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Full-Text Articles in Dispute Resolution and Arbitration

Decisionmaking And Dispute Resolution In The Free Trade Area Of The Americas: An Essay In Trade Governance, Frank J. Garcia Jan 1997

Decisionmaking And Dispute Resolution In The Free Trade Area Of The Americas: An Essay In Trade Governance, Frank J. Garcia

Michigan Journal of International Law

This Article examines certain theoretical and structural issues to be resolved in creation of the FTAA's governing institutions, and proposes an outline for these institutions, drawing upon regime theory's analysis of international organizations, the range of existing trade institutions found among the hemisphere's RTAs, and indications of the Summit countries' present goals and interests. The Article begins by summarizing Kenneth Abbott and Duncan Snidal's concept of "mesoinstitutions," a new regime theory tool for identifying the roles played and benefits conferred by 1Os in international relations. Parts I.B and I.C then apply mesoinstitutions theory to the primary governance mechanisms of the …

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Faa And Arbitration Clauses - How Far Can It Reach? The Effect Of Allied-Bruce Terminix, Inc. V. Dobson, Edmond Seferi Jan 1997

Faa And Arbitration Clauses - How Far Can It Reach? The Effect Of Allied-Bruce Terminix, Inc. V. Dobson, Edmond Seferi

Campbell Law Review

This note discusses Allied-Bruce Terminix, Inc. v. Dobson, which solidified the Supreme Court's rationale in favor of arbitration. The Court specifically held that the FAA governs all arbitration provisions in contracts "affecting commerce and that the phrase "affecting commerce signals a Congressional intent to exercise its Commerce Clause powers in full. This note will first provide a short background of the interpretation of the FAA in connection with the enforceability of the arbitration clauses, and then discuss Allied-Bruce and its potential effect on the future of arbitration clauses.

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Expanding Judicial Review To Encourage Employers And Employees To Enter The Arbitration Arena, 30 J. Marshall L. Rev. 1099 (1997), Anthony J. Jacob Jan 1997

Expanding Judicial Review To Encourage Employers And Employees To Enter The Arbitration Arena, 30 J. Marshall L. Rev. 1099 (1997), Anthony J. Jacob

UIC Law Review

No abstract provided.

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Freeing The Parties From The Law: Designing An Interest And Rights Focused Model Of Landlord/Tenant Mediation, Joel Kurtzberg, Jamie Henikoff Jan 1997

Freeing The Parties From The Law: Designing An Interest And Rights Focused Model Of Landlord/Tenant Mediation, Joel Kurtzberg, Jamie Henikoff

Journal of Dispute Resolution

In this article, we point out two fundamental flaws of the critique. First, the critique compares mediation to an idealized view of adjudication instead of comparing mediation to its real-life alternatives. Second, it takes a narrow view of the role of law in mediation, erroneously assuming that mediators must either ignore the law or impose it on the parties. Part I of this article spells out the critics' claim that mediation generally harms the poor and disempowered by failing to adequately incorporate formal legal protections into the process. Part II examines the critique as it is applied to the landlord-tenant …

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Contracting For Judicial Review Of Arbitration Awards: Can An Errors Of Law Clause Provide Two Bites Of The Apple - Gateway Technologies, Inc. V. Mci Telecommunications Corp., Brian T. Mccartney Jan 1997

Contracting For Judicial Review Of Arbitration Awards: Can An Errors Of Law Clause Provide Two Bites Of The Apple - Gateway Technologies, Inc. V. Mci Telecommunications Corp., Brian T. Mccartney

Journal of Dispute Resolution

This Note will proceed in five sections. Section II will set forth the factual framework of the Gateway case and the holding of the Fifth Circuit. Section III will briefly examine the legal background behind the standard of review for arbitration awards. Section IV will explore the analysis and decision of the Fifth Circuit in Gateway. Finally, section V will comment on the Gateway court's holding and discuss its policy implications. This Note will conclude that arbitration agreements which purport to provide judicial review for "errors of law" violate separation of powers and the public policy which underlies arbitration. Consequently, …

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Messenger As The Medium Of Communication: The Use Of Interpreters In Mediation, The, Ileana Dominguez-Urban Jan 1997

