Dispute Resolution and Arbitration Commons^™

Book Reviews - Authors/Casebook Case Studies Prior Issue Index To Volumes 1990-2000

Journal of Dispute Resolution

No abstract provided.

The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie

Vanderbilt Law School Faculty Publications

Riskin's categorization of mediation has engendered much debate among academics and practitioners. Although most in the mediation community accept Riskin's positive assertion that mediation as currently practiced includes both facilitation and evaluation, a vocal group of purist critics rejects Riskin's pluralist view of mediation on normative grounds. These purist critics -- including such prominent mediator-scholars as Professors Kim Kovach, Lela Love," and Josh Stulberg -- argue that mediation is in fact, and should be, solely a facilitative process "designed to capture the parties' insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes." For …

Mediation In Practice: Common Law And Civil Law Perspectives Compared, Nadja Alexander

Research Collection Yong Pung How School Of Law

Australian mediation practice is thriving. Effective forms of mediation are practised in court-connected schemes, in the public sector, in the community justice sector and in the private business sector. Indeed, no industry is excluded from the application of mediation. In contrast, Hoffmann-Riem laments that despite many years of discussions about ADR (alternative dispute resolution) in Germany, mediation plays a marginal role only. Further, Labes states that 'ADR mechanisms are relatively obscure methods in Germany.' The comparison between Australia and Germany is particularly interesting because it considers both a common law and a civil law tradition. This essay will discuss the …

And Now A Word About Secular Humanism, Spirituality, And The Practice Of Justice And Conflict Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The papers presented in this Dialogue raise very important and moving questions about the relationship of spirituality, moral values, and religion to the practice of law generally, and the practice of conflict resolution specifically. In this Commentary, I want to focus on two related questions: First, where do our moral values, spirituality, and sense of communion or connection come from? And second, how do values derived from various sources of secular humanism inform our practices? For some of us, organized religion is not the primary source of our commitment to the "moral" values that inform our legal and conflict resolution …

Ethics In Adr: The Many "Cs" Of Professional Responsibility And Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I have been teaching both alternative dispute resolution ("ADR") and professional responsibility for a long time, and I will devote the majority of this essay to reporting on some of the enormous changes and developments in this field. However, I will begin with a mea culpa at a higher level of ethical consciousness than the rules that govern us, or are about to govern us, typically use. I have spent the last five years of my life writing ethical rules for ADR, and I am worried about the future of this field. There are many changes occurring in ADR, and …

A Well-Founded Fear Of Prosecution: Mediation And The Unauthorized Practice Of Law, David A. Hoffman, Natasha Affolder

All Faculty Publications

To many mediators, "UPL" is an acronym with an increasingly ominous ring. This growing concern about the unauthorized practice of law (UPL) arises from reports around the country of charges filed against mediators who are not lawyers. These prosecutions - or in some cases warnings - are primarily directed at divorce mediators as a result of their drafting of detailed marital settlement agreements. However, all mediators have a reason to be concerned, because of uncertainties about what constitutes UPL in the context of mediation. This article surveys the legal terrain of UPL, and argues that it's time for new, clear …

A Trade/Human Rights Linkage By The United States: Is Enforcing Human Rights By Use Of Trade Sanctions Effective?, Blaise Omondi Odhiambo

LLM Theses and Essays

Universally held basic human rights must remain separate from political rights. Such basic human rights are those that are so universal that all societies, systems, nations, and ideology could, and do espouse them. Conversely, political rights are those that are dependent upon compatibility with the system of government in place and arc therefore far less likely to gamer universal support. An effective multilateral enforcement mechanism can only succeed if there are universal agreement and acceptance of the protected rights. Accordingly, at the outset of such a mechanism, only basic human rights may be enforced through trade sanctions. Once such a …

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

Articles

A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

Articles

Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …

Mediation Of Probate Matters: Leaving A Valuable Legacy, Lela P. Love

Articles

No abstract provided.

All In The Family: Darwin And The Evolution Of Mediation, Nancy A. Welsh

Faculty Scholarship

Maybe I’ve been thinking about evolution more than is normal for the average lawyer. I have a 5-year-old son who is fascinated by every species of dinosaur. As a result, I read to my son nearly every night about the events and the evolving cast of creatures that populated the Triassic, Jurassic and Cretaceous periods. Since the Triassic period began 240 million years ago, this provides a real sense of perspective.

I wonder how Charles Darwin would use his theory of evolution to explain the many strange and wonderful variations of mediation that have flowered in the past decade. And …

Making Deals In Court-Connected Mediation: What's Justice Got To Do With It?, Nancy A. Welsh

Faculty Scholarship

When mediation was first introduced to the courts, the process was hailed as “alternative.” Mediation gave disputants the opportunity to discuss and resolve their dispute themselves; the role of the third party was to facilitate the disputants’ negotiations, not to dictate the outcome; and because the disputants were able to focus on their underlying interests in mediation, the process could result in creative, customized solutions. The picture of mediation is changing, however, as the process settles into its role as a tool for the resolution of personal injury, contract, and other nonfamily cases on the courts’ civil dockets. Attorneys dominate …

Why Courts Review Arbitral Awards, William W. Park

Faculty Scholarship

Judicial review of arbitral awards constitutes a form of risk management. In most countries courts may vacate decisions of perverse arbitrators who have ignored basic procedural fairness, as well as those of alleged arbitrators who have attempted to resolve matters never properly submitted to their jurisdiction. In some countries judges may also correct legal error or monitor an award's consistency with public policy.

