Dispute Resolution and Arbitration Commons^™

The Benefits To Be Derived From Post-Negotiation Assessments, Charles B. Craver

Cardozo Journal of Conflict Resolution

Lawyers negotiate regularly, even when they do not appreciate the fact they are engaged in such activities. They negotiate with their own partners, associates, and legal assistants, as well as with prospective clients and current clients. They also negotiate with outside parties on behalf of their clients. Most legal practitioners have had minimal formal training with respect to this critical lawyering skill, and few spend much time thinking about what they are doing when they engage in bargaining interactions with others.

Mandatory Binding Arbitration Clauses Prevent Consumers From Presenting Procedurally Difficult Claims, Jean R. Sternlight

Scholarly Works

The longstanding debate over the benefits and detriments of mandatory arbitration in the consumer context has often focused on the wrong issue. Although we have now argued for almost twenty years over whether it is appropriate to require consumers to arbitrate rather than litigate claims against providers of products and services, too often commentators have asked whether consumers win or lose when they bring claims in arbitration, rather than whether consumers’ claims are suppressed or eliminated altogether as a result of companies’ use of mandatory arbitration clauses. The United States Supreme Court’s recent decision in AT&T Mobility v. Concepcion brings …

Tainted Love: An Increasingly Odd Arbitral Infatuation In Derogation Of Sound And Consistent Jurisprudence, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Microinvestment Disputes, Perry Bechky

Faculty Articles

Salini v. Morocco sparked one of the liveliest controversies in the dynamic field of international investment disputes. Salini held that the word “investment” in the Convention establishing the International Centre for Settlement of Investment Disputes (ICSID), although undefined, has an objective meaning that limits the ability of member states to submit disputes to ICSID arbitration. The Salini debate is central to this field because it shapes the nature, purpose, and volume of ICSID arbitration—and also determines who gets to decide those matters. In particular, Salini’s decision to include “a contribution to development” as an element of its objective definition of …

Freedom And Governance In U.S. Arbitration Law, Thomas E. Carbonneau

Faculty Scholarship

Arbitration has long served as a contractual substitute for judicial litigation. It provided a workable and effective form of adjudication in ancient societies and among religious groups, much as it does in contemporary times. Its long-standing appeal resides in enabling parties to choose a private adjudicatory mechanism based upon expertise and expedition that delivers fair, affordable, and enforceable outcomes. Arbitral adjudication effectively intermediates between the need for functional trial procedures and the imperative of safeguarding legal rights. Rights cannot be vindicated if the applicable hearing mechanisms are inaccessible and inefficient. The protracted puffery of lawyers is not a feasible solution …

Court Litigation Over Arbitration Agreements: Is It Time For A New Default Rule?, Jack Graves

Scholarly Works

Court litigation over the existence or validity of arbitration agreements is a major threat to the efficacy of international commercial arbitration. While New York Convention Article II(3) requires a court to “refer the parties to arbitration” when faced with a valid and effective arbitration agreement, it fails to provide any guidance with respect to the process for answering that question, thus leaving the issue to national law. A recalcitrant respondent may, therefore, have a variety of options for court challenges—based on a disparate array of national laws—in seeking to delay or at least complicate any claims subject to arbitration. This …

End Of An Error: Replacing Manifest Disregard With A New Framework For Reviewing Arbitration Awards, The, Kenneth R. Davis

Cleveland State Law Review

Guided by the purposes of the FAA, its legislative history, and the role of commercial arbitration in modern society, this Article proposes a new framework for the judicial review of arbitration awards. Awards deciding federal statutory rights such as those conferred by securities law and civil rights law should be reviewed for errors of law. As recognized in Wilko and McMahon, federal rights deserve protection, even in arbitration. There is one other type of award that requires judicial correction. Despite the statements in Hall Street and Concepcion that the FAA provides the exclusive grounds for vacatur, the courts must correct …

Bargaining Without Law, Robert J. Condlin

NYLS Law Review

No abstract provided.

Unified National Legal Treatment Of International Commercial Arbitration: A Continuing Challenge, Horacio A Grigera Naon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

There Is A World Elsewhere: Preliminary Studies On Alternatives To Interest-Based Bargaining, F. Peter Philips

Articles & Chapters

Studies of selected ancient dispute resolution methods suggest that interest-based bargaining is culturally specific and may be inapplicable in societies where individual gratification is not as highly valued as social harmony or spiritual coherence.

