Dispute Resolution and Arbitration Commons^™

Punitive Damages: How Jurors Fail To Promote Efficiency, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Evidence of corporate risk-cost balancing often leads to inefficient punitive damages awards, suggesting that jurors fail to base their decision making on principles of economic efficiency. In this Article, Professor Viscusi presents the results of two experiments regarding jury behavior and punitive damages. In the first experiment, Professor Viscusi found that mock jurors punish companies for balancing risk against cost, although award levels vary depending on how the economic analysis is presented at trial. The results of the second experiment suggested that mock jurors are unwilling or unable to follow a set of model jury instructions designed to generate efficient …

Procedural Justice Research And The Paucity Of Trials, Chris Guthrie

Vanderbilt Law School Faculty Publications

Professor Deborah Hensler tells an important cautionary tale about mandatory mediation in her thoughtful and provocative contribution to this volume. In Suppose It's Not True: Challenging Mediation Ideology, Hensler observes that courts are now requiring litigants to mediate civil cases "on the grounds that litigants prefer [mediation] to traditional litigation," yet there is "a long line of social psychological research on individuals' evaluations of different dispute resolution procedures" consistent with the "idea that litigants might prefer adversarial litigation and adjudication" to mediation.' Hensler acknowledges that "some experimental research has found that subjects prefer mediation," but she argues that "the empirical …

Perceptions About The Wto Trade Institutions, John H. Jackson

Georgetown Law Faculty Publications and Other Works

This article, based on a lecture given at the inauguration ceremony for the new Advisory Centre on WTO Law, describes the broader world trading landscape into which this new Centre emerges. Taking into account the possible implications of the events on September 11, this article provides a brief analysis of the current trade policy climate, asserting the necessity of institutions for the successful functioning of markets. After a short institutional history of the GATT/WTO, the author describes the importance of institutional rules, treaty text, and practice for the success of the WTO and presents the current debate over what the …

Zoning, Taking, And Dealing: The Problems And Promise Of Bargaining In Land Use Planning, Erin Ryan

Faculty Publications

No abstract provided.

Can Saints Negotiate? A Brief Introduction To The Problems Of Perfect Ethics In Bargaining, Scott R. Peppet

Publications

No abstract provided.

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

Faculty Scholarship

In this Article, I develop a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, I propose integrated mechanisms for making those norms both binding and enforceable. In making these proposals, I reject the classical conception of legal ethics as a purely deontological product derived from first principles. I argue, instead, that ethics derive from the interrelational 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, I will demonstrate, not only …

The Duckwater Shoshone Drug Court, 1997-2000: Melding Traditional Dispute Resolution With Due Process, Ronald Eagleye Johnny

American Indian Law Review

No abstract provided.

Introduction: What Adr Means Today, Theodore J. St. Antoine

Other Publications

The sort of cachet a Hollywood screenplay once ascribed to "plastics" seems today to have adhered to "ADR." ADR stands, of course, for alternative dispute resolution. It refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without invoking the decision-making power of the state. And for many people, ADR has become the byword for a much-needed panacea for an overly litigious society. This book is designed to get behind the mystique of ADR, to show how it really works, and to enhance the skills of anyone interested in exploiting its …

When Litigation Is Not The Only Way: Consensus Building And Mediation As Public Interest Lawyering, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

British social philosopher Stuart Hampshire recently articulated the fundamental and foundational principles of the modem conflict resolution movement (and I do call it a movement). He asserted that, "there will always be a plurality of different and incompatible conceptions of the good and there cannot be a single comprehensive and consistent theory of human virtue. Correspondingly, "our political enmities in the city or state will never come to an end while we have diverse life stories and diverse imaginations.'' Hampshire, a socially progressive, socialist philosopher hoped to articulate universal conceptions of the good. In his lifetime of reflection on this …

Securities Regulation As Lobster Trap: A Credible Commitment Theory Of Mandatory Disclosure, Edward Rock

Cardozo Law Review

What functions does the existing mandatory disclosure system serve? In this Article, I argue that the existing SEC system can be understood as providing issuers with a mechanism for making a credible commitment to high quality, comprehensive disclosure for an indefinite period into the future. This credible commitment device is particularly useful to new domestic issuers and to foreign issuers seeking to tap the U.S. capital markets. This credible commitment justification explains the striking but little discussed practical and formal asymmetry between the ease of entry into the SEC system and the difficulty of exit from it. I then consider …

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

Faculty Scholarship

No abstract provided.

