Dispute Resolution and Arbitration Commons^™

Dancing With The One That Brung Us - Why The Texas Adr Community Has Declined To Embrace The Uma, Brian D. Shannon

Journal of Dispute Resolution

I readily acknowledge that the UMA is a bold and noble project, and it is certainly the result of substantial effort and compromise. Indeed, I largely concur with the sentiment of Philip Harter that "[tihe UMA is the product of heroic effort that brought together many interests and perspectives to thrash out a workable framework for mediation." That being said, however, much of the Texas mediation community, of which I am a part, has largely opposed enactment of the UMA's framework for our state. As I have written previously, the Alternative Dispute Resolution Section of the State Bar of Texas …

Uma: Some Roads Not Taken, The, Joseph B. Stulberg

Journal of Dispute Resolution

I do not want to overstate my claim. There is nothing in the UMA that precludes conducting a mediated conversation in a manner consistent with what I frame below as a "robust vision" of the mediator's role. The Act, however, does not provide sustained support for it and, more seriously, appears to license the type of intervener that I believe is inconsistent with basic process goals. Hence, I am conjecturing - though I do not believe it is "idle conjecturing" - as to how parties, representative, and the mediator shall conduct their mediation conference under the vision of mediation embedded …

David E. Feller: The Happy Warrior, Theodore J. St. Antoine

Articles

Dave Feller and I first became acquainted when we were both union lawyers in Washington, D.C. Dave was the ultimate happy warrior. He went joyous into combat, and years later he could recount, joyously, objectively, and without rancor toward old foes, the exact details of the many triumphs and the few defeats. A favorite story came from his Supreme Court clerkship. Dave was already seven years out of Harvard Law School, with experience in university teaching, Army intelligence, and the Justice Department, and he didn't hesitate to tell Chief Justice Vinson he should vote for certiorari in a case close …

Adr Without Borders, Theodore J. St. Antoine

Articles

My task is to assess the ways in which alternative dispute resolution procedures may be adapted to deal with international labor disputes. ADR refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without involving the decision-making power of the state or other sanction-imposing body. Both mediation and arbitration are included. In mediation the neutral seeks to get the parties to agree on a mutually acceptable solution. In arbitration the neutral imposes a solution after presentations by the contending parties. A third term, conciliation, is sometimes used and generally connotes a …

Book Review: East Meeting West In The Mediation Marketplace, Nadja Alexander

Research Collection Yong Pung How School Of Law

China is now ‘all the rage’. Everyone is either learning Mandarin or tripping off on a conference to Beijing or a business trip to Shanghai. Commercial concerns are busy establishing trade links with Chinese partners to prepare for the emergence of the biggest marketplace in the world. The business of ADR is no exception.

Global Trends In Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

Mediation is a process both new, in terms of its emergence in the legal arena, and old in terms of its timeless universality. From its birth in the western world, mediation has travelled a winding and often challenging path through common law and then civil law jurisdictions. Suggestions that mediation would be nothing more than a short-lived fad have been short-lived themselves. At the same time many critical questions about mediation process, mediation structures and environment, and mediation outcomes have yet to be explored from a global and comparative perspective.The civil law/ common law dichotomy has always been a fascination …

Sequencing, Acoustic Separation, And 3-D Negotiation Of Complex Barriers: Charlene Barshefsky And Ip Rights In China, Rebecca Green, James K. Sebenius

Faculty Publications

Taking the perspective of the lead U.S. negotiator, Charlene Barshefsky, this article details and analyzes the negotiations that took place in the mid-1990s between the United States and the People's Republic of China over intellectual property rights (IPR). Employing a "negotiation analytic" methodology, Charlene Barshefsky's actions are interpreted to suggest a number of promising approaches to managing the daunting complexities of trade and other negotiations: recognizing the multiparty aspects of apparently bilateral dealings and capturing them in a "deal diagram;" carefully assessing "barriers" to agreement; sequencing to build a winning coalition and overcome potentially blocking ones; "acoustic separation" of issueframes; …

Transactional Mediation: Using Mediators In Deals, Scott Peppet

Publications

This article addresses whether third-party mediators could be helpful in deal-making, just as they are in resolving disputes. It makes a theoretical case for such use of mediators and presents preliminary evidence that transactional mediation already is taking place.

Contractarian Economics And Mediation Ethics: The Case For Customizing Neutrality Through Contingent Fee Mediation, Scott R. Peppet

Publications

No abstract provided.

