Dispute Resolution and Arbitration Commons^™

Separate And Not Equal: Integrating Civil Procedure And Adr In Legal Academia, Jean R. Sternlight

Scholarly Works

Traditionally, academics specializing in ADR and civil procedure have not tended to deal with each other's issues. The typical civil procedure course focuses on litigation, and at best throws in a few classes on mediation and negotiation. Similarly, the typical ADR course devotes little or no attention to litigation, law, courts, or administrative institutions. Thus, the two disciplines are taught quite separately. Further, this separation is not equal. While students are required to learn about litigation, and are also offered many additional litigation electives, the ADR curriculum is almost always purely elective, and the classes are much smaller. Yet, the …

The Sutherland Report And Dispute Settlement, Mark L. Movsesian

Faculty Publications

Ten years after the organization's founding, an air of disappointment surrounds the WTO. The great promise of a global trade regime, dedicated to the principle of comparative advantage, seems to have stalled. The Doha Development Round, launched in 2001 in an attempt to redeem the disastrous Seattle Ministerial Conference of 1999, has been stymied by familiar disputes between North and South, mostly with respect to agricultural issues, but with respect to nonagricultural market access and services as well. Frustrated by impasses at the WTO, members have increasingly bypassed the organization in favor of discrete "preferential trade agreements", or PTAs, that …

The Discourse Beneath: Emotional Epistemology In Legal Deliberation And Negotiation, Erin Ryan

Faculty Publications

No abstract provided.

Self-Determination In International Mediation: Some Preliminary Reflections , Jacqueline Nolan-Haley

Faculty Scholarship

Few concepts have generated as much discussion in the post-war international legal system as that of “self-determination.” Scholars debate the proper identity of the "selves" endowed with this right, its boundaries, and its normative relevance. When the focus turns to mediation, the discussion becomes murky because the concept of self-determination has both procedural and substantive components, and is noticeably different in the private and public sectors. The generic concept of self-determination relates to ideas of democratic governance and the Enlightenment belief that legitimate government depends upon the consent of the governed. As adapted to private mediation theory, the right of …

The Concept Of Justice In Mediation: A Psychobiography, Ellen Waldman

Cardozo Journal of Conflict Resolution

Discussions of what justice means in mediation have a dialectical quality to them. At various points in the field's history, the notion that justice in mediation consists of fully maximized disputant self-determination holds sway. At other historical moments, a tentative consensus appears to recognize that justice in mediation requires normative content independent of the disputants' beliefs and values.

Is Alternative Dispute Resolution Really An Alternative For Federal Employees?: Possible Suggestions For Encouraging Federal Employees To Participate In Adr Programs, Lisa Pell

Cardozo Journal of Conflict Resolution

This Note will examine the various dispute resolution programs employed by the federal government. Part One of this Note will look at the different federal programs and determine their usefulness. Part Two will establish that ADR is not being used to its potential. Part Three will discuss the reasons for the low ADR usage. Part Four will suggest options for increasing ADR usage in federally implemented programs. Finally, Part Five will conclude that if the federal agencies took advantage of their own programs, the possibilities for change are great.

Mindfulness Meditation, The Cultivation Of Awareness, Mediator Neutrality, And The Possibility Of Justice, Evan M. Rock

Cardozo Journal of Conflict Resolution

This Note argues that the cultivation of awareness through meditation enhances a mediator's ability to be neutral, thereby increasing the possibility of just outcomes from mediation sessions. Part I introduces and explains the basic practice of mindfulness meditation. Part II examines the necessity of neutrality for just outcomes in mediation, the classical view of neutrality as impartiality, and the importance of a mediator's awareness of his biases and preferences for maintaining neutrality. Part III examines the use of procedure in maintaining neutrality during a mediation session, and how a mediator's awareness of his thoughts and emotions can be helpful in …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 7, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Dispute Resolution And Legal Education: A Bibliography, Trevor C.W. Farrow

Cardozo Journal of Conflict Resolution

This selected bibliography is designed to act as a resource to assist in the ongoing, collaborative development of dispute resolution initiatives and programs in legal education and research in North America and abroad. Further, the particular focus of this bibliography, in addition to the teaching and research of dispute resolution generally, is the emphasis that law reform initiatives are putting on dispute resolution processes as potentially useful tools for increasing access to systems of civil justice around the common law world.