Separability And Competence-Competence In International Arbitration: Ex Nihilo Nihil Fit? Can Something Indeed Come From Nothing?, Robert H. Smit

Faculty Scholarship

The doctrine of separability provides that an arbitration clause is “separable” from the contract containing it and thus may survive a successful challenge to the validity of the contract. The doctrine of competence-competence provides that arbitrators have jurisdiction to decide challenges to the arbitration agreements upon which their own jurisdiction is based. These two doctrines have appropriately been called the conceptual cornerstones of international arbitration as an autonomous and effective form of international dispute resolution. The doctrines, taken together, ensure that the parties’ intent to arbitrate any disputes that arise out of their international contractual relationship is effectuated without undue …

Twenty-Five Years Later With Promises To Keep: Legal Education In Dispute Resolution And Training Of Mediators, Lela P. Love

Articles

No abstract provided.

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

Faculty Scholarship

Professor Deborah Hensler suggests in the lead article of this Symposium issue that the courts' embrace of facilitative, interest-based mediation may have been ill-conceived. She argues that there is insufficient evidence to conclude that litigants are more satisfied with mediation than with adjudicative alternatives such as arbitration and trial. She also urges that there is sufficient evidence to show that litigants prefer processes that vest decision control in third parties. Both of these assertions are subject to challenge,' but this Comment will focus upon the significance of giving decision control to the disputants in consensual processes.

Using available research, this …

Income Tax Treaty Arbitration, William W. Park

Faculty Scholarship

Notwithstanding similar fiscal objectives, countries that conclude income tax treaties often arrive at radically different results when treaty language is applied to a practical problem. The task of resolving disagreement on treaty interpretation falls either to national courts or to joint efforts by the tax administrations to work out differences on a voluntary basis. Neither alternative is satisfactory. Judicial proceedings lack political neutrality and yield inconsistent results. And the process for "mutual agreement" among competent fiscal authorities is fraught with delays and uncertainty.

International Legal Developments In Review: 2001, Roger P. Alford

Journal Articles

Contents

• Editor's Preface
• Introduction

Mediating Ethically: The Limits Of Codes Of Conduct And The Potential Of A Reflective Practice Model, Julie Macfarlane

Osgoode Hall Law Journal

Discussions regarding the appropriate ethical behaviours for mediators and the subsequent development of formal codes of conduct have focused on hallmark issues such as third party impartiality and party self-determination. However, in an informal process, ethical choices are inherent in every intervention made by a mediator. In adopting the standard-setting approach of an adjudicative model, mediator codes of conduct are a poor fit with the conceptual and structural characteristics of this fluid, uncertain, and essentially private process. Confining the substantive and conceptual debate over mediation ethics to formal codes dangerously underestimates both the scope and the significance of choices faced …

Re Canada Post Corp And Cpaa (Macmillan), Innis Christie

Innis Christie Collection

Employee grievance alleging breach of the Collective Agreement between the parties signed June 29, 1999 and bearing the expiry date December 31, 2001, which the parties agreed applies here, and in particular of Article 6, in that the Grievor was discharged without just reasonable and sufficient cause. On behalf of the Grievor, the Union requested an order that the Grievor be reinstated on sick leave with any long-term disability benefits to which he was entitled effec­tive the day of his discharge but with no pay and no order that he return to work other than in a supervised environment.

Re Pepsi Bottling Group And Caw-Canada, Loc 1015 (Williams), Innis Christie

Innis Christie Collection

Employee grievance dated September 27, 2000, alleging breach of Article 16 and all other relevant Articles of the Collective Agreement between the Employer and the predecessor Union, the United Steelworkers of America, Local 1015, signed April 23, 1999, which the parties agreed is the Collective Agreement for purposes of this matter, in that the Grievor's claim for short-term disability payments was disallowed by Maritime Life Assurance Company, the administrator/insurer of the Employer's "Flex" (or "Flexible") Benefits Plan.

Engaging Communication In Conflict : Systemic Practice By Stephen W Littlejohn And Kathy Domenici, Sage Publications, 2000., Ganesh T Jejurikar

IIMB Management Review

The book is well structured and flows smoothly from Part I to Part IV spread over eight chapters. It contains theory, conceptualisation, metaphors, methodology and live examples without jargon and motherhood statements. The beauty of the book is in its simplicity and brevity. The authors opine that “conflicts can be made and abandoned, occupied for a time and reshaped, renewed, refurbished andrebuilt.” Though the authors comment in the preface that, “Human beings have trouble managing the very difference that makes them human,” the book is full of optimism and conveys confidence and trust in the inherent strength of human beings …

From Common Law To Civil Law Jurisdictions: Court Adr On The Move In Germany, Nadja Alexander

Research Collection Yong Pung How School Of Law

In Australia today, ADR processes are recognised not only as a distinct system of dispute resolution, but also as a system that interacts interdependently with the legal system. This is most clearly demonstrated in the context of court-related mediation, which is increasingly seen as an effective way to increase access to, participation in, and satisfaction with the way legal disputes are resolved. Cappelletti categorises ADR as the third wave in the worldwide access-to-justice movement. ADR provides a different approach and a different sort of justice for solving disputes — what Cappelletti labels ‘co-existential justice’.

