Open Access. Powered by Scholars. Published by Universities.®

Dispute Resolution and Arbitration Commons™

Open Access. Powered by Scholars. Published by Universities.®

Discipline
Institution
Keyword
Publication Year
Publication
Publication Type
File Type

Articles 6091 - 6120 of 7742

Full-Text Articles in Dispute Resolution and Arbitration

Fit And Functional In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers Jan 2002

Fit And Functional In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers

Michigan Journal of International Law

In this Article, the author develops a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, integrated mechanisms for making those norms both binding and enforceable are proposed. In making these proposals, the author rejects the classical conception of legal ethics as a purely deontological product derived from first principles. This Article argues, instead, that ethics derive from the inter-relational functional role of advocates in an adjudicatory system, and that ethical regulation must correlate with the structural operations of the system. The fit between ethics and function, the author …

Go to article

Table Of Contents - Issue 2 Jan 2002

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Go to article

Mediating Preferences: Litigant Preferences For Process And Judicial Preferences For Settlement, Judith Resnik Jan 2002

Mediating Preferences: Litigant Preferences For Process And Judicial Preferences For Settlement, Judith Resnik

Journal of Dispute Resolution

In the 1980s, as a consultant to RAND's Institute for Civil Justice, I joined Deborah Hensler, Allan Lind, Robert MacCoun, William Felstiner, Tom Tyler, and Patricia Ebener in seeking to learn how litigants viewed their experiences with courtbased processes. We surveyed litigants whose cases had been resolved through trials, court-annexed arbitrations, judge-run settlement conferences, and bi-lateral negotiations between lawyers.' We found that litigants cared about process: they reported less satisfaction with processes in which they took no part and more satisfaction with processes in which they could participate. Contrary to some lore that litigants were alienated by trial-like procedures, the …

Go to article

Should An Arbitration Provision Trump The Class Action? No: Permitting Companies To Skirt Class Actions Through Mandatory Arbitration Would Be Dangerous And Unwise, Jean R. Sternlight Jan 2002

Should An Arbitration Provision Trump The Class Action? No: Permitting Companies To Skirt Class Actions Through Mandatory Arbitration Would Be Dangerous And Unwise, Jean R. Sternlight

Scholarly Works

Companies are deliberately using mandatory arbitration to prevent consumers and employces from joining together in class actions. As Carroll Neesemann has explained, eliminating the class action is a "strong incentive" of those companies that impose the requirement of arbitration on consumers and employees. Mr. Neesemann defends this phenomenon, and his article offers companies and their attorneys some tips on how to effectively use arbitration to insulate themselves from the threat of class actions. By contrast, this essay argues that it is dangerous and unwise to permit companies to use mandatory arbitration to exempt themselves from class action suits.

Go to article

Is The U.S. Out On A Limb? Comparing The U.S. Approach To Mandatory Consumer And Employment Arbitration To That Of The Rest Of The World, Jean R. Sternlight Jan 2002

Is The U.S. Out On A Limb? Comparing The U.S. Approach To Mandatory Consumer And Employment Arbitration To That Of The Rest Of The World, Jean R. Sternlight

Scholarly Works

After quickly summarizing the landscape of mandatory arbitration both within and without the United States, this article will consider why mandatory arbitration is treated so disparately, whether it is problematic that approaches to mandatory arbitration are so varied among countries, and what the differing jurisdictions can and should learn from one another. The article concludes that the United States Congress should be very concerned with the fact that we are treating mandatory arbitration more permissively than other countries. I, along with many others, have previously presented many arguments for why mandatory arbitration is problematic. Our outlier status on this issue …

Go to article

"An Overwhelming Question" About Non-Formal Procedure, Thomas O. Main Jan 2002

"An Overwhelming Question" About Non-Formal Procedure, Thomas O. Main

Scholarly Works

No abstract provided.

Go to article

Icann's "Uniform Dispute Resolution Policy"- Causes And (Partial) Cures, A. Michael Froomkin Jan 2002

Icann's "Uniform Dispute Resolution Policy"- Causes And (Partial) Cures, A. Michael Froomkin

Articles

No abstract provided.

Go to article

Appellate Mediation In The Third Circuit - Program Operations: Nuts, Bolts, And Practice Tips, Joseph A. Torregrossa Jan 2002

Appellate Mediation In The Third Circuit - Program Operations: Nuts, Bolts, And Practice Tips, Joseph A. Torregrossa

Villanova Law Review (1956 - )

No abstract provided.