Messenger As The Medium Of Communication: The Use Of Interpreters In Mediation, The, Ileana Dominguez-Urban

Journal of Dispute Resolution

Merely adding one more person to the mediation process adds greater complexity to the dynamics of the mediation than most lawyers and mediators would anticipate. As Part I of this article indicates, mediators must understand the complexities of interpreted mediation because the need for interpreted mediation is increasing due to national demographics, legal requirements, and international market forces. Part II examines the skills needed for interpretation and the probable structure of an interpreted mediation. Part III considers who might possess those interpretation skills as well as the additional skills required of one who will serve as an auxiliary to the …

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Introduction: Adr: An Appropriate Alternative?, Robert M. Ackerman Jan 1997

Introduction: Adr: An Appropriate Alternative?, Robert M. Ackerman

Law Faculty Research Publications

No abstract provided.

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Arbitration: Kentucky Courts Should Not Liberally Vacate Awards--Carrs Fork V. Kodak Mining, William G. Fowler Ii Jan 1997

Arbitration: Kentucky Courts Should Not Liberally Vacate Awards--Carrs Fork V. Kodak Mining, William G. Fowler Ii

Kentucky Law Journal

No abstract provided.

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What Trina Taught Me: Reflections On Mediation, Inequality, Teaching And Life, Carrie Menkel-Meadow Jan 1997

What Trina Taught Me: Reflections On Mediation, Inequality, Teaching And Life, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Trina Grillo and I trained together as mediators, met together as law teachers, commiserated together as women and civil rights activists, and laughed and cried together as friends. I shall miss her wise counsel, her sensible judgment, her measured indignation, her gentleness and her razor sharp perceptions about the world, across, through and with her gender, race, class, and human identities. I shall miss her words, her presence, her body, her corporeal essence, but she will always be with me and my students in her spirit and through her contributions to our work. In this Essay I want to reflect …

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When Ignorance Of The Law Is No Excuse: Judicial Review Of Arbitration Awards, Kenneth R. Davis Jan 1997

When Ignorance Of The Law Is No Excuse: Judicial Review Of Arbitration Awards, Kenneth R. Davis

Buffalo Law Review

No abstract provided.

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Beyond Formalism And False Dichotomies: The Need For Institutionalizing A Flexible Concept Of The Mediator's Role, Jeffrey W. Stempel Jan 1997

Beyond Formalism And False Dichotomies: The Need For Institutionalizing A Flexible Concept Of The Mediator's Role, Jeffrey W. Stempel

Scholarly Works

Related to the problem of the false dichotomy is the formalist application of the either/or construct. If, for example, one adopts as a first premise the view that mediation is by definition non-evaluative, and then rigidly applies this premise to issues of appropriate mediator behavior, the result is a formalist system that permits mediators little or no leeway to depart from the non-evaluative style. This sort of regulatory regimen may satisfy the non-evaluative ethos of some mediation scholars, but it does so at the risk of becoming a rigid system that prevents mediators from taking practical actions most appropriate to …

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Gateway Widens Doorway To Imposing Unfair Binding Arbitration On Consumers, Jean R. Sternlight Jan 1997

Gateway Widens Doorway To Imposing Unfair Binding Arbitration On Consumers, Jean R. Sternlight

Scholarly Works

Hill v. Gateway, is but the most extreme example of a series of court decisions that allow large companies to impose potentially unfair binding arbitration agreements on unwitting consumers. The outcome in Gateway, however, is questionable on federal statutory, common law, and constitutional grounds.

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Institutionalization: Savior Or Saboteur Of Mediation?,, Sharon Press Jan 1997

Institutionalization: Savior Or Saboteur Of Mediation?,, Sharon Press

Faculty Scholarship

This article is a reflection on the history and spread of the field of alternative dispute resolution (ADR). The author focuses on the increased institutionalization of ADR – particularly in relation to mediation within the court system, with examples drawn from Florida’s experience.

