Dispute Resolution and Arbitration Commons^™

The History And Legacy Of The Pound Conferences, Lara Traum, Brian Farkas

Cardozo Journal of Conflict Resolution

In light of the GPC, it is useful to take a brief step back to consider the legacy of self-reflection that brings the field to this exciting moment. As we reflect, we find ourselves facing new challenges and raising new questions about the direction of alternative dispute resolution ("ADR") in the 21st century. In this Article, Sections II and III will introduce the "Framers" of the ADR industry's "Constitution," and Section IV will evaluate their 100-year legacy and consider the extent to which it now needs further amendments.

A Model For The Use Of Adr To Efficiently Distribute A Significant Settlement Fund In Mass Claims Litigation Without Sacrificing An Individualized Assessment Of Claims, Lynn P. Cohn

Cardozo Journal of Conflict Resolution

Courts in the United States struggle to deal with litigation involving large numbers of claimants. A challenge in these cases is balancing the need for efficiency with opportunities for individualized claim assessment. Generally speaking, efficiency can be sacrificed at the expense of individualization, and vice-versa, but it is often difficult to strike a middle ground. The settlement process described in this article successfully managed this tension and as such can serve as a model for distributing a substantial fund in mass claims litigation.

This article will begin by detailing the legal background of the litigation of A v. B (2013). …

Can Mediation Deliver Justice?, Sherif Elnegahy

Cardozo Journal of Conflict Resolution

Can mediation deliver justice? This article seeks to answer this controversial question by exploring the idea of justice through a number of perspectives, including the historical, philosophical, and religious perspectives. After reaching an understanding on the idea of justice, the article discusses two main means of delivering justice: formal justice-including an analysis of its strength and limitations-and creative justice. The article proceeds to demonstrate the relationship between mediation and justice and mediation's ability to deliver several justice outcomes, which include procedural justice, distributive justice, and restorative justice. The article concludes by highlighting the possible challenges that can accrue when attempting …

Investor Corruption As A Defense Strategy Of Host States In International Investment Arbitration: Investors' Corrupt Acts Give An Unfair Advantage To Host States In Investment Arbitration, Margareta Habazin

Cardozo Journal of Conflict Resolution

First, the paper will analyze the issue of corruption in international investment arbitration. Second, the paper will examine the deployment of corruption as a defense strategy by host states in international investment arbitration. Next, it will address the jurisdictional consequences of proving corruption in the making of the investment. Further, it will describe the distinctive features of relevant ICSID awards and key issues that led to the dismissal of claims. The paper will also estimate the possible implications of the awards to future ICSID claims affected by bribery and try to predict the outcome of the MOL v. Republic of …

The Waning Of The Indian Child Welfare Act: How Mediation May Help Save The Act And Preserve Its Original Intent, Alice Wade

Cardozo Journal of Conflict Resolution

This note proposes a solution to the current crisis of the Indian Child Welfare Act, by establishing mediation forums both for parents of Native American children not domiciled on the reservation, and for tribal members and tribes wishing to utilize state courts when seeking to have their children adopted by non-Native American families. Part A of Section II provides clarification on the definitions of Native American for the purpose of the Act. Part B of Section II discusses the common law origins of the Act and court created exceptions to it. Part C of Section II discusses jurisdiction over Non-Native …

Activist Investors And Mediation, Juliana Bleiberg

Cardozo Journal of Conflict Resolution

Activist investors have the capacity to play a commanding role in a company after they invest in it. Sometimes, these investors are dissatisfied with some aspect of the company, from its structuring, to its earnings, or future expansion or investment plans. In very few instances does an activist approach a company and have the opportunity to be heard by the board in a non-confrontational setting. More commonly, the activist will wage a proxy battle to be acknowledged. The goal of this battle usually aims at removing current board members and replacing them with individuals of the investor's choice, who will …

Utilizing Alternative Dispute Resolution To Foster Comprehensive Traumatic Brain Injury Research, Michael Meyers

Cardozo Journal of Conflict Resolution

ADR, and more specifically mediation, could increase funding towards TBI prevention and recovery research. Section II explores the TBI Reauthorization Act in an effort to highlight its many successes and some of its shortcomings. Following the assessment of the national legislation, it is appropriate to examine efforts being made at the state-level. Next, because professional and collegiate sports leagues control a great deal of revenue, it is important to assess the initiatives set forth through their official league policies and rules, public relations efforts, and scientific contributions. This calls for an extensive examination of the NFL, NHL, NCAA, and FIFA's …

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 19 (2017–18)

Cardozo Journal of Conflict Resolution

No abstract provided.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 19, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Litigation Risk Assessment: A Tool To Enhance Negotiation, Michaela Keet

Cardozo Journal of Conflict Resolution

This paper begins with a discussion of how "good" and "bad" predictions about litigation risk can affect a negotiation process. It explores how thorough predictions are often missing in the way that lawyers and clients prepare for, and navigate through, their negotiations. Drawing on a recent study of lawyers and law students, this paper summarizes a simple framework for conducting a thorough risk assessment, and then examines the way that it can be used to support the pursuit of settlement. Two conclusions emerge from the study, and in particular from the observation of how law students negotiated a hypothetical civil …

Why Arbitration Clauses May Make Sense In Cyber Insurance Policies, Andrew Nadolna, Adrienne Publicover, Daniel Garrie

Cardozo Journal of Conflict Resolution

In this Article, we will argue that policyholders should ask for an arbitration clause in their cyber policies and negotiate over the terms. We will also argue that insurers should offer more options in this space. In this regard, modular arbitration clauses can prove useful for both sides and lead to an effective dispute resolution mechanism for dealing with what may turn out to be a flood of cyber coverage disputes.

