Volume 1, Number 1
Annotations, 1999-2000
Carla S. Copeland, Note, The Use of Arbitration to Settle Territorial Dispute, 67 FORDHAM L. REV. 3073 (1999).
International arbitration has proved a useful method of settling some territorial disputes between nations. The question remains, however, as to whether arbitration is an appropriate dispute resolution mechanism to settle ethnic-based claims to land. This note addresses the issue by examining three separate arbitration proceedings that have each involved a territorial dispute: (1) the Rann of Kutch arbitration between Pakistan and India; (2) the Taba Area arbitration between Israel and Egypt; and (3) the arbitration between the two Bosnian entities over the Brko area, as provided for by the Dayton Accords. The note concludes that the use of arbitration to solve territorial disputes can be successful only where the parties are committed to resolving the dispute peacefully through arbitration and that such a commitment is unlikely if the dispute involves an issue of vital national importance. Thus, this note contends that an attempt by the international community to force states to arbitrate such disputes may discourage future parties from using the procedure.
Christopher A. Hobson, E-Negotiations: Creating a Framework for Online Commercial Negotiations, 15 NEGOT. J. 201 (1999).
Several price negotiation models are emerging over the Internet which have had an impact on consumer behavior. This essay describes the e-negotiation models used by eBay an auction pioneer; Priceline.com, a leader in "state-your-price" negotiations, and both Hagglezone and Makeusanoffer.com, two companies developing a direct person-to-computer haggling model. The essay then analyzes the characteristics of e-negotiators and how the models affect their bargaining power. The essay concludes by suggesting "rules of thumb" for future designers of e-negotiation models as a means to avoid conflict in this emerging online activity.
John P. McCory, Mandated Mediation of Civil Cases in State Courts: A Litigant's Perspective on Program Model Choices, 14 OHIO ST. J. ON DISP. RESOL. 813 (1999).
The goal of this article is to evaluate the various court-annexed mediation program models. The author believes that state courts must focus on the needs of particular civil cases and litigants. Towards that end, McCory assumes a litigant's perspective to examine court-annexed mediation programs. The author identifies several objectives that best meet the interests of civil litigants, including: reasonable costs, fair and efficient settlement, an accounting for diverse parties, appropriately trained mediators, a court system properly informed about the mediation process, and a court system responsible for providing a high-quality mediation program. McCory argues that state courts, after examining these factors, can analyze the costs, benefits, and other implications of the various mediation program models to arrive at a choice suited to the particular needs of the civil litigants and cases within their jurisdiction.
Rosanne T. Mitchell, Resolving Domain Name-Trademark Disputes: A New System of Alternative Dispute Resolution Is Needed in Cyberspace, 14 OHIO ST. J. ON DISP. RESOL. 157 (1998).
This article contends that current dispute resolution procedures are inadequate for alleviating trademark controversies over Internet domain names. The author believes expansion of the number of generic top level domains and registrars around the globe requires the implementation of an alternative dispute resolution system. Mitchell argues that this system will eliminate uncertainties in determining an appropriate forum and will dramatically decrease litigation time and expenses. The International Ad Hoc Committee's proposal, facilitated by the World Intellectual Property Organization ("WIPO"), attains these goals by providing three dispute resolution procedures: (1) on-line mediation; (2) on-line expedited arbitration; and (3) administrative challenge panels. The author contends that this proposal embodies an optimum solution for insufficient conflict resolution methods. Thus, Mitchell proposes that the United States government and WIPO should adopt this method to effectively resolve all trademark domain name disputes.
Gerald F. Phillips and Arianna Tatum, Survey: A Look at ADR in the Entertainment Industry, 54 DISP. RESOL. J. 57 (1999).
Phillips and Tatum ask why the entertainment industry does not make greater use of mediation as a problem-solving mechanism, especially when it is recognized as an effective dispute resolution process. Results from the authors' survey demonstrate that a general lack of knowledge about mediation, among both management and counsel, is the major impediment to the increased use of mediation in the entertainment industry. Further, the survey indicated that corporate executives view mediation, or the mere suggestion of the process, as a sign of managerial weakness or as an admission of wrong-doing. Phillips and Tatum suggest that the corporate structure include a "managed dispute resolution program" so that (1) counsel would be encouraged to recommend mediation, and (2) management would have the opportunity to learn about the resulting benefits of mediation. These benefits include: reduced costs in time and expenses, confidentiality, and an increased likelihood of preserving on going business relationships. The authors conclude that the key to the growth of mediation in the entertainment industry is to educate management and counsel about the use of mediation as a viable problem-solving mechanism.
Suzanne J. Schmitz, Giving Meaning to the Second Generation of ADR Education: Attorneys' Duty to Learn about ADR and What They Must Learn, 1999 J. DISP. RESOL. 29 (1999).