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Of Substantial Interest: Third Parties Under Gatt, Chi Carmody Jan 1997

Of Substantial Interest: Third Parties Under Gatt, Chi Carmody

Michigan Journal of International Law

This article's examination of the status of third parties under GATT is important for several reasons, one of which is the proliferation of third party participation as demonstrated by Bananas III. A second reason for its importance is that there has been little written about third parties under GATT. This neglect stands in sharp contrast to ample literature on the related subject of greater public participation in the WTO. The oversight could be a function of GATT dispute resolution, which did not always enjoy the level of public attention it garners today. Until recently the GATT system handled no …

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Rethinking The Constitutionality Of The Supreme Court's Preference For Binding Arbitration: A Fresh Assessment Of Jury Trial, Separation Of Powers, And Due Process Concerns, Jean R. Sternlight Jan 1997

Rethinking The Constitutionality Of The Supreme Court's Preference For Binding Arbitration: A Fresh Assessment Of Jury Trial, Separation Of Powers, And Due Process Concerns, Jean R. Sternlight

Scholarly Works

Courts and commentators have typically assumed that binding arbitration is both private and consensual, and that it therefore raises no constitutional concerns. This Article challenges both assumptions and goes on to consider arguments that arbitration agreements may unconstitutionally deprive persons of their right to a jury trial, to a judge, and to due process of law. The author argues first that courts' interpretation of seemingly private arbitration agreements may often give rise to "state action," particularly where courts have used a "preference favoring arbitration over litigation" to construe a contract in a non-neutral fashion. The author next draws on the …

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Reorganization A Comparative Study Of Reorganization In Denmark And In The United States, Poul Jagd Mogensen Jan 1997

Reorganization A Comparative Study Of Reorganization In Denmark And In The United States, Poul Jagd Mogensen

LLM Theses and Essays

The purpose of this thesis is to analyze and discuss a list of specific problems in the current Danish system and in this analysis to examine how these problems are dealt with under the United States laws on reorganization. The thesis consists of five parts in addition to this Introduction. Part II is an introduction to the laws on reorganization in Denmark and in the United States. Part II also includes a brief introduction to out-of-court workouts as an alternative to reorganization under the bankruptcy laws. Part III provides statistical information on the number of reorganizations, the outcome of reorganizations, …

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Arbitration: Shaffer V. Jeffery: The Oklahoma Supreme Court Rejects The Separability Doctrine And Takes A Step Back In The Enforcement Of Arbitration Clauses Under Oklahoma Law, John Douglas Stiner Jan 1997

Arbitration: Shaffer V. Jeffery: The Oklahoma Supreme Court Rejects The Separability Doctrine And Takes A Step Back In The Enforcement Of Arbitration Clauses Under Oklahoma Law, John Douglas Stiner

Oklahoma Law Review

No abstract provided.

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The Use Of Mediation And Arbitration For Resolving Family Conflicts: What Lawyers Think About Them, Mary Kay Kisthardt Jan 1997

The Use Of Mediation And Arbitration For Resolving Family Conflicts: What Lawyers Think About Them, Mary Kay Kisthardt

Faculty Works

The use of alternative methods for resolving family conflict has increased significantly in the past few years, but many attor­neys are still wary. In an effort to discover some of the sources of this hesitation as well as identify support for "alternative" processes, the American Academy of Matrimonial Lawyers sur­veyed its members concerning the use of dispute resolution methods. The purpose of this study was to ascertain attorneys' perceptions of the advantages and disadvantages of the two most commonly used alternative dispute resolution mechanisms: me­diation and arbitration. Whether clients will continue to use these methods depends in great part on …

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Toward Uniform Standards Of Conduct For Mediators Symposium: The Lawyer's Duties And Responsibilities In Dispute Resolution, John D. Feerick Jan 1997

Toward Uniform Standards Of Conduct For Mediators Symposium: The Lawyer's Duties And Responsibilities In Dispute Resolution, John D. Feerick

Faculty Scholarship

It can no longer be doubted that alternative dispute resolution ("ADR") as a substitute for court-based litigation is growing in appeal. The high costs, adversarial nature, and time of traditional litigation have led to the development and popularity of other dispute resolution alternatives. ADR is making substantial inroads into the legal mainstream and is increasingly used in a wide variety of contexts by courts; federal, state, and local governments; businesses and private individuals. According to a recent survey conducted by the National Institute for Dispute Resolution, twenty-eight state courts now have mandatory, non-binding arbitration programs; more than half of the …