Go to article

The Lawyer As Consensus Builder: Ethics For A New Practice, Carrie Menkel-Meadow Jan 2002

The Lawyer As Consensus Builder: Ethics For A New Practice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this Article, I explore the roles of lawyers in alternative dispute resolution ("ADR"), including traditional roles in arbitration and "new" roles in mediation and facilitation. I also discuss how conventional ethics rules for lawyers fail to provide guidance and "best practices" for lawyers who serve in these new roles. State legislatures and professional associations, such as the American Arbitration Association ("AAA"), the Center for Public Resources Institute for Dispute Resolution ("CPR"), and the Association of Conflict Resolution, have adopted ethical codes for mediators and arbitrators. Select professional associations are also developing "best practice" guides for the provision of ADR …

Go to article

Knicks-Heat And The Appropriateness Of Sanctions In Sport, Robert L. Bard, Lewis Kurlantzic Jan 2002

Knicks-Heat And The Appropriateness Of Sanctions In Sport, Robert L. Bard, Lewis Kurlantzic

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Go to article

Development Of China’S Legal System Will Strengthen Its Mediation Programs, Deborah Chow Jan 2002

Development Of China’S Legal System Will Strengthen Its Mediation Programs, Deborah Chow

Cardozo Journal of Conflict Resolution

China’s mediation system would improve in overall fairness and effectiveness, if it developed a more just and predictable legal system. This system should be one in which its citizens and foreign businesses could confidently pursue enforcement of their rights under various Chinese laws, international norms, and international treaties. This paper will examine: (1) the roots of China’s mediation program, including discussions about the strong Confucian, Maoist, and legal influences; (2) China’s modern mediation systems; (3) weaknesses of the current mediation system; (4) the benefits for mediation through the development of China’s legal system; and (5) possible methods to aid the …

Go to article

A Uniform National System Of Mediation In The United States: Requiring National Training Standards And Guidelines For Mediators And State Mediation Programs, Brien Wassner Jan 2002

A Uniform National System Of Mediation In The United States: Requiring National Training Standards And Guidelines For Mediators And State Mediation Programs, Brien Wassner

Cardozo Journal of Conflict Resolution

The necessity for establishing a uniform system of mediation training for mediators in the United States is evidenced by the inconsistencies in both the training of mediators throughout the country and the roles assumed by mediators during mediation. The more formal conception of mediation can be traced back to the 1976 Pound Conference, however mediation in general is much older than twenty-six years, and has since continuously evolved. Moreover, the concept of mediation, as defined by statute, training, and thereafter, licensing, varies amongst the states as well. Mediation provides a viable alternative to the rigid state and federal judicial systems’ …

Go to article

Lawyers, Non-Lawyers And Mediation: Rethinking The Professional Monopoly From A Problem-Solving Perspective , Jacqueline Nolan-Haley Jan 2002

Lawyers, Non-Lawyers And Mediation: Rethinking The Professional Monopoly From A Problem-Solving Perspective , Jacqueline Nolan-Haley

Faculty Scholarship

Mediation is a big business today that is practiced by lawyers and non-lawyers, and is closely related to the business of law. Lawyers have a long-standing monopoly on the law business and do not look favorably on sharing their power with nonlawyers. This phenomenon is odd because it occurs at the same time that the legal profession is beginning to embrace a new ethic of problem-solving that honors the values of collaboration and power-sharing among professionals in multiple disciplines. Lawyers protect their professional monopoly through the unauthorized practice of law ("UPL") doctrine that limits the practice of law to licensed …

Go to article

Context And Institutional Structure In Attorney Regulation: Constructing An Enforcement Regime For International Arbitration, Catherine A. Rogers Jan 2002

Context And Institutional Structure In Attorney Regulation: Constructing An Enforcement Regime For International Arbitration, Catherine A. Rogers

Faculty Scholarship

The question that looms large over the future of international arbitration is: How much should states yield to the international arbitration system? This Article attempts to answer the question as it applies to the specific context of regulating attorney conduct.

