Dispute Resolution and Arbitration Commons^™

Checks On Participant Conduct In Compulsory Adr: Reconciling The Tension In The Need For Good-Faith Participation, Autonomy, And Confidentiality, Maureen A. Weston

Indiana Law Journal

No abstract provided.

Call For Intellectual Honesty: A Response To The Uniform Mediation Act's Privilege Against Disclosure, A, J. Brad Reich

Journal of Dispute Resolution

I will discuss and respond to three potential concerns of creating confidentiality through contractual provision. First, contract provisions are not binding on persons not parties to the contract. As a purely legal principle this is undoubtedly correct, but I will argue that while contract provisions cannot specifically bind non-parties, they can decrease the risk of disclosure of mediation communications to and by non-parties. Second, while it is true that contractual provisions may be voided as violative of public policy, I will argue that courts have generally upheld contractual confidentiality provisions and only voided them when the need for confidentiality was …

Stop The Stay: Interrupting Bankruptcy To Conduct Arbitration - Slipped Disc, Inc. V. Cd Warehouse, Inc., Matthew Dameron

Journal of Dispute Resolution

Since its inception, arbitration has affected other practice areas of the law differently. Some practice areas, such as bankruptcy, have created special exceptions to accommodate the growth of arbitration. Arbitration's effect on the automatic stay in bankruptcy is explored in the following Note.

What's Law Got To Do With It: Mapping Modern Mediation Movements In Civil And Common Law Jurisdictions, Nadja Alexander

Research Collection Yong Pung How School Of Law

Context defines mediation and has a direct impact on how it is practised. National legal contexts reveal historically embedded systemic differences that can provide insights into the reasons behind the rapid expansion of mediation in common law jurisdictions, and the comparatively hesitant development of mediation in civil law jurisdictions. In this article I consider the legal and political forces behind the modern mediation movements in Australia and Germany: two countries that represent the common law and the civil law traditions respectively.

Science-Policy Disputes: Resolution Through Data Mediation, Erik S. Knutsen

Journal of Dispute Resolution

It is the aim of this article to propose a novel system of dispute resolution for disputes which turn on interpretations of complex but uncertain scientific evidence. Part II identifies a specific subset of legal disputes that can only be resolved through policy judgments from ambiguous scientific data. Recognizing the underlying commonalities of these science-policy disputes offers an opportunity to craft a single dispute resolution mechanism which may be utilized for a wide variety of disputes. Part III outlines the benefits of using a mediation-based dispute settlement mechanism, as opposed to the traditional adversary-style litigation system, for these specific types …

Uniform Arbitration Act: Introduction, The, Timothy J. Heinsz

Journal of Dispute Resolution

The Uniform Arbitration Act (UAA) is one of the most successful laws promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL). Originally passed by NCCUSL in 1955, the UAA has served as the bases of arbitration statutes in some forty-eight jurisdictions. As more parties have incorporated arbitration clauses into contractual relationships, the importance of the UAA and its federal counterpart, the Federal Arbitration Act (FAA), have correspondingly increased. Supreme Court precedent at both federal and state levels abrogating the common law hostility against arbitration and replacing this attitude with and avowedly pro-arbitration doctrine has enhanced the arbitration …

Mediation And Domestic Violence: A Practical Screening Method For Mediators And Mediation Program Administrators, Alexandria Zylstra

Journal of Dispute Resolution

Presented with such a dearth of standard practices and literature, family mediators have little guidance in whether and how to address cases involving domestic violence. Thus, this article sets forth a mediation screening framework that mediators and mediation program administrators can use to evaluate whether cases are appropriate for regular mediation (joint session without special safety measures), some modified form of mediation, or should be excluded from mediation. Such a method will better ensure a safe and fair mediation experience. Part II briefly examines the controversy surrounding the mediation of cases involving domestic violence, concluding that the arguments against mediating …

Arbitral Discovery Of Non-Parties, Jason F. Darnall, Richard Bales

Journal of Dispute Resolution

This article argues that the broad power approach is the better reasoned of the two. Timely discovery of important information is vital in any dispute. Further, fair results should be the goal of any dispute resolution process. The possessor of the pertinent information, i.e., whether it is held by parties or non-parties, should be irrelevant. Part II of this article describes the differences between discovery in litigation and discovery in arbitration. Part III examines the limited power approach to prehearing discovery, which restricts the power of an arbitrator to compel non-party participation in discovery to the actual hearing. Part IV …

