Dispute Resolution and Arbitration Commons^™

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 …

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

Cardozo Journal of Conflict Resolution

No abstract provided.

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 …

Negotiating Implementation Of A Peace Agreement: Lessons Learned From Five Years At The Negotiating Table, Amos N. Guiora

Cardozo Journal of Conflict Resolution

For five years (1994-1999), I directly negotiated on-theground implementation of the Oslo Peace Process in the Gaza Strip. In my capacity as the Judge Advocate General's ("JAG") Corps Legal Advisor to the Israel Defense Forces ("IDF") Commander, Gaza Strip (1994-1997), I had primary responsibility for both interpretation and negotiation, first for the Gaza-Jericho Agreement and subsequently for the Interim Agreement as it applied to the Gaza Strip.

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.

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.

Mandatory Mediation: An Oxymoron? Examining The Feasibility Of Implementing A Court-Mandated Mediation Program, Dorcas Quek

Cardozo Journal of Conflict Resolution

The introduction of the "multi-door courthouse" concept at the Pound Conference is said to have ushered in a modern era of dispute resolution within the United States. This watershed event in the history of Alternative Dispute Resolution ("ADR") spawned greater involvement by the courts in ADR. Court-annexed ADR programs were set up throughout the U.S. and legislation was enacted to encourage the use of ADR. In 1983, Rule 16 of the Federal Rules of Civil Procedure was amended to exhort courts to consider the "possibility of settlement" or "the use of extrajudicial procedures to resolve the dispute" at pre-trial conferences. …

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 …

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 …

Fulfilling The Washington Principles: A Proposal For Arbitration Panels To Resolve Holocaust-Era Art Claims, Jessica Mullery

Cardozo Journal of Conflict Resolution

This Note highlights increased efforts to foster the restitution of Nazi-looted art, particularly on the U.S. front, during the 1990s, with emphasis on the Washington Conference in 1998. It is then contended that the Washington Principles have ultimately failed to result in the adoption of ADR mechanisms to deal with continuing Holocaust-era art claims in both the United States and abroad. The lack of both United States and international efforts subsequent to the Washington Conference, especially in failing to establish ADR mechanisms, is stressed in order to demonstrate the inadequacy of the Washington Principles. Ongoing cases and emerging litigation within …

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.

Mediation Ethics: An Exploration Of Four Seminal Texts, Barbara Wilson

Cardozo Journal of Conflict Resolution

The subject of mediator ethics is often conflated with discussions about standards of practice, the appropriate wording of codes of conduct, or forms of practitioner regulation. These discussions sometimes also extend to debates about practice dilemmas, such as conflicts of interest, voluntariness, confidentiality and stakeholder issues. The main purpose of this paper is instead to discuss the importance and problems of the differing ethical principles which, I argue, underlie four seminal and popular Alternative Dispute Resolution (ADR) books. These texts are in current circulation, although some have been republished as later editions since first appearing. They are often used-either separately …

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 …

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.

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, …

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 …

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 …