A Case For Mediating Trademark Disputes In The Age Of Expanding Brands, David Allen Bernstein

Cardozo Journal of Conflict Resolution

This Note proposes that there is an alternative method that ensures the viability of brand names while avoiding litigation. Companies must be willing to enter a process which will explore the possibility of a mutually beneficial solution, perhaps in the form of a settlement agreement allowing both parties to use the mark or brand name. The process best suited to guide such parties and achieve such a result is mediation.

Military Spying In The United States: When It Is Not Your Neighbor Knocking At Your Door, Where Do You Turn?, Miriam Schneider

Cardozo Journal of Conflict Resolution

This Note will describe the role of the military in the United States and its relationship to privacy rights. Part I of this Note will describe the historical underpinnings that led to a limited role for the military within the United States territory, beyond defending against attack. Part II will describe the expectations by the courts and legislature for the military. In addition, it will illustrate instances where the military, along with numerous federal agencies, overstepped its traditional, constitutional and legal bounds. Part III will offer the legislature's response to, and its subsequent regulation of, the military and other federal …

The Vocation Of International Arbitrators, Catherine A. Rogers

Faculty Scholarship

This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …

Trend Forecast: Imitation Is A Legal Form Of Flattery-Louis Vuitton Malletier V. Dooney & Bourke, Inc., Sarah J. Kaufman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Influence Of Procedural And Distributive Variables On Settlement Rates In Employment Discrimination Mediation, The, E. Patrick Mcdermott, Danny Ervin

Journal of Dispute Resolution

Mediators and scholars are interested in factors that contribute to a successful mediation. The settlement of the dispute is one measure of success. If one could identify certain key process or outcome variables that caused more disputes to be settled in mediation, a mediator could use this information to maximize settlement potential. We seek to add to this search for the "holy grail" of mediation settlement.' Using an extensive database from the evaluation of the Equal Employment Opportunity Commission (EEOC) we attempt to determine whether certain procedural and distributive factors are significant predictors of case resolution. We also examine whether …

Resolving A Split: May Courts Order Consolidation Of Arbitration Proceedings Absent Express Agreement By The Parties, Jonathan R. Waldron

Journal of Dispute Resolution

In Illinois Farmers Insurance Co. v. Glass Service Co., 8 the Minnesota Supreme Court had the opportunity to revisit its 1973 decision in Grover-Dimond Associates v. American Arbitration Ass'n 9 in light of conflicting case law developed since that time.' 0 This Note will address the current split in state and federal courts, and suggest that the best way to resolve this issue is through state adoption of the RUAA.

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Discord Behind The Table: The Internal Conflict Among Israeli Jews Concerning The Future Of Settlements In The West Bank And Gaza, Robert H. Mnookin, Ehud Eiran

Journal of Dispute Resolution

Our exclusive focus is on one of these conflicts-the profound internal rift among Israeli Jews over the Jewish settlements in the West Bank and Gaza. We are especially interested in the role of the national religious settlers and the Israeli government's response to them. These settlers lead the movement and are dominant actors in the internal conflict. The current controversies within Israel regarding Prime Minister Ariel Sharon's "unilateral initiative," which was not the product of a negotiation with Palestinians, demonstrate the importance of understanding the internal conflict within Israel and the dominant role of the leaders of the settlement movement

Confidentiality In Mediation: Is It Encouraging Good Mediation Or Bad Conduct, Sarah Williams

Journal of Dispute Resolution

Mediation has long been used in the judicial system of the United States to offer an alternative to litigation which can save time and money. Not only have its cost-effective and time efficient attributes contributed to its use, but the judiciary and legislature have often encouraged its use in order to mitigate the number of cases in the court system. In some states, the legislature has enacted statutes to make mediation mandatory before certain adjudications will even take place. Furthermore, to encourage these mediations to settle, many legislatures and jurisdictions have enacted statutes to protect the confidentiality of the mediation. …

The New Iraq: Resolving Public And Private Obligations Incurred Under Saddam Hussein's Rule In The Context Of International Arbitration, Darius Adam Marzec

Cardozo Journal of Conflict Resolution

Saddam Hussein's rule in Iraq collapsed on April 9, 2003, after an American-led coalition invasion. The coalition quickly deposed the Iraqi dictator and began the process of turning the nation away from authoritarian rule, murder, and death, to civility. While Saddam Hussein is gone, and no government-supported oppression of people exists, another form of tyranny persists: Iraq's modern economy is burdened with $383 billion in public debt and judgments. Adding insult to injury, after the coalition troops drove up to Baghdad through the desert, Iraq's banking system turned out to be insolvent.