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Ethics In Alternative Dispute Resolution: New Issues, No Answers From The Adversary Conception Of Lawyers’ Responsibilities, Carrie Menkel-Meadow Jan 1997

Ethics In Alternative Dispute Resolution: New Issues, No Answers From The Adversary Conception Of Lawyers’ Responsibilities, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The romantic days of ADR appear to be over. To the extent that proponents of ADR, like myself, were attracted to it because of its promise of flexibility, adaptability, and creativity, we now see the need for ethics, standards of practice and rules as potentially limiting and containing the promise of alternatives to rigid adversarial modes of dispute resolution. It is almost as if we thought that anyone who would engage in ADR must of necessity be a moral, good, creative, and, of course, ethical person. That we are here today is deeply ironic and yet, also necessary, as "appropriate" …

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When Dispute Resolution Begets Disputes Of Its Own: Conflicts Among Dispute Professionals, Carrie Menkel-Meadow Jan 1997

When Dispute Resolution Begets Disputes Of Its Own: Conflicts Among Dispute Professionals, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

As the processes comprising, alternative, or as we now say, "appropriate" dispute resolution mature and enter new phases of use, new issues have emerged to demonstrate that professionals engaged in providing dispute resolution services have disputes and conflicts among themselves. This Article reviews some of those conflicts and issues and suggests some resolutions for these disputes between dispute resolvers.

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Introduction: What Will We Do When Adjudication Ends? A Brief Intellectual History Of Adr, Carrie Menkel-Meadow Jan 1997

Introduction: What Will We Do When Adjudication Ends? A Brief Intellectual History Of Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I begin by thanking the UCLA Law Review, and particularly Darrin Mollet and Bryce Johnson, for seeing the timeliness of the topic of alternative dispute resolution and organizing this Symposium-collecting some of the best thinkers, writers, and practitioners in the field to discuss, among other things, the economics of ADR, the role of lawyers, courts, and judges in ADR, and the application of ADR to a variety of substantive legal and regulatory problems. In this Introduction, I would like to introduce the topics and the authors, and put them in the larger context of the movement that is now called …

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The Silences Of The Restatement Of The Law Governing Lawyers: Lawyering As Only Adversary Practice, Carrie Menkel-Meadow Jan 1997

The Silences Of The Restatement Of The Law Governing Lawyers: Lawyering As Only Adversary Practice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The attempt to "restate" the law governing lawyers is a noble effort. The drafts, to date, have presented a heroic gathering, in one place, of case law and competing formulations of a variety of the professional disciplinary codes. The drafters have attempted to settle some difficult and often contentious issues regarding lawyer responsibilities to clients, to courts, to third parties, and to themselves. At the same time, this Restatement suffers from the temporal flaws of all its sisters and brothers - in its efforts to "restate" the law it looks backward, not forward, and thus will provide little guidance, at …

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The Ethics Of Mediation Evaluation: Some Troublesome Questions And Tentative Proposals, From An Evaluative Lawyer Mediator, James Stark Jan 1997

The Ethics Of Mediation Evaluation: Some Troublesome Questions And Tentative Proposals, From An Evaluative Lawyer Mediator, James Stark

Faculty Articles and Papers

No abstract provided.

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Lawyers, Clients, And Mediation , Jacqueline Nolan-Haley Jan 1997

Lawyers, Clients, And Mediation , Jacqueline Nolan-Haley

Faculty Scholarship

That the growth of mediation practice is changing the practice of law is obvious. The inability of many lawyers to understand the conceptual differences between adversarial lawyering and mediation practice strongly suggests the need to develop a theory of "good" representational mediation practice that takes into account competing client interests. On the one hand, lawyers must encourage client voice and participation. At the same time, however, the demands of professionalism require that lawyers guide their clients toward responsible decisionmaking. Representational lawyering in mediation may involve a number of distinct and traditional lawyering functions-- client counseling, negotiation, evaluation and advocacy. In …

