Dispute Resolution and Arbitration Commons^™

Teaching A New Paradigm: Must Knights Shed Their Swords And Armor To Enter Certain Adr Arenas?

Cardozo Journal of Conflict Resolution

No abstract provided.

The State Of The States: Dispute Resolution In The Courts

Cardozo Journal of Conflict Resolution

No abstract provided.

Mediation In Kentucky: Where Do We Go From Here?, Vanessa Mitchell

Kentucky Law Journal

No abstract provided.

Debating The Proper Role Of National Law Under The New York Convention, Thomas E. Carbonneau

Faculty Scholarship

One of the many consequences of the progressive development of globalization apparently has been to incite a vigorous debate among leading members of the international arbitral community about the role of national law in implementing the enforcement regime of the New York Arbitration Convention (Convention). The debate was provoked by federal court rulings in two recent cases: Chromalloy Aeroservices v. Arab Republic of Egypt (Chromalloy) and Alghanim & Sons v. Toys"R" Us (Toys "R" Us). Prior to these opinions, there appeared to have been an implicit consensus in the international community regarding the "anational"character of …

I'Ll Take It For What It Is Worth -- The Use Of Hearsay Evidence By Labor Arbitrators: A Primer And Modest Proposal, Marvin F. Hill, Jr., Tammy M. Westhoff,

Journal of Dispute Resolution

This article considers these and other selected problems dealing with hearsay evidence that are likely to be encountered in the arbitral forum. It is our thesis that arbitrators do and should credit some (but not all) forms of hearsay evidence, but that the arbitral process is not served by admitting all evidence and "taking it for what it is worth." Further, we believe when an advocate's case against a grievant consists entirely of hearsay evidence, and there is no reliable substitute for cross examination or "equivalent circumstantial guarantees of trustworthiness," the grievant should prevail. Only in the rarest of cases …

Faa Exclusionary Clause: Are We Headed For A Broader Interpretation Of Interstate Commerce - Miller V. Public Storage Management, Inc., The, Matthew Potter

Journal of Dispute Resolution

The Federal Arbitration Act ("FAA") encompasses a vast spectrum of arbitration controversies. The FAA provides that "[a] written provision in .. . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction... shall be valid, irrevocable, and enforceable."2 The preceding section of the Act, however, states that "nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."3 In their efforts to maintain a balance between these competing interests, many courts have attempted to assemble …

Ombudsman Offices In The Federal Government - An Emerging Trend, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Title Page

Journal of Dispute Resolution

No abstract provided.

Functus Officio: Does The Doctrine Apply In Labor Arbitration - Teamsters Local 312 V. Matlack, Inc., Amy Markel

Journal of Dispute Resolution

The doctrine of functus officio was developed at common law in response to concerns about the "solemnity of judgments" and the effect of outside influences on arbitrators' decisions.2 Although not strictly applied in arbitration that is conducted pursuant to the Labor Management Relations Act,3 the doctrine of functus officio prevents an arbitrator from vacating, modifying, supplementing, or correcting his award . Most courts recognize three narrow exceptions to the doctrine which allow an arbitrator to revisit his award under limited circumstances. This Note examines the application of the "clarification exception" to the doctrine in a labor dispute setting and outlines …

Qualification Requirements Of Mediators, Norma Jeanne Hill

Journal of Dispute Resolution

As the use of Alternative Dispute Resolution spreads, the question of who is qualified to provide mediation services becomes ever more important. In determining which selection methods to use in choosing qualified mediators for a particular court or program, attention should be paid to the effectiveness of each specific method, the cost to use it, and whether the method unduly discriminates against individuals of different cultural groups or with varying mediation styles. Just like any other selection procedure in the world of employment, a mediator qualification requirement ought to be analyzed in terms of effectiveness, cost, and discriminatory effects before …

Preliminary Injunction Of Arbitration Proceedings - Six Clinics Holding Corporation, Ii V. Cafcomp Systems, Inc., Heidi Albers