Public scrutiny of arbitration is inevitable at the time of award recognition. Judges can hardly ignore the basic fairness of an arbitral proceeding when asked to give an award res judicata effect by seizing assets or staying …

The Newly Revised Cpr Rules For Non-Administered Arbitration Of International Disputes, Robert H. Smit

Faculty Scholarship

In August 2000, the Center for Public Resources Institute for Dispute Resolution (“CPR”) – one of the pre-eminent alternative dispute resolution organizations in the United States – announced revisions to its Rules for Non-Administered Arbitration of International Disputes (the “International Rules” or the “Rules”). CPR first promulgated its International Rules in April 1992 as an alternative – indeed, the only alternative currently available – to the international ad hoc arbitration rules issued in 1976 by the United Nations Commission on International Trade Law (the “UNCITRAL Rules”). According to the Chair of the CPR Committee that prepared the original CPR International …

Re Abt Building Products Canada Ltd. And Cep, Local 434, Innis Christie

Innis Christie Collection

This is a policy grievance to determine the work the Spare Boiler Operator may perform. The Employer stated that it intended to assign duties to the Spare Boiler Operator as it saw fit, in order to keep him employed. These duties were not related to steam and boiler operation; they were jobs properly performed by a labourer. It is the position of the Employer that it may assign whatever maintenance duties it wishes to those in the Maintenance Department, so long as no senior employee is displaced. The Union's position is that the function of the Spare Boiler Operator is …

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

Innis Christie Collection

The Employer called a temporary worker in to cover hours for a sick temporary letter carrier filling in the absence of the permanent carrier on that route, thus going "temp to temp". The Union claims that the Employer should have offered the overtime to a regular employee. It asks that the Employee who should have been offered extended hours or overtime be compensated. The Employer's position is that the relevant position is that of the permanent employee, not the temporary workers'.

Impeaching Lying Parties With Their Statements During Negotiation: Demysticizing The Public Policy Rationale Behind Evidence Rule 408 And The Mediation-Privilege Statutes, Lynne H. Rambo

Washington Law Review

Virtually all American jurisdictions have laws—either rules of evidence or mediation-privilege statutes or both—that exclude from evidence statements that parties make during negotiations and mediations. The legislatures (and sometimes courts) that have adopted these exclusionary rules have invoked a public policy rationale: that parties must be able to speak freely to settle disputes, and they will not speak freely if their statements during negotiation can later be admitted against them. This rationale is so widely revered that many courts have relied on it to prohibit the use of negotiation statements to impeach, even when the inconsistency of the negotiation statement …

Using Bargaining For Advantage In Law School Negotiation Courses, Chris Guthrie

Vanderbilt Law School Faculty Publications

Options, options, options ....The Negotiation literature-at least the "problem-solving" or "interestbased" or "principled" negotiation literature'repeats this mantra over and over and over. It seems self-evident that having lots of options is a good idea because more options means more to choose from. The more options there are to choose from, however, the more difficult choosing can be. Options, in short, may increase the likelihood that one will make an optimal decision, but they impose added "decision costs" on the decision maker. Law professors now face this happy dilemma when choosing materials for their Negotiation courses. Options abound-including the negotiation chapters …

Nova Scotia (Minister Of Education & Culture) V Nstu, Innis Christie

Innis Christie Collection

Supplementary award with respect to a Union grievance dated April 23, 1998, alleging breach Article 43.01 and Schedules D1, D2, D3 and D4 of the Collective Agreement between the Minister and the Union made February 3, 1998 for the term November 1, 1997-October 31, 1999 in that all school boards in Nova Scotia have refused to pay at the salary levels set out in the Schedules following the end of the effect of the Public Sector Compensation (1994-97) Act on October 31, 1997. The parties agreed that the Halifax Regional School Board would be used as an example …

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

Innis Christie Collection

The Grievor was suspended, then terminated for stealing taxi chits for his own use. The Union claims that discharge was excessive in this case, considering the personal stresses on the Grievor at the time, and the Grievor's previous good record. The Union also grieves that the suspension was imposed without written notice as required by the Agreement. The Employer argues that the Grievor's act is a breach of trust such that the Employer-Employee relationship is broken beyond repair.

Re Abt Building Products Canada Ltd And Cep, Loc 434 (Shatford), Innis Christie

Innis Christie Collection

Employee grievance alleging breach of the Collective Agreement between the parties effective March 9, 1998 — December 15, 2002 in that the Employer breached Article 3 and Appendix "C" of the Collective Agreement by suspending the Grievor for five days with­out sufficient cause and breached the Collective Agreement by defaming the Grievor. The Grievor seeks reimbursement for the five days of wages and consequent benefits lost, and damages and a writ­ten apology for defamation.

