Annotations

Volume 3.2

 

Sung J. Lim, Mandatory Arbitration in the Securities Industry: Efficiency at the Cost of Justice for All? 26 J. Corp. L. 771 (2001).

This article discusses the negative aspects of mandatory arbitration within the securities industry. The author analyzes how mandating arbitration thwarts the goals that arbitration seeks to provide, such as fairness and efficiency. Specifically, the author discusses the negative impact that mandatory arbitration has on minority groups and women. In conclusion, the author proposes that optional arbitration would be a more effective method of dispute resolution than mandatory arbitration.

Lynn P. Cohen & Lynn A. Gaffigan, Mediating Employment Disputes , ADRI IL-CLE 14-1 (2001).

Over the past decade, the use of mediation to resolve employment disputes has greatly increased. The authors suggest this increase is largely due to express endorsements by Congress and state legislatures as well as the implementation of mediation programs in various governmental agencies. Mediation is used in different areas of employment, such as workplace morale and employee-employee conflict. According to the authors, mediation has been successful to resolve employment disputes for three reasons. First, mediation addresses emotional issues involved in the disputes. Second, it provides a cost-effective private settlement. Finally, mediation does not lead to a win-lose outcome. When properly conducted by a neutral third party with experience in the employment context, mediation is an effective tool to resolve workplace disputes.

Joseph Allegretti, A Christian Perspective on Alternative Dispute Resolution , 28 F ordham Urb. L.J. (2001).

This article explores the premise that Christianity provides a theoretical justification for alternative dispute resolution, specifically mediation. According to the author, the litigation process impairs the bonds of love and peace. In contrast, mediation is firmly rooted in the notions of peace, love, and justice. By assessing Christian tales, the author concludes that it is possible for people to live in harmony. To do so, they must look beyond their immediate self-interest and instead use peace and justice to resolve their conflicts.

Jack Erler & Dan Kagan, Alternative Dispute Resolution , 16 M e. B.J. 222 (2001).

A pilot program of the Maine Judicial Department made alternative dispute resolution (ADR) a mandatory step in the litigation process for all cases filed in Superior Court over a two-year period. Codified in Maine Civil Procedure Rule 16(b), the program required the use of ADR at either one of the following two points during the litigation process: (i) before the start of discovery; or (ii) midway through the discovery process. The authors have different points of view regarding the usefulness of Rule 16(b). Erler points to its advantages, such as higher settlement rates and cost savings for litigants. Kagan, however, argues that Rule 16(b) imposes ADR at the wrong time because the parties have already spent money litigating and are less likely to settle once they have begun the litigation process.

Shirley Foster, Prudent Provenance Looking Your Gift Horse in the Mouth , 8 UCLA Ent. L. Rev . 142 (2001).

In the possession of many museums are works of art that might actually belong to Holocaust survivors whose property was looted by the Nazis during World War II. In accordance with the ethical code of the Association of Art Museum Directors (AAMD), which is an organization that represents 175 directors of the major art museums in North America, many museums should conduct ownership history searches and return any works of art acquired through dubious or questionable means. The AAMD recommends resolving ownership disputes through the use of mediation rather than through litigation. Mediation will enable the parties to reach a final resolution with greater flexibility in their proceedings, instead of the rigid, adversarial confines of the courthouse.

Susan Haslip, A Consideration of the Need for A National Dispute Resolution System for National Sport Organizations in Canada , 11 Marq. Sports L.J. 245 (2001).

T his article advocates a tripartite alternative dispute resolution (ADR) model to deal with disputes between athletes and large sports organizations in Canada. The goal of the proposed model is to alleviate the power differential that currently exists between these parties by employing mediation or arbitration. The model would set forth specific guidelines as to the qualifications of its ADR practitioners and the types of disputes to be addressed. According to the author, even though there is a need for reporting decisions in order to facilitate accountability, keeping decisions private under the proposed model would encourage strategic creativity and ensure confidentiality of the parties.

