Economical Litigation Agreements: The "Civil Litigation Prenup" Need, Basis, And Enforceability ,
2012
Pepperdine University
Economical Litigation Agreements: The "Civil Litigation Prenup" Need, Basis, And Enforceability , Daniel B. Winslow, Alexandra Bedell-Healy
Pepperdine Dispute Resolution Law Journal
This article identifies the basis and limits of the parties' abilities to define and enforce discovery in an ex ante contract. Despite the deficiencies of litigation, the free, public dispute resolution forum of the civil justice system provides significant value in commercial disputes. That value can be used to maximum mutual advantage only if parties replace the infinite discovery permitted in conventional litigation with the finite discovery contracted in Economical Litigation Agreement (ELA) litigation. This article will help parties to understand the benefit and enforceability of the ELA.
Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases,
2012
Pepperdine University
Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases, Bejamin F. Tennille, Lee Applebaum, Anne Tucker Nees
Pepperdine Dispute Resolution Law Journal
The assumed compatibility between ADR and specialized courts is largely unexamined. Without being able to statistically validate the motivations and preferences of individual disputants in a manner to draw generalized conclusions, this article examines the relationship between ADR and specialized business courts by looking at how the two are structurally intertwined through existing procedural rules and implementation practices. Part I of this article describes the foundational structures and concepts behind both ADR and specialized business courts, as well as the similarities and differences between them. Part II explores the existing formal structural relationship between ADR and specialized courts by examining …
Keynote Address: Civil Justice At A Crossroads ,
2012
Pepperdine University
Keynote Address: Civil Justice At A Crossroads , Rebecca Love Kourlis
Pepperdine Dispute Resolution Law Journal
I really do believe that, as your title suggests, the civil justice system is at a crossroads and that, as a result, we all have new opportunities and old responsibilities. Four years ago, concerns about skyrocketing costs, unprofessional gamesmanship, and long delays in civil litigation were the stuff of grousing and shoulder shrugs. We all had a level of fatalism or cynicism about our inability to change any of those factors. Now, that is not true. There is a window of opportunity that has opened-a convergence of various forces resulting in a willingness of decision-makers to consider change. As a …
Foreword,
2012
Pepperdine University
Foreword, Jeffrey D. Hoyle
Pepperdine Dispute Resolution Law Journal
The Symposium entitled American Justice at a Crossroads: A Public and Private Crisis was held at Pepperdine University School of Law on April 15, 2010, under the joint sponsorship of the Straus Institute for Dispute Resolution, the Pepperdine Dispute Resolution Law Journal, and the International Institute for Conflict Prevention and Resolution (CPR). It brought together a distinguished group of speakers and panelists to discuss dissatisfaction with the American justice system caused by increased delays, rising litigation costs, and decreased access to justice; and creative ways being used to address these concerns.
An Unnecessary Consternation: An Analysis Of The Future Of Eu Arbitration In The Wake Of The West Tankers Decision,
2012
Pepperdine University
An Unnecessary Consternation: An Analysis Of The Future Of Eu Arbitration In The Wake Of The West Tankers Decision, Mark G. Materna
Pepperdine Dispute Resolution Law Journal
This article proposes that, despite the West Tankers decision, parties are still not free to breach the terms of an arbitration agreement. On the contrary, there has been a strong trend by English courts to find ways of preventing parties from breaching such agreements. In short, this article serves to quell the panic and elucidate that the West Tankers decision is not a nail in the coffin, but rather a mechanism to reiterate European courts' dedication to ensuring that arbitration provisions remain a potent force against economic infidelity. Part II of this article will provide a brief background of anti-suit …
A Call To Action: A Client-Centered Evaluation Of Collaborative Law,
2012
Pepperdine University
A Call To Action: A Client-Centered Evaluation Of Collaborative Law, Alexandria Zylstra
Pepperdine Dispute Resolution Law Journal
This paper will first examine the process of collaborative law, from deciding to hire a collaborative lawyer to the disqualification agreement, as well as identifying potential dangers for the client, including an analysis of collaborative law utilizing the negotiation theory of Roger Fisher and William Ury's book Getting to Yes. The second part of the paper will examine how collaborative law literature evaluates and critiques the costs and benefits of collaborative law. This paper ultimately finds that the cost-benefit analysis either stems from small, non-controlled studies or personal anecdotes, or discussions of whether collaborative law complies with ethics rules, …
"El Agua No Se Vende: Water Is Not For Sale!" The Latin American Water Tribunal As A Model For Advancing Access To Water,
2012
Pepperdine University
"El Agua No Se Vende: Water Is Not For Sale!" The Latin American Water Tribunal As A Model For Advancing Access To Water, Mikita A. Weaver
Pepperdine Dispute Resolution Law Journal
