Burden Of Proof In Contractual Jury Waiver Challenges: How Valuable Is Your Right To A Jury Trial?, Chester S. Chuang

ExpressO

Employers have long used arbitration agreements to manage the risk associated with the resolution of employment disputes. But as dissatisfaction with arbitration increases, employers are fundamentally changing their approach to dispute resolution by incorporating jury waivers into their employment agreements as an alternative. These jury waivers are an attractive compromise between arbitration and jury trials because they offer the full procedural protections of the public judicial system at a considerably lower cost than a comparable jury trial. Some courts have invalidated such jury waivers, however, making the enforcement of such waivers uncertain. In order for pre-dispute jury waivers to be …

Just Say "No Fishing": The Lure Of Metaphor, Beth Thornburg

ExpressO

The phrase “fishing expedition” is widely used in popular culture and in the law. In the case of metaphorical “fishing” in the law, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence a result. When used by the court, it is uninformative. Worse, the fishing metaphor may itself shape the way the court thinks about the kind of issue or claim involved. Accusations of “fishing” also affect the language and position of the litigants. Parties arguing against pleadings or discovery use the metaphor as a rhetorical weapon, stigmatizing their opponents, instead of …

The Importance Of Using Alternative Dispute Resolution Techniques And Processes In The Ethical And Informed Representation Of Children, Kelly Browe Olson

Nevada Law Journal

No abstract provided.

The Myth Of Moral Justice In-Print Symposium: A Brief Response, Kenneth R. Feinberg

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Law In The Digital Age: How Visual Communication Technologies Are Transforming The Practice, Theory, And Teaching Of Law, Richard K. Sherwin, Neal Feigenson, Christina Spiesel

ExpressO

Law today has entered the digital age. The way law is practiced – how truth and justice are represented and assessed – is increasingly dependent on what appears on electronic screens in courtrooms, law offices, government agencies, and elsewhere. Practicing lawyers know this and are rapidly adapting to the new era of digital visual rhetoric. Legal theory and education, however, have yet to catch up. This article is the first systematic effort to theorize law's transformation by new visual and multimedia technologies and to set out the changes in legal pedagogy that are needed to prepare law students for practice …

Summary Of Mccrary V. Bianco, 122 Nev. Adv. Op. 10, Eunice Kasiske

Nevada Supreme Court Summaries

Thomas and Rebecca McCrary (“McCrary”) appealed from a post-verdict district court order awarding attorney fees based upon the cost shifting provisions of NRCP 68 and NRS 17.115. Dominic Bianco (“Bianco”) cross-appealed from the denial of its motion for partial satisfaction of judgment. McCrary unsuccessfully argued that the district court erred in its failure to consider pre-offer attorney fees and costs as part of its determination of the total judgment for cost-shifting purposes. McCrary successfully argued that the district court erred in not including pre-offer prejudgment interest in its comparison between the total amount awarded and the offer of judgment, for …

Summary Of International Game Tech. V. Dist. Ct., 122 Nev. Adv. Op. No. 13, Krystal Gallagher

Nevada Supreme Court Summaries

Petitioner, Nevada’s Attorney General, appeals from the district courts’ refusals to dismiss actions brought under Nevada’s False Claims Act (“FCA”) by respondents, James McAndrews and Beeler, Schad & Diamond, P.C. Nevada permits individuals to become private attorneys general, which grants individuals the right to sue on behalf of the state. This individual is known as a quitam plaintiff. After filing an action, the quitam plaintiff must send the Attorney General a copy of the complaint and a written disclosure of all material information, and then the complaint is sealed. The complaint remains sealed and the defendants are not served until …

Law As Rationalization: Getting Beyond Reason To Business Ethics, Jeffrey Marc Lipshaw

ExpressO

Embedded in the way we use the law is the tendency of human reason to justification, in the words of one philosopher, “the thirst for rationality that creates lies.” I contend that this tendency is exacerbated by the conflation of what is knowable as a matter of science, and that which we might believe is normative. I rely on Kant’s critique of theoretical and practical reason to assess claims to objectivity in social science approaches to law, and to suggest it is not surprising that the operation of theoretical and practical reason would tend to the conflation of the descriptive …

Imrei Chayim V. Wisel, Yigal Mersel (Registrar)