ADR Vision Roundtable: Challenges for the 21 st Century , 56-OCT. DISP. RESOL. J. 8, (2001).

In this roundtable discussion, a variety of topics were discussed involving the use of arbitration and mediation in several areas of law including employment law, domestic relations law, international law, consumer fraud transactions and environmental law. Specifically, the panelists discussed the general phenomenon of cases being diverted from trial court into arbitration and mediation, their use in the government versus the private sector, qualification and diversity of arbitrators and mediators, and the effectiveness of online dispute resolution. The panelists concluded with their observation of a culture of lawyers who have incorporated alternative dispute resolution (ADR) into their practice, and with their concerns about the future of ADR.

Fred D. Butler, The Question of Race, Gender & Culture in Mediator Selection , 55-JAN. DISP. RESOL. J 36 (2001).

Attorneys must have an understanding of their clients’ race, gender, and culture to enable them to effectively advocate for their clients throughout the mediation process. The selection of mediators who can empathize with a particular culture, race, or gender will lead to greater success for their clients, just as the use of mediators with subject matter expertise relevant to a specific dispute is of great utility. The author proposes that knowledge of these cultural issues will help attorneys better identify the underlying dynamics of the dispute, anticipate the strategy of their opponents, and pinpoint issues that might present obstacles to settlement.

Jeffrey Axelrad, Federal Tort Claims Act Administrative Claims: Better Than Third-Party ADR for Resolving Federal Tort Claims , 52 Admin. L. Rev . 1331 (2000).

The Federal Torts Claims Act (FTCA) provides a general remedy for those injured by torts committed by federal agency employees. The FTCA, however, would be better served if it and other federal agencies were to utilize alternative dispute resolution (ADR) instead of litigation. The article addresses ADR and the Administrative Dispute Resolution Act (ADRA), which was enacted to encourage federal agencies to use ADR instead of litigation. The author concludes that the best option would be to use the Administrative Claims System rather than ADR since if often resolves a dispute before litigation even begins.

Paul Peter Nicolai, Rethinking Employment Law Strategies, 56-JAN. Disp. Resol . J. 53, (2002).

As most states now hold that the issuance of employee handbooks can create contractual obligations, employers must adopt alternative dispute resolution programs to deal with a potential increase in legal challenges arising out of dismissals in violation of terms of the employee handbooks. The author proposes that instituting a workplace arbitration program to resolve employment disputes could save employers time and money. However, employers must carefully draft any policy that mandates binding arbitration, as these policies can be unenforceable where their terms offend public policy or are unconscionable.

Jeffrey Scott Wolfe, Across the Ripple of Time: The Future of Alternative (Or, Is It Appropriate?) Dispute Resolution , 36 T ulsa L.J. 785 (2001).

Intervention of a neutral third party is essential to conflict resolution. For alternative dispute resolution, the author foresees a paradigm shift from a model where litigation is the premier standard with various dispute resolution processes as alternatives to a model where litigation is one of many dispute resolution processes to select. The question then becomes which is the appropriate process for the specific case, the parties, and desired outcome. The author concludes that the court system will be the final institutional arbiter of all disputes in the future by any appropriate method.

Emmanuel Gaillard, The New ADR Rules of the International Chamber of Commerce , 226 N.Y. L.J. 70 (2001).

The International Court of Arbitration of the International Chamber of Commerce (ICC) recently adopted new rules of alternative dispute resolution (ADR) in an effort to remedy the relatively minor interest in its conciliation services. These new rules replace the ICC’s 1988 Rules of Conciliation. According to the author, the purpose of the new rules is to facilitate the settlement of international business disputes using the ADR technique best adapted to each dispute. ADR techniques may include mediation, neutral evaluation, mini-trials, or any other technique or combination of techniques. The author concludes that the ICC’s new ADR rules will be welcomed by the international business community given the popularity of ADR and the already prominent role of the ICC in international dispute resolution.