Dispute Resolution and Arbitration Commons^™

Live Free Or Regulate: Considering A, B And Their Dispute Resolution Clause Regarding Blackacre, Jean R. Sternlight

Scholarly Works

No abstract provided.

Adr's Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum

Scholarly Works

Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid foreclosures than others. This Article comprehensively examines the key components …

Lawyers And Mediation: Lessons From Mediator Stories, Sharon Press

Faculty Scholarship

In Stories Mediators Tell, Lela Love and Eric Galton have compiled a compelling anthology of stories about mediation. Not surprisingly, most of the stories involve a significant moment when something special happened for the parties. The author was reminded of presentations by Baruch Bush and Joe Folger in the early 1990's (around the time the first edition of The Promise of Mediation was published). They would ask mediators who attended their sessions to recount to a partner one of their memorable mediations. Inevitably, the stories were about transformative moments - of parties obtaining clarity for the first time - of …

The Historical Contingencies Of Conflict Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

This article reviews the historical contingency of theory and practice in conflict engagement. World War II and the Cold War produced adversarial, distributive, competitive, and scarce resources conceptions of negotiation and conflict resolution, as evidenced by game theory and negotiation practice. More recent and more optimistic theory and practice has focused on party needs and interests and hopes for more party-tailored, contingent, flexible, participatory and more integrative and creative solutions for more than two disputants to a conflict. The current challenges of our present history are explored: continued conflict in both domestic and international settings, the challenge of “scaling up” …

Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra

Faculty Articles

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984, the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …

Let's Talk: How Mediation Programs Provide Access To Justice For Homeowners Going Through Foreclosure, Melina Rozzisi

Public Interest Law Reporter

No abstract provided.

Constraining Targeting In Noninternational Armed Conflicts, Peter Margulies

Vanderbilt Journal of Transnational Law

An American drone pilot thousands of miles away from Afghanistan sees a tempting target on his computer screen. Thanks to the Predator drone's video capabilities,' the pilot is treated to the spectacle of a known Taliban commander and over a dozen other armed men greeting a dozen tribesmen, who are also armed to the teeth. Everyone depicted on-screen has a gun. The pilot fires the Predator's missile. Shortly thereafter, he confirms the deaths of thirty Taliban fighters and associated forces.

While the facts above, particularly the presence of the known Taliban commander, tend to show that the strike was consistent …

Tribal Rights, Human Rights, Kristen A. Carpenter, Angela R. Riley

Publications

No abstract provided.

What Sally Soprano Teaches Lawyers About Hitting The Right Ethical Note In Adr Advocacy, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Paradoxically, when lawyers opt to mediate or arbitrate, lawyers may still wind up selecting, shaping and advocating in these dispute resolution processes to resemble the very litigation process they have sought to avoid. After all, litigation likely comports with the lawyer’s own conflict style, comfort level and concepts of justice. As a consequence of this litigation bias, we see that the metaphorical doors of a multi-door courthouse that once offered a menu of dispute resolution choices are increasingly leading us back to one choice: a variation of the litigation door. Even though the Model Rules of Professional Conduct confirm …

Confidentiality: The Illusion And The Reality— Affirmative Steps For Lawyers And Mediators To Help Safeguard Their Mediation Communications, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Confidentiality is one promise of mediation that is increasingly broken, even though judges, lawyers and mediators frequently extol the sacredness of mediation confidentiality as a primary benefit for considering mediation as a settlement forum. We observe that legal challenges to any aspect of the mediation have caused judges to scrutinize mediation communications in a way that renders mediation confidentiality vulnerable at a minimum and violated at the worst. We are finding it a chronic challenge to decipher the precise and appropriate boundaries of mediation confidentiality. Moreover, we are increasingly discomforted to see that even unsuccessful legal challenges to mediation …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 14, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

The Impact Of Gender On Negotiation Performance, Charles B. Craver

Cardozo Journal of Conflict Resolution

In 2009, Professors Russell Korobkin and Joseph Doherty published an article suggesting that male law students are more proficient negotiators than female law students. Their study was based upon student negotiation performance on a single employment discrimination hypothetical in which the only issue was money-a classic zero sum exercise, where there was no way the participants could engage in integrative bargaining based upon the different degrees to which the parties valued diverse issues. The exercise was given to 136 first-year law students at University of California-Los Angeles (U.C.L.A.) and University of Southern California (U.S.C.). The participants were not taking a …

Increasing Referrals To Small Claims Mediation Programs: Models To Improve Access To Justice, Heather Scheiwe Kulp

Cardozo Journal of Conflict Resolution

The justice system is in crisis. In 2011, 85% of Connecticut's family court cases had at least one self-represented litigant. In Massachusetts, 92% of parties appearing in housing cases are selfrepresented. New York saw self-representation in 97% of child support cases. Although judges and attorneys are learning to adapt to this new reality, the strain is felt strongly by bench and bar alike.