We will start with a discussion of the principal objections policyholders often have to mandatory arbitration clauses. Then we will discuss why some of these objections may cut differently …

Mediation Ethics: A Camp Courthouse Colloquy, United States Court Of Appeals For The Second Circuit, Robert Katzmann, Kathleen M. Scanlon, John Feerick

Cardozo Journal of Conflict Resolution

On January 18, 2017, the United States Court of Appeals for the Second Circuit held its first Court Appeals Mediation Program "Courthouse Colloquy." The subject of the colloquy was mediation and ethics. What follows is a transcript of the discussions.

Seventeenth Annual International Advocate For Peace Award Honoring Dr. Rajiv Shah, Rajiv Shah, Melanie Leslie, Lela P. Love, Benjamin Dynkin

Cardozo Journal of Conflict Resolution

On April 6, 2017, the Cardozo Journal of Conflict Resolution presented the Seventeenth Annual International Advocate for Peace Award to Dr. Rajiv Shah. What follows is a transcription of the award ceremony, including Dr. Shah's acceptance speech.

Rwanda And The Kigali International Arbitration Centre: The Future Faces Of East African Arbitration And Growth, Jeremy Cantor

Cardozo Journal of Conflict Resolution

Part I is a brief introduction to the Note. Part II is a brief background of Rwandan history and the country's push for economic growth. Furthermore, Part II elaborates on the history, the current status of Rwanda's judicial system, and on the KIAC. Part III explains why arbitration is fitting for Africa as a whole and why it is more fitting for East Africa specifically. In particular, the Note explains why Kigali is the proper choice of seat6 and KIAC the proper institution, and analyzes certain problems preventing the growth of African arbitration. Lastly, Part IV proposes how to effectuate …

Early Non-Military Intervention To Prevent Atrocity Crimes, Sarah Lesser

Cardozo Journal of Conflict Resolution

This Note explores the possibility of victim-offender mediation or negotiation as a means of early non-military intervention for atrocity crimes, in situations in which indicators from Risk Factor 7 of the U.N. Framework of Analysis are present, and argues that the international community should turn to such forms of mediation and negotiation more often in order to prevent atrocities. Section II provides a brief history of atrocity prevention, and explores other proposals for early warning and non-military intervention. This section also highlights the shortcomings of existing atrocity prevention models. Section III evaluates situations in which victim-offender mediation and negotiation have …

Independent Contractors Or Employees? Why Mediation Should Be Utilized By Uber And Its Drivers To Solve The Mystery Of How To Define Working Individuals In A Sharing Economy Business Model, Ethan Rubin

Cardozo Journal of Conflict Resolution

In an effort to do so, each section of this Note will address a different issue of the ongoing disputes between Uber and its drivers and suggest potential solutions for both parties. Section II focuses on the differences between Uber and its drivers' points of view on whether Uber drivers should be considered employees or independent contractors via National Labor Relations Board ("NLRB") terminology. Section III discusses why it is difficult to label Uber and its drivers under traditional employment law terminology, as well as failures to do so through negotiation, litigation, and arbitration. Section IV proposes that with an …

Developing Improved Tactics For Advance Pricing Agreements To Decrease Negotiation Lead Time, Ryan Vines

Cardozo Journal of Conflict Resolution

This Note seeks to investigate the inefficiencies of the Advance Pricing Agreement negotiation process and how inequitable negotiations adversely affect the American taxpaying community, and small and medium sized corporations. The results of this investigation point to the necessity for the IRS to collect data and perform trend analyses. Although marginal improvements have been made by the Advance Pricing and Mutual Agreement ("APMA") Office, the data show that the real issues of Advance Pricing Agreement negotiations have yet to be resolved. The current practices and procedures of a typical Advance Pricing Agreement negotiation does not promote horizontal equity among taxpayers. …

The Right To Regulate In Investor-State Arbitration: Slicing And Dicing Regulatory Carve-Outs, Vera Korzun

Vanderbilt Journal of Transnational Law

This Article examines the "right to regulate" as the power of a sovereign state to adopt and maintain government measures for public welfare objectives. It explores how claims by foreign investors in investor-state dispute settlement (ISDS) may interfere with the state's ability to regulate, and how the state can protect its right in international investment agreements. The Article first explains the structure of modern international investment law and dispute resolution. It next turns to the right to regulate and explores why regulatory disputes represent a major challenge for ISDS. It continues by analyzing how exceptions, exclusions, and other safeguard provisions …

Clear Statement Rules And The Integrity Of Labor Arbitration, Stephen F. Ross, Roy Eisenhardt

Faculty Scholarship

Under the common law, employment contracts are submitted to civil courts to resolve disputes over interpretation, breach, and remedies. As an alternative, parties in labor contexts can agree to resolution by an impartial arbitrator, whose decision is reviewed deferentially by judges. Where employees are subject to rules of a private association, they are often contractually obligated to submit their claims to an internal association officer or committee; the common law provides for judicial review more limited than a civil contract but more searching than is the case for an impartial labor arbitrator. Recently, the National Football League and its players …

Negotiating While Female, Andrea Kupfer Schneider

SMU Law Review

Why are women paid less than men? Prevailing ethos conveniently blames the woman and her alleged inability to negotiate. This article argues that blaming women for any lack of negotiation skills or efforts is inaccurate and that prevailing perceptions about women and negotiation are in-deed myths. The first myth is that women do not negotiate. While this is true in some lab studies and among younger women, more recent workplace data calls this platitude into question. The second myth is that women should avoid negotiations because of potential backlash. Although women in leadership do face an ongoing challenge to be …