The Unguided Use Of Internal Adr Programs To Resolve Sexual Harassment Controversies In The Workplace, Jessica Oser

Cardozo Journal of Conflict Resolution

This Note will explore some of the concerns raised by the use of mandatory IDR mechanisms in the workplace, particularly in the context of resolving sexual harassment disputes. As previously noted, the use of IDR in the workplace can be highly effective and beneficial for both the employee and the employer. However, just as the Food and Drug Administration approves drugs that have potentially harmful side effects, the public and the U.S. government should approve of the use of IDR mechanisms despite the potential for abuse. In both circumstances, the public deserves to be warned about the possible dangers. This …

Restitution, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

Little of significance was decided on the law of restitution in 2004. There was nevertheless a smattering of cases dealing with points relevant to the principles of the law of restitution, sometimes directly, and sometimes indirectly.

Let's Stick Together (And Break With The Past): The Use Of Economic Analysis In Wto Dispute Litigation, Petros C. Mavroidis

Faculty Scholarship

The treatment of a number of issues that are being routinely discussed in WTO dispute settlement practice could benefit substantially, were economists to be institutionally implicated in the process. As things stand, the participation of economists in dispute settlement proceedings is infrequent and erratic: for all practical purposes, it depends on the discretion of WTO adjudicating bodies. There is indirect evidence that recourse to such expertise has been made, albeit on very few occasions. Institutional reforms are necessary; otherwise, it seems unlikely that the existing picture will change in the near future. A look into ongoing negotiations on the DSU …

Court Or Arbitrator—Who Decides Whether Res Judicata Bars Subsequent Arbitration Under The Federal Arbitration Act?, Jarrod Wong

McGeorge School of Law Scholarly Articles

No abstract provided.

Objecting To Court Ordered Mediation, Jane C. Murphy

All Faculty Scholarship

Maryland judges have wide discretion to refer parties to mediate a variety of civil matters. Title 17 of the Maryland Rules, enacted in 1998, governs mediation of civil cases in the circuit courts. These rules are supplemented by Maryland Rule 9-205, which addresses mediation of child custody and visitation disputes. Although these rules define mediation and address mediator qualifications in some detail, they say very little about either a party's right to object to mediation or the court's authority to compel participation in mediation.

Given that the mediation rules are relatively new and mediation orders would generally be considered interlocutory, …

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N.C. Smalkin

All Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary's loss of focus on the core function of trying jury cases; the business community's loss of interest in jury adjudication (opting out of the legal system altogether in favor of arbitration); Congress's marginalizing the district court judiciary; and the …

Book Review: Beyond Neutrality: Confronting The Crisis In Conflict Resolution, Nadja Alexander

Research Collection Yong Pung How School Of Law

No abstract provided.

An Essay Challenging The Racially Biased Selection Of Arbitrators For Employment Discrimination Suits, Michael Z. Green

Faculty Scholarship

Since 1991, employers have increasingly decided to require that employees agree to arbitrate statutory employment discrimination claims as a condition of employment. This Essay seeks to expose some of the potential discriminatory components that may arise in the arbitrator selection process while highlighting the lack of legal remedy for those who believe that employers, in conjunction with neutral service provders, have stacked the pool in favor of having arbitrators who tend to be older, white and male. The Essay suggests the use of 42 U.S.C. Section 1981 as a potential remedy and challenge to the dearth of arbitrators of color …

Look Before You Leap And Keep On Looking: Lessons From The Institutionalization Of Court-Connected Mediation, Bobbi Mcadoo, Nancy A. Welsh

Faculty Scholarship

This article will use the institutionalization of general civil mediation into the courts as a case study, with both hopeful and cautionary lessons for policy makers. This article will (1) examine the goals created for court-connected ADR; (2) assess to what extent court-connected mediation has achieved these goals, from the perspective of judges, lawyers, and parties; and (3) and propose reforms of court-connected mediation to better ensure the achievement of justice.

The Myth Of The Gladiator And Law Students' Negotiation Styles, Melissa Lee Nelken

Faculty Scholarship

No abstract provided.

Ambiguity, Sovereignty And Identity In Ireland: Peace And Transition, James J. Friedberg

Faculty & Staff Scholarship

No abstract provided.