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A Post-Conference Reflection On Separate Ethical Aspirations For Adr's Not-So-Separate Practitioners, John Q. Barrett Jan 1997

A Post-Conference Reflection On Separate Ethical Aspirations For Adr's Not-So-Separate Practitioners, John Q. Barrett

Faculty Publications

At "The Lawyer's Duties and Responsibilities in Dispute Resolution" Symposium at South Texas College of Law, Oct. 25, 1996, a central topic of discussion was ADR's ethical separateness. There was a shared sense that ADR providers and practitioners confront a range of ethical issues that differ from those that confront non-ADR lawyers. On this view, because rules of professional responsibility are geared toward more adversarial forms of legal practice, they at best provide no answers and may provide wrong answers to ethical questions that arise in ADR. One solution would be to create new, separate, "role-specific" ethics rules for ADR …

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Law And Governance Affecting The Resolution Of Academic And Disciplinary Disputes At Scottish Universities: An American Perspective, Fernand N. Dutile Jan 1997

Law And Governance Affecting The Resolution Of Academic And Disciplinary Disputes At Scottish Universities: An American Perspective, Fernand N. Dutile

Journal Articles

At the entrance to St. Mary's College, a part of the University of St. Andrews in Scotland, one encounters the opening words of the Gospel of St. John: "In principio erat verbum." Eschewing the usual translation, students there irreverently render the passage thus: "The Principal has the last word." The existence of the position of Principal in a university and the substantial power of that official cause only part of the fascination experienced by the American observer of universities in Scotland. This article will assess, from an American perspective, the law and governance affecting the resolution of academic and disciplinary …

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Peace And The Press: Media Rules During U.N. Peacekeeping Operations, Jennifer Lee Jan 1997

Peace And The Press: Media Rules During U.N. Peacekeeping Operations, Jennifer Lee

Vanderbilt Journal of Transnational Law

In recent years, U.N. peacekeeping operations have become an increasing focus of international military action and media coverage. While the military and the media have maintained a precarious balance in the United States between the military's objective of operational success and the media's call for uncensored reporting, the evolution and growing importance of U.N. peacekeeping offers new considerations to this balance. This Note examines the ability of the United Nations to affect the balance between the military and the media through the implementation of U.N. media rules during peacekeeping operations. This Note begins by reviewing the history of media coverage …

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The Limits Of Economic Power: Section 301 And The World Trade Organization Dispute Settlement System, C. O'Neal Taylor Jan 1997

The Limits Of Economic Power: Section 301 And The World Trade Organization Dispute Settlement System, C. O'Neal Taylor

Vanderbilt Journal of Transnational Law

Since World War 1I, the United States has sought trade liberalization through the use of multilateral and unilateral actions under the General Agreement on Tariffs and Trade (GATT) and Section 301 of the Trade Act of 1974, respectively. Unilateralism by the United States has involved the forceful opening of foreign markets by the threat of sanctions, such as blocking access to the U.S. market. Such unilateral actions led the world trading system into the most recent multilateral negotiations, the Uruguay Round. As a result, the United States conceded to an effort to achieve trade liberalization through the expansion of GATT …

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Public Policy Exception: A Narrow Exception To Judicial Review Or An Independent Means Of Avoiding Arbitration Agreements - Exxon Corp. V. Baton Rouge Oil And Chemical Workers Union, The, Elizabeth Tenorio Jan 1997

Public Policy Exception: A Narrow Exception To Judicial Review Or An Independent Means Of Avoiding Arbitration Agreements - Exxon Corp. V. Baton Rouge Oil And Chemical Workers Union, The, Elizabeth Tenorio

Journal of Dispute Resolution

The Federal Arbitration Act advances a strong desire to encourage parties in labor management disputes to utilize arbitration in lieu of litigation.' For this reason, judicial review of an arbitrator's award is construed narrowly by three specific provisions? In recent years, a public policy exception to this strict standard of review has developed,4 and its use has exploded. This Note discusses the impact of this public policy exception on both arbitration and judicial forums. In addition, this Note highlights the potential for abuse when the exception is not limited and applied with care.

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