Dispute Resolution and Arbitration Commons^™

Mindfulness, Emotions, And Mental Models: Theory That Leads To More Effective Dispute Resolution, Peter Reilly

Nevada Law Journal

This Article suggests that law students and lawyers can be introduced to, and even begin to master, some of the same transformational principles, skill sets, and behaviors that poured forth from FDR as a result of his intense physical and personal challenges. At the core of nearly all great negotiators, mediators, lawyers, and leaders is a person who has learned to connect with other people, that is, to build relationships of trust, cooperation, and collaboration. Additionally, this Article argues that where people first learn a sense of self and others through both theoretical and practical knowledge and understanding of mindfulness …

Catching The Waive: The Third Circuit Joins The Growing Trend Of Circuit Courts In Voiding A Class-Arbitration Waiver In Homa V. American Express Co., Steven D. Millman

Villanova Law Review (1956 - )

No abstract provided.

Government Of Sudan V. Sudan’S People’S Liberation Movement/Army (“Abyei Arbitration”), Coalter G. Lathrop

Faculty Scholarship

No abstract provided.

Mediating Medical Malpractice Lawsuits: The Need For Plaintiff And Physician Participation, Chris Stern Hyman, Carol B. Liebman

Faculty Scholarship

At this moment in history, tort reform and new approaches to resolving medical malpractice claims are part of the national debate about how to improve health care. Federal funding is available for pilot projects to test new approaches to medical malpractice litigation. There is increased pressure from health care regulators to disclose adverse events and communicate better with patients and their families. These all present opportunities to increase the use of mediation, particularly to address medical malpractice lawsuits and to improve patient safety.

For the past seven years, we have been studying ways in which mediation and mediation skills can …

An Overview And Comparative Analysis Of The Collective Bargaining Agreements In The Nba, Nfl, And Mlb, Terrence Caldwell

CMC Senior Theses

A historical overview of the collective bargaining process in the three major American sports, and a comparative analysis of the current collective bargaining agreements.

Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

All Faculty Scholarship

This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication.

An Empirical Study Of Aaa Consumer Arbitrations, Christopher R. Drahozal, Samantha Zyontz

Faculty Scholarship

This article extends our knowledge of consumer arbitration by presenting results from the first detailed empirical study of consumer arbitration as administered by the AAA. Primarily using a sample of 301 AAA consumer arbitrations that resulted in an award between April and December 2007, it considers such issues as the costs incurred by consumers in arbitration, the speed of the arbitral process, and the outcomes of the cases-the very topics of most interest in the policy debate.

The New International Arbitration (Amendment) Bill – A Broader Framework For Interim Relief Or Just A Tune-Up?, Mahdev Mohan, Eu-Yen Tay

Research Collection Yong Pung How School Of Law

Singapore aspires to retain its place as a trusted arbitration hub for commercial parties all around the world. The recently proposed amendments to the International Arbitration Act seek to bring Singapore closer to meeting international standards in relation to the arbitration procedure. While the initiative should be applauded, those amendments relating to interim measures fall somewhat short of expectations of a new, broader framework of curial assistance in aid of arbitration. This article explores the uncertainties that could arise from the proposed amendments, either because of phrasing or of an omission to embrace the Model Law. It is hoped that …

On The Continued Vitality Of Securities Arbitration: Why Reform Efforts Must Not Preclude Predispute Arbitration Clauses, Alicia J. Surdyk

NYLS Law Review

No abstract provided.

Mediation As An Effective Method To Transform Relationships And Resolve Conflict, Julie R. Kneip

Graduate Research Papers

Mediation has become a well-respected method of conflict resolution. It is currently utilized in a variety of areas including family situations such as divorce and custody concerns, employer and employee disputes, and individual conflicts. Mediation occurs on a global level as well, including intervention with countries engaged in conflict with one another and countries with governments at odds with their constituents. In the United States, mediation is often seen as a way to lower the burden on the courts by having parties resolve issues with the help of a mediator rather than further clogging the judicial system. While this is …

Attorneys As Arbitrators, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch

Articles

We study the role of attorneys as arbitrators in securities arbitration. We find that arbitrators who also represent brokerage firms or brokers in other arbitrations award significantly less compensation to investor-claimants than do other arbitrators. We find no significant effect for attorney-arbitrators who represent investors or both investors and brokerage firms. The relation between representing brokerage firms and arbitration awards remains significant even when we control for political outlook. Arbitrators who donate money to Democratic political candidates award greater compensation than do arbitrators who donate to Republican can-didates. We also study the dynamics of panel interaction. We find that the …

Annual Saltman Lecture: Further Beyond Reason: Emotions, The Core Concerns, And Mindfulness In Negotiation, Leonard L. Riskin

Nevada Law Journal

This article focuses on one particularly common problem: Sometimes people who understand the Core Concerns System, know how to use it, and intend to employ it in a particular negotiation, either fail to do so or fail to do so skillfully; when they review the negotiation, they regret not having used the Core Concerns System, and believe that using it would have produced a better process and outcome. When this occurs, it often results from deficits or faults in the negotiator's awareness.

