Dispute Resolution and Arbitration Commons^™

Forgetfulness, Fuzziness, Functionality, Fairness And Freedom, In Dispute Resolution, Jeffrey W. Stempel

Scholarly Works

Professor Subrin is a self-professed traditionalist who has been one of the most forceful defenders of what I might term neo-traditional “Clarkian” litigation. By that, I mean the model of civil disputing in which litigation is a primary vehicle. More important, the litigation is based on notice pleading, broad discovery, and a preference for adjudication on the merits.

Key Subrin works over the years have focused on the historical path of the Clarkian model, which served to fuel much of the law revolution of the mid-Twentieth Century, to the “new era” of civil procedure and dispute resolution that dominated the …

Globalization Of Arbitral Procedure, Gabrielle Kaufmann-Kohler

Vanderbilt Journal of Transnational Law

Imagine attending hearings in three different arbitrations: one in Geneva, one in New York, and one in Hong Kong. All three hearings will likely involve the same hotel conference rooms, the same court reporters, the same language--English, the same types of oral submissions, witness examinations, expert presentations, and procedural arguments, and often even the same people. Does this mean that arbitral procedure is globalized '--that an arbitration is conducted in a uniform manner wherever it takes place, whatever national law governs? Does national law govern at all? This paper will discuss these issues.

Foreign Law Year In Review: 2002, Roger P. Alford

Journal Articles

Contents

• Introduction

International Legal Developments In Review: 2002, Roger P. Alford

Journal Articles

Contents

• Editor's Preface
• Introduction

Judicial Mediation And Signaling, Edward J. Brunet

Nevada Law Journal

No abstract provided.

A Traditionalist Looks At Mediation: It's Here To Stay And Much Better Than I Thought, Stephen N. Subrin

Nevada Law Journal

No abstract provided.

A Fresh Look At The Federal Rules In State Courts, John B. Oakley

Nevada Law Journal

No abstract provided.

The Past And Future Of The Federal Rules In State Courts, Carl Tobias

Nevada Law Journal

No abstract provided.

Procedural Provisions In Nevada Medical Malpractice Reform, Carl Tobias

Nevada Law Journal

No abstract provided.

Renegotiation And Adaptation Of International Investment Contracts, Klaus P. Berger

Vanderbilt Journal of Transnational Law

In modern-day international investment practice, especially in connection with the exploitation of natural resources, Production Sharing Agreements have come to take over the role of the classic concession agreement. Like their predecessors, these contracts are particularly vulnerable to disturbances in the commercial balance agreed to, or assumed by, the parties at the conclusion of the contract. This vulnerability has three primary causes.

First, these are classic examples of long term contracts. In the petroleum industry, the commitment of significant capital for exploration, particularly in development, and the assumption of considerable risk, particularly in exploration, require contracts covering up to and …

Enforcement Of Wto Rulings: An Interest Group Analysis, Mark L. Movsesian

Faculty Publications

The WTO's Dispute Settlement Understanding ("DSU") provides that disputes are to be resolved in adversarial proceedings before impartial panels of experts. These panels have authority to decide whether members' laws conform to WTO requirements; members may appeal rulings to a permanent Appellate Body within the organization, which has the final say on questions of law and legal interpretation. Under the DSU, if a member fails to comply with a final ruling in a dispute, the prevailing party may retaliate by suspending trade concessions that it owes the offending member. This retaliation can continue until the offending member implements the WTO's …

Peer Mediation Programs: An End To School Violence?, Alixandra Blitz

Cardozo Journal of Conflict Resolution

This note focuses on the ineffectiveness of PMPs to combat higher-levels of school violence. Part I discusses school violence, both past and present. Part II explores the shift from traditional methods of discipline to more proactive and education-based methods that are used in many schools today. Part III addresses the fundamentals of peer mediation including what it is and how it is implemented. Part IV examines which students PMPs should be targeting and why PMPs fail to prevent them from committing violent acts on their schools. Finally, the conclusion recommends ways to reduce conflict in schools.

