Dispute Resolution and Arbitration Commons^™

Cuba's System Of International Commercial Arbitration: A Convergence Of Soviet And Latin American Trends, Enrique Dahl, Alejandro M. Garro

University of Miami Inter-American Law Review

No abstract provided.

Preface By The Dean, Dale A. Whitman

Faculty Publications

It will no surprise to readers of this Journal that in recent years there has been an enormous increase of interest by lawyers in non-litigous methods of resolving disputes. We have seen a vast proliferation of newsletters, magazines, bar association committees, and other organs.

Unfair Dismissal: Emerging Issues In The Use Of Arbitration As A Dispute Resolution Alternative For The Nonunion Workforce, Eva Robins, Eva Robins, Eva Robins, Eva Robins

Fordham Urban Law Journal

This Article reviews the concept of just cause as a test for termination of employment and its applicability to the nonunion workforce. It addresses the feasibility of applying dispute resolution mechanisms found workable in labor-management relations under union contracts to employment-at-will disputes. It further outlines the standards and criteria utilized in the arbitration process and recognizes some problems of proof, evidence, remedy and procedure that will arise from the application of alternative methods of resolution to nonunion disputes. Finally, this Article identifies a substantial number of issues that need to be resolved if arbitration of just cause for termination of …

Drafting The Arbitration Clause, Whitmore Gray

Book Chapters

Providing in the contract for ways to resolve disputes that may arise presents a substantial challenge to the lawyer. In one sense this is what he or she is doing in general in contract drafting--anticipating misunderstandings or problems which experience indicates are likely to arise, and trying to provide clear answers in advance. When it comes to drafting a specific clause for the resolution of further disputes which may arise, however, many lawyers are at a substantial disadvantage. The task comes at the end of the substantive negotiations. The client does not want to focus on or draw the other …

Dispute Resolution In Commodities Futures, Dorothy Matthews Freeburg

Fordham Urban Law Journal

The commodities futures industry is experiencing rapid growth and a consequential rise in disputes between industry professionals and customers. In response to the growing number of disputes, the industry offers customers several methods for resolution, including the recently added National Futures Association (NFA). The NFA fills a gap in previously available forums, as it offers a much needed uniform and nationwide system of arbitration with jurisdiction over multi-exchange disputes. This Note suggests that requiring the exchanges to refer disputes to NFA and to include NFA as the forum for arbitration in pre-dispute arbitration agreements would greatly enhance the effectiveness of …

Rhetoric And Reality In The Dispute Settlement Movement, Frederick E. Snyder

Journal of Dispute Resolution

Efforts to demystify and simplify the way disputes are settled in American society seem to have congealed into a nationwide movement within less than a decade: neighborhood justice centers, arbitration, divorce mediation, no-fault auto insurance, do-it-yourself probate, "plain English" land and rental agreements, government ombudsmen, consumer hot lines, community mediation of minor criminal cases. A growth industry, if there ever was one

Training Lawyers To Be More Effective Dispute Preventers And Dispute Settlers: Advocating For Non-Adversarial Skills, Paul L. Tractenberg

Journal of Dispute Resolution

After briefly recounting some milestones in the history of legal education, and especially efforts to train lawyers in non-Langdellian techniques, I will explore re-orientation of lawyer training, first globally and then more specifically. Most of the ideas in this article are not new. Many of them date back 50 years and more. Articles by Llewellyn and Frank in the 1920's and 1930's could be reprinted with modest changes and seem totally relevant. 3 This in itself bears serious pondering. We do have the advantage of some relatively recent studies which, in the main, tend to support Llewellyn's and Frank's intuitions. …

Federal Preemption Of Arbitration - Southland Corp. V. Keating, Ronald A. Conway

Journal of Dispute Resolution

Arbitration agreements have traditionally been viewed with disfavor.2 Many states have refused to enforce arbitration clauses to the same extent as other agreements, either under the common law or by statute.8 This hostility towards arbitration agreements was the result of an attempt to preserve the courts' jurisdiction. Any agreement which deprived courts of jurisdiction was frowned upon.' The United States Supreme Court recently held that the Federal Arbitration Act5 (FAA) preempts state law and must be applied in state courts. This decision is in accord with a trend throughout the nation to make arbitration agreements specifically enforceable.6 The effect of …