At the international level, water is now understood to be a basic human right. However, conflict continues to intensify surrounding indigenous people's access to water as the resource becomes scarcer. In particular, this paper will examine the struggle of indigenous people in Latin America and the creation of the Latin American Water Tribunal (LAWT) as a solution. Section II will describe the LAWT, including the formation of the tribunal, case selection, and the structure of the public hearing. Section III will discuss both how the LAWT overcomes problems with the current legal system and the success of the tribunal as …
The Disempowering Relationship Between Mediator Neutrality And Judicial Impartiality: Toward A New Mediation Ethic,
2012
Pepperdine University
The Disempowering Relationship Between Mediator Neutrality And Judicial Impartiality: Toward A New Mediation Ethic, Ronit Zamir
Pepperdine Dispute Resolution Law Journal
The issue I shall discuss in this article is whether the concept of mediator neutrality advances the empowering and effective participation of parties from disadvantaged groups. Section II will deal with the relationship between the concept of neutrality in the adversarial legal process, in the mediation process, and the concept of procedural justice. I shall then present the meanings ascribed to the concept of mediator neutrality in the two prevailing models of mediation: the problem-solving model and the transformative model. The affinity between these meanings and the concept of judicial impartiality will be discussed and critiqued. Finally, I shall suggest …
Stumbling Down The Courthouse Steps: Mediators' Perceptions Of The Stumbling Blocks To Successful Mandated Mediation In Child Custody And Visitation ,
2012
Pepperdine University
Stumbling Down The Courthouse Steps: Mediators' Perceptions Of The Stumbling Blocks To Successful Mandated Mediation In Child Custody And Visitation , Sandra J. Perry, Tanya M. Marcum, Charles R. Stoner
Pepperdine Dispute Resolution Law Journal
Although many concerns and criticisms about the efficacy of family law mediation have been made by attorneys, judges, and psychologists, we seldom hear from the mediators themselves about how the process works. In this study, we examine the mediators' perceptions of the stumbling blocks to success in mandatory child custody mediation and make some recommendations about how the process might be improved.
The Case Against Maritime Class Arbitration: A Brief Policy Argument,
2012
Pepperdine University
The Case Against Maritime Class Arbitration: A Brief Policy Argument, Landon R. Schwob
Pepperdine Dispute Resolution Law Journal
On April 27, 2010, the United States Supreme Court decided a case that will have far-reaching implications for virtually all sectors within the arbitration industry, including the subject of this article-maritime arbitration. The question presented in Stolt-Nielsen v. AnimalFeeds International Corp. dealt with class arbitration and whether its imposition on parties whose arbitration clauses are silent on that issue is consistent with the Federal Arbitration Act (FAA). This article will primarily examine the history and viability of class arbitration-and arbitration in general-in the far more narrow context of maritime and the admiralty. Stolt-Nielsen provides an excellent backdrop against which to …
The Truth Shall Set You Free: A Distinctively Christian Approach To Deception In The Negotiation Process,
2012
Pepperdine University
The Truth Shall Set You Free: A Distinctively Christian Approach To Deception In The Negotiation Process, Al Sturgeon
Pepperdine Dispute Resolution Law Journal
This paper examines whether the Christian religion offers a distinct position on the use of deception in the negotiation process. It is expected to be of primary interest to Christian negotiators, but combining the popularly understood theorem that "everyone negotiates on some level" with the fact that there are over 173 million Christian adherents in the United States alone, the topic may be of general interest to anyone who negotiates. There is apparently neither an official nor a widespread recognition of a distinct Christian position on the use of deception in negotiation at present. It is this article's proposal, however, …
Adr And A Smile: Neocolonialism And The West's Newest Export In Africa,
2012
Pepperdine University
Adr And A Smile: Neocolonialism And The West's Newest Export In Africa, Anthony P. Greco
Pepperdine Dispute Resolution Law Journal
While the ills of the West's corporatization of the world have long been debated and catalogued, often neglected is the role the law plays in empowering the rich, disenfranchising the poor, and serving as the "handmaiden to empire." Since what has been termed the "rule of law revival," which saw its genesis sometime in the late 1980s, the adoption of Western legal frameworks to help developing and Third World nations transition and gain access to the ever growing global market has become commonplace. With the coming of the Alternative Dispute Resolution (ADR) revolution during the last few decades, the West …
For Heaven's Sake, Give The Child A Voice: An Adr Approach To Interfaith Child Custody Disputes ,
2012
Pepperdine University
For Heaven's Sake, Give The Child A Voice: An Adr Approach To Interfaith Child Custody Disputes , Charlee Lane
Pepperdine Dispute Resolution Law Journal
There has been ample study devoted to the problems that arise when courts are faced with custody disputes intertwined with issues of religion. Unfortunately, many of those studies conclude without proposing an effective solution or by suggesting an alternative without defining what that alternative might be. A solution must be employed that allows religious consideration in a forum more suitable to facilitating a resolution in the complete best interest of the child and parents. Mediation provides this forum by facilitating a negotiation in which parents are allowed to develop their own collaborative solutions to interfaith child custody disputes. Through techniques …