Institutionalization: What Do Empirical Studies Tell Us About Court Mediation?, Bobbi Mcadoo, Nancy A. Welsh, Roselle L. Wissler

Faculty Scholarship

In the 25 years since the Pound Conference, federal and state courts throughout the country have adopted mediation programs to resolve civil disputes. This increased use of mediation has been accompanied by a small but growing body of research examining the effects of certain choices in designing and implementing court-connected mediation programs.

This article focuses on the lessons that seem to be emerging from the available empirical data regarding best practices for programs that mediate non-family civil matters. Throughout the article, we consider the answers provided by research to three questions: (1) How does program design affect the success of …

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

Articles

The editors have asked us to be quite personal in our ruminations on the future of comparative labor law and policy. For me, over the past several years, the focus has been on China. My first visit to China in 1994, purely as a tourist, was almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October, I was scheduled to begin teaching a oneterm course in American law as a visiting professor at Cambridge University …

Policy Recommendations For Dispute Prevention And Dispute Settlement In Transatlantic Relations: Legal Perspectives, George A. Bermann

Faculty Scholarship

The concrete case studies and general policy analyses that were the subject of inquiry in the conferences culminating in the present volume have predictably generated a series of distinctly legal – as well as political – reflections on dispute prevention and dispute settlement in the transatlantic arena. One of the merits of the dual (concrete and abstract) approach that has been adopted for these conferences is its capacity to provide a check against the risks that would result either from divorcing this study from the realities of disputes or from relying exclusively on potentially idiosyncratic dispute scenarios. The recommendations to …

Introduction To The Symposium Issue On The Americanization Of International Dispute Resolution, Mary Ellen O'Connell

Journal Articles

With the end of the Cold War and the emergence of the United States as the world's only superpower, we have heard expressions of concern about the great weight of American influence in so many aspects of international life. One area of concern is America's influence on the law and processes of international dispute resolution (IDR). Of all the practice areas in IDR, practitioners and scholars of international arbitration have had the most detailed discussions on this theme to date. Their greatest worry is the growing tendency toward American litigation style in a process that is neither American nor litigation. …

Correspondences And Contradictions In International And Domestic Conflict Resolution: Lessons From General Theory And Varied Contexts, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Does the field of conflict resolution have any broadly applicable theories that "work" across the different domains of international and domestic conflict? Or, are contexts, participants, and resources so "domain" specific and variable that only "thick descriptions" of particular contexts will do? These are important questions which have been plaguing me in this depressing time for conflict resolution professionals, from September 11,2001 (9/11), to the war against Iraq. Have we learned anything about conflict resolution that really does improve our ability to describe, predict, and act to reduce unnecessary and harmful conflict? These are the questions I want to explore …

The Revolution You Won’T See On Tv, Jeff Rasley

Scholarship and Professional Work - LAS

Article for Newsweek about the author’s experiences in mediation and jury trials as a civil litigator.

Re Iwk Health Centre And Nsnu (Kelsey), Innis Christie

Innis Christie Collection

The Grievor was accused of inappropriate and unprofessional conduct by a Patient who was mentally ill. After the Employer's review the Grievor was discharged. The Grievor claims he is innocent and was terminated for unjust reasons. The Union requested that he be reinstated in the position he held and be compensated for all lost wages and benefits.

Getting A Head Start: More Intake Questions And Tips For Mediators, Marjorie Corman Aaron

Faculty Articles and Other Publications

A party's initial inquiry to a mediator about potentially participating in a case provides many opportunities for the neutral to initiate the steps necessary for a successful resolution. This article focuses on a list of intake questions for the mediator to direct to the parties.

Re Halifax Regional School Board And Nsupe, Loc 2 (2-39-2001), Innis Christie

Innis Christie Collection

Union grievance filed October 11, 2001, alleging breach of Articles 6.01(b) and 10.03 of the Collective Agreement between the Employer and the Union in effect from January 1, 2001 to July 31, 2004, which the parties agreed is the relevant Collective Agreement for purposes of this matter, in that the Employer had violated Articles 6.01(b) and 10.03 and "has posted a number of jobs that do not specify the days of the week on which the work is to be carried out". At the hearing the Union sought a declaration of what it alleged was the proper interpretation of Article …

Re Caw-Canada, Local 2216 And Aca Co-Operative Ltd, Innis Christie

Innis Christie Collection

The Union claimed that the Grievor was unjustly suspended for four days, then unjustly discharged.

This is a consent award. The parties agree that the Grievor is to be reinstated, subject to certain conditions, and granted retroactive pay. The Arbitrator retains jurisdiction to deal with any grievances in respect of discipline against the Grievor for a period of one year from the date of the award.

