Dispute Resolution and Arbitration Commons^™

The New Normal: Navigating Legal Challenges In The World Of Influencer Marketing & How Adr Can Help, Olivia Davis

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Calming The Caucasus: Neutralizing Azerbaijan’S Military “Batna” To Restart The Peace Process In Nagorno-Karabakh (Artsakh), Patrick Babajanian

Pepperdine Dispute Resolution Law Journal

The article begins by surveying the historical background of the Artsakh conflict, from its ancient roots to the immediate aftermath of the 2020 war. It then introduces the key issue I identify as obstructing the peace process from resuming, namely Azerbaijan’s calculation that its military BATNA outweighs any value of continued negotiation. Next, the article evaluates two legal tactics the United States could implement in its national capacity to correct this situation, focusing on actions intended to limit Azerbaijan’s military strength by withholding foreign aid and enacting targeted sanctions, with the goal of achieving greater parity between Armenia and Azerbaijan …

Web3 And Adr: Is Decentralized Adr The Answer To Blockchain Dispute Resolution?, Avi Kafka

Cardozo Journal of Conflict Resolution (CJCR) Blog

We live in a new digital reality. Along with new Web3 foundational technologies and uses like blockchain, DAOs, and the metaverse, new kinds of conflicts arise that courts are not properly situated to handle. With these new technologies come important theoretical and practical discussions on ADR concerning blockchain and smart contracts.

This post was originally published on the Cardozo Journal of Conflict Resolution website on April 3, 2023. The original post can be accessed via the Archived Link button above.

Kukin Program Newsletter – Spring 2023, Kukin Program For Conflict Resolution

Kukin Program Newsletters

The Kukin Program Newsletter – Spring 2023 highlights significant events and achievements in Cardozo Law's Alternative Dispute Resolution (ADR) initiatives. Key features include Gloria Steinem receiving the 22nd International Advocate for Peace Award, presentations by Securities Arbitration Clinic students to the SEC, and global representation at the ICC International Commercial Mediation Competition and other ADR competitions. The newsletter also covers impactful symposiums, such as "Negotiation Strategies for War by Other Means," and showcases the activities of the Cardozo Dispute Resolution Society and the Cardozo Journal of Conflict Resolution. Alumni achievements, faculty contributions, and new publications further demonstrate the program's dedication …

A Call For Evidence-Based Research In Adr, Methura Sinnadurai, Benjamin Vanderwindt, Patricia Mcmahon, Trevor C. W. Farrow

Articles & Book Chapters

In any three-year period, almost half the adult population in Canada will experience at least one justiciable civil or family problem. Few, however, will have the resources to resolve their legal problems, thus highlighting longstanding barriers that make access to justice such a pressing issue in Canada. Among many global justice initiatives, a prominent call to action is Goal 16 of the 2030 United Nations Sustainable Development Goals, which commits nations to work towards ensuring equal access to justice for all by 2030. Although there is no single strategy to achieve this, evidence-based practices in all areas of civil and …

Real Mediation Systems To Help Parties And Mediators Achieve Their Goals, John M. Lande

Faculty Publications

This article argues that it is time for a paradigm shift in our current general mediation theory because of numerous problems. Our current theory is incomplete at best and seriously misleading at worst. The traditional mediation models are oversimplified, poorly mapping onto the reality of practice. They combine multiple elements that are not necessarily correlated. Many practitioners ignore them because they are confusing or not helpful. People do not understand the theoretical meanings because the terms are not consistent with commonly understood language. Arguments about what is or is not real or good mediation have spawned unhelpful ideological divisions in …

#Metoo’S Landmark, Yet Flawed, Impact On Dispute Resolution: The Ending Forced Arbitration Of Sexual Assault And Sexual Harassment Act Of 2021, Imre S. Szalai

Northwestern Journal of Law & Social Policy

On March 3, 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Amendment) into law. This Amendment is the most significant change in the last several decades to the Federal Arbitration Act (the FAA), the main federal law governing arbitration since 1925. This landmark Amendment is also the most important federal legislation to arise thus far from the #MeToo movement. The Amendment invalidates predispute arbitration agreements in cases involving sexual harassment or sexual assault, thereby allowing survivors to proceed with their claims in public court with more robust procedural protections. …

