Dispute Resolution and Arbitration Commons^™

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 …

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 …

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 …

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 …

The Federal Arbitration Act After Alafabco: A Case Analysis, Benjamin D. Tievsky

Cardozo Journal of Conflict Resolution

In late 2009, a divided Supreme Court of Washington held in Satomi Owners Ass'n v. Satomi, L.L.C. that the arbitration provision in a warranty addendum to a sales contract between a condominium developer and an owners' association was enforceable. Specifically, the court held that the provision was within the reach of the Federal Arbitration Act, and that a Washington state statute preserving the parties' right to litigate with regard to the warranty addendum was therefore preempted. This Note will explore the potential importance of this decision for defining the contours of the applicability of the Federal Arbitration Act (at least …

Transcending Cultural Nationalist And Internationalist Tendencies: The Case For Mutually Beneficial Repatriation Agreements, Joshua S. Wolkoff

Cardozo Journal of Conflict Resolution

This Note will proffer a critical evaluation of the Italian government's current tactics for reclaiming its patrimony and argue that MBRAs are the most desired framework for resolving repatriation disputes, as they give rise to lasting collaborative relationships between source nations and cultural institutions and strive to keep valued works in the "public trust" without diminishing traditionally insular cultural identities. Thus, successful negotiations must account for competing interests including, inter alia: (i) the emotional currency of the object as assessed from the perspective of the source nation; (ii) the institution's desire to keep disputed works within the public sphere; (iii) …

Integration Matters: Rethinking The Architecture Of International Dispute Resolution, Anna Spain

Publications

International law promotes global peace and security by providing mechanisms for the pacific settlement of international disputes. This Article examines these mechanisms and their place in the architecture of the international dispute resolution ("IDR") system. The Article identifies three core deficiencies of the IDR system that limit its effectiveness and capacity. First, the international legal system has prioritized the development of adjudication over other forms of dispute resolution; the judicialization of international disputes and the proliferation of courts and tribunals evidence this. However, adjudication is limited in its capacity to resolve disputes that involve non-state parties and extra-legal issues. This …