Professor Schmitz' article establishes two main points. First, all attorneys need to learn about ADR. Second, attorneys need to learn about ADR not as neutral parties (mediators or arbitrators), but as advocates. The article then summarizes the specific areas of ADR that Professor Schmitz believes attorneys should understand. The author, in support of her first point, contends that government, custom, and practice promote the use of ADR. Additionally, expectations of clients, courts, and legislatures, as well as the legal profession's own ethical codes, require it. Schmitz observes that clients need counselors more than they need trained neutral parties before, during and after ADR processes are used. Finally, Schmitz discusses what attorneys need to know about the scope of ADR procedures, and how those procedures may be used in the course of a dispute. The author's summary pays special attention to selection of ADR methods both before and after disputes arise, including: mediation, early neutral evaluation, summary trials and mini-trials, settlement conferences, and arbitration.
Joshua J. Engelbart, Federal Mediation Privilege: Should Mediation Communications Be Protected From Subsequent Civil & Criminal Proceedings? 1999 J. DISP. RESOL. 73 (1999).
This Note addresses problems arising from federal courts' refusal to recognize an evidentiary rule of privileged communication for mediation sessions. These problems are examined in the context of the Fifth Circuit's decision to deny such protections where criminal wrongdoing was allegedly committed in the mediation process itself. The author contends that this decision is not surprising in light of the general reluctance by Federal courts to grant privileged communication protection to mediation sessions in civil matters. However, the author warns that this reluctance may undermine the mediation process, where all parties must be able to freely exchange their concerns and motivations. The author concludes by stating that varying state regulations and federal court opinions leave mediation participants uncertain whether their communications will receive privileged status.
Matthew B. Zisk, Mediation and Settlement of Patent Disputes in the Shadow of the Public Interest, 14 OHIO ST. J. ONDISP. RESOL. 481 (1999).
This article discusses whether or not the public's interest in having valid patents should undermine traditional court-sponsored mediation, which "generally" does not involve a high degree of judicial scrutiny. The author questions whether judicial scrutiny goes against the practice of mediation, which strives to avoid the "traditional courtroom setting." In summary, the author proposes that judicial scrutiny in patent disputes should encompass mediation as well.
Jean R. Sternlight, A Lawyers' Representation of Clients in Mediation: Using Economics and Psychology to Structure Advocacy in a Non-Adversarial Setting, 14 OHIO ST. J. ON DISP. RESOL. 269 (1999).
This article explores competing views concerning whether the legal profession should be involved in the mediation process. In the recent past, the predominant view has been that lawyers generally are detrimental to the mediation process. The author notes that lawyers are trained in the adversarial process, while mediation commands a considerably more cooperative approach to dispute resolution. Although the article does not provide a "right or wrong" answer, the author argues that if lawyers are involved in the mediation process, they should be both "gladiators," and "potted plants." In other words, to effectively reach resolutions, lawyers must appear adversarial in protecting clients' interests as well as cooperative and empathetic in assessing opponents' motivations. If lawyers bring this versatile approach to the table, the author contends, the legal profession could enhance rather than impair the mediation process.
Christine S. Young, NASD Applications Require Arbitration of Employment Disputes, 1999 J. DISP. RESOL. 107 (1999).
This article addresses an inconsistency between the Federal Arbitration Act and Title VII rules that the author claims causes harm to non-union employees. Ms. Young contends that while union employees cannot collectively bargain away or waive an individual right, securities dealers are compelled to do just that with their right to sue their employer, and are instead forced into arbitration. The author further argues that this consequence favors employers, who are more familiar with arbitration processes and arbitrators. The author offers two suggestions to remedy these problems. First, courts should pay special attention to the issue of whether securities dealers knowingly waived their right to sue their employer. Second, institute procedural safeguards - such as offering employees peremptory challenges to employer-chosen arbitrators - to eliminate employer advantage in arbitration. The author believes that these steps would help to eliminate the harm suffered by non-union employees when they are confronted with a mandatory arbitration clause.
Denise F. Rios, Mandatory Arbitration Agreements: Do They Protect Employers from Adjudicating Title VII Claims?, 31 ST.Mary's L. J. 199-254 (1999).
This comment addresses the enforceability of mandatory arbitration agreements for Title VII claims. Ms. Rios analyzes negotiation, mediation, neutral third-party fact finding, and arbitration processes, examining the advantages and disadvantages of each and how each function in an employment setting. The author then reviews the historical treatment of arbitration in Title VII claims. Building on her historical review, the author details the difficulty courts face when determining the enforceability of mandatory arbitration clauses in Title VII cases. Lastly, the author describes guidelines for employers seeking to have mandatory arbitration clauses upheld in Title VII claims. These guidelines include: (1) ensuring that employees enter into agreements to arbitrate freely and willingly; (2) expressly listing in the agreement the statutes intended for inclusion; (3) providing in the agreement the same remedies available in Title VII; and (4) anticipating and combating the defenses of adhesion and unconscionability. Thus, employers seeking to ensure the enforceability of mandatory arbitration agreements for Title VII claims can take certain pre-agreement steps to increase the chances of the arbitration agreement being upheld.
Back to Issues Index
