References
Psychological Impediments to Mediation Success: Theory and Practice
February 8, 2012
Some disputes should fail to settle in mediation because there is no agreement that is preferable to adjudication for all of the parties. Mediation can also fail as a consequence of strategic behavior or attorney-client conflicts of interest. This article examines impediments to mediation success rooted in cognitive and social psychology, combining academic research on the psychology of bargaining and dispute resolution with mediation practice. The article examines how the overconfidence bias, the fundamental...
February 8, 2012
Some disputes should fail to settle in mediation because there is no agreement that is preferable to adjudication for all of the parties. Mediation can also fail as a consequence of strategic behavior or attorney-client conflicts of interest. This article examines impediments to mediation success rooted in cognitive and social psychology, combining academic research on the psychology of bargaining and dispute resolution with mediation practice. The article examines how the overconfidence bias, the fundamental...
Volunteers: The Power of Community Mediation
February 8, 2012
This article considers the use of volunteer mediators to reduce costs for community mediation centers (CMCs) and to offer the communities they serve effective and cost effective mediation or facilitation services.
February 8, 2012
This article considers the use of volunteer mediators to reduce costs for community mediation centers (CMCs) and to offer the communities they serve effective and cost effective mediation or facilitation services.
Supreme Court Without a Clue: 14 Penn Plaza LLC v. Pyett and the System of Collective Action and Collective Bargaining Established by the National Labor Relations Act
February 8, 2012
This article argues that the Supreme Court's decision in Penn Plaza has remade the collective-bargaining system in the United States by enforcing an express contractual duty to arbitrate union members' federal statutory individual rights. The paper specifically contends that the Court individualized the interpretation and enforcement of collective-bargaining agreement to the detriment of employers and employees, as nothing will now prevent the arbitration of all federal remedial statutes at issue...
February 8, 2012
This article argues that the Supreme Court's decision in Penn Plaza has remade the collective-bargaining system in the United States by enforcing an express contractual duty to arbitrate union members' federal statutory individual rights. The paper specifically contends that the Court individualized the interpretation and enforcement of collective-bargaining agreement to the detriment of employers and employees, as nothing will now prevent the arbitration of all federal remedial statutes at issue...
Fee Shifting in Investor-State Arbitration: Doctrine and Policy Justifying Application of the English Rule
February 8, 2012
This article addresses treatment of legal costs arising from investor-state arbitration proceedings. The author analyzes the benefits the English rule, which states that an unsuccessful party in a dispute must indemnify the prevailing party for the costs of arbitration. The author provides doctrinal and policy reasons for preferring this rule over the other options for arbitration tribunals.
February 8, 2012
This article addresses treatment of legal costs arising from investor-state arbitration proceedings. The author analyzes the benefits the English rule, which states that an unsuccessful party in a dispute must indemnify the prevailing party for the costs of arbitration. The author provides doctrinal and policy reasons for preferring this rule over the other options for arbitration tribunals.
The Use of the Truth Commission in South Africa as an Alternative Dispute Resolution Mechanism Versus the International Law Obligation
February 8, 2012
The Truth and Reconciliation Commission (TRC), created pursuant to the South African Constitution, has been touted as an alternative model for the resolution of past conflict in a society marked by deep divisions, conflict, and human rights violations. In this article, the author argues that the TRC does not constitute an adequate mechanism under principles of international law for addressing these serious human rights violations.
February 8, 2012
The Truth and Reconciliation Commission (TRC), created pursuant to the South African Constitution, has been touted as an alternative model for the resolution of past conflict in a society marked by deep divisions, conflict, and human rights violations. In this article, the author argues that the TRC does not constitute an adequate mechanism under principles of international law for addressing these serious human rights violations.
Apologies and Legal Settlement: An Empirical Examination
February 8, 2012
The conventional wisdom has been that U.S. legal culture discourages apologies. Defendants worry that apologies will be admissible at trial and interpreted as admissions of responsibility. In recent years, however, legal scholars have debated the merits of encouraging parties to apologize. Proponents of apologies claim that apologies will avert lawsuits and promote settlement. Consistent with this view, legislatures in several states have enacted statutes that make certain apologies inadmissible....
February 8, 2012
The conventional wisdom has been that U.S. legal culture discourages apologies. Defendants worry that apologies will be admissible at trial and interpreted as admissions of responsibility. In recent years, however, legal scholars have debated the merits of encouraging parties to apologize. Proponents of apologies claim that apologies will avert lawsuits and promote settlement. Consistent with this view, legislatures in several states have enacted statutes that make certain apologies inadmissible....
A Proposal for the United States Olympic Committee to Incorporate Formal Mediation Within its Grievance Process
February 8, 2012
The author proposes that the United States Olympic Committee (USOC) adopt and develop an external mediation option as part of the USOC grievance process. Currently, the USOC has an arbitration process and an Athlete Ombudsman who informally mediates disputes between athletes and their sport's National Governing Body. The author argues that external mediation would substantially improve the likelihood of achieving a collaborative and cost-effective outcome.
February 8, 2012
The author proposes that the United States Olympic Committee (USOC) adopt and develop an external mediation option as part of the USOC grievance process. Currently, the USOC has an arbitration process and an Athlete Ombudsman who informally mediates disputes between athletes and their sport's National Governing Body. The author argues that external mediation would substantially improve the likelihood of achieving a collaborative and cost-effective outcome.
A Comment on The Miller Commission Report and the Obligation of Divorce Lawyers for Parents to Discuss Alternative Dispute Resolution with Their Clients
February 8, 2012
The author compares the Kramer v. Kramer case out of New York and the more recent Miller Commission Report to demonstrate how ADR in divorce cases can be effective in cases involving children and custody disputes.
February 8, 2012
The author compares the Kramer v. Kramer case out of New York and the more recent Miller Commission Report to demonstrate how ADR in divorce cases can be effective in cases involving children and custody disputes.
Fixed Justice: Reforming Plea Bargaining with Plea- Based Ceilings
February 8, 2012
The author advocates using a fixed discount system for plea bargaining in America in combination with plea-based ceilings. He discusses benefits of this approach and what would make reform possible. Ceilings limit the sentences, and a fixed discount system discounts the mandatory sentence in exchange for a guilty plea.
February 8, 2012
The author advocates using a fixed discount system for plea bargaining in America in combination with plea-based ceilings. He discusses benefits of this approach and what would make reform possible. Ceilings limit the sentences, and a fixed discount system discounts the mandatory sentence in exchange for a guilty plea.
The Unconscionability Game: Strategic Judging and the Evolution of Federal Arbitration Law
February 8, 2012
The author uses recent changes in arbitration agreements to illustrate how strategic dynamics drive doctrinal change. The author begins by looking at how the Supreme Court's pro-arbitration directives have transformed the FAA. Next, the author examines how lower courts insulate their decisions from unfavorable review by ideologically adverse reviewing courts. Finally, the author looks at how recent decisions have altered the balance of power between state and federal courts as well as courts and arbitrators.
February 8, 2012
The author uses recent changes in arbitration agreements to illustrate how strategic dynamics drive doctrinal change. The author begins by looking at how the Supreme Court's pro-arbitration directives have transformed the FAA. Next, the author examines how lower courts insulate their decisions from unfavorable review by ideologically adverse reviewing courts. Finally, the author looks at how recent decisions have altered the balance of power between state and federal courts as well as courts and arbitrators.