Show Me The Money: Part One, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Until now, the discussion of how to ethically monetize “the value added” that settlement savvy attorneys bring to the client has been one of the few remaining taboos that is rarely, candidly discussed among lawyers. How should settlement-proficient lawyers calculate the value of efficient, quality outcomes? How does a lawyer who bills by the hour ethically deal with the inherent conflict of interest between his desire to make as much money as he can and the economic disincentive to be settlement proficient? What are some creative billing incentives to more closely align the clients’ desire for contained legal costs …

Show Me The Money: Part Two, Monetizing The “Value Added” Of Attorneys Who Serve As Mediators And Arbitrators, Elayne E. Greenberg

Faculty Publications

(Excerpt)

In the oft-told fable “The Emperor’s New Clothes,” the candid, uncensored observations of a young child that the Emperor’s “new clothes” weren’t clothes at all but actually the emperor’s nudity, freed the rest of the townspeople to finally acknowledge the jarring reality that their the emperor was naked. And so, “The Emperor’s New Clothes” has become a metaphor for having the courage to see things as they actually are, not for what we are incorrectly told they are. In Part One of this column, I began the discussion of how settlement-savvy lawyers might realistically use alternative fee paradigms instead …

Overcoming Our Global Disability In The Workforce: Mediating The Dream, Elayne E. Greenberg

Faculty Publications

The unparalleled global support for the 2008 United Nations Convention on the Rights of Persons with Disabilities ("CRPD") highlights the global schism between the public extolling of human rights for individuals with disabilities and the private castigating of such individuals in their daily lives and in the workforce. The CRPD explicitly mandates that work is a right accorded to individuals with disabilities, and global employers are now being challenged to implement that right. Yet, in order to ensure meaningful, universal compliance with its directives, the CRPD imposes affirmative duties on Supporting States to develop a customized, workable plan that effectively …

Complex Dispute Resolution: Volume Iii: Introduction And Coda: International Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international conflict resolution. Each volume contains an original introduction by the editor, which explores the key issues in the field. All three volumes feature essays which span an interdisciplinary range of fields, law, political science, game theory, decision science, economics, social and cognitive psychology, sociology and anthropology and consider issues in the uses of informal and …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 13, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

A Case Of Conflict Of Cultures: End-Of-Life Decision Making Among Asian Americans, Pat K. Chew

Cardozo Journal of Conflict Resolution

This essay presents a case example of a conflict between two cultures. One culture is the U.S. mainstream culture, as illustrated in a federal statute, the Patient Self-Determination Act. This statute provides legal guidelines for health care providers dealing with individuals' end-of-life decision making. Lawyers and health care providers refer to these guidelines in their counseling and treatments, apparently assuming that these guidelines are in the best interest of those they serve. The other culture is Asian American culture and its approach to end-of-life decision making. As this essay will discuss, Asian Americans have strong and long-established beliefs, values, and …

Conflicts As Inner Trials: Transitions For Clients, Ideas For Lawyers, Jonathan R. Cohen

Cardozo Journal of Conflict Resolution

As times of transition, conflicts often produce significant inner trials for parties. This paper categorizes some of the more common inner trials parties in conflict face (e.g., coping with loss, strong emotions, uncertainty, etc.) and suggests that, as liminal times in people's lives, some conflicts may also hold within them important opportunities for learning, growth and self-definition. This paper also offers some ideas for how lawyers might best assist clients during such transitions.

"There Is A World Elsewhere": Preliminary Studies On Alternatives To Interest-Based Bargaining, F. Peter Phillips

Cardozo Journal of Conflict Resolution

We live in an Age of Reason, which our predecessors were pleased to call an Age of Enlightenment. The laws of physics and molecular chemistry, not the appearance of angels to shepherds, define our social expectations. In economics and in politics, we accept the guidance of a collective rationale, an Invisible Hand that, if it doesn't predict, nevertheless records the aggregate of decisions made by millions of social actors, each expressing not the general welfare but their individual self-interest.

E-Discovery Mediation & The Art Of Keyword Search, Daniel B. Garrie, Edwin A. Machuca

Cardozo Journal of Conflict Resolution

Identifying keywords when combing through large volumes of electronically stored information ("ESI") is a necessary requirement of electronic discovery. Finding ways to streamline this process in order to achieve maximum efficiency is a major priority for any party involved in the process of electronic discovery, to say nothing of the need to maintain the costs associated with such search at an economically feasible level. A workable solution to both needs is the use of a mediator, neutral, or special master (collectively, a "Special Master"). The process of selecting a Special Master can be daunting, however, choosing one with the ability …

Arbitrating Cultural Property Disputes, Elizabeth Varner

Cardozo Journal of Conflict Resolution

Years drag by, vicious allegations fly across the world stage, parties die frustrated. While cultural property disputes are frequently arbitrated internationally, arbitration is not often used in domestic cultural property disputes. One of the paradoxes of cultural property disputes is the need to resolve the issue while not harming the parties' reputation or devaluing the cultural property. While scholars have shown much interest in arbitrating cultural property disputes in the United States, maximizing the potential of arbitration in cultural property disputes has largely been ignored.

Rejecting the acceptability of litigating cultural property disputes in the battlefield of the courtroom, this …