Translated Opinions

The District Court annulled an arbitration award.  A party wishes to appeal that decision in this Court.  Section 38 of the Arbitration Law, 5728-1968 (hereinafter: the arbitration law) determines that a decision made pursuant to that law can be appealed by permission.  The party argues before the Registrar of the Court that the appeal should be heard, despite that, as an appeal as of right, since section 17 of Basic Law: Judicature (hereinafter: the basic law) determines that "a judgment of a court of the first instance can be appealed as of right, excepting a judgment of the Supreme Court", …

Superstition-Based Injustice In Africa And The United States: The Use Of Provocation As A Defense For Killing Witches And Homosexuals, Jennifer Dumin

ExpressO

This Article examines two different instances where strong cultural and religious beliefs suggest that an individual is justified in taking another’s life. Focusing primarily on South Africa and the United States, it argues that the rationale used to defend those who kill suspected witches and those who kill suspected homosexuals is the same – merely because a criminal holds a belief that the victim is evil, the criminal is somehow entitled to a lesser punishment. In the United States, those who readily recognize the absurdity of the witchcraft defense may have some difficulty in recognizing the same level of absurdity …

Train Our Jurors, Jonathan Koehler

Faculty Working Papers

Lay jurors are often legally and logically unprepared for trial. In response, it is recommended that jurors receive training in how to make better legal decisions. This chapter suggests that jurors should receive comprehensive training in critical legal doctrines and in how to reason with legal evidence. Jurors who cannot be trained to achieve minimal levels of competence (in the law or in basic reasoning) should be excused from jury service. Suggestions are given as to how policy makers and researchers who are interested in jury reform may wish to proceed.

Balancing The Scales Of Confidential Justice: Civil Mediation Privileges In The Criminal Arena - Indispensable, Impracticable, Or Merely Unconstitutional, Shawn P. Davisson

McGeorge Law Review

No abstract provided.

Selecting Mediators And Representing Clients In Cross-Cultural Disputes, Harold Abramson

Cardozo Journal of Conflict Resolution

Even an adept negotiator can be baffled by cultural differences. When a negotiation reaches an impasse because of an unfamiliar cultural interest or a miscommunication between the parties due to different styles of communicating, negotiating, or decisionmaking, the negotiator might find it helpful to enlist assistance from a culturally-trained and culturally-appropriate mediator. This Article considers how such a third party can help you, as a negotiator, bridge cultural differences. It considers when to seek aid from a mediator, what the credentials of the mediator ought to be, and the impact of the mediator's approach on the way you represent your …

Venting Of Vipassana? Mindfulness Mediation's Potential For Reducing Anger's Role In Mediation, Don Ellinghausen Jr.

Cardozo Journal of Conflict Resolution

American culture is suffused and infatuated with anger. Politicians strive to placate the "Angry White Male," whose antagonisms also find expression in road rage, overheated talk radio, violent video games, and players-fans skirmishes at professional sporting events. American media churns out alarmingly vivid images of violence, and the ominous tendency for teenagers, in particular, to act out these lurid fantasies of "righteous wrath" dramatizes the nexus between this potentially toxic "consumption of cultural items" and anger. Vietnamese expatriate monk Thich Nhat Hanh observes that Americans "cannot speak about anger, and how to handle our anger, without paying attention to all …

The Hague Convention On Choice Of Court Agreements: The United States Joins The Judgment Enforcement Band, Matthew H. Adler, Michele Crimaldi Zarychta

Northwestern Journal of International Law & Business

In 2005, the United States signed a treaty that, if ratified, would be the United States' first-ever international agreement on judgment enforcement. The treaty provides that (a) where two commercial parties elect to resolve disputes between them in a particular forum, and (b) a judgment issues from that forum, then (c) all member states must enforce the judgment. It is a document driven by party autonomy; absent a choice of court agreement (in U.S. parlance, a choice of forum clause), the treaty has no meaning or applicability. The treaty's signing was the end of a rigorous journey. The United States …

Modernizing Security In Rents: The New Uniform Assignment Of Rents Act, R. Wilson Freyermuth

Faculty Publications

This article explains the provisions of the UARA and encourages its prompt adoption in states that presently lack comprehensive statutes governing security interests in rents.

The Role Of Medicare In Medical Malpractice Reform, William M. Sage

Journal of Health Care Law and Policy

No abstract provided.

Title Page

Journal of Dispute Resolution

No abstract provided.