Journal of Dispute Resolution

The issue presented in Six Clinics Holding Corporation, I v. Cafcomp Systems, Inc., is whether a court is prohibited from issuing a preliminary injunction in a case subject to arbitration.' The parties had a private agreement to arbitrate any disputes, but the court enjoined the arbitration in order to determine a federal issue outside the arbitrator's jurisdiction The defendant argued that the Anti-Injunction Act, which prohibits federal courts from enjoining state court proceedings, was violated.4 However, the court found a loophole by stating that a private arbitration is not a state proceeding and thus is not governed by the Act.5 …

Protecting Against Employment Discrimination: The Ninth Circuit's Interpretation Of Mandatory Arbitration Of Title Vii Claims - Renteria V. Prudential Ins. Co. Of America, Todd C. Stanton

Journal of Dispute Resolution

The growing trend toward reliance upon arbitration, rather than judicial adjudication, has resulted in a reformation regarding the resolution of disputes within the employment industry. It has become a standard practice of many employers to require that employees sign employment agreements before they are allowed to work. Recently, these types of agreements have begun to require that employees resolve any disputes or claims against their employers through arbitration rather than judicial adjudication. Unfortunately, the average employee is often unaware of the binding nature of these agreements until a dispute actually arises with his or her employer. The Ninth Circuit has …

Adr Developments Abroad: Masters In Mediation - European Style!, Nadja Alexander

Research Collection Yong Pung How School Of Law

In Australia when we think of mediationtraining, we generally envisage a four orfive day training course run by amediation service provider or educationalinstitution. Many Australian universitiesalso offer postgraduate studies inmediation and ADR which generallyprovide a combination of theory and skillsdevelopment subjects. Such studiestypically take the form of postgraduatediplomas or Masters degrees offered by auniversity department or a multi-disciplinarymediation centre. Notably, there are norequirements that participants haveprevious qualifications or experience inmediation. One direct effect of this ‘open’policy has been to lower the standard ofpostgraduate teaching and learning in thisfield. For example, postgraduate subjectsin mediation in many law schools aroundthe country offer …

Should Unclos Or Gatt/Wto Decide Trade And Environment Disputes?, Lakshman D. Guruswamy

Publications

No abstract provided.

The Promise Of The United Nations Convention On The Law Of The Sea (Unclos): Justice In Trade And Environment Disputes, Lakshman Guruswamy

Publications

No abstract provided.

Indian Tribal Rights And The National Forests: The Case Of The Aboriginal Lands Of The Nez Perce Tribe, Charles F. Wilkinson

Publications

No abstract provided.

Arbitration: Time Limits And Continuing Violations, Richard I. Bloch

Michigan Law Review

Time limits in a collective bargaining agreement, particularly as they apply to the grievance procedure, are very important. Filing or processing deadlines are taken as seriously in the context of these private documents and negotiated time limits as they are in the world of standard litigation, with deadlines that are imposed statutorily or otherwise. Management advocates often view the time limitation provisions as virtually the only thing employers gain, as opposed to give, in the bargaining relationship. Deadlines have been strictly, if reluctantly, construed by most arbitrators. The "continuing violation" provides a meaningful exception to the otherwise immutable time bar. …

Integrating Alternative Dispute Resolution (Adr) Into The Curriculum At The University Of Washington School Of Law: A Report And Reflections, Lea B. Vaughn

Articles

The essay is framed in two basic parts. In the first part, it describes the program of integration that was undertaken at the University of Washington during the 1995-1997 period of the Fund for the Improvement of Post-Secondary Education (FIPSE) grant. After describing the context in which these curricular changes were made, it describes the changes in years one and two of the grant program. Additional changes that have occurred subsequent to the final grant report in October 1997 also will be summarized. One of the lessons that emerges from our experience is that change will be an incremental, long …

Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine

Articles

One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace disputes. Typically, an employer will make it a condition of employment that employees must agree to arbitrate any claims arising out of the job, including claims based on statutory rights against discrimination, instead of going to court. On the face of it, this is a brazen affront to public policy. Citizens are being deprived of the forum provided them by law. And indeed numerous scholars and public and private bodies have condemned the use of mandatory arbitration. Yet the insight of that …

The Abcs Of Adr: Making Adr Work In Your Court System, Nancy A. Welsh, Barbara Mcadoo

Faculty Scholarship

So you are thinking about making Alternative Dispute Resolution (ADR) a part of your existing statewide judicial process-but you don't know how. You want to provide litigants with alternative ways to resolve their disputes, through processes such as mediation, arbitration, and summary jury trials. In fact, you have been experimenting with these processes on an ad hoc basis and have had quite a few successes. You think you could accomplish even more if you made ADR a routine part of the judicial process. But you are cautious about the role that your state court system should take in promoting and …

The Wto Legal System: Sources Of Law, David Palmeter, Petros C. Mavroidis

Faculty Scholarship

Modern discussions of the sources of international law usually begin with a reference to Article 38 (1) of the Statute of the International Court of Justice (ICJ), which provides:

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. international custom as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly …

Arbitration In Banking And Finance, William W. Park

Faculty Scholarship

The world's bifurcation into debtors and creditors has created yet another class of people: those involved in resolving disputes between lenders and borrowers. To promote reliability in financial dispute resolution, credit agreements have generally provided that potential controversies will be submitted either to courts in the bank's home jurisdiction, or to courts of a major money center such as London or New York.

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

Innis Christie Collection

Union grievance dated November 13, 1996 alleging breach of the Collective Agreement between the parties bearing the date January 31, 1995, and in particular of Article 10.01 in that the Employer discharged the Grievor without just, reasonable and sufficient cause. On behalf of the Grievor the Union requests that he be reinstated and compensated for all lost rights, earnings and benefits, with interest. At the hearing the Union submitted that a suspension of six months, the period for which the Grievor had then been off work, be substituted.

Does Adr Really Have A Place On The Lawyer's Philosophical Map?, Barbara Mcadoo, Nancy A. Welsh

Faculty Scholarship

For nearly two decades, proponents of alternative dispute resolution (ADR) have touted the advantages of institutionalizing ADR within the courts. The anticipated benefits have included: quicker settlements, better settlements, resolution which is less expensive for the courts and litigants, and greater litigant satisfaction with both the procedure and the outcome. Many state and federal courts have listened. Indeed, in nearly every state, at least one local state and/or federal court has incorporated ADR in some manner. In Minnesota, with the promulgation of Rule 114 of the Minnesota General Rules of Practice, the Minnesota Supreme Court has chosen to institutionalize ADR …

A Tale Of Two Cities: Day Labor And Conflict Resolution For Communities In Crisis, Lela P. Love, Cheryl B. Mcdonald

Articles

Through the lens of Glen Cove and Agoura Hills, two cities facing social crisis revolving around a shaping point, this article addresses the importance of government and key interest groups developing approaches to conflict that will best move society forward while limiting the danger and costs of discord. This "tale of two cities" describes two remarkably similar situations involving day laborers and argues that one community’s choice of mediation after the commencement of litigation resulted in outcomes that addressed and satisfied a wider range of constituency interests than those realized by the community that chose litigation alone.

Mediator Qualifications: The Trend Toward Professionalization, Bobby Marzine Harges

BYU Law Review

No abstract provided.

A Funny Thing Happened On The Way To The (Alternative) Forum: Reexamjnjng Alexander V. Gardner-Denver In The Wake Of Gilmer V. Interstate/Johnson Lane Corp., Sarah Rudoph Cole

BYU Law Review

No abstract provided.

Adr In Youth And Intercollegiate Athletics, Gil Fried

BYU Law Review

No abstract provided.

Thinking Of Mediation As A Complex Adaptive System, J. B. Ruhl

BYU Law Review

No abstract provided.