Re Rk Macdonald Nursing Home Corp And Caw, Local 2107, Innis Christie

Innis Christie Collection

The four Grievors were in receipt of Long Term Disability (LTD) benefits and also in receipt of Supplementary Health Expense Benefits under their Maritime Life Policy. The Grievors were terminated for innocent absenteeism. The LTD payments continued, but the supplementary benefits stopped because they were no longer employees.

Re Annapolis Valley Regional School Board And Nstu, Innis Christie

Innis Christie Collection

The Employer failed to place the Grievor on "leave for injury on duty" with full salary after she became ill, allegedly as a result of workplace conditions which aggravated her asthma. The Union requests the Grievor be paid her full salary and benefits for the sick leave period and that all sick leave, used by her for this purpose, be restored. The issues are whether the Grievor's asthma and/or its aggravation was an "injury in the performance of her duties" and , if so, whether that injury prevented the Grievor from working. The Employer agrees the Grievor was ill, but …

Foskett V. Mckeown – Hard-Nosed Property Rights Or Unjust Enrichment?, Hang Wu Tang

Research Collection Yong Pung How School Of Law

The recent judgment of the House of Lords in Foskett is extremely important as it straddles insurance law, property law, tracing and unjust enrichment. First, it establishes the proposition that it is possible to trace misappropriated moneys wrongfully paid as premiums into the proceeds of a policy. Second, two of the Law Lords contemplated the abolition of the distinction between the rules for tracing in law and tracing in equity. Third, the judgments of the Law Lords contain valuable guidance as to the context in which equitable ownership and the law of unjust enrichment should be viewed.

Book Review: The Handbook Of Conflict Resolution: Theory And Practice, Nadja Alexander

Research Collection Yong Pung How School Of Law

No abstract provided.

Class Actions As Alternative Dispute Resolution, John C. Kleefeld

Osgoode Hall Law Journal

This article situates the action in ADR theory by viewing it as a hybrid process that draws on both the command and consensus portions of a rational dispute resolution continuum. Class action legislation does this in a number of ways, the most important being the scope it gives to courts to approve or disapprove class settlements that have been privately negotiated by defence and class counsel. The rationale is to protect the interests of absent class members and ensure that the legislative goals of class actions-access to justice, judicial economy and behaviour modification-are well served. Class actions can thereby render …

Re Canada Post Corp And Cupw (105-95-00518), Innis Christie

Innis Christie Collection

There are six grievances. The Union alleges that the Employer breached the Collective Agreement by the assignment of duties without following the program of work established locally, changed some duties without meaningful consultation and did not ensure that employees assigned to coding duties were not required to code for entire shifts. The Union also requested that employees who had been improperly assigned be compensated.

The grievance fails. The Employer did not have temporary employees trained to code. This reduced the scheduling options. The lack of consultation was considered insignificant.

Re Canada Post Corp And Cupw (106-00-00003), Innis Christie

Innis Christie Collection

This is an award respecting preliminary objections raised by the Employer on matters of timeliness and an assertion that the Arbitrator had already dealt with this matter in two other decisions.

The grievance fails. The Employer's right to object on the basis of timeliness is waived because the Employer dealt with the grievance on its merits, and did not otherwise indicate an objection on timeliness until the eve of the hearing. The Employer's objection based on previous judgement is rejected because the matter in question is one of retained jurisdiction.

Re Canada Post Corp And Cupw, Innis Christie

Innis Christie Collection

The Union contends that the Employer breached the Agreement by depriving employees of a rest day off (RDO), and changing work schedules without the meaningful consultation required by the Agreement. Further, the Union states that the scheduling changes carried out should have fallen under provisions for bidding. The Union asks that the employees affected by compensated by payment of double time for the day in question. The Employer position is that in changing the schedule it had acted within its rights and in accordance with the Agreement, and that it had attempted to conduct meaningful consultations with the Union, and …

Re Canada Post Corp And Cupw (096-00-00172), Innis Christie

Innis Christie Collection

Union grievances dated September 11, November 21 and December 12, 2000 on behalf of all employees at Letter Carrier Depots # 1 and #2 in Halifax and the Dartmouth Delivery Centre alleging breach of the Collective Agreement between the parties bearing the expiry date January 31, 2000, in that the Employer violated Appendix D in that it failed to compensate letter carriers appropriately for delivering householder mail that had inserts which were not an integral part of the mailing piece.