Lawyer's Skills In Negotiations: Justice In Unseen Hands, Jeffrey H. Hartje

Journal of Dispute Resolution

The purpose of this article is to identify and explore the processes and dynamics of lawyer negotiation at the skill level. Part I, Operational Skills in Preparation for Negotiation, examines processes and subprocesses of negotiation to develop a background for understanding the potential areas of lawyer skill involved in the operation of negotiation in Section A. Section B explores the preparation skills involved including the analysis and development of a negotiation theory of the case which requires an understanding of the substance of the negotiation, norms, precedent and power combined with fact management and effective characterization of the facts of …

Mediation Of Wife Abuse Cases: The Adverse Impact Of Informal Dispute Resolution On Women, Lisa G. Lerman

Scholarly Articles

This Article articulates a law enforcement critique of domestic violence mediation. It will explain the feminist view that mediation in abuse cases is based on misconceptions about the nature of wife abuse, and that mediation not only fails to protect women from subsequent violence, but also perpetuates their continued victimization.

The Article will recommend that other remedies be preferred over mediation. Recognizing that many programs will persist in mediation of wife abuse cases, however, the Article recommends that those programs should adopt procedures which will offer protection to victims of abuse, will make clear to the abuser that stopping the …

Role Of A National Legal Information Center In The Access To Justice, The, Robert J. Nissenbaum

Faculty Scholarship

The author reviews the nature of disputes and mechanisms for dispute

The Need To Utilize International Arbitration, Gerald Aksen

Vanderbilt Journal of Transnational Law

I have been asked to discuss how to convince United States businessmen of the need for utilizing international arbitration. Basically, however, there is a realistic need for this well recognized form of alternative dispute settlement. Primarily, international arbitration affords companies the ability to avoid the uncertainties and complexities of foreign litigation. I found it interesting that Professor Vagts used the word "paradox" in referring to the existence of both the lack of effective treaties on the enforcement of foreign judgments and the host of treaties on the enforcement of foreign arbitral awards. Why is it a paradox? International arbitration was …

The Pitfalls Of International Commercial Arbitration, James M. Rhodes, Lisa Sloan

Vanderbilt Journal of Transnational Law

The purpose of this Article is to examine the pitfalls of international arbitration on a broad scale. These pitfalls can be roughly grouped into two categories: (1) those endemic to the process of dispute resolution by a "private extra-judicial tribunal which derives its power from the agreement of the parties,"2 including difficulties unforeseen in the drafting of the agreement that add delay, complications, and expense to the proceedings; and (2) those related to using the rules of a particular institution. Ideally, planning and skillful drafting can eliminate both types of pitfalls and preserve the advantages of arbitration over other available …

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Alternative Means Of Dispute Resolution: Practices And Possibilities In The Federal Government, William French Smith

Journal of Dispute Resolution

In the early nineteenth century Alexis de Tocqueville predicted that the law would become a secular religion in the United States, and that every important political question would be turned into a matter for law and litigation.' History once again has proven de Tocqueville's remarkable prescience. Over the past two decades, there has been a staggering increase in litigation.2 Americans now are filing more lawsuits than ever before, and are litigating a wide variety of disputes that previously had been resolved through other means.

Arbitral Decisions: A Social Science Analog, John E. Drotning, Bruce Fortado

Journal of Dispute Resolution

This paper develops the idea that arbitral decision making has an analog in social science research.1 It asserts that the hypothesis testing procedure in social sciences is directly analogous to the arbitral process. The research format of an economist, sociologist, or psychologist might be as follows: 1. Generate the null (H.) and alternate (H) hypotheses to be tested. 2. Collect reliable and valid data relative to the hypothesis. 3. Evaluate and analyze this data by subjecting it to statistical tests. 4. Arrive at conclusions by accepting or rejecting the null hypothesis after statistical testing. 5. Explain and discuss findings

Title Page

Journal of Dispute Resolution

No abstract provided.

