Dispute Resolution and Arbitration Commons^™

Cy Pres Silliness: Remedies That Do Not Remediate The Harm, Phil Pillari

Northwestern University Law Review

Class actions play an important role in civil litigation, but they suffer from a serious problem. No matter how many plaintiffs are in the class, the individual claims are often miniscule, which can make distributing the inevitable settlement futile. Very few people make a claim, and it often costs more to mail the check than the check is worth. To solve this problem, Steven Shepherd proposed importing the cy pres doctrine (a trusts and estates device that allows courts to rewrite an unenforceable trust) into the class actions context. Shepherd’s framework instructs courts to devise the next best alternative for …

“Battlefield Humanitarianism”: Navigating The Role Of Adr In Humanitarian Law Complexities Of Urban Warfare, Benjamin Gotian

Cardozo Journal of Conflict Resolution (CJCR) Blog

The resulting devastation of World War II produced a need for rules of engagement and protection of innocent civilians. Nevertheless, an increasing number of armed conflicts are currently being fought in dense urban environments. As a result, the risk of collateral damage and harm to civilians has drastically increased, making it significantly more difficult to adhere to international humanitarian law (“IHL”) and the rules of war.

Ensuring civilians caught in the crossfire get the necessary humanitarian aid and coordinating with all stakeholders is incredibly complex. This process of protecting civilians in active war zones and generally upholding humanitarian law is …

Kukin Program Newsletter – Fall 2024, Kukin Program For Conflict Resolution

Kukin Program Newsletters

The Kukin Program Newsletter – Fall 2024 captures recent achievements, events, and updates from the Kukin Program for Conflict Resolution at Cardozo School of Law. This issue highlights the prestigious Peace Gala honoring founding director Professor Lela P. Love, insights from prominent alumni in the dispute resolution field, student leadership accomplishments, and recent awards and fellowships. Readers can explore feature articles on impactful projects and innovations in conflict resolution, including new initiatives by the CPR Institute and the International Advocate for Peace Award. This newsletter offers a comprehensive view of the Kukin Program’s dedication to advancing negotiation, mediation, and advocacy …

Law Schools Should Substantially Increase Instruction In Mediation Representation, John Lande

Faculty Publications

American law schools generally focus 10% or less of their mediation curriculum on mediation representation. As shown in a survey of faculty teaching mediation and an analysis of course syllabi in this article, most of the instruction focuses on the role of a mediator.

This is a problem for several reasons. New graduates represent clients in mediation much more frequently than they mediate. Clients usually need professional advice to evaluate their cases and develop strategies, which mediators cannot provide. This is precisely the important service that attorneys can provide, but we teach students very little about what to do when …

The International Court Of Justice: New Challenges In The Hague For Adjudication Of Interstate Disputes, John Bellinger, Catherine Amirfar, Sarah H. Cleveland, Juan Manuel Gómez-Robledo Verduzco

Faculty Scholarship

This panel was convened on Thursday, March 30, 2023 at 10:30 a.m. by its moderator Catherine Amirfar of Debevoise & Plimpton LLP, who introduced the panelists: Sarah Cleveland of Columbia University Law School; and Juan Manuel Gómez-Robledo Verduzco, the Deputy Permanent Representative to the United Nations for Mexico.

Pengungkapan Model Mediasi Kepada Pihak Bersengketa Oleh Mediator Sebagai Pelaksanaan Prinsip Informed Consent (Kajian Mediasi Sektor Perbankan), Tri Harnowo, Fahmi Shahab

Jurnal Hukum & Pembangunan

The mediation techniques commonly used by mediators are facilitative, evaluative, or hybrid models. The choice of mediation model generally depends on the complexity of the dispute, the nature of the relationship, and the expectations for further cooperation. This research examines the application and disclosure of mediation models in the banking sector. The methodology used is normative, analyzing regulations related to the application and disclosure of mediation models in the banking sector. Data collection was obtained from primary legal materials in the form of legislation, secondary legal materials such as professional codes of ethics, books, articles, and scientific journals, and tertiary …

