Dispute Resolution and Arbitration Commons^™

Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum

Scholarly Works

The U.S. healthcare system has a problem: hundreds of thousands of people die each year, and over a million are injured, by medical mistakes that could have been avoided. Furthermore, over ninety percent of these patients and their families never learn of the errors or receive redress. This problem persists, despite myriad reforms to the medical malpractice system, because of lawmakers' dominant focus on reducing providers' liability insurance costs. Reform objectives are beginning to change, however, and the vehicle for implementing these changes is alternative dispute resolution ("ADR"). Historically, legislatures deployed ADR to curb malpractice litigation and restrict patients' access …

Book Review, Anna Spain Bradley

Publications

No abstract provided.

Realizing Dispute Resolution: Meeting The Challenges Of Legal Realism Through Mediation, Robert Rubinson

All Faculty Scholarship

No abstract provided.

The Public Believes Predispute Binding Arbitration Clauses Are Unjust: Ethical Implications For Dispute-System Design In The Time Of Vanishing Trials, Victor D. Quintanilla, Alexander B. Avtgis

Articles by Maurer Faculty

This Article discusses a troubling cause of the decline in civil trials — the growing ubiquity of predispute binding arbitration clauses — and discusses tension between roles and responsibilities classically associated with zealous advocacy and the pressing need for new roles and responsibilities associated with ethical dispute system design.

Over the past decade, two interacting patterns have come to encourage transactional attorneys to engage in zealous advocacy when crafting predispute binding arbitration clauses in adhesion contracts. First, recent U.S. Supreme Court jurisprudence broadly defers and delegates authority to those who create such clauses in adhesion contracts with little oversight. Second, …

Inside The Arbitrator's Mind, Susan D. Franck, Anne Van Aaken, James Freda, Chris Guthrie, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

When Worldviews Collide—Strategic Advocacy V. A Mediator’S Ethical Obligations, Elayne E. Greenberg

Faculty Publications

(Excerpt)

The provocative headline “Judge Orders Preservation of Mediation Notes In Gender Bias Suit Against Proskauer” sparks the topic of this Ethical Compass discussion. What should be done when a lawyer’s litigation strategy collides with a mediator’s ethical standards of practice? There is growing concern by dispute professionals, including this author, that this collision is diluting the benefits of mediation and re-shaping mediation into quasi-adjudicative dispute resolution procedure. Others hear this as a clarion call from litigators to the mediation community to realize that mediation ideals are just that, and will not deflate litigation advocacy strategies. These polarized perspectives present …

When The Empty Adr Chair Is Occupied By A Litigation Funder, Elayne E. Greenberg

Faculty Publications

(Excerpt)

The discussion about the $140 million jury verdict against Gawker media for posting a sex video of Terry Bollea, professionally known as Hulk Hogan, having sex with his best friend’s wife, quickly shifted to a conversation about the ethics of litigation funding when it was finally disclosed that Peter Thiel had funded Bollea’s litigation. The backstory reveals that Gawker outed Thiel, revealing his homosexuality ten years earlier in a more conservative time when such a revelation might have impacted Thiel’s earning capacity. Thiel, an icon in Silicone Valley and a co-founder of PayPal, promised revenge. Thiel got his revenge, …

Investor's Guide To Security Industry Disputes: How To Prevent And Resolve Disputes With Your Broker, Jill Gross, Elissa Germaine

Faculty Publications

(Excerpt)

The Pace Investor Rights Clinic produced this Guide to Securities Industry Disputes for the individual investor who hopes to prevent or may already have a dispute with his or her securities broker. Our goal is for investors to learn more about their legal rights and best practices for responsible investing, before a dispute arises, and to gain an understanding of their options in case a dispute does arise. We hope that informed investors will be better able to prevent disputes with their broker as well as identify and resolve legitimate grievances.

The first section of this Guide covers investors’ …

The Eu As A Global Actor In Reforming The International Investment Regime In Light Of Sustainable Development, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

The international investment law regime is undergoing a process of reform. The guiding paradigm of this reform is the principle of sustainable development. The EU, through its exclusive competence over foreign direct investment, has become a significant actor on the stage of international investment law governance. According to recent statements of the EU institutions, the EU seeks to shape its policy to be consistent with the principle of sustainable development. In more concrete terms this means that EU investment law making shall be consistent with core labour standards, environmental protection and the conservation of natural resources as well as with …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 18, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

When "Getting It Right" Is What Matters Most, Arbitrations Are Better Than Trials, Wayne D. Brazil

Cardozo Journal of Conflict Resolution

Serving as an arbitrator since retiring from the bench has inspired me to think about the quality of the adjudicative process in new ways-and to assess, from an insider's perspective, the pros and cons of trials (especially court trials) and arbitrations. The purpose of this essay is to share my thoughts on this subject-some of which have surprised me.