Arbitration Hurdles Facing Foreign Investors In Russia: Analysis Of Present Issues And Implications,
2012
Pepperdine University
Arbitration Hurdles Facing Foreign Investors In Russia: Analysis Of Present Issues And Implications, Elliot Glusker
Pepperdine Dispute Resolution Law Journal
Russia has come a long way since the collapse of the Soviet Union in 1991, but there are still some structural reforms that need to take place in order to increase investor confidence. In 2007, one hundred billion dollars was invested in Russia from overseas, which represents a record for a developing market economy. However, direct foreign investment in Russia is still low compared to other European nations. Foreign investment is one of Russia's main strategies for improving the long-term health of the economy. There is a lot of promise for future economic growth, but some recent actions by the …
Employees Losing Power, Losing Jobs: Making The Case For Mediating Power In The Era Of Buy-Ins And Bailouts,
2012
Pepperdine University
Employees Losing Power, Losing Jobs: Making The Case For Mediating Power In The Era Of Buy-Ins And Bailouts, Lovalerie Mullins
Pepperdine Dispute Resolution Law Journal
This article proposes that dispute in the workplace is the best illustration of the loss of equanimity boundaryless employees experience in their work environment, and further, that dispute systems design necessitates a power neutralizing approach for mediating struggles caused by power disparity present in today's private employment relationships. To that end, my goal is to provide an employee-centered perspective of self-regulated employment policy in America, and to demonstrate the degree of conflict (and eventual disputation) such policy creates for boundaryless workforces. Ultimately, I make the case for an evolved dispute resolution process more able to manage power disparity in modem …
Resolving Conflicts Over Climate Change Solutions: Making The Case For Mediation ,
2012
Pepperdine University
Resolving Conflicts Over Climate Change Solutions: Making The Case For Mediation , Alana Knaster
Pepperdine Dispute Resolution Law Journal
This article explores the role that mediation can play in resolving the conflicts that are emerging in the climate change arena. Case studies describing mediation of disputes over air quality standards, timber harvesting, species protection, and ecosystems restoration, which resulted in consensus agreements among multiple, diverse stakeholder groups, demonstrate its applicability to the climate change arena. Mediation is not suited to every dispute or set of disputants. However, an analysis of the opportunities and constraints for addressing climate change disputes at the state, regional, and local levels suggests that mediated negotiations is well suited for resolving a number of the …
Getting The Green Light For Senate Bill 375: Public Engagement For Climate-Friendly Land Use In California,
2012
Pepperdine University
Getting The Green Light For Senate Bill 375: Public Engagement For Climate-Friendly Land Use In California, Greg Greenway
Pepperdine Dispute Resolution Law Journal
Signed into law in September 2008, California's Senate Bill 375 (SB 375) is the first statewide legislation in the nation to link transportation and land use planning to climate change. The law is lengthy and complex, but the central concept is simple: locate homes closer to jobs, services, and transit so that Californians drive less frequently, travel shorter distances, and reduce their greenhouse gas (GHG) emissions. This article examines the approach to public participation outlined in SB 375, and argues that a critical success factor is the design and execution of strategies by local governments to engage citizens in the …
South Pasadena: A Dialogue On Dialogue,
2012
Pepperdine University
South Pasadena: A Dialogue On Dialogue, Steve Zikman
Pepperdine Dispute Resolution Law Journal
In the last half century, South Pasadena has fought many land use related battles-from efforts to stop the extension of the 710 freeway (710) through the heart of the city, to the recent ballot measure (Measure SP) that sought to overturn the City Council's approval of the new Downtown Revitalization Plan. The pattern of engagement continues to be one of "us versus them," with locals assuming extremely polarized positions, escalating the level of mistrust and demonization, and further dividing the city's civic and social fabric. Mediators are typically called in to help stakeholders resolve specific land use conflicts. However, there …
Foreword ,
2012
Pepperdine University
Foreword , Steve Zikman
Pepperdine Dispute Resolution Law Journal
Taking It Upstream: Collaboration, Consensus Building & Sustainable Development-A Green Leadership (Un)conference was held at Pepperdine University's Graziadio Conference Center on September 25, 2009. In the spirit of collaboration, the symposium marked the first event jointly sponsored by the Straus Institute for Dispute Resolution and the Geoffrey H. Palmer Center for Entrepreneurship & the Law. The two journals have created special symposium editions comprised of papers authored by a number of the panelists, reflecting important trends in the evolution of conflict management and dispute resolution in the areas of multi-party environmental, land use, and public policy matters.
Conference Bibliography: Democracy And The Workplace,
2012
University of Nevada, Las Vegas -- William S. Boyd School of Law
Conference Bibliography: Democracy And The Workplace, Wiener-Rogers Law Library, University Of Nevada, Las Vegas -- William S. Boyd School Of Law
Lectures & Talks
A selected bibliography was prepared in connection with the Saltman Center Labor Law Symposium 2012: Democracy and the Workplace held at the William S. Boyd School of Law, University of Nevada, Las Vegas, on February 23-25, 2012.