Inevitability Of The Eclectic: Liberating Adr From Ideology, The, Jeffrey W. Stempel, Kimberlee K. Kovach

Journal of Dispute Resolution

In this essay, I continue to argue against such rigid characterization of the mediation enterprise and in favor of what I term an "eclectic" approach to mediation. The eclectic style is one in which a mediator - while maintaining neutrality and impartiality at all times - attempts to both assist the disputants in finding acceptable solutions on their own and also remains free to provide necessary guidance as to the outcomes that might obtain in the legal regime that will govern their dispute should no agreement result from the mediation. In short, my view of good mediation practice is one …

Employees Beware: Signing Arbitration Agreements May Limit Your Remedies In Suits Filed By The Eeoc - Equal Employment Opportunity Commission V. Waffle House, Inc., Sarah Baxter

Journal of Dispute Resolution

Arbitration is used regularly to settle employment disputes, and federal policy supports these agreements between private parties. Federal statutes, however, also grant the Equal Employment Opportunity Commission the authority to pursue employment discrimination claims in court. These claims do more than vindicate the rights of individuals, they also safeguard the public interest in ending employment discrimination. A conflict may arise between these two policies when employees sign agreements to submit statutory discrimination claims to arbitration. This Note examines the split of authority on the issue of whether the Equal Employment Opportunity Commission should be permitted to seek money damages on …

Recent Developments: The Uniform Arbitration Act, S. Owen Griffin, Kelli Hopkins, Scot L. Wiggins, Emily Woodward

Journal of Dispute Resolution

This Article is an overview of recent court decisions that interpret state versions of the Uniform Arbitration Act ("U.A.A.").' Arbitration statutes patterned after the U.A.A. have been adopted by thirty-four states and the District of Columbia. The goal of this project is to promote uniformity in the interpretation of the U.A.A. by articulating the underlying policies and rationales of recent court decisions interpreting the U.A.A?

Foreword, Leonard L. Riskin

Journal of Dispute Resolution

In 1994, I proposed the idea of charting a mediator's role on a facilitative evaluative continuum. Since that time, the notion surely has generated at least as much heat as light. In this Symposium, we are fortunate to have a lead article and final reflections by Professor Jeffrey Stempel, one of the most thoughtful and prolific commentators on this issue. Professor Stempel's argument that eclecticism in mediation is inevitable is well-honed, and yet our distinguished commentators - Gary Gill-Austem, Richard Birke, Kim Kovach, Lela Love, Jon Lande, and Zena Zumeta - found much to say about it.

Toward More Sophisticated Mediation Theory, John Lande

Journal of Dispute Resolution

Some of these benefits are due to the particular arguments of facilitation proponents, while others involve a general development of the field resulting from the debate. The first benefit is that facilitation proponents have highlighted how mediation can promote many important values such as party self-determination, and they have cautioned about risks of unfairness created by mediator evaluation as described in Part III. Second, the facilitation-evaluation debate has stimulated a better appreciation of the appropriateness of these techniques in different types of cases, as described in Part IV. Third, the debate has contributed to reducing ill-considered evaluation practice, as discussed …

Facilitative Mediator Responds, A, Zena Zumeta

Journal of Dispute Resolution

I appreciate the thoughtfulness and conclusions of Professor Jeffrey Stempel in his article. His title, "The Inevitability of the Eclectic," seems completely right to me. Most mediators I know who have had training in mediation are more eclectic than squarely in one camp or another. They use techniques that are geared both to their own personalities and to the needs of the case. This, indeed, is a level of sophistication that is a heartening indication of the maturity of the field of mediation. However, there are many points in Stempel's argument that I disagree with, including some of his most …

Faithful, Gary L. Gill-Austern

Journal of Dispute Resolution

The term "facilitative mediation" reminds me of the term "Old Testament." As we Jews from time to time have reminded Christians, the Jewish people call their canon the Tanakh, or, in English, the Hebrew Scriptures. That the same thirty-nine books - Genesis, Exodus, and so on - are labeled "Old Testament" by others indicates that another (later) religious community believes that an event occurred that requires what came before to be interpreted through the prism of an intervening event or reality. For Christians, this is expressed in the New Testament. Returning, then, to the current discussion, it takes a partisan …

Negligent Retention And Arbitration: The Effect Of A Developing Tort On Traditional Labor Law, Terry A. Bethel

Journal of Dispute Resolution

As negligent retention theories continue to grow, courts will inevitably address these questions. This article will offer a brief introduction to the tort of negligent retention and related doctrines and will discuss how courts will accommodate them within traditional labor law principles. Despite my impulsive reaction that negligent retention poses a threat to arbitration, I conclude that, for the most part, negligent retention and labor arbitration can coexist peacefully.

Mediating Citizen Complaints Against The Police: An Exploratory Study , Samuel Walker, Carol Archbold

Journal of Dispute Resolution

This article examines the subject of mediating citizen complaints against the police. It reviews the history of citizen complaints, presents data on existing police complaint mediation programs, and discusses the potential contributions of mediation to police accountability.