Arbitrase Dan Media Sosial (Arbitration And Social Media), Suar Sanubari

Jurnal Hukum & Pembangunan

This article discusses the use of social media among arbitration actors. Social media have evolved since its inception. In the beginning, social networks were used to stay in touch with friends and family. Now the trend is to follow influencers. The boundaries between personal and professional use have become blurry. Social media are more regulated and supervised now, especially due to privacy and national security concerns. The social media adoption landscape has matured with increasing adoption by all generations. The use of social media can give rise to questions about ethical conduct or even the integrity of the arbitration proceedings. …

Cjcr Publishes Volume 25, Issue 3 (Summer 2024), Jane Perov

Cardozo Journal of Conflict Resolution (CJCR) Blog

The Cardozo Journal of Conflict Resolution—the country’s preeminent legal journal of arbitration, negotiation, mediation, settlement, and restorative justice—today published the web edition of Volume 25, Issue 3 (Summer 2024). The print edition of the issue has also been released.

Accessible at Volume 25.3: Summer 2024, this issue contains Articles by Rachel Ringort, Ayelet Sela, Roselle L. Wissler, and Art Hinshaw, and Notes by Shifra Ben-Jacob, Eliott Dosetareh, Daniel Hyungtae Kim, and Jillian Leavey.

The print edition of the issue has also been released. This post was originally published on the Cardozo Journal of Conflict Resolution website on September 4, 2024.

Aspek Keperdataan Dalam Upaya Penyelesaian Sengketa Medis Antara Pasien Dengan Tenaga Medis Berdasarkan Undang-Undang Kesehatan, Lintang Zandra Camellia, Adhitya Widya Kartika

Jurnal Hukum & Pembangunan

Medical disputes in the civil field are disputes that can occur between patients and doctor as a medical-professionals and are related to the full fillment of the rights and obligations of the binding relationship as a legal result in the provision of medical services. Medical disputes can lead to losses suffered by patients which can be in the form of limb disability, even death. The emergence of law and health provides a beneficial collaboration, where the health field can be used to face public health challenges and the law can be used to maintain peace and order in society. The …

An Extremely Important Document: Khea's Struggle For A Contract, 1974-1978, John L.S. Daley Dr

KNEA 50th Anniversary

In 1973, the Kansas State College, Pittsburg administration fired thirteen faculty members without cause. In order to improve administration-faculty relations, remaining faculty organized, petitioned for recognition, and drafted PSU/KNEA's first contract with PSU/KBOR, which went into effect five years later. The narrative covering this period draws on Axe Library's KNEA Collection and interviews of former faculty.

Theory And Practice Of Mediation Representation, John Lande

Faculty Publications

These days, American attorneys regularly represent clients in mediation. This representation is a complex process, and attorneys and law students need guidance about how to serve clients well in this context. This article offers a theoretical framework for analyzing mediation representation based on Real Practice System Theory. It reviews books that outline elements of mediation representation and identify practical techniques that attorneys can use when representing clients in mediation. It supplies several suggestions for faculty who teach mediation, including teaching courses combining the perspectives of both mediators and mediation representatives.

Real Practice Systems Project Menu Of Checklists For Attorneys In Mediation, John Lande

Faculty Publications

This is a detailed menu of checklists for attorneys representing clients in mediation, including actions before, during, and after mediation sessions. The checklists include items about information to provide on websites, compliance with ethical requirements, and reflection and improvement of techniques. They are intended to prompt attorneys to become more conscious and intentional in their work, helping them to develop routines and strategies for dealing with recurring problems.

The checklists are extensive but not exhaustive. They are not recipes to follow strictly, thoughtlessly, or completely. Instead, they should help attorneys decide what to do in any specific case or in …

Adr In The Ongoing Experiment Of American Law, Carli N. Conklin

Faculty Publications

To engage in the development of American law— past or present—is to engage in a great and ongoing experiment. It is an exercise of the imagination. And one place where American law has been most imaginative is in the field of alternative dispute resolution. It is an area of law that, in its creativity and emphasis on the person as a whole, is particularly well-suited to respond to the guiding question of our constitutional democracy: how might we live well together?

