Annotations

Volume 5.1

 

Robert H. Mnookin, When Not to Negotiate: A Negotiation Imperialist Reflects On…, 74 U. Colo. L. Rev. 1077 (2003).

The objective of the article is to explore the possibility that options to negotiate should at times be rejected. The article offers a framework, which includes a consideration of benefits and costs that someone facing a conflict might use to decide whether engaging in negotiation makes sense. The framework is used to analyze and evaluate two contemporary examples where the Bush Administration has refused to negotiate. The first relates to President Bush’s decision not to negotiate with the Taliban after September 11, 2001 . The second is the Administration’s current stance of refusing to engage in bilateral negotiations with North Korea with respect to its nuclear weapons programs. The article concludes that although parties may commonly and unwisely have a tendency to exaggerate the costs and underestimate the benefits of negotiating, sometimes it is entirely appropriate and rational to refuse to negotiate.

 

Michael H. Leroy & Peter Feuille, Judicial Enforcement of Predispute Arbitration Agreements: Back to the Future, 18 Ohio St. J. on Disp. Resol. 249 (2003).

The article’s objective is to argue that the substitution of mandatory arbitration for discrimination lawsuits is the most significant employment law development since the early 1990s, and allows the court system to protect plaintiffs in employment discrimination cases. It analyzes rulings in which employees sought to avoid arbitration and examines current trends in judicial enforcement of mandatory employment arbitrations agreements. The article concludes that American courts have never been hostile to arbitration, finding that courts behave consistently over extended periods, developing due process guidelines for arbitration consistent with common law tradition, and steering an immediate course by enforcing pre-dispute arbitration agreements, while reserving power to void or reform the most objectionable arrangements to these contracts.

 

Marc. A. Altenbernt, Will EEOC v. Waffle House, Inc. Signal the Beginning of the End for Mandatory Arbitration Agreements in the Employment Context? 3 Pepp. Disp. Resol. L.J. 221 (2003).

This note analyzes the Supreme Court’s decision in EEOC v. Waffle House, Inc. and the effect that it will have on the use of arbitration agreements in the workplace. At odds with the Court’s determination that arbitration is a proper forum for resolving statutory claims is the EEOC’s role as the primary enforcer of Title VII claims. Because the EEOC has the congressional power to sue in its own name, the Court in Waffle House reasoned that an individual claimant cannot divest the agency of its power to seek victim-specific relief due to an arbitration agreement with the employer. The author explores the difficulties that inhere with this determination, including the possibility of a court granting double recovery to an individual claimant and, in some cases, the effective nullification of the arbitration agreement.

 

Lee Goldman, Contractually Expanded Review of Arbitration Awards, 8 Harv. Negot. L. Rev. 171 (2003).

In this article, Lee Goldman discusses under what circumstances courts should be given authority to review arbitrator awards. Goldman first describes how arbitration has become an increasingly popular method of dispute resolution because it allows the parties to avoid court litigation while empowering them to achieve a resolution of their choosing. The Federal Arbitration Act has limited the opportunity for judicial review of these arbitration decisions in order to preserve the advantages of arbitration. The question that Goldman considers is whether the two parties facing arbitration can contract with each other to ensure that the arbitrator’s award will in fact be subject to judicial review. While many commentators have previously argued either for or against the enforceability of these clauses, Goldman suggests a continuum. Specifically, Goldman argues for the prohibition of contractually expanded review in standard form contracts, but where the contract is individually negotiated by both parties and is not an adhesion contract, Goldman states that an agreement that would expand the opportunity for judicial review should be enforced because both parties knew what they were agreeing to, and real harm might result from non-enforcement.

 

Arash S. Arabi, Renegotiating Third World Debt, 3 Pepp. Disp. Resol. L.J. 251 (2003).

The vicious cycles of lending and debt entrapping the “ Third World ” have grown into a crisis so severe that it threatens to destroy the economies of many nationals and pull their creditors into financial difficulty. This note describes the concept of “Third World Country,” the nature and origin of the debt problem with its principle actors, and the importance of finding a solution, and argues that the only possible solution to this growing problem would be a reevaluation of these debts through a cross between arbitration and mediation. This method, the note argues, would have to be different than the current system of repayment and include partial, but not complete, debt relief. The author analyzes various solutions and their ability to alleviate the problem without straining the “already volatile relationship that exists between the lenders and debtor nations…between the West and the Third World .”

 

Maureen A. Weston, Confidentiality’s Constitutionality: The Incursion on Judicial Powers to Regulate Party Conduct in Court Connected Mediation, 8 Harv. Negot. L. Rev. 29 (2003).

The author addresses the questions whether, and to what extent, the judicial power to monitor, regulate and sanction participants extends to court-connected ADR processes, in particular mediation, where the legislature has accorded a broad confidentiality privilege. The author begins with a discussion of the public policy benefits associated with private mediation of litigated disputes, noting that many legislatures are now ordering the establishment of publicly funded ADR programs are inextricably linked to the traditional courts. Legislatures are also codifying strict confidentiality statutes designed to protect the information disclosed in ADR, specifically mediation proceedings. The author’s concern is that the court’s normal supervisory, regulatory, and sanctioning power over the litigation process will be compromised by such confidentiality, and unethical or otherwise sanctionable conduct will go unnoticed. The author proposes a qualified confidentiality privilege for ADR proceedings, where parties are appraised that confidentially of their statements is not absolute, and disclosure of relevant portions or private mediations would be allowable based on a defined criteria.

 

Andrea Lockridge, The Silent Treatment: Removing the Class Action From the Plaintiff’s Toolbox Without Ever Saying a Word,2003 J. Disp. Resol. 255 (2003).

This article addresses the effects of allowing an arbitration clause that is silent as to class-wide arbitration to preclude the plaintiffs’ option to bring suit as a class and the South Carolina Supreme Court’s decision in Bazzle v. Green Tree Fin. Corp. to protect consumers from this treatment. A motion for class certification is generally a pivotal point in a lawsuit; plaintiffs use the class action as a tool to consolidate common claims against a defendant, bypassing the expensive process of bringing suit individually. Defendants contest class certification because it often results in much higher damages. The article concludes that the class action “tool” is necessary for consumer plaintiffs who may be unable to bring claims if forced to arbitrate individually, at high individual costs. The author suggests that it is unfair to enforce arbitration clauses in such a way as to preclude consumers from pursuing class-action arbitration, particularly because the clauses do not read as such and many of the contracts containing such clauses are contracts of adhesion.