Principles of Alternative Dispute Resolution
Author:
Ware, Stephen J.
Edition:
3rd
Copyright Date:
2016
13 chapters
have results for arbitration
Chapter 2. Arbitration and Similar Processes 1094 results (showing 5 best matches)
- International arbitration is commonly divided into commercial arbitration and public law arbitration. Of the two, international commercial arbitration is more similar to the domestic arbitration discussed in the previous sections of this chapter so international commercial arbitration is discussed next, before turning to international public law arbitration. The first section on international public law arbitration distinguishes it from international commercial arbitration.
- More simply, § 4 says that the court shall not order the parties to arbitration if “the making
- Employment arbitration of those transportation workers is governed by state arbitration law. Some states treat employment arbitration agreements differently from other arbitration agreements, while many other states treat employment arbitration no differently from other arbitration. For example, employment arbitration agreements are enforceable under California law, the Uniform Arbitration Act, and the Revised Uniform Arbitration Act,
- The practice of labor arbitration is substantially different from the practice of other arbitration. From the perspective of arbitration generally, the practice of labor arbitration has two peculiarities. First, employees are the claimants (or “grievants”) in the vast majority of labor arbitration cases. In other words, labor arbitration nearly always involves claims employers. Most CBA arbitration clauses do not even allow the employer to assert claims in arbitration. That labor arbitration nearly always involves claims against employers distinguishes it from much other arbitration in which either side to a transaction might, depending on the case, assert a claim against the other. Labor arbitration is one-sided in a way that distinguishes it from much other arbitration.
- What further distinguishes labor arbitration from other arbitration is the status of disputes that do not go to arbitration. Outside the labor context, “arbitration is the substitute for litigation.” Claims asserted in non-labor arbitration generally would have been asserted in litigation had the parties not agreed to arbitrate. In contrast, it is unlikely that grievances asserted in labor arbitration would have been asserted in litigation had the parties not agreed to arbitrate.
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Chapter 4. Mediation and Other Processes in Aid of Negotiation 46 results (showing 5 best matches)
- Arbitration is adjudication in a private, that is, non-government, forum. There are two types of arbitration, binding and non-binding. Binding arbitration is far more common. Binding arbitration is the subject of Chapter 2. Non-binding arbitration is discussed in this section. Non-binding arbitration is a form of non-binding adjudication.
- While parties can agree to non-binding arbitration—and courts have generally enforced such agreements —most non-binding arbitration is court-ordered, that is, mandatory. Such arbitration is generally known as “court-annexed arbitration.” Courts in over twenty states and in some federal districts have authority to order parties (in certain classes of cases) to non-binding arbitration.arbitration is non-binding because the party that loses in arbitration may pursue the case in litigation and the court will hear the case , giving no deference to the arbitrator’s decision. However, most court-ordered arbitration rules impose some disincentive to deter the losing party from pursuing litigation. Generally, that party “must deposit with the court a sum equal to the fees of the arbitrators. The deposit is returned only if the result at the trial de novo is more favorable to the appellant than the award of the arbitrators.”
- A party has the right to pursue litigation rather than arbitration unless that party has formed an arbitration agreement in which case it has the right to pursue arbitration rather than litigation. See § 2.3.
- Some contracts are not clear on whether they require binding or non-binding arbitration. See, e.g., Rainwater v. Nat’l Home Ins. Co., 944 F.2d 190, 194 (4th Cir.1991). (contract stating that arbitration is a “condition precedent” to the commencement of litigation held to require binding arbitration; “we read ‘condition precedent’ to some extent as an artifact left over from the days of [judicial] hostility toward arbitration. To the extent that the phrase has meaning, we find that it does not undermine the binding nature of arbitration, but instead applies to the confirmation process permitted by 9 U.S.C. § 9, or to other litigation in which the arbitration award would be final but just a sub-text in some larger litigation context.”)
- See § 1.6(c) (defining arbitration as adjudication in a private, , non-government, forum). Arbitration is the focus of Chapter 2.
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Appendix A. Federal Arbitration Act 32 results (showing 5 best matches)
- If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.
- A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be...
- (c) The United States district court for the district wherein an award was made that was issued pursuant to section 580 of title 5 may make an order vacating the award upon the application of a person, other than a party to the arbitration, who is adversely affected or aggrieved by the award, if the use of arbitration or the award is clearly inconsistent with the factors set forth in section 572 of title 5.
- An action or proceeding over which the district courts have jurisdiction pursuant to section 203 of this title may be brought in any such court in which save for the arbitration agreement an action or proceeding with respect to the controversy between the parties could be brought, or in such court for the district and division which embraces the place designated in the agreement as the place of arbitration if such place is within the United States.
- Within three years after an arbitral award falling under the Convention is made, any party to the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award as against any other party to the arbitration. The court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention.
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Chapter 1. Introduction 27 results (showing 5 best matches)
- Disputes do not go to arbitration unless and until the parties have contracted to comply with the arbitrator’s decision. In other words, a contract is required for arbitration to occur at all and, therefore, for arbitration to be binding. Arbitration binds only those who contracted for it.
