Dispute Resolution and Arbitration Commons^™

Criminal Alternative Dispute Resolution: Restoring Justice, Respecting Responsibility, And Renewing Public Norms, Maggie T. Grace

Student Articles and Papers

This Article explores theoretical concerns underlying contemporary appeals to Alternative Dispute Resolution ("ADR") in the criminal justice system. Analyzing literature on free will and responsibility and leading work on transitional justice, I argue that a restorative justice approach to criminal ADR better accommodates the realities of social conditions that correlate with criminality while respecting deeply-held concepts of responsibility. I further argue that this approach provides a useful response to critics, such as Owen Fiss, who argue that ADR privatizes disputes, thereby failing to produce and reinforce essential public norms.

Yes, And: Core Concerns, Internal Mindfulness, And External Mindfulness For Emotional Balance, Lie Detection, And Successful Negotiation, Clark Freshman

Faculty Scholarship

No abstract provided.

Foreclosure By Arbitration?, R. Wilson Freyermuth

Faculty Publications

The recession and the drastic decline in home values have combined to trigger a wave of foreclosures. Predictably, legislators, policymakers, scholars, and consumer advocates have responded with a wide range of proposals designed to protect distressed mortgagors from losing their homes.

Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten

Faculty Publications

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing …

‘Drive-Thru’ Arbitration In The Digital Age: Empowering Consumers Through Regulated Odr, Amy J. Schmitz

Faculty Publications

Online Dispute Resolution (ODR) has been promoted for quickly and conveniently resolving claims using online “drive-thru” processes instead of more costly and time-consuming face-to-face meetings and hearings. Most commentators have nonetheless focused mainly on non-binding or automated bidding processes, perhaps due in part to fairness concerns associated with off-line arbitration. This Article, however, explores the potential for online binding arbitration (OArb), and sheds new light on arbitration as means for empowering consumers to obtain remedies on their e-merchant claims. By moving arbitration online, OArb helps address concerns regarding companies’ use of arbitration clauses to curb consumers’ access to remedies on …

Collective Bargaining As A Dispute-Reduction Vehicle Accommodating Contrary Animal Welfare Agendas, Michael N. Widener

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Artificial Intelligence: Robots, Avatars And The Demise Of The Human Mediator, David Allen Larson

Faculty Scholarship

As technology has advanced, many have wondered whether (or simply when) artificial intelligent devices will replace the humans who perform complex, interactive, interpersonal tasks such as dispute resolution. Has science now progressed to the point that artificial intelligence devices can replace human mediators, arbitrators, dispute resolvers and problem solvers? Can humanoid robots, attractive avatars and other relational agents create the requisite level of trust and elicit the truthful, perhaps intimate or painful, disclosures often necessary to resolve a dispute or solve a problem? This article will explore these questions. Regardless of whether the reader is convinced that the demise of …

Using Mindfulness Practice To Work With Emotions, Deborah Calloway

Nevada Law Journal

The most important point to understand is that working with and understanding our own emotional reactions is an essential prerequisite to working skillfully with emotionally charged individuals in disputes. Training in “mediation techniques” designed to help us recognize and work with emotions in the mediation and negotiation context will not work unless we have practiced working with our own emotions consistently in our ordinary lives. Otherwise, in the heat of the moment during a negotiation or mediation, we are likely to forget every technique we have learned. Habitual patterns of behavior simply take hold.

This article seeks to provide some …

What Is '(Im)Partial Enough' In A World Of Embedded Neutrals?, Nancy A. Welsh

Faculty Scholarship

The Supreme Court’s decision in Caperton v. A. T. Massey Coal Co. highlighted the fragility of judicial independence and impartiality in the United States. A similar, less-noticed fragility of independence and impartiality exists among the arbitrators, mediators and administrative hearing officers who resolve an increasing number of disputes. Everywhere one looks, there is unremarked yet remarkable evidence of the rise of - embedded neutrals, particularly in uneven contexts between one-time and repeat players. This phenomenon becomes particularly worrisome when the embedded neutral’s role is due to their special relationship with the repeat player, and the one-time player is not as …

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Faculty Scholarship

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 11 (2009-10), Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Mediation Starts From The First Phone Call-Practice Pointers And Helpful Hints For Lawyers Going To Mediation, Robin Gise, Jed Melnick, Vivien Shelanski, John Wilkinson

Cardozo Journal of Conflict Resolution

Mediation has changed. The cases being mediated are larger and more complex, and the lawyers are more sophisticated and experienced in the mediation process. The authors of this article attempt to summarize some of the practice pointers and helpful hints they have gleaned from mediating thousands of complex commercial disputes.