Investment Treaty Arbitration Caught In The Public-Private Law Divide, Catharine Titi

Michigan Journal of International Law

The ongoing reform of investor-state dispute settlement (“ISDS”) underlines the pertinence of an old question that has received various and conflicting answers: Is investment arbitration a public or private method of dispute settlement? A key criticism leveled at investment treaty arbitration is that public interest disputes are decided by a system of private justice. This article critically reviews the dominant interpretations of investment treaty arbitration as public, private, or hybrid. It argues that the subjective nature of each interpretation means that none of them can be definitively adopted. Rather, the real arguments in favor of or against arbitration lie beyond …

Oil And A Slippery Path To Conflict: Conocophillips, Guyana, And The Hostile Elephant In The Room, Vivian M. Williams

Publications and Research

The increasing involvement of States and their surrogates in cross-border commercial activities has heralded an urgent need for codification of the well-established public international law rule of sovereign immunity. The problem is particularly thorny in international arbitration when corporate entities seek to enlist the courts of one State to seize the property of another state to enforce an arbitral award. The complex nature of sovereign immunity in a globalized economy and the challenge it poses for courts in the Caribbean, was highlighted in enforcement proceeding brought by oil giant, ConocoPhillips against Venezuela’s State corporations. This article therefore discusses (a) the …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

The Important Role Of Attorneys In Promoting Parties' Self-Determination In Mediation, John Lande

Faculty Publications

This short article analyzes the meaning of self-determination, and it demonstrates that attorneys generally have much greater ability than mediators to promote parties’ self-determination. I argue that “self-determination” is an admirable but unattainable ideal.

Instead, attorneys and mediators should focus on promoting parties’ best possible decision-making under the circumstances. To optimally promote the quality of parties’ decision-making during mediation sessions, they must be well-prepared before mediation sessions. At that stage, attorneys are in the best position to counsel clients, when they have more time to carefully consider their situation and they are not under pressure to respond to the …

Questionable Arbitrator Habits, Robert H. Smit

Faculty Scholarship

International arbitrators do some things in conducting arbitrations, that tend to go without saying, but that I struggle to accept without question. I speak not of major procedural missteps that run afoul of principles of due process or of procedural “best practices” codified in soft law instruments like the IBA Rules on the Taking of Evidence. Rather, I speak of some of the smaller, uncodified procedural behaviors — procedural habits, I call them — that international arbitrators adopt within the confines, and between the interstices, of those codified due process and soft law “best practice” parameters. I speak of widely …

Singapore Convention: Should Indonesia Ratify It?, Ahmad Rifa'i, Dimas Ramadhansyah

Indonesian Journal of International Law

As cross-border trading develops, there is an increasing need for an effective dispute resolution system to solve disputes on business transactions. Mediation is a well-established method of efficient alternative dispute resolution that was recently internationally recognized under a specific treaty. The United Nations General Assembly took a resolution to adopt the United Nations Convention on International Settlement Resulting from Mediation (“Singapore Convention”). The Indonesian government has tried to boost foreign investment, but such efforts have been delayed due to a legal enforcement issue, which requires a legal reform to provide certainty for investors by providing a seamless and internationally recognized …

Analisis Penyelesaian Sengketa Konstruksi Akibat Wanprestasi Dalam Perjanjian Jasa Konstruksi Ditinjau Dari Hukum Perdata, Mayangsari Nurul Imani, Prof. Dr. Rosa Agustina, S.H.,M.H

Lex Patrimonium

This research analyzes how dispute resolution efforts can be made in the event of a construction dispute due to default committed by a party in a construction service agreement. This research is prepared using a doctrinal research method. The author describes and analyses three problems in this research, namely the factors that cause construction disputes based on the provisions in the construction service agreement, efforts to resolve construction disputes due to default by the parties in the construction service agreement, and the court's opinion in resolving construction disputes in Case No. 692/Pdt.G/2019/PN.Jkt.Utr. The results show that construction disputes usually occur …