Go to article

The Ballad Of Transborder Arbitration, Thomas E. Carbonneau Jan 2002

The Ballad Of Transborder Arbitration, Thomas E. Carbonneau

Faculty Scholarship

International commercial arbitration (ICA) is many things positive. Because business transactions cannot take place without a functional system of adjudication,ICA has enabled parties to engage in and pursue international commerce. As a result, it has had an enormous impact upon the international practice of law, the structuring of a de facto international legal system, and the development of a substantive world law of commerce. In a word, ICA has been a vital engine in the creation of a transborder rule of law. Furthering this design, the arbitral "method"has even been applied to the unruly political problems that attend international trade …

Go to article

Third Party Visitation Statutes: Society’S Changing Views About What Constitutes A Family Must Be Formally Recognized By Statute, Beth Sherman Jan 2002

Third Party Visitation Statutes: Society’S Changing Views About What Constitutes A Family Must Be Formally Recognized By Statute, Beth Sherman

Cardozo Journal of Conflict Resolution

This Note begins by introducing the strong historical support for a parent’s fundamental liberty interest, protected by the Fourteenth Amendment’s Due Process Clause, to control the upbringing of his or her own child. It also examines the limitations placed on that right. Section two illustrates the need to balance these two perspectives when analyzing the current debate over nonparental visitation statutes. Section three addresses how the case of Troxel v. Granville reached the United States Supreme Court and the implications of the Court’s decision. Section four focuses on New York State by considering its nonparental visitation statutes, the effect of …

Go to article

Title Page Jan 2002

Title Page

Journal of Dispute Resolution

No abstract provided.

Go to article

Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey Jan 2002

Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey

Journal of Dispute Resolution

The Emperor's New Clothes is a very modem tale about carving out market niches, about generating and feeding unreasonable desires, and about the power of conformity within emergent occupations and powerful professions.

Go to article

Ability Of Native American Tribes To Waive Their Tribal Sovereign Immunity In Clear And Unequivocal Contracts To Arbitrate - C&(And)L Enterprises, Inc. V. Citizen Band Potawatomie Tribe Of Oklahoma, The, Emily J. Huitsing Jan 2002

Ability Of Native American Tribes To Waive Their Tribal Sovereign Immunity In Clear And Unequivocal Contracts To Arbitrate - C&(And)L Enterprises, Inc. V. Citizen Band Potawatomie Tribe Of Oklahoma, The, Emily J. Huitsing

Journal of Dispute Resolution

Native American tribes enjoy immunity from suits on contracts made on or off a reservation.2 A tribe is subject to suit only if it has clearly waived its immunity or Congress has expressly authorized the suit.' Tribal immunity was given to the tribes on the principle that tribes are sovereigns or quasi sovereigns enjoying immunity from judicial attack absent their consent.4 The purpose of tribal sovereignty, according to the Supreme Court, is to promote tribal economic development and self-sufficiency.5 Though the Court has expressed its dissatisfaction with the doctrine in light of increased tribal economic self-sufficiency through successful business ventures, …

Go to article

No Out For The Federal Government: Enforcing Contractual Arbitration Clauses In Federal Government False Claims Actions - U. S. V. Bankers Ins. Co., Sarah A. Wight Jan 2002

No Out For The Federal Government: Enforcing Contractual Arbitration Clauses In Federal Government False Claims Actions - U. S. V. Bankers Ins. Co., Sarah A. Wight

Journal of Dispute Resolution

As a party to one-fourth of all civil litigation2 the federal government exerts a looming presence in American judicial proceedings. Thus, attempts by the government to elude obligations under arbitration agreements, if successful, would significantly impact the elite status that pre-dispute contractual arbitration clauses currently hold.' This casenote examines how the United States Court of Appeals for the Fourth Circuit recently addressed this issue in the context of a false claims action.

Go to article

Table Of Contents - Issue 1 Jan 2002

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Go to article

Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler Jan 2002

Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler

Journal of Dispute Resolution

Across the country, people who file lawsuits are being diverted from adjudication to mediation. Whereas once mediation was seen as the preferred means of resolving family disputes (especially those involving child custody), now it is mandated for a broad range of civil disputes. Whereas once citizens were called upon to volunteer as mediators in community justice centers outside the courts, now mediation is a line of business for lawyers whose customers are sent to them by the courts. Whereas once dispute resolution theorists called on courts to provide a variety of procedural choices for civil disputants, now courts order litigants …

Go to article

Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, The, Clark Freshman, Adele Hayes, Greg Feldman Jan 2002

Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, The, Clark Freshman, Adele Hayes, Greg Feldman

Journal of Dispute Resolution

This article explores two related questions: First, does mood7 shape how well lawyers succeed at negotiation?" Second, can lawyers succeed better at negotiation by understanding and managing the role of mood? We begin by exploring what scientific evidence we currently have about how mild changes in mood are associated with significant differences in success at negotiation. Ultimately, we argue that existing scientific evidence shows mood plays a far more complicated role than negotiators and negotiation scholars usually imagine, but that further research needs to address more carefully exactly how mood works and how it affects lawyers and legal negotiation. We …