This article explores a service that many courts already offer-small claims mediation-and studies how courts may more effectively refer parties to such services. Specifically, this article identifies six primary models courts use to refer parties to small …

State Courts Or Adr In Nazi-Era Art Disputes: A Choice "More Apparent Than Real"?, Christa Roodt

Cardozo Journal of Conflict Resolution

This article explores the first and arguably most important procedural choice a party can make when instituting a claim in respect to Nazi-era art, namely between alternative dispute resolution ("ADR") and state court litigation. A sound analysis of the meeting points and potential conflicts of processes involving administrative bodies, ADR fora and the judiciary can contribute to more effective law reform.

The "State Of Necessity" Defense: A Burden, Not A Blessing To The International Investment Arbitration System, Kelley Chubb

Cardozo Journal of Conflict Resolution

This Note discusses how the necessity defense, in the context of the Argentinian financial crisis arbitrations, has undermined the legitimacy of the international investment arbitration system. A discussion of the Argentinean cases listed above reveals that its application is inconsistent. A successful claim for necessity requires the following factors: (1) an essential interest must be at stake, (2) that interest must be threatened by grave and imminent peril, (3) the wrongful conduct must be the only method to protect the threatened interest, and (4) the offending government must have considered a balance of interests and must not have contributed to …

Hawaiian Land Disputes: How The Uncertainty Of The Native Hawaiian Indigenous Tribal Status Exacerbates The Need For Mediation, Donna S. Salcedo

Cardozo Journal of Conflict Resolution

Many people see the Hawaiian Islands as a paradise in the Pacific Ocean. However, most are unaware that history has left an unpleasant and permanent scar on the original inhabitants of the islands, the Native Hawaiians. It is often forgotten that the islands were once ruled by its monarchy. In fact, the Hawaiian Kingdom was not overthrown until 1893, and the islands did not reach statehood until 1959. Despite this however, Native Hawaiians have never officially been considered an indigenous tribe. This lack of recognition from the federal government has caused a strong sense of injustice that is prevalent throughout …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 14, Iss. 3

Cardozo Journal of Conflict Resolution

No abstract provided.

The Rise In Judicial Hostility To Arbitration: Revisiting Hall Street Associates, Thomas E. Carbonneau

Cardozo Journal of Conflict Resolution

When the United States Supreme Court granted certiorari in Hall Street Associates, LLC v. Mattel, Inc., commentators expected the Court to resolve the split among the federal circuits regarding the validity and enforceability of 'opt-in' agreements. Since the late 1990s, these agreements had become a means through which contracting parties could obtain enhanced judicial supervision of arbitral awards by providing for judicial review of the merits of arbitrator rulings. While commentators got a resolution to the split, they received a great deal more than they had been promised. In effect, the Court concluded that the statutory framework for enforcement …

The Curious Case Of Transformative Dispute Resolution: An Unfortunate Marriage Of Intransigence, Exclusivity, And Hype, Robert J. Condlin

Cardozo Journal of Conflict Resolution

Why do proponents of Transformative Dispute Resolution ("TDR") defend the Theory in such intransigent, exclusivist, and grandiose terms? TDR is a mature theory, and a relatively sophisticated one, and qualities of this sort usually go hand in hand with a balanced, refined, and well-modulated sense of self, but TDR proponents will have none of that. They make ambitious (some would say outlandish) assertions about the Theory's capacity to develop moral and political character, reform deliberative government, and resolve ethno-political conflict, while simultaneously rejecting overtures from sympathetic outsiders to rein in the overstated aspects of these claims, and craft a more …

A Tale Of Two Lawyers: How Arbitrators And Advocates Can Avoid The Dangerous Convergence Of Arbitration And Litigation, Neal M. Eiseman, John E. Bulman, R. Thomas Dunn

Cardozo Journal of Conflict Resolution

When modern arbitration became popular in the United States in the 18th and 19th centuries, courts viewed it as a threat to their exclusive powers. Over time, that mindset has changed dramatically. The passage of the Federal Arbitration Act ("FAA") in 1926 embraced a federal policy strongly favoring arbitration as a method of relieving court congestion and providing parties with a speedier, less costly means of resolving disputes. Thereafter, agreements to arbitrate found their way into many standard form agreements and business contracts as arbitration became accepted as a bona fide alternative to litigating in court. Today, as litigators can …