Dispute Resolution and Arbitration Commons^™

Two For The Price Of One Is A Costly Choice: The Ethical Issues For Lawyer-Mediators Who Consider Drafting Agreements, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Should a lawyer who serves as a mediator for two unrepresented parties also draft the resulting agreement if both mediating parties request the lawyer to do so? On June 30, 2010, the ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance (hereinafter “The Committee”) issued Ethics Opinion SODR-2010-1 “Mediator’s Duty of Care When Drafting Agreements.” This ethics opinion calls into question the blurry ethical contours between lawyering and mediation when mediating with pro se parties. In this column, I will review the Committee’s ethics opinion and then, applying the New York Rules of Professional Conduct, discuss the potential …

Dispute Resolution Lessons Gleaned From The Arrest Of Professor Gates And "The Beer Summit", Elayne E. Greenberg

Faculty Publications

America's fantasy of a post-racial society was shattered on July 16,2009, when a white police officer arrested Harvard Professor Henry Louis Gates, a well-respected African-American academic, in his own home. Our historical racial fissure was widened. Once again, our thoughts were plagued with tortured images of our system of racialized law enforcement: the torture of Abner Louima, the beating of Rodney King, the killing of Amadou Diallo. Predictably, Americans became further polarized, as they simultaneously blamed and defended responses to racism.

In what was perceived by some as a dramatic and unanticipated turn of events, and perceived by others as …

Fiqh And Canons: Reflections On Islamic And Christian Jurisprudence, Mark L. Movsesian

Faculty Publications

Although American scholarship has begun to address both Christian and Islamic jurisprudence in a serious way, virtually none of the literature attempts to compare the place of law in these two world religions. This Essay begins to compare Islamic and Christian conceptions of law and suggests some implications for contemporary debates about religious dispute settlement. Islam and Christianity are subtle and complex religions. Each has competing strands; each has evolved over millennia and expressed itself differently over time. Moreover, although systematic treatments of Islamic law are beginning to appear in English, much remains available only in languages, like Arabic, that …

Making Talk Cheap (And Problems Easy): How Legal And Political Institutions Can Facilitate Consensus, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez, Nicholas Weller

Faculty Scholarship

In many legal, political, and social settings, people must reach a consensus before particular outcomes can be achieved and failing to reach a consensus may be costly. In this article, we present a theory and conduct experiments that take into account the costs associated with communicating, as well as the difficulty of the decisions that groups make. We find that when there is even a small cost (relative to the potential benefit) associated with sending information to others and/or listening, groups are much less likely to reach a consensus, primarily because they are less willing to communicate with one another. …

It Takes Two To Tango, And To Mediate: Legal Cultural And Other Factors Influencing United States And Latin American Lawyers’ Resistance To Mediating Commercial Disputes, Don C. Peters

UF Law Faculty Publications

This article examines legal cultural and other factors influencing the resistance to mediating commercial disputes displayed by U.S. and Latin American lawyers. After surveying current contexts in which commercial mediation occurs in the United States and in Latin American countries and summarizing data regarding commercial actors’ knowledge of the benefits of mediating, it analyzes the relatively infrequent use of mediation despite its potential advantages over adjudicating. Focusing on lawyers, the article next explores factors that influence U.S. and Latin American lawyers when they converse with commercial clients about selecting dispute resolution methods.

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

Faculty Scholarship

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. This Article argues that when people learn a sense of "self" and "other" through both theoretical and practical knowledge and understanding of mindfulness and human emotion, connections with others are more likely to be made, and important relationships are more likely to be built.

My goal, then, is to begin thinking about how one might bring mindfulness and emotions from the “mind level” to what human relations …

Discovery From Non-Parties (Third-Party Discovery) In International Arbitration, Charles O. Verrill Jr.