Recent Developments: The Uniform Arbitration Act

Journal of Dispute Resolution

The Uniform Arbitration Act (UAA), 1 proposed by the National Conference on Uniform State Laws in 1955, has been adopted by slightly more than half the states.' The purpose of this survey is to explain the principles underlying court decisions interpreting the UAA, and provide a framework for analyzing future cases.

Preface By The Dean, Dale A. Whitman

Journal of Dispute Resolution

No abstract provided.

Judicial Participation In Settlement, James A. Wall, Dale E. Rude, Lawrence F. Schiller

Journal of Dispute Resolution

In the following pages, we will briefly delineate the settlement process, enumerate the techniques currently utilized by judges to facilitate settlement, and discuss the perceived ethics of these techniques. Finally, we will consider the circumstances under which judges typically participate in settlement.

Introduction, Leonard L. Riskin

Journal of Dispute Resolution

No abstract provided.

Guideposts For An Institutional Framework Of Consensual Dispute Processing, John S. Murray

Journal of Dispute Resolution

The purpose of this Article is to outline a set of characteristics which can serve as initial guideposts for the eventual development of a framework for a comprehensive institution to assist disputing parties in more effectively resolving their conflicts. Consensual dispute processing appears to be at the point in its growth where it needs to be liberated from its present "alternatives" status and allowed to mature as a separate, full-fledged institution.

Arbitral Adjudication: A Comparative Assessment Of Its Remedial And Substantive Status In Transnational Commerce, Thomas E. Carbonneau

Faculty Scholarship

With the growth of international trade, arbitration has emerged as the preferred remedy for disputes in private international commerce. Its adjudicatory features respond well to the sui generis dispute resolution needs of international commercial contracts. Most significantly, an arbitration agreement acts as an elaborate choice-of-forum clause. It allows the parties to satisfy their need for a predictable and effective dispute resolution process by creating a more realistic and workable framework that supersedes the fundamentally parochial alternative proffered by national legal systems. The party autonomy principle that underlies arbitration gives the contracting parties the power to fashion a remedial process tailored …

Attorney-Client Conflicts Of Interest And The Concept Of Non-Negotiable Fee Awards Under 42 U.S.C. § 1988, Emily M. Calhoun

Publications

No abstract provided.

Due Process, Retroactivity, And The Multiemployer Pension Plan Amendments Act Of 1980: Congress' Arbitrary Means To A Legitimate End, Eric G. Menkes

Cardozo Law Review

No abstract provided.

The Pros And Cons Of Getting To Yes, James J. White

Reviews

Getting to YES is a puzzling book. On the one hand it offers a forceful and persuasive criticism of much traditional negotiating behavior. It suggests a variety of negotiating techniques that are both clever and likely to facilitate effective negotiation. On the other hand, the authors seem to deny the existence of a significant part of the negotiation process, and to oversimplify or explain away many of the most troublesome problems inherent in the art and practice of negotiation. The book is frequently naive, occasionally self-righteous, but often helpful.

Arbitration Of International Contract Disputes, William W. Park

Faculty Scholarship

International commercial arbitration has been the victim of its own success. Arbitration is often the only dispute resolution process acceptable in business contexts where parties from different countries have rejected recourse to each other's legal system at the outset of the contractual relationship. For example, when a Swedish shipyard contracts to build tankers for an agency of the Libyan government, the Swedes are unlikely to relish the prospect of appearing before Libyan courts, and the Libyans may view submission to the courts of Sweden (or of another industrialized Western nation) as an affront to Libyan national sovereignty. Neither the Swedish …

Southland Corp. V. Keating, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Transboundary Groundwater Law: Focus On The U.S.-Mexico Boundary [Includes Appended Opinion In City Of El Paso Ex Rel. Pub. Serv. Bd. V. Reynolds, Civ. No. 80-730 Hb, 563 F. Supp. 279 (D.N.M. 1983)], Albert E. Utton

Groundwater: Allocation, Development and Pollution (Summer Conference, June 6-9)

48 pages.

Federal And Indian Reserved Rights To Groundwater [Outline], Robert S. Pelcyger

Groundwater: Allocation, Development and Pollution (Summer Conference, June 6-9)

6 pages.