It follows that a negotiator can enhance his ability to employ the Core Concerns System through improving his …

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

Nevada Law Journal

This article suggests that both parts of Leonard Riskin's latest article and parts of the argument on “core concerns” by Roger Fisher and Dan Shapiro may, with certain individuals in certain circumstances, not work. Indeed, focusing on core concerns may even produce less functional emotions and therefore decrease the chances of an optimal outcome. This article addresses the limitations inherent within the core concerns approach and suggests “external mindfulness” as a complementary skill to check when core concerns help and when other tools, including both internal and external mindfulness, may help as well as--or better than--the core concerns approach. We …

What Does It Mean To Do The Right Thing?, Ran Kuttner

Nevada Law Journal

This Article will explore how the practice of mindfulness and the cultivation of wisdom as understood in the Buddhist philosophy can help develop a mindset that will assist lawyers and conflict resolution specialists to make conscious ethical decisions and to do the “right thing” in different situations. It will draw a distinction between the two central terms, “mindfulness” and “wisdom,” clarify the philosophical underpinnings of “wisdom,” introduce foundational concepts in Buddhist philosophy, and suggest that in order to cultivate the aforementioned mindset, it is important to go beyond “mindfulness” and meet the challenges that the cultivation of “wisdom” pose. Part …

From Signal To Semantic: Uncovering The Emotional Dimension Of Negotiation, Daniel L. Shapiro

Nevada Law Journal

The author co-created the Core Concerns Framework as a pragmatic model to help people address the emotional dimension of negotiation. Dealing directly with the variety of emotions that arise in a negotiation can overwhelm our cognitive capacity, especially in a high-stakes context, where there are multiple layers of communication, processes, and substantive issues. The framework suggests that negotiators turn their attention to a subset of motives--what the authors call core concerns--to illuminate and navigate the emotional dimension of negotiation.

In the Nevada Law Journal symposium on mindfulness and the core concerns, Professor Clark Freshman calls into question how “core” the …

Feeding The Right Wolf: A Niebuhrian Perspective On The Opportunities And Limits Of Mindful Core Concerns Dispute Resolution, Jeffrey W. Stempel

Nevada Law Journal

This Article offers a few observations regarding both the promise and the difficulties faced in using mindful core concerns dispute resolution. Part II focuses on the difficulties faced by mindful negotiators and mediators when confronted with disputants who are too adversarial, selfish, unrealistic, or unresponsive to overtures for interest-based bargaining--even after skilled attempts to neutralize whatever negative emotions may be fueling their counterproductive behavior. In making these assessments and suggestions, the Article relies significantly on the work of Reinhold Niebuhr. Appreciation of Niebuhr's insights can assist mindful negotiation by helping the negotiator to distinguish those situations amenable to the cooperative …

Mindfulness, Emotions, And Ethics: The Right Stuff?, Ellen Waldman

Nevada Law Journal

This essay celebrates Leonard Riskin's call to arms while suggesting some limits to what mindfulness can achieve in the ethical realm. I discuss recent developments in neuroethics that imply a prominent role for emotions in establishing ethical restraint. The Article also surveys a growing body of evidence that suggests the directive power of our emotions remains largely hidden from and impervious to the control of our “reasoning” selves. Lastly, the author examines what Riskin has, in an earlier work, described as the ethical hard case in light of recent explorations into the emotional wellsprings of deontological versus consequentialist thinking. Although …

Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine

Articles

President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …

Beyond The Polemics: Realistic Options To Help Divorcing Families Manage Domestic Violence, Elayne E. Greenberg

Faculty Publications

Children, adult survivors, and their batterers who remain engaged in violence, even after they live apart, are living legacies of the historical perniciousness of domestic violence, a legacy that must change. True, over the past thirty years the politicization of domestic violence has raised public awareness, spurred legislative reforms, and propelled court innovations. However, the children, survivors, and batterers who still live domestic violence after divorce know all too well that all of our political advancements, legal victories, court innovations, and social awareness have not stopped the violence they live within their day-to-day lives. For many of these families, an …

Should There Be A Rule Compelling Adr? Follow The Road Where A Thousand Flowers May Grow, Elayne E. Greenberg

Faculty Publications

(Excerpt)

"One day Alice came to a fork in the road and saw a Cheshire cat in a tree. 'Which road do I take?' she asked. 'Where do you want to go?' 'I don’t know,' Alice answered. 'Then,' said the cat, 'it doesn’t matter.'" So too, in 1994 NYS reached the proverbial fork in road as our state continued its foray into dispute resolution. Which road should New York State proceed down to promote the development of ADR in our state? Should New York State adopt a mandatory rule compelling ADR or should New York State embrace a more voluntary …