International Advocate For Peace Award 2003, Desmond Tutu

Cardozo Journal of Conflict Resolution

No abstract provided.

Victim-Offender Mediation And Violent Crimes: On The Way To Justice, Ilyssa Wellikoff

Cardozo Journal of Conflict Resolution

This Note will discuss the need for an alternative method within the criminal justice system, such as victimoffender mediation, and will discuss the benefits and implications of extending victim-offender mediation to serious and violent crimes. The first part of this Note will explain the premise and purpose of victim-offender mediation. The Note will detail victim-offender mediation’s roots in restorative justice and the various types of victim-offender mediation programs currently in place. The second part of this Note will address the efficacy of victim-offender mediation programs, highlighting the program’s overall benefits and shortcomings. The Note will then address the criminal judicial …

Reason Over Rhetoric: The Case For Enforcing Predispute Agreements To Arbitrate Employment Discrimination Claims, Craig Hanlon

Cardozo Journal of Conflict Resolution

Part I of this article will briefly outline the relevant federal statutes to provide the necessary foundation for understanding the issue involved in Waffle House . Specifically, this paper will discuss Title VII of the Civil Rights Act of 1964 (“Title VII”), the Equal Employment Opportunity Act of 1972 (“EEOC Act”), the Civil Rights Act of 1991 (“1991 Act”), the Federal Arbitration Act (“FAA”), and the Americans with Disabilities Act (“ ADA ”). Part II will examine the development of the relevant case law that set the parameters for the current debate, including the conflicting decisions in three Courts of …

Annotations

Cardozo Journal of Conflict Resolution

No abstract provided.

The Exercise Of Contract Freedom In The Making Of Arbitration Agreements, Thomas E. Carbonneau

Faculty Scholarship

A universal principle of contemporary arbitration law is that contract plays a vital role in the governance of arbitration. The vitality of that role can vary by legal system, court,statute, or treaty. Nonetheless, party agreement often provides the most significant rules for regulating arbitrations and conducting arbitral proceedings. This is especially true in international commercial arbitration. There, the lack of a functional transborder legislativeand adjudicatory process made contract the principal source of law for internationalcommercial transactions and arbitrations. Although law-making is more possible withinindividual national legal systems, the rule of contract freedom is also firmly established inmatters of domestic arbitration. …

The Exercise Of Contract Freedom In The Making Of Arbitration Agreements, Thomas E. Carbonneau

Vanderbilt Journal of Transnational Law

The privatization and contractualization of arbitration, while they empower parties and unburden public institutions, should not eliminate completely the basis for the public regulation of the process. The string of "one-off' arbitrations, gathered together, has consequences upon the public interest in the orderly administration of adjudicative relations in both domestic and international law. The use of arbitration does have a bearing upon the substantive content of legal rights. Judicial vigilance should not only ward off the flagrant abuses of process and procedure in arbitration, but it should also establish an "interests of justice" limitation upon the operation of the process …

The Problem With Arbitration Agreements, Stephen J. Choi

Vanderbilt Journal of Transnational Law

Arbitration procedures today have become highly standardized. Institutions such as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the American Arbitration Association Center for International Dispute Resolution (AAA) each have detailed provisions for administering arbitration proceedings (often involving parties of different nationalities). Parties entering into arbitration can expect to have limited discovery, a hearing, and the ability to bring attorneys to the proceedings. While typically providing less process than formal court proceedings, the standardized nature of arbitration can lead parties to view arbitration much like court proceedings--a fixed, pre-determined process to settle disputes. Thomas …

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Vanderbilt Journal of Transnational Law

Arbitration by its nature is polycentric: one might more accurately speak of arbitrations in the plural. A wide variety of disputes are included in one category, implicating differences related to the sophistication of the parties, the character of the disputes, and the public interests at stake. The current legal framework for arbitration conducted in the United States attempts to squeeze all types of arbitration into the Procrustean bed of a single set of standards for judicial review.