Faculty Scholarship

International arbitration rules and many arbitration laws usually provide procedures that permit tribunals to order parties to disclose documents and other materials to the other parties.1 More complex are the rules that determine opportunities to obtain discovery from persons that are not party to the arbitration (third-party discovery). This article will review third-party discovery under the Federal Arbitration Act (FAA) and the provisions of the US Code s.1782 that authorise US courts to act in aid of actions before foreign tribunals. Section 1782 has unique interest at this time because it figured prominently in the EU antitrust investigation of Intel …

Keep Arbitration Alive: Why The Fairness In Nursing Home Arbitration Act Should Not Be Passed, Margaret Baumer

Cardozo Journal of Conflict Resolution

Like it or not, arbitration agreements are part of our lives. Most cell phone and credit card companies include arbitration agreements in their customer contracts. Furthermore, many consumer complaints regarding trades through the National Association of Securities Dealers (NASD) are resolved through arbitration. However, despite their pervasiveness, consumers generally remain ignorant of arbitration agreements until a dispute arises, whereupon they discover that they must submit to arbitration proceedings, rather than sue sellers. Often, arbitration carries with it the added disappointment of high fees and perceived arbitrator bias in favor of the business entity. The same is true of a nursing …

Sweet Vindication: The Second Circuit Strikes A Blow To Companies That Use Class-Action Waivers In Arbitration Agreements To Avoid The Law, Samuel E. Buffaloe

Journal of Dispute Resolution

Other scholars and courts have concluded that when a class action waiver prevents a plaintiff from vindicating his statutory rights, that waiver should be unenforceable. The U.S. Court of Appeals for the Second Circuit took this approach in In re American Express Merchants' Litigation. The court, however, was careful to point out that these class-action waivers should not be considered unenforceable per se, but that courts must examine each waiver on a case-by-case basis. This note will examine the court's reasoning and will discuss what courts and Congress should do to protect consumers when companies use class-action waivers to avoid …

Holistic Strategy For Coming To Grips With The Creeping Legalism Of Labor Arbitration, A, Stephen L. Hayford

Journal of Dispute Resolution

The commentary that follows is a call to advocates to take back responsibility for settling the disputes that arise during the life of the collective bargaining agreement by becoming more adept negotiators, able and willing to find and engage the truth and unafraid to lead and make difficult decisions. Only then will the legal machinations and contortions that increasingly plague labor arbitration be rendered unnecessary in most circumstances. I assert that the "creeping legalism" of labor arbitration is a symptom of the too-frequent failure of the contractual grievance procedure to resolve difficult disputes. The conundrum that phenomenon presents can be …

All Bound Up With No Place To Go: A Lack Of Individual Alternatives To Binding Arbitration Provisions For Statutory Claims, Matthew Gierse

Journal of Dispute Resolution

For the greater part of the twentieth century, arbitration has played a large role in resolving disputes between unions representing employees and employers. However, during the past few decades, these employment contracts began to incorporate mandatory arbitration agreements for statutory discrimination claims, with at least one-fifth of all employees presently subject to mandatory arbitration. During this same period, courts began to broaden the ability of employees to waive their right to a judicial forum for statutory claims; Tewolde v. Owens & Minor Distribution is no exception. In 2009, the U.S. Supreme Court ruled for the first time that a union …

Arbitration Nation: While Arbitration Grows, Judicial Review Of Arbitral Awards May Be Shrinking, F. Shabnam Nouraie

Journal of Dispute Resolution

In Sands v. Menard, Inc., the Court of Appeals of Wisconsin upheld an arbitration award reinstating a discharged attorney to her position as in-house counsel. On appeal, the court refused to vacate the reinstatement order, notwithstanding the fact that reinstatement was not requested or desired by either party, the effect of reinstatement was likely to violate the ethical rules that bind attorneys, and other remedies were available to compensate the aggrieved party. This note explores the limited but important role that judicial review plays, and will continue to play, in arbitration and how this role affected the outcome of Sands …

Third Circuit Buyers Beware: District Court In Litman Holds Unconscionability Defense Contravened By Federal Arbitration Act, David C. Winters

Journal of Dispute Resolution

Without even knowing it, just about everyone has agreed to settle disputes through arbitration and has waived any rights to proceed on a class-wide basis. While many consumers do not read the fine print in the agreements they sign, a variety of companies, from cell phone providers to car dealers, have consumers agree in sales contracts to arbitrate any claims and to waive the ability to proceed with a class action claim. This was the scenario in the case of Litman v. Cellco Partnership, in which a New Jersey federal district court held that the plaintiff cell phone customers could …

Restoring Human Trafficking Victims Through Victim-Offender Dialogue, Carina Patritti