Go to article

Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham Jan 2002

Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham

Journal of Dispute Resolution

In this commentary, I suggest that we can get a broader picture of the research agenda to address these policy issues by refining our notions of self-determination. In addition to self-determination over process and outcome in the individual case, we need to start examining who has control over design of the dispute system as a whole. First, this commentary addresses the difference between self-determination at the case level and self-determination in dispute system design and how these two separate dimensions of self-determination can help us distinguish among different uses of mediation and arbitration. Second, using this framework, I attempt to …

Go to article

Procedural Justice Research And The Paucity Of Trials, Chris Guthrie Jan 2002

Procedural Justice Research And The Paucity Of Trials, Chris Guthrie

Journal of Dispute Resolution

Likewise, I do not mean to criticize Hensler's contribution to this volume. Although she is a prominent procedural justice researcher herself, she is certainly not responsible for the inattention given to the questions I have identified, and her measured conclusions about what might be inferred from the existing research are certainly appropriate. Indeed, I take Hensler' s broader point to be that courts should not mandate mediation simply because they believe as a matter of faith that mediation is a "better" process than others." Rather, courts should base their decisions, to the extent possible, on empirical evidence about the relative …

Go to article

Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler Jan 2002

Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler

Journal of Dispute Resolution

In this article, we first use existing research evidence to contextualize more clearly the place of civil case mediation in the litigation process. When we understand civil mediation as part of adversarial litigation - rather than as distinct from it - we see the importance of comparing mediation and unassisted negotiation. Next, we discuss research and commentary on the barriers to negotiation and the ways in which mediation might help overcome them. This work provides a more pragmatic and empirically grounded perspective on the potential value of mediation than does "mediation ideology" and suggests a wide range of "hypotheses" to …

Go to article

Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips Jan 2002

Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips

Journal of Dispute Resolution

This experience stands in stark contrast to the thesis of Professor Deborah Hensler in her article, Suppose It's Not True: Challenging Mediation Ideology. Therein, Professor Hensler attempts to link social psychological research that she interprets as showing dissatisfaction with the use of mediation compared to adjudication, which, in turn, leads her to conclude that clients should prefer counsel who ordinarily can resolve cases successfully without the help of mediation.7 The fallacy of Professor Hensler's argument is evident in several respects. For one, she relies far too heavily on her own intuition and previous empirical research of marginal relevance, and on …

Go to article

Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh Jan 2002

Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh

Journal of Dispute Resolution

Such a uniform commitment to procedural justice might seem natural for the courts. However, the procedural due process jurisprudence indicates that the courts' appreciation of procedural justice is unlikely to translate easily to processes in which the disputants, not the courts, are deemed to exercise control over outcomes. Given the current state of procedural due process jurisprudence, courts may lack both the desire and the ability to demand procedural justice in third party processes that are classified as "consensual." Ironically then, disputants' decision control, which is meaningful to mediation advocates and the courts but a rather hollow promise for disputants, …

Go to article

Arbitration Agreements In Labor And Employment Contracts: Well Within The Reach Of The Faa - Circuit City Stores, Inc. V. Adams, Lisa M. Eaton Jan 2002

Arbitration Agreements In Labor And Employment Contracts: Well Within The Reach Of The Faa - Circuit City Stores, Inc. V. Adams, Lisa M. Eaton

Journal of Dispute Resolution

Despite a series of decisions where the Supreme Court has upheld the use of arbitration in the employment context, the Court has never clearly stated that arbitration agreements contained in employment contracts fall under the Federal Arbitration Act (FAA). This omission has led to a split in the Circuits as to the scope of the FAA coverage ad exemption provisions. The controversy centers on whether the FAA covers all employment contracts except those of employees who transport people or goods in interstate commerce or whether the FAA exempts all employment contracts.

Go to article

Practicing "In The Interests Of Justice" In The Twenty-First Century: Pursuing Peace As Justice, Carrie Menkel-Meadow Jan 2002

Practicing "In The Interests Of Justice" In The Twenty-First Century: Pursuing Peace As Justice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In these comments I suggest that in our current world, both international and domestic, practicing "in the interests of justice" includes-indeed, should give great priority to-the "peace-seeking" and "problem solving" aspects of lawyering. I continue to see this as counter-cultural to the more common practices of lawyers who are argumentative, persuasive and articulate debaters, who believe fervently and vigorously that seeking justice, on behalf of a client or cause, means advocating for and "winning" a legal claim. To the contrary, seeking peace for parties (and, indeed, nation-states) in conflict, searching for consensus solutions to seemingly intractable public policy and legal …

Go to article

First Prev Next Last