Disability And Transnational Arbitration: Human Rights Linkages And Reasonable Accommodations, Ilias Bantekas

William & Mary Business Law Review

Disability intersects with arbitration as regards the mental capacity of a party to enter into an arbitration agreement, the appointment of arbitrators with disability and grounds for removal thereof, accommodations during arbitral proceedings for arbitrators and counsel with disabilities, as well as the costs for all appropriate accommodations. This Article demonstrates that the right to a fair trial, which is universally recognized in arbitration, dictates that parties and arbitral institutions be free to select arbitrators of their choice, and no impediments may be imposed against arbitrators with disabilities other than that they are able to fulfill the functions of their …

Post-Pandemic Finra Arbitration: To Zoom Or Not To Zoom?, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This Article contributes to the literature exploring the impact of the pandemic on arbitration and explores whether parties arbitrating their disputes during the pandemic have had access to justice equivalent to the justice that was available pre-pandemic. Though it is difficult to draw any conclusions about FINRA arbitration due to the confidential and non-reasoned nature of awards, the Article focuses on arbitration of securities industry disputes at one forum, FINRA DRS. In particular, the Article analyzes data about FINRA customer arbitrations over the course of the pandemic, from onset in March 2020 through mid-2022, when most municipalities had lifted COVID-19 …

Arbitration And Federal Reform: Recalibrating The Separation Of Powers Between Congress And The Court, Larry J. Pittman

Washington and Lee Law Review

In 1925, Congress, to provide for the enforcement of certain arbitration agreements, enacted the Federal Arbitration Act (“FAA”) as a procedural law to be applicable only in federal courts. However, the United States Supreme Court, seemingly for the purpose of reducing federal courts’ caseloads, co-opted the FAA by disregarding Congress’s intent that the FAA be applicable only in federal courts. And in furtherance of its own Court-created “federal policy in favor of arbitration,” the Court created precedents that limit state regulation of arbitration agreements, including that states cannot exempt disputes from forced or mandatory arbitration agreements or otherwise regulate the …

Power And Persuasion In The Courtroom: The Force Of Law And The Settlement Dynamics Of Judges, Hadas Cohen, Michal Alberstein

Cardozo International & Comparative Law Review

This Article seeks to describe the shift in the legitimation of judicial authority in the age of the "vanishing trial," in circumstances where adjudication on the merits of the case in question has been replaced by the promotion ofjudicial settlement. Based on data collected during a five-year study funded by the European Research Council ("ERC") and drawing from studies in social psychology and conflict resolution, we analyze the judicial conflict resolution practices used in Israel's Magistrate Court in Tel Aviv to promote settlement, and from this depict a new taxonomy of power relations in the courtroom. This move, from adjudication …

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law Review

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

Are Sovereign Citizens More Amenable To The Arbitration Process?, Tyler Fierro

Cardozo Journal of Conflict Resolution (CJCR) Blog

While it is impossible to know how many people in the United States identify as “Sovereign Citizens”, the number has boomed since the Covid-19 pandemic and the well-known ‘QAnon’ conspiracy theory. Although there is no centralized organization surrounding Sovereign Citizens nor common beliefs shared by all individuals, the basic conclusion is that the American Government established by the Founding Fathers, under a common law system, was secretly replaced during the U.S. Civil War. According to these conspiracy theorists the replacement government is premised on Admiralty law, or law of international commerce. Given this secret switch, Sovereign Citizens believe the Federal …

Tracing Heritage: Addressing Cultural Property Crime Through Recordation On The Blockchain, Richard De Schweinitz

Cardozo International & Comparative Law Review

No abstract provided.

An Examination Of U.S. And U.K. Procedures Governing Sexual Misconduct Investigations In Universities, Marc Siegel

Cardozo International & Comparative Law Review

The note critiques the lack of a unified regulatory framework for addressing sexual misconduct in U.K. universities, contrasting it with the structured, albeit controversial, Title IX system in the U.S. It argues that the U.K.'s voluntary approach has led to inconsistent, unjust outcomes and advocates for the adoption of a comprehensive regulatory regime similar to Title IX to ensure fairness, accountability, and consistency in handling such cases.