At First Glance: Maximizing The Mediator‘S Initial Contact, Marjorie Corman Aaron

Faculty Articles and Other Publications

First moves matter. A mediator’s strategic choices during the initial contact can encourage the next steps that will produce a successful mediation, or render mediation less likely or less productive.

On Apology And Consilience, Erin Ann O'Hara, Douglas Yarn

Washington Law Review

This Article joins the current debate about the proper relationship between apology and the law. Several states are considering legislation designed to shield apologies from the courtroom, and mediators are increasing their focus on the importance of apologies. The article develops an evolutionary economic analysis of apology that combines the tools of economics, game theory, and biology to more fully understand its role in dispute resolution. When the analysis is applied to the uses of apology before and at trial, a more sophisticated understanding of the relationship between apology and the law emerges.

Book Review: Bennett Explains Arbitration Fundamentals, Without The Legalese, Amy J. Schmitz

Faculty Publications

At the outset of the book, Steven Bennett expresses "fervent hope that this book will be of use to lawyers, law students and business people interested in learning the fundamentals of arbitration law." The book therefore focuses on fundamental, or basic, arbitration concepts and norms. It does not purport to provide in-depth discussion and analysis of arbitration law, but instead serves as a shelf reference or primer that promises to achieve Bennett's goal.

If Portia Were A Mediator: An Inquiry Into Justice In Mediation, Jonathan M. Hyman, Lela P. Love

Articles

No abstract provided.

Re Canada Post Corp And Cupw, Innis Christie

Innis Christie Collection

Union grievance filed March 7, 2002 on behalf of all affected employees alleging breach of the Collective Agreement between the parties bearing the expiry date January 31, 2003, in that the Employer violated Articles 2, 11, 13, 15, 17 and all other related provisions of the Collective Agreement by placing full-time supervisor, David Waller, into a full-time letter carrier position/assignment at the Dartmouth Delivery Centre. The Union seeks an order that the Employer remove David Waller from the full-time letter carrier position/assignment and grant full redress to all affected employees under either Article 39.01 or Article 17.04.

Re Canada Post Corp And Cupw (Gillingham), Innis Christie

Innis Christie Collection

The Union claims that the Employer has an obligation to notify employees at least an hour in advance of work shift overtime being extended longer than initially expected. The Employer submits that this has never been the practice, that it is contrary to the Agreement, and that it would be impractical.

The grievance fails. Application of the article in question as the Union seeks to have it interpreted is clearly not what the parties intended. Indeed, it would be unworkable where the original work shift extension overtime is only for one hour, as it quite often is.

The Evolution And Utilization Of The Gatt/Wto Dispute Settlement Mechanism, Pao Li Chang

Research Collection School Of Economics

This paper attempts to study the usage of the GATT/WTO dispute settlement mechanism and to explain its patterns across different regimes and decades, using a unified theoretical model. This study first explores the role of the degree of legal controversy over a panel ruling in determining countries’ incentives to block/appeal a panel report under the GATT/WTO regime. The model is able to explain the surge in blocking incidence during the 1980s over the preceding GATT years and the immense frequency at which the new appellate procedure under the WTO is invoked. Furthermore, a two-sided asymmetric information framework is used to …

The First International Competition For Online Dispute Resolution: Is This Big, Different And New?, Benjamin G. Davis, Franklin G. Snyder, Kay Elkins Elliott, Peter B. Manzo, Alan Gaitenby, David Allen Larson

Faculty Scholarship

In February of 2002, the International Competition for Online Dispute Resolution (ICODR) was held to address the issue of new uses of technology is dispute resolution. This article describes the competition with individual presentations from the perspectives of a problem drafter, a coach, a participant, the evaluators, and an organizer. In the conclusion, the author presents some observations on why this International Competition for Online Dispute Resolution is big, different, and new.

Re Canada Post Corp And Cupw (Fitzhenry), Innis Christie

Innis Christie Collection

The Union brings this arbitration on behalf of six employees who were denied special leave with pay in the context of a severe winter storm in the St. John's area. The Union seeks lost rights, earnings, and benefits. The Employer's position is that it acted reasonably in denying special leave, because it was unsafe for the employees to leave before the end of their shift, and by the end of the shift, the storm had abated, so that at that time they would have had no difficulty getting home safely.

Consumer And Employment Arbitration Law In Comparative Perspective: The Importance Of The Civil Jury, Stephen J. Ware

University of Miami Law Review

No abstract provided.

Ethics Issues In Arbitration And Related Dispute Resolution Processes: What's Happening And What's Not, Carrie Menkel-Meadow

University of Miami Law Review

No abstract provided.