The United States should seriously consider eliminating judicial discretion to review the substantive merits of awards in international cases. The domestically nourished doctrine …

The American Influence On International Arbitration, Roger P. Alford

Journal Articles

It is indisputable that the international arbitration world is an identifiable epistemic community that transcends national borders, and whose members are shaped by their own experience. Increasingly, that experience reflects an American influence, be it heritage, training, affiliation, or client base. In these remarks, Professor Alford addresses three issues related to the Americanization of international arbitration. The first is whether international arbitration has, in fact, only recently become Americanized. He posits instead that there is always an ebb and flow to the level of the United States' involvement in international arbitration. During the drafting and signing of the 1958 New …

Uniform Mediation Act And Official Comments

Journal of Dispute Resolution

The provisions in this Act reflect the intent of the Drafters to further these public policies. The Drafters intend for the Act to be applied and construed in a way to promote uniformity, as stated in Section, and also in such manner as to: promote candor of parties through confidentiality of the mediation process, subject only to the need for disclosure to accommodate specific and compelling social interests, encourage the policy of fostering prompt, economical, and amicable resolution of disputes in accordance with principles of integrity of the mediation process, active party involvement, and informed self-determination by the parties, and …

Uma And The Uncitral Model Rule: An Emerging Consensus On Mediation And Conciliation, The, Jernej Sekolec, Michael B. Getty

Journal of Dispute Resolution

In this article, we describe how these two efforts have come together to forge an international consensus on mediation and conciliation. In Part I, we look at how some of the different ways that domestic nationals treat the confidentiality of conciliation communications. The disparity of these treatments leads to considerable uncertainty among parties to a conciliation. In Part II, we note the essential features of the UNCITRAL Model Law, and how it addresses this uncertainty through model rules that will harmonize international standards among adopting nations, at least on core issues, while at the same time preserving the flexibility that …

Evaluation Of The Effect Of Court-Ordered Mediation And Proactive Case Management On The Pace Of Civil Tort Litigation In Lake County, Indiana, An, Jeffrey J. Dywan

Journal of Dispute Resolution

This author conducted a survey of mediators working with the courts in Lake County, Indiana in 1993-1994. At that time, thirty-four civil mediators were listed with the court administrator's office. The mediators were asked to track mediation cases for six months and to record the number of cases that had been referred to them for mediation, the number of cases actually mediated, the number settled, and the time to settlement after the referral to mediation

Title Page

Journal of Dispute Resolution

No abstract provided.

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Introduction, David A. Hoffman

Journal of Dispute Resolution

My introduction to the issues that the Uniform Mediation Act seeks to resolve occurred about a dozen years ago when a senior partner at Hill & Barlow, the Boston law firm where I practiced for 17 years, came to me with a question. He wanted to know whether he could recommend mediation as a safe process for discussing some delicate tax issues that had arisen during the breakup of a business partnership. Evidently the partners had taken some aggressive positions on their partnership tax returns, and one of the big issues in the dissolution of the partnership was the allocation …

Prohibiting Good Faith Reports Under The Uniform Mediation Act: Keeping The Adjudication Camel Out Of The Mediation Tent, Carol L. Izumi, Homer C. La Rue

Journal of Dispute Resolution

This symposium article examines a narrow slice of the Uniform Mediation Act - the prohibition on mediator communication to judges about a party's good faith participation or "problem" behavior in mediation.

Centuries Of Contract Common Law Can't Be All Wrong: Why The Uma's Exception To Mediation Confidentiality In Enforcement Proceedings Should Be Embraced And Broadened, Peter Robinson

Journal of Dispute Resolution

The National Conference of Commissioners on Uniform State Laws and House of Delegates of the American Bar Association recently approved the Uniform Mediation Act ("UMA") with an eye toward unifying the law of mediation confidentiality in the United States. Soon, numerous states and other organizations will consider modifying statutes, court rules, or professional standards to conform to the UMA. One of the important aspects of mediation confidentiality is how it applies when enforcing a mediated agreement.' In some jurisdictions, mediation confidentiality interferes with the application of contract law when enforcing a mediated agreement to produce absurd results. This article will …