Cardozo Journal of Conflict Resolution

This Note will explore the pros and cons of using victim-offender dialogue in cases of human trafficking. In the first part of the Note, a background on human trafficking will be provided, including current statistics on human trafficking cases and the effects on victims. Restorative justice will be discussed in the second part of the note, with specific emphasis on VOD. The third part of the Note will explore how the criminal system has used VOD, beginning with low-level crimes and then exploring how VOD has been applied to serious and violent crimes. This Note will then propose the application …

Online Dispute Resolution With China: Advantageous, But At What Cost?, Jennifer Sackin

Cardozo Journal of Conflict Resolution

This Note will discuss the use of Online Dispute Resolution (ODR) between businesses and consumers in the United States (U.S.) and their counterparts in the People's Republic of China (P.R.C.). ODR is a growing, highly attractive, and arguably necessary phenomenon in the e-commerce world. It is an accommodating and useful process in that it employs online technology to provide traditional alternative dispute resolution (ADR) mechanisms via the Internet.

The High Cost Of Mandatory Arbitration, Martha Nimmer

Cardozo Journal of Conflict Resolution

This Note traces the development of voluntary and mandatory arbitration in the United States, including the reasons for the rise in arbitration and the implications for Americans' civil rights. In voluntary arbitration, an employee agrees to arbitrate a workplace dispute instead of litigating a claim. Mandatory arbitration, in contrast, "requires an employee, as a condition of employment, to forego all access to a jury trial and use arbitration in place of a judicial forum for resolving statutory and contractual claims." The use of mandatory arbitration, particularly in employment disputes arising under Title VII, has increased dramatically since 1991 as a …

Expanding The Brand: The Case For Greater Enforcement Of Mandatory Mediation In Trademark Disputes, Max Vilenchik

Cardozo Journal of Conflict Resolution

Currently, far too many trademark disputes that could have been settled outside of court end up in litigation. While alternative dispute resolution (ADR) has become more prevalent in other areas of the law, many trademark attorneys and their clients do not regularly consider ADR processes, such as mediation, as one of their options because these processes are still relatively new to the trademark law area. This Note will propose that mandatory trademark mediation programs be expanded to ensure that trademark cases that are well suited for mediation end up in mediation rather than in mounting court dockets.

In Section I, …

Enhancing The Effectiveness Of Mediation In Korean-American Family Disputes: Cultural Sensitivity Training For Mediators And Co-Mediation Teams, Giyang An

Cardozo Journal of Conflict Resolution

This Note focuses primarily on first generation KoreanAmerican women who remain loyal to community values that follow traditional Korean norms, especially when it comes to gender and family roles. To demonstrate the effects of these social values, this Note will analyze conflicts stemming from the various roles and identities (e.g., as a wife or mother) of Korean-American women. In addition, this Note will discuss the different ways Koreans and Americans view the legal systems in their respective countries, and how Koreans generally have a more favorable view of mediation than the confrontational model of litigation. This Note will focus on …

Gentrification And Mediation: Where A Single Pronunciation And Differing Perceptions Converge, Tiffany Ansley

Cardozo Journal of Conflict Resolution

This Note seeks to establish that mediation, when gentrification is involved, is the most suitable form of dispute resolution. Mediation, a form of Alternative Dispute Resolution ("ADR"), is the most well equipped method of dispute resolution to handle the emotional, legal, and community-based issues that arise as a result of gentrification. I argue in this Note that the effects of gentrification can be significantly reduced or remedied through mediation. The sources from which I draw to support my argument are research on case law dealing specifically with gentrification, research on the perspectives of persons negatively affected by gentrification, commentary and …

Child Custody: Don't Worry, A Bet Din Can Get It Right, Jeffrey Haberman

Cardozo Journal of Conflict Resolution

This Note aims to explore the reasoning behind the state's reluctance to accept arbitration, including that of the bet din, as a means of resolving child custody disputes. The Note highlights the advantages of arbitration, both in general and when used to determine child custody. The Note examines the arguments proffered by the courts to justify the view that they, and not outside arbitrators, best resolve child custody battles. This Note argues that when two parties agree to arbitrate their divorce settlement before a bet din, the award should be given the same deference as a bet din's resolution of …