Hold All Arbitrations: Public Policy Invalidations Are On The Loose - Town Of Groton V. United Steelworkers Of America, Christina S. Lewis

Journal of Dispute Resolution

The United States Supreme Court has held that arbitration awards derived from collective bargaining agreements may be invalidated based on public policy. However, an arbitration award should only be invalidated if the public policy is explicit, well-defined, and dominant.' This article will examine how the Connecticut Supreme Court applied the public policy test and whether the court adequately justified its decision.

Supreme Court Defines Final Decisions Relating To Arbitration Decisions And Ducks The More Important Costs Issue - Green Tree Financial Corp. - Alabama V. Randolph, The, Franklin D. Romines Ii.

Journal of Dispute Resolution

The United States Supreme Court in Green Tree Financial Corp. - Alabama v. Randolph dealt with two arbitration issues of varying import. The less controversial issue involved defining the term 'final decision' in the context of arbitration proceedings.2 The second major issue in the case provided the Court an opportunity to analyze cost assignments in arbitration agreements that were silent on the issue.3 This issue has generated considerable policy disagreement among the circuits

Be Careful What You Say In Mediation - Indiana Supreme Court Rules That Oral Settlement Agreements Reached In Mediation Must Be In Writing To Be Enforceable - Kirk E. And Martha Vernon V. Adam J. Acton, Garrett S. Taylor

Journal of Dispute Resolution

When parties use mediation as an alternative to litigation, they generally expect the agreement will be binding upon the parties and confidential. However, the parties must ensure that the agreement they reach is reduced to writing or the agreement may not be enforceable. Furthermore, certain things said during the mediation session may be admissible in future litigation proceedings. The Indiana Supreme Court, in Vernon v. Acton, held that until mediation agreements are reduced to writing and signed by the parties, they must be considered compromise settlement negotiations under the applicable evidence rules and are not admissible as evidence of an …

Recent Developments: The Uniform Arbitration Act, Brent A. Correll, S. Jacob Sappington, David Sims, Blake J. Tompkins

Journal of Dispute Resolution

Since 1983, this annual Article 2 has been prepared to provide a survey of recent developments in the case law interpreting and applying the various state versions of the Uniform Arbitration Act3. The purpose is to promote uniformity in the interpretation of the U.A.A. by developing and explaining the underlying principles and rationales courts have applied in recent cases.4

Re Queens County Residential Services Inc And Cupe, Loc 3373 (White), Innis Christie

Innis Christie Collection

Employee grievance dated February 15, 1999, alleging breach of Article 18.01 of the Collective Agreement between the Employer and the Union effective October 1, 1998 - March 31, 2002, in that the Employer did not credit the Grievor with service, and conse­quently vacation entitlement, during periods she was on maternity and parental leaves. The Union requested an order that the Grievor be credited with full service and vacation entitlement retroactively to her date of hire, June 5, 1990.

Should The Law Ignore Commercial Norms? A Comment On The Bernstein Conjuncture And Its Relevance For Contract Law Theory And Reform, Jason Scott Johnston

Michigan Law Review

Professor Bernstein's study of the interaction between private law and norms in the cotton industry is the latest installment in her ongoing investigation into the relationship between law and norms in trades ranging from the diamond market to grain and feed markets. Her incredibly detailed and thorough exploration of private lawmaking and commercial norms - and their interaction - stands as one of the most significant contributions to contract and commercial law scholarship made in the last half-century. The cotton industry study upon which I focus in this Comment not only reports fascinating findings about dispute resolution practices, but also …

Private Commercial Law In The Cotton Industry: Creating Cooperation Through Rules, Norms, And Institutions, Lisa Bernstein

