Dispute Resolution and Arbitration Commons^™

Deliberative Look At Alternative Dispute Resolution And The Rule Of Law, A, Peter Muhlberger

Journal of Dispute Resolution

This paper critiques the foundations of Aragaki's analysis, but also gives credit on the importance of dealing with people as less than fully rational. The critique suggests, again, a deep commonality between DD and ADR and potential improvements to both approaches. True collaboration between these approaches, however, requires some re-theorizing of both, including a reconsideration of rationality itself. This paper will sketch some ways in which this might be achieved and, in particular, how DD theory and research may prove helpful for ADR.

A Case Study Investigating The Interpretation And Implementation Of The Transformative Mediation Technique, Chuks Petrus Nweke

Walden Dissertations and Doctoral Studies

For decades, unresolved conflicts have negatively influenced the general public through increased violence, overwhelming the judicial system. A literature review suggested that between 15% and 20% of conflicts result in an impasse. This study was designed to understand how the implementation and application of the transformative meditation technique (TMT) is used to resolve conflicts. The purpose of this qualitative case study was to investigate the interpretation and implementation of TMT. This qualitative case study was grounded in the conceptual framework of interest-based negotiation (IBN) principles. The research questions focused on mediators' perceptions, interpretations, and depth of knowledge, as well as …

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Alternative Dispute Resolution And The Rule Of Law In International Development Cooperation, James Michel

Journal of Dispute Resolution

This paper briefly reviews the concept of development and related international cooperation. It then examines how the rule of law has been addressed in development programs and offers some thoughts about the contribution of ADR for advancing the rule of law and, in turn, contributing to human security, wellbeing, and dignity.

Japan's Business Revitalization Adr: An Economic Savior Or A Convenient Excuse To Avoid Bankruptcy?, Naoko Okamoto

Cardozo Journal of Conflict Resolution

This Note analyzes Japan's newly enacted "Business Revitalization Alternative Dispute Resolution" (ADR) and its effectiveness in revitalizing the Japanese economy. Due to ADR's economic and procedural ease, Business Revitalization ADR has been employed by companies undergoing revitalization processes and negotiating with creditors in extending debt payments. Nonetheless, ADR proceedings, specifically mediation between creditors and debtors, create only short-term economic value. Because of cultural characteristics of mediation and the nature of mediation in the business context in Japan, Business Revitalization ADR may be subject to abuse by companies that should have gone bankrupt. In fact, many companies may save themselves from …

A Lesson From The Holocaust Restitution Movement For Armenians: Generate Momentum To Secure Restitution, Vartges Saroyan

Cardozo Journal of Conflict Resolution

This Note proceeds in five parts. Part I provides a historical background of the events prior to and during the Armenian Genocide, and the claims arising out of the Genocide. Part II discusses the status of Genocide restitution and the roadblocks that continue to prevent widespread recovery. Part III explains the timeline of the Holocaust restitution movement and how advocates for restitution were finally able to have some success. Part IV proposes that Genocide-era claims be sought not only by filing lawsuits, but also by creating momentum through negotiation and other principles of ADR. Part V concludes by reiterating the …

The Adventures Of 'Superman': A Narrative Worth Mediating, Jeffrey Zeman

Cardozo Journal of Conflict Resolution

Summer, 2013. The world will believe, again, a man can fly. Most likely, anyway. Maybe. Fingers crossed.

The rights to Superman and his stories are the subject of a long-developing and heated dispute between publisher DC Comics ("DC") and the estate of Jerry Siegel, co-creator of the iconic character. While a much-talked-about reboot of the movie franchise enters preproduction, the latest round of lawsuits involves DC suing the Siegel family's attorney. The publisher claims attorney Marc Toberoff has wrongfully interfered with "contractual rights and other interests" by advising the families of Siegel and his cocreator, Joe Schuster, to reclaim the …

After The Ecj's West Tankers: The Clash Of Civilizations On The Issue Of An Anti-Suit Injunction, Grace Gunah Kim

Cardozo Journal of Conflict Resolution

This Note argues that the ECJ's West Tankers decision to ban an anti-suit injunction in Europe, coupled with the recent European Commission's reform proposals to govern arbitration within the jurisdictional framework of the Brussels Regulation No. 44/ 2001 ("Brussels Regulation"), directly clash with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") and practically amount to a blanket rule that bars English courts from upholding arbitration agreements.

Equitable Estoppel To Compel Arbitration In New York: A Doctrine To Prevent Inequity, Matthew Berg

Cardozo Journal of Conflict Resolution

Arbitration, as a favored alternative to court systems, finds its validity in both state and federal law. The Federal Arbitration Act ("FAA") was enacted in 1925 unopposed, reflecting a strong favored alternative by the federal government to the Article III courts. This presumption was established in Section 2 of the FAA, which provides that contracts that include an arbitration clause "shall be valid, irrevocable, and enforceable" unless a court finds "grounds as exist at law or in equity for the revocation of any contract [or clause]."