Integrating Cultural Property Law Doctrine Into The Nazi-Looted Art Restitution Legal Framework, Julia Vastano

Cardozo International & Comparative Law Review

The note examines the integration of cultural property law principles into the legal frameworks for restitution of Nazi-looted art, focusing on a comparative analysis of Dutch and U.S. policies. It highlights the Netherlands' progressive shift in 2021 toward a more claimant-friendly approach, incorporating cultural property doctrine, and contrasts this with the U.S. system, which remains rooted in personal property law. The note advocates for adopting a similar mixed framework in the U.S. to enhance justice for Holocaust victims' heirs.

Amici Curiae Brief Of Law Professors In Support Of Plaintiffs’ Motion For Reconsideration, Andrea K. Schneider

Amicus Briefs

Proposed Amici are law professors and scholars who focus on dispute resolution, and they are concerned that the Court’s ruling in this case may undermine the equitable administration of arbitration and erode public confidence in arbitration. Proposed Amici file this brief to provide additional context regarding the unconscionable designation of NFL Commissioner Roger Goodell as arbitrator for these civil rights disputes.

The 22nd International Advocate For Peace Award, Cardozo Journal Of Conflict Resolution

2023 Event Invitations

The Cardozo Journal of Conflict Resolution presents the International Advocate for Peace (IAP) Award to an individual, organization or group that is exemplary in the field of conflict resolution.

This year, the Journal presents the IAP Award to Gloria Steinem, who has dedicated her life to standing up to power and seeking ways to bring about peaceful change. Ms. Steinem has fought tirelessly in support of marginalized people everywhere, campaigning for the Equal Rights Amendment to the United States Constitution, protesting the South African apartheid system, and more recently working alongside Cardozo Law students at the Lenape Center to address …

In Defense Of Moses, Tamar Meshel

St. John's Law Review

(Excerpt)

In 1925, Congress enacted a short statute to make arbitration agreements in maritime transactions and interstate commerce “valid, irrevocable, and enforceable.” Yet the Federal Arbitration Act’s (FAA) simple objective of facilitating the resolution of disputes outside of the courtroom has proven much easier to declare than to implement in practice. In the century since its enactment, the FAA has become a frequently litigated statute and the subject of 59 opinions of the Supreme Court, the majority of which have reversed lower courts’ interpretations of the Act. The Supreme Court’s FAA jurisprudence has not only been abundant but also controversial. …

The Song Of Disputes: A Melody Of Intellectual Property And Alternative Dispute Resolution, Cardozo Fame Center, Cardozo Dispute Resolution Society

2022–2023 Flyers

No abstract provided.

Mediating The Mediterranean: The Israeli-Lebanese Maritime Border, Aaron Silverman

Cardozo Journal of Conflict Resolution (CJCR) Blog

The governments of Israel and Lebanon have reached a historic U.S.-mediated agreement, putatively putting an end to the countries’ decades-long dispute over their maritime borders and related disputes over access to lucrative natural resources in the Eastern Mediterranean. The agreement definitively settles the neighboring countries’ maritime boundary, leaving the Karish natural gas field within Israel’s territorial waters and the Qana natural gas field mostly within Lebanon’s territorial waters, with a small portion extending into Israeli waters. Lebanon will pay royalties to Israel on revenues from the Qana field.

This post was originally published on the Cardozo Journal of Conflict Resolution …

Ai, Adr, And Anxiety, John Lande

Faculty Blogs

This post discusses AI generally, growing anxiety about it and modern life generally, and how we can manage this anxiety. Anxiety about AI may be feeding into a more general anxiety about events in the US and around the world. We can address anxiety by focusing on what we actually can control. Regarding AI and ADR, I suggest that the machine mediation “glass” will be partly empty and partly full – as is human mediation. It’s important to recognize our own reactions to and fears about AI, have as accurate and balanced an understanding of what’s happening as possible, acknowledge …

Avatar Mediation, John Lande

Faculty Blogs

This post speculates about how AI systems might mediate (or assist in mediation) in the not-too-distant future.