Michigan Law Review

The cotton industry has almost entirely opted out of the public legal system, replacing it with one of the oldest and most complex systems of private commercial law. Most contracts for the purchase andsale of domestic cotton, between merchants or between merchants andmills, are neither consummated under the Uniform Commercial Code("Code") nor interpreted and enforced in court when disputes arise. Rather, most such contracts are concluded under one of several privately drafted sets of contract default rules and are subject to arbitration in one of several merchant tribunals. Similarly, most international sales of cotton are governed neither by state-supplied legal …

Re Canada Post Corp And Cupw (105-95-00468), Innis Christie

Innis Christie Collection

The Union claims that in the Employer's measurement of two "buddy" routes, values are missing. In response to the grievance, the Employer promised to add in the missing values, but the Union submits that no such adjustments have been made to the routes in issue, nor to others brought up with the Route Measurement Officers.

The Arbitrator awards that terms agreed upon by the parties shall be met, namely, that the Superintendent of Route Measurement shall re-run the data on three disputed routes. If any of the routes "busts" the Employer will make retroactive adjustments. If any route does not …

Re Canada Post Corp And Cupw (105-95-00491), Innis Christie

Innis Christie Collection

The Union claims that the Employer has breached the Agreement by failing to complete forms to reflect waiting times for two motorized routes. In response to an internal grievance, the Employer stated that the Union was mistaken; that time was allotted for waiting.

The grievance fails. While it may be logical that waiting time should be structured into these routes since it is the norm, the clear words of the Carrier Route Measurement Manual indicate that there is no waiting time on relays, and the Arbitrator cannot override the manual. The Employer's response to the Union was certainly in error, …

A Question Of Neutrality: Divorce Mediation Literature, The Role Of The Mediator, And Perspectives On Bias, Cory Michael Mathews

Dissertations and Theses

Research on mediation processes have addressed the role of the mediator, but often obliquely. In divorce mediation, the literature has sketched various approaches to the role, which diverge from each other in some significant ways. What is lacking is an integrated picture as to how these approaches to the field differ on key questions in the practice of divorce mediation.

This thesis is a preliminary attempt at such an integrated sketch, focusing on the question of whether or not the mediator is truly neutral in the process. Two major schools of thought of emerge from the literature, here referred to …

Re District Health Authority #8 And Nsnu, Innis Christie

Innis Christie Collection

Union grievance dated June 27, 2000, alleging breach of Article 9.02(d) of the Collective Agreement between the Employer and the Union effective November 1, 1997 - October 31, 2000, in that after employees go on extended sick leave the Employer continues to reduce the sick leave credits in their sick leave banks by 100 per cent instead of 75 per cent for each hour they would otherwise have worked. The Union requested an order that sick leave credits reduced contrary to the Collective Agreement be restored to each employee's sick leave bank.

The End Of The Affair? Anti-Dueling Laws And Social Norms In Antebellum America, C.A. Harwell Wells

Vanderbilt Law Review

Jonathan Cilley and William Graves fought their duel in the early afternoon of February 23, 1838. The two faced off near the Anacostia River bridge leading out of Washington, D.C., having agreed in advance to duel with rifles at a distance of eighty paces. Shortly before three o'clock, they stood opposite one another, and at the signal, they exchanged shots, Cilley firing first. Both men missed. The men who accompanied them to the duel-their seconds-tried to work out the disagreement that led the men to the dueling-ground, but to no avail. For a second time, both stood and exchanged fire; …

The Best Laid Plans: How Unrestrained Arbitration Decisions Have Corrupted The Uniform Domain Name Dispute Resolution Policy, Ian L. Stewart

Federal Communications Law Journal

In the rapidly changing Internet age, a sound dispute resolution policy is needed to address conflict where traditional rights intersect emerging technologies. This Note examines how unfettered arbitration decisions, even those made with the best of intentions, can corrupt a good dispute resolution policy, as is the case with the Uniform Domain Name Dispute Resolution Policy. The Note provides background information on ICANN, domain disputes regarding cybersquatting and reverse domain hijacking, and the Policy. It then explains how ICANN’s dispute resolution providers’ expansive decisions have weakened the Policy by removing the internal limitations that made it strong and effective. Finally, …

Re Nav Canada And Catca (Barnes), Innis Christie

Innis Christie Collection

Union grievance on behalf of the Grievor alleging breach of the Collective Agreement between NAV Canada and the Canadian Air Traffic Control Association, signed September, 1999, effective to March 31, 2001, which the parties agreed is the Collective Agreement that governs this matter, and in particular of Article 13, in that the Employer suspended the Grievor for one day without just cause.