Beyond Adjudication: Resolving International Resource Disputes In An Era Of Climate Change, Anna Spain

Publications

This Article examines the role of international adjudication as a mechanism for resolving international disputes and promoting global peace and security in an era of climate change. The central claim is that adjudication has limitations that make it ineffective as a tool for resolving international resource disputes. The Article argues that adjudication is limited due to source and process challenges and it illustrates this claim by reviewing cases adjudicated by the International Court of Justice, the Permanent Court of Arbitration and other international courts and tribunals. Four categories of adjudication limitation emerge: a) cases where the parties refused to submit …

Cohabitation And The Restatement (Third) Of Restitution & Unjust Enrichment, Candace Kovacic-Fleischer

Scholarly Articles in Law Reviews & Journals

The Restatement (Third) of Restitution & Unjust Enrichment clarified and modernized a field that had become muddled since the publication of the Restatement (First) in 1937. One area of modernization relates to the changes in law towards women, particularly changes in law toward female cohabitants. Published in 2011, the Restatement (Third) added a new Section 28, which rejected the view that it would be immoral for one cohabitant to bring suit against the other, and relaxed the restriction on recovery in unjust enrichment for "gratuitous" contributions. This Article reviews societal and legal changes for women since 1937 and notes that, …

William Howard Taft And The Taft Arbitration Treaties, John E. Noyes

Faculty Scholarship

Part I of this Essay explains Taft's interest in international law, placing it in historical context. Part II, outlines key features of the treaties and explores the debate over their ratification. Part III then reflects on the significance of the treaties.

Family, The Market, And Adr, The, Amy J. Cohen

Journal of Dispute Resolution

This Article proceeds in three Parts. I begin by briefly summarizing what I will refer to as separate spheres ideology-the idea that our normative understandings of the family and the market are constructed in contradistinction to one another. I then show how this conceptual distinction between the family and the market shaped the development of alternative dispute processing during two periods of time. The first period, which I introduce to frame the second, examines how dispute processing reformers-beginning during the Progressive era and continuing to the 1930s-distinguished alternative forums for family disputes from alternative forums for commercial ones. In Part …

Access To Justice And Alternative Dispute Resolution, William Davis, Helga Turku

Journal of Dispute Resolution

This article reviews access to justice both theoretically and in practice. Second, it highlights some of the challenges and successes of implementing access to justice projects. Finally, it discusses alternative dispute resolution (ADR) reforms in the developing world as one important element of access to justice.

Procedural Justice And The Rule Of Law: Fostering Legitimacy In Alternative Dispute Resolution, Rebecca Hollander-Blumoff, Tom R. Tyler

Journal of Dispute Resolution

In Part II, we provide background on the psychology of procedural justice. Then, because the term rule of law has been used so widely and in so many different ways, we explain its various meanings and go on to draw connections between the elements of procedural justice and the rule of law, highlighting both the similarities and distinctions between the two principles. We then marshal evidence in support of the critical role that procedural justice and rule of law values play in fostering perceptions of legitimacy. Part III explores the links among procedural justice, rule of law, and specific ADR …

Adr And Transitional Justice As Reconstructing The Rule Of Law, Michal Alberstein

Journal of Dispute Resolution

This paper addresses the role of ADR in reconstructing the rule of law following the critique this idea received during the 20th century, and exemplifies this role through reference to another alternative movement in law-The Transitional Justice movement. In contrast to efforts to reconcile the notion of the rule of law with ADR, or to demarcate the proper interaction between these social institutions in achieving justice, this paper argues for a deeper connection between the two notions: After briefly analyzing the intricate meanings of the rule of law notion through history and its relation to ADR, the paper continues to …

Comment: Trends And Challenges In Bringing Together Adr And The Rule Of Law, Stephanie E. Smith

Journal of Dispute Resolution

The goals of justice, peace, and prosperity will not be achieved overnight. Strategies that aim to achieve a perfect state in a short time frame are doomed to failure. Rule of law approaches should be individualized for local context, and be nimble enough to adapt over time to advance these ambitious goals. Success will require drawing upon expertise from many practice areas and academic fields, and coordinating activities to maximize limited resources.

De Novo A No No: Contractually Expanded Judicial Review Clauses Do Not Preclude Faa Application In State Court Unless The Parties Make It Intentionally Clear The Faa Does Not Apply In Their Agreement - Raymond James Fin. Servs., Inc. V. Honea, Tom Swoboda

Journal of Dispute Resolution

This Note addresses a recent Alabama Supreme Court decision concerning the issue of contracted appellate review in arbitration agreements. After analyzing the history of enforcement of arbitration agreements between contracting parties in U.S. Supreme Court precedent, this Note will explore the most recent Supreme Court decision regarding when parties may seek judicial review of arbitration awards. The Federal Arbitration Act's (FAA) preemptive effect over state court law will also be addressed, as the Supreme Court was not thoroughly explanatory on the issue. This Note will also evaluate and compare another state court ruling in Pennsylvania on the same judicial review …

Lost In Translation: Can Exporting Adr Harm Rule Of Law Development, Cynthia Alkon

Journal of Dispute Resolution

This article will begin with a brief explanation of rule of law development work. Section III will describe the role of legitimacy in developing rule of law. Section IV will discuss some examples of how ADR programs are typically included in rule of law development work. Section V will discuss when promotion of ADR programs may work against the development of rule of laws, specifically when ADR might seem more like a new form of corruption or when it might reinforce already existing bad practices. Section VI will offer some questions for ADR and rule of law development practitioners to …

New Twist On An Old Approach: Missouri's Use Of Unconscionability And Consent In The Class Arbitration Waiver Analysis - Brewer V. Missouri Title Loans, Inc., A, Whitney Hampton

Journal of Dispute Resolution

In recent years, the inclusion of arbitration agreements in consumer product contracts has become increasingly popular. In an effort to shield themselves from the damaging effects of expensive class action suits by consumers, many companies have begun to include class arbitration waivers in their contracts, which effectively mandate individual arbitration. These arbitration agreements were initially met with optimism. However, courts have seemingly developed a sense of disdain toward them because of their apparent ability to perpetuate disreputable business practices. This has left many courts searching for ways to invalidate class arbitration waivers.