We sort our comments chronologically: before, during and after the mediation. While by no means exhaustive, our thoughts should provide both the new and experienced practitioner with some insights into the mediation process.

Recommendations Regarding Establishment Of A Mediation Clinic, Cynthia A. Savage

Cardozo Journal of Conflict Resolution

This article proposes utilizing consistent terminology and goals and recommends methods and approaches for effective design and implementation of supervised, hands-on, mediation training programs within conflict resolution graduate programs. Although law school programs are not addressed directly in this article and might differ in some respects as to their goals, effective methods and approaches will be much the same regardless of the setting.

Part I of this article will discuss terminology and propose a consistent clinic definition and clinic goals, and Part II will explore and make recommendations concerning clinic design. Part III will outline additional recommendations. Part IV provides …

For Business Dispute Solutions, Process Matters, David C. Albalah, Jesse D. Steele

Cardozo Journal of Conflict Resolution

Business mediation should be common sense, but it is all too often corrupted by nonsensical rules and practices. The ground rules that serve as a foundation for the mediation come from an antithetical adversary system, so the traditional mediation process has been adulterated with counterproductive adversarial practices. To consistently reach mutually beneficial mediated settlements, that are exponentially better than anything attainable through traditional mediation, both the structure of mediation ground rules and the practices utilized throughout the mediation process need to be changed and refocused on the ultimate purpose: enabling business decision makers to address the underlying business interests in …

Alternative Dispute Resolution In Real Estate Matters: The New York Experience, Gerald Lebovits, Lucero Ramirez Hidalgo

Cardozo Journal of Conflict Resolution

This article is intended to provide an overview of the available ADR options in New York for individuals and those in the real estate industry and the advantages and disadvantages as compared to litigation. The first section examines the different forms of ADR available to the real estate consumer. The second notes the general advantages and disadvantages of these ADR processes. The third looks at the particular advantages of ADR in real estate cases. The fourth presents an overview of different ADR programs promoted in New York to resolve real estate disputes.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 12, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

The Inherent Tension Between Value Creation And Value Claiming During Bargaining Interactions, Charles B. Craver

Cardozo Journal of Conflict Resolution

This article will discuss the inherent tension present in almost all legal and commercial negotiations between value creation and value claiming. How should interactants use integrative techniques to discover areas for potential joint gains, and how should they determine the actual value of the gains achieved? The article will then explore the way in which proficient negotiators employ distributive tactics to claim a greater share of the surplus for themselves. Before we examine those issues, however, we must consider different negotiator styles and the ways in which those styles influence value creation and value claiming.

Lawyerless Dispute Resolution: Rethinking A Paradigm, Jean R. Sternlight

Scholarly Works

Do participants in mediation and arbitration have attorneys? Do they need them? Although the phenomenon of pro se litigation has received substantial attention in recent years, few commentators or policymakers have focused on these questions. The failure to focus on the possible need for representation in mediation and arbitration is based on an often unstated premise that because ADR processes are purportedly non-adversarial or less adversarial than litigation, disputants need representation less in ADR than they do in litigation. This Article suggests that the failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided. …

The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, Jean R. Sternlight

Scholarly Works

This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources. This Article emphasizes the special contributions that alternative dispute resolution (ADR) can provide to legal education more generally. ADR instruction is an important corrective to a curriculum that routinely conveys the erroneous implication …

Fallout From 14 Penn Plaza V. Pyett: Fractured Arbitration Systems In The Unionized Workplace, Ann C. Hodges

Law Faculty Publications

First, the article will review the history of arbitration of statutory employment claims, including the Pyett decision. Second, the article will look at the history and causes of legalism in arbitration. Then the article will consider the probable responses of employers and unions to Pyett. While predictions are necessarily speculative, it is likely that some unionized employers will seek to require employees to arbitrate statutory claims, perhaps in higher percentages than in the nonunion workplace. While unions may, and perhaps should, resist, many future collective bargaining agreements (CBAs) may contain such provisions. The article then discusses the alternative dispute resolution …