When People Are The Means: Negotiating With Respect, Jonathan R. Cohen

UF Law Faculty Publications

Most scholarship on negotiation ethics has focused on the topics of deception and disclosure. In this Article, I argue for considering a related, but distinct, ethical domain within negotiation ethics. That domain is the ethics of orientation. In contrast to most forms of human interaction, a clear purpose of negotiation is to get the other party to take an action on one's behalf, or at least to explore that possibility. This gives rise to a core ethical tension in negotiation that I call the object-subject tension: how does one reconcile the fact that the other party is a potential means …

From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this article I will outline the development of modern mediation in Sri Lanka. I use the term mediation to mean facilitative mediation. Accordingly, for the purposes of this article, mediation does not include processes such as conciliation or evaluative mediation, which are used in Sri Lanka, for example in industrial dispute resolution practice.

From Communities To Corporations: The Growth Of Mediation In Sri Lanka, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this article I will outline the development of modern mediation in Sri Lanka. I use the term mediation to mean facilitative mediation. Accordingly, for the purposes of this article, mediation does not include processes such as conciliation or evaluative mediation, which are used in Sri Lanka, for example in industrial dispute resolution practice.

Re Izaak Walton Killam Grace Health Centre For Children, Women And Families And Nsnu, Innis Christie

Innis Christie Collection

Union grievance dated November 19, 1999, alleging breach of Articles 3, 4 and 8 of the Collective Agreement between the Employer and the Union effective November 1, 1997-October 31, 2000, in that the Employer failed to adjust the wages of Clinical Leaders at the site of the former IWK Hospital to the level of those of Clinical Resource Nurses at the site of the former Grace Maternity Hospital. The Union requested an order that the Clinical Leaders at the IWK site be paid retroactively from November 1, 1997 to August 31, 1998 at the level of the rates paid during …

Re Canada Post Corp And Cupw (078-00-00032), Innis Christie

Innis Christie Collection

This is a policy grievance to determine whether the Employer may use temporary employees to cover extra absences on annual vacation that result from senior employees taking more than four consecutive weeks of vacation. The parties are agreed on the facts, and there is no extrinsic evidence to consider; the Arbitrator is asked to interpret the words of the Agreement and give effect to the intention of the parties.

The grievance fails. The Employer's interpretation is not inconsistent with other articles of the Agreement.

Re Canada Post Corp And Cupw (078-00-00025), Innis Christie

Innis Christie Collection

The Grievor requested six days of leave to take care of her mother following surgery. Her supervisor assured her that there would be no difficulty obtaining those days, and encouraged her to apply for them after taking the time off, in case she should need to apply for more than the expected 6 days. When she returned to work and made the application, 5 of the days she requested were denied, on the grounds that the one day she was awarded and the two days of the weekend should have given her adequate time to find alternate care for her …

Re Canada Post Corp And Cupw (105-95-00438), Innis Christie

Innis Christie Collection

The Union claims that in measuring routes in which the carrier stops the truck and walks in a loop up one side of the street and down the other, the Employer has missed distances on 56 or 57 routes. The Employer's position is that while the system in place does appear to under compensate in the case of loops, the values used in measuring routes are agreed values, and must be accepted.

The grievance fails. The Employer is measuring routes in the manner agreed upon, using accepted values. Whether those values may be appropriate is not a matter for the …

Re Canada Post Corp And Cupw (105-95-00435), Innis Christie

Innis Christie Collection

The Union alleges that the Employer has breached the Agreement by failing to assign sortation values for sorting the "buddy's" parcels for all MMC routes in the city of Saint John. The Employer acknowledged that wrong values had been entered, as a result of clerical error, and undertook to make necessary corrections. It also stated that, as agreed upon with the Union, it had made time corrections to some routes to provide for equalization, though this had not been carried out for all routes.

The grievance succeeds in part. The Employer is directed to comply with its understanding with the …