Arbitration Clauses In The Field Of Life Science And Cannabis Law, Zachary Chaikin

Cardozo Journal of Conflict Resolution (CJCR) Blog

Federally, the Controlled Substances Act (CSA) governs the manufacture, importation, possession, and use of drugs. Cannabis is currently included on Schedule I of the CSA, which effectively prohibits profiting from its possession, cultivation, or distribution. However, this stands in direct conflict with certain state laws that expressly allow for the possession, cultivation or distribution of marijuana. California was the first state to legalize medical marijuana in 1996. Since then, medical marijuana has been legalized in 39 states and the District of Columbia. The recreational or adult-use of cannabis has been legalized in the District of Columbia and 21 states. The …

Increasing Housing Stability Through State-Funded Community Mediation Delivered By The Massachusetts Housing Mediation Program (Hmp) In Fy2022, Madhawa Palihapitiya, David Sulewski, Karina Zeferino, Jarling Ho

Massachusetts Office of Public Collaboration Publications

This report presents findings and recommendations from an evaluation of the Massachusetts Housing Mediation Program (HMP) administered by the MA Office of Public Collaboration (MOPC) at the University of Massachusetts Boston in partnership with 11 Community Mediation Centers (Centers). The program is funded by the Commonwealth of Massachusetts and implemented in partnership with the Department of Housing and Community Development (DHCD). The program was initially part of the Governor’s Eviction Diversion Initiative (EDI), which ended in the latter half of FY2022 and is continuing as an intervention to support housing stability. The evaluation was conducted by MOPC’s research unit comprised …

Selected Dispute Resolution Bibliography, Shannon Moldaver, Trevor C. W. Farrow

Articles & Book Chapters

Included in this bibliography is a selected set of dispute resolution and related professional responsibility and access to justice readings, primarily (although not exclusively) with a general negotiation and mediation focus. This bibliography is not comprehensive. Rather – given the breadth of dispute resolution, legal process, professional responsibility, and access to justice materials available – this bibliography includes a brief sampling of available readings that may be of interest to those studying, practicing, or thinking about dispute resolution.

What’S In The Contract?: Rockefeller, The Hague Service Convention, And Serving Process Abroad, Thomas G. Vanderbeek

Vanderbilt Law Review

Today’s global economy relies on transnational commerce. The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”), implemented in 1965, encouraged transnational commerce by establishing a streamlined mechanism for serving foreign parties with process. More reliable international service methods helped ensure parties that they could resolve disputes with foreign parties through the courts. The Hague Service Convention thus created a bridge between civil and common law procedures on service while reducing some of the risks of engaging in business with foreign parties.

At the same time, the Hague Service Convention frequently …

Political Polarization: Psychological Explanations And Potential Solutions, Jennifer K. Robbennolt

Nevada Law Journal

No abstract provided.

Influence In Investor-State Dispute Settlement: A Dynamic Concept, Rachel Cahill-O'Callaghan, Anna Luisa Howard, Stavros Brekoulakis

Research Collection Yong Pung How School Of Law

Investor-state dispute settlement (ISDS) plays an increasingly important role in international trade resolution. The decisions have significant financial and in many cases policy implications, yet little is known about the formation of the ad-hoc panels and the decision-making process. Drawing on empirical evidence from interviews with key actors in the ISDS system, this article argues that influence plays a central role in both processes. The analysis further develops the framework for understanding influence in international decision-making to accommodate external factors (those visible to those appointing the decision-makers) and internal factors (those factors that become visible in the decision-making room). It …

Two Decades After Salini V Morocco: The Case For Retaining The Salini Test With Modifications, Darius Chan, Justin Lai

Research Collection Yong Pung How School Of Law

The definition of an investment under Article 25 of the ICSID Convention continues to attract a divergence of views. Ever since its use in 2001, the Salini Test, in its various forms, has become the predominant method that tribunals use to determine whether there is an investment. However, the Salini Test is hardly free from controversy, and suffers from two significant issues. First, its criteria are often subject to differing interpretations, leading to confusion over how the test should actually be applied. Second, the Salini Test has lost its legal force over time, as it has been relegated to factors …