Emerging Internal Control In Institutional Arbitration, Meng Chen

Cardozo Journal of Conflict Resolution

To some extent, the charm of international commercial arbitration derives from its complexity, involving many inherent contradictions. It is developed as autonomous and internationalized dispute resolution, while it inevitably relies on sovereign support. With arbitration becoming more and more internationalized and autonomous, rules and regulations generated inside of the arbitration community have gradually played important roles in arbitration governance. Contributions from numerous international arbitration institutions are particularly noticeable in this development. Institutional arbitration takes the lead in the development of international commercial arbitration. Rules and regulations generated in institutional arbitration practice not only facilitate single institutional arbitration processes, but also …

Why Wait So Long: The Cornelius Gurlitt Collection And The Need For Clear Adr Mechanisms In The Restitution Of Looted Art, Samantha Elie

Cardozo Journal of Conflict Resolution

This Note discusses the legal issues surrounding the Gurlitt Collection at each step of the process, and proposes that the mishandling of the collection should spark the need for an international treaty focusing on alternative dispute resolution ("ADR") mechanisms for restituting large troves of looted art. Section II of this Note provides a history of the Gurlitt Collection and the Washington Principals, the non-binding principals currently guiding countries in international restitution. Then, Section III critically examines how the collection has been handled since its discovery in 2012: by the German government, by the media, through ADR mechanisms, and through domestic …

Hollywood Accounting: Profit Participation And The Use Of Mediation As A Mode Of Resolving These Disputes, Eric Strum

Cardozo Journal of Conflict Resolution

This Note proposes that the entertainment industry employ mediation to resolve profit participation disputes. Section II of this Note focuses on profit participation agreements through their history and their legal context. Section III provides a discussion of the arbitration and litigation of participation claims, as well as their weaknesses. In Section IV, this Note proposes the use of mediation in handling claims in the entertainment industry and a new model of mediation that would best serve profit participation disputes. With the engagement of mediation, profit participation lawsuits can be handled in the most effective and fair way for both the …

Is It Time To Pay Attention? Critiquing The Cognitive Enhancement Drug Policies And Appeals Process In United States Collegiate Sports, David Swiedler

Cardozo Journal of Conflict Resolution

This Note examines PED use in college sports, focusing primarily on cognitive enhancing drugs as an example of a common lethal PED, and the current NCAA drug-testing regulations and disciplinary process to explore its efficiency and fairness. Then, the Note proposes changes to the NCAA protocol, specifically changes to the appeals process for student-athletes who fail drug tests for PED use and request a review of the disciplinary actions taken against them by the NCAA.

Living The Dream Of Adr: Reflections On Four Decades Of The Quiet Revolution In Dispute Resolution, Thomas J. Stipanowich

Cardozo Journal of Conflict Resolution

In the forty years since Chief Justice Warren Burger and Harvard Professor Frank Sander offered new visions and challenges for the administration of American justice at the 1976 Pound Conference, a Quiet Revolution in "ADR" has altered the landscape of public and private dispute resolution around the world. Its impact has been felt in the empowerment of individuals to intervene more effectively in conflict of all kinds for the betterment of disputing parties, of institutions, and society at large. It has inspired multitudes of local, regional, national, and international initiatives and fed into diverse realms of discourse, including public engagement, …

Dispute System Design And The Global Pound Conference, Lisa Blomgren Amsler

Cardozo Journal of Conflict Resolution

Since Roscoe Pound's famous 1906 speech to the American Bar Association on popular dissatisfaction with the administration of justice, the field of dispute resolution has taken up his cause. Frank Sander's speech at the 1976 Pound Conference marked a turning point in the field's growth and development within the United States. This symposium on its 40th Anniversary also marks a turning point: the globalization of alternative or appropriate dispute resolution ("ADR") in all its forms, in person and online, within and across national boundaries.

A New Chapter In Natural Resource-Seeking Investment: Using Shared Decisions System Design ("Sdsd") To Strengthen Investor-State And Community Relationships, Mariana Hernandez Crespo Gonstead

Cardozo Journal of Conflict Resolution

The time is here. The Latin American region cannot wait any longer; there is simply too much at stake: too many lives, too much potential, and, ultimately, too much waste. The discourse must change from focusing on Investor-State Dispute Settlement ("ISDS") at the international level to addressing the structural and systemic issues at the local level. This shift will strengthen the investor-State relationship and lead not only to the retention, but also the expansion of the Foreign Direct Investment ("FDI").

Access To Digital Justice: Fair And Efficient Processes For The Modern Age, Orna Rabinovich-Einy, Ethan Katsh

Cardozo Journal of Conflict Resolution

A recent New York Times article described a floating courthouse operating in rural Brazil, traversing the Amazon River in an attempt to bring the rule of law to the far ends of the country and overcome the many barriers in approaching Brazilian courts. Other countries, such as Pakistan, have relied on mobile courtbuses, while others still have proposed "pop-up courts" as a solution to over-crowded, inaccessible, and costly court proceedings.

Transforming Business Through Proactive Dispute Management, Deborah Masucci, Shravanthi Suresh

Cardozo Journal of Conflict Resolution

The first part of this article deals with "midnight clauses," referring to the low level of importance placed on drafting a dispute resolution clause during the course of structuring a deal. The design of the clause should be multi-dimensional and not focused on a single process. Further, there needs to be a shift in attitude towards the drafting of dispute resolution clauses across the business and not limited to one transaction. This part also highlights the important role played by the lawyer/advisor 2 in the drafting and formulating dispute resolution clauses in agreements in collaboration with their client. Part II …