- In all ADR processes other than arbitration, parties do not contract for a binding result until arbitration agreements. These are contracts containing a clause providing that, if a dispute arises, the parties will submit that dispute to arbitration and comply with the arbitrator’s decision. As a result of these contracts, by the time a dispute covered by one of these contracts arises, arbitration has replaced litigation as the default process of Disputing parties who have previously agreed to arbitrate can contract into some other process of dispute resolution, but if they do not, each party has the right to resolve the dispute in arbitration.
- This analysis suggests that arbitration and litigation are substitutes for each other. It also suggests that negotiation and processes in aid of it are (1) substitutes for each other, and (2) not substitutes for arbitration or litigation. Arbitration and litigation fall into the category of default processes, processes that cast “the shadow of the law.” Negotiation and processes in aid of it, such as mediation, fall into the category of non-default processes, processes that occur in the shadow cast by litigation or arbitration.
- Negotiation and processes in aid of it are powerless against such a respondent. They pose no threat to the respondent. In contrast, litigation and arbitration threaten the respondent with the prospect of being imprisoned or having its property forcibly taken because that is what can happen to a party who does not comply with a court order, including an order confirming an arbitration award. Litigation and, from the post-dispute perspective, arbitration impose results on the respondent. Negotiation and processes in aid of it produce only those results agreeable to respondent. Negotiation and processes in aid of it are just talk. In contrast, litigation and arbitration are backed by physical force.
- These arbitration clauses typically are written broadly to cover any dispute the parties’ transaction might produce, but also can be written more narrowly to cover just some potential disputes. See §§ 2.29–2.31. Arbitration clauses appear in a wide variety of contracts including those relating to employment, credit, goods, services and real estate.
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Appendix B. New York Convention 8 results (showing 5 best matches)
- (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or
- 1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.
- 2. The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.
- 3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said
- (b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
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Note to Teachers 5 results
- The conceptual reason for putting arbitration before negotiation and mediation is that arbitration is the only ADR process that can produce legally binding results without a post-dispute contract. From the post-dispute perspective then, either arbitration or litigation is the default process, the one process capable of producing a legally binding resolution without further agreement between the parties. None of the other major ADR processes (including negotiation and mediation) is capable of achieving this status, that is, of being the post-dispute default process. Furthermore, negotiation and mediation are often heavily influenced by the default process. That is because negotiators’ expectations about the results of litigation or arbitration shape the negotiators’ attitudes toward various settlement terms. In other words, the default process casts the “shadow of the law.” Whether that shadow is being cast by litigation or arbitration can make an enormous difference. Consider, for...
- Whatever the format of an ADR course, the instructor must consider how to organize the material to be covered. Notably, this book covers arbitration before negotiation and mediation. While many ADR books cover arbitration after negotiation and mediation—and I taught ADR that way for several years—I switched my ADR course to the “arbitration first” format and find that it generally works better for two reasons: one pedagogical, the other conceptual.
- In sum, I encourage ADR teachers to consider teaching arbitration before negotiation and mediation. Alternatively, instructors can easily use this book in a course that covers arbitration after negotiation and mediation by simply assigning Chapters 1, 3 and 4, before turning to Chapter 2.
- The pedagogical reason for putting arbitration first is that the negotiation and mediation portions of an ADR course tend to involve less doctrine than the arbitration portion of the course. So the negotiation and mediation portions of the course have more role-playing exercises and more open-ended class discussions. When these experiences dominated the early portions of my ADR course, many of my students resisted a late-in-the-semester transition to what has been aptly called the “traditionally demanding feel” of the arbitration portion of the course, with its “[t]ough cases and hard questions.” By contrast, I have found little mid-semester resistance to a transition from arbitration to negotiation and mediation. I think it is analogous to how my children easily make the transition at dinner from eating vegetables to eating dessert. By contrast, if I was to let them eat dessert first, I suspect they would be more resistant to eating their vegetables.
- The following two paragraphs are based on material in Stephen J. Ware, Teaching Arbitration Law, 14 Am.Rev.Int’l Arb. 231, 237–38 (2003).
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Table of Contents 67 results (showing 5 best matches)
- § 2.2 Contractual Arbitration and Non-Contractual Arbitration; Constitutional Right to Jury Trial
- G. EMPLOYMENT ARBITRATION AND LABOR ARBITRATION
- § 2.49 Introduction: Commercial Arbitration and Public Law Arbitration
- (2) The Choice of National Arbitration Law: The “Seat” of Arbitration
- § 2.63 Public International Arbitration Tribunals Arising out of Post-Dispute Arbitration Agreements
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Acknowledgments 4 results
- American Arbitration Association, Commercial Arbitration Rules, R–13(b), 17, 18 (2013). Reprinted with permission.
- Gary B. Born, International Commercial Arbitration (2009), reprinted with permission of author.
- Ian R. Macneil, Richard E. Speidel & Thomas J. Stipanowich, Federal Arbitration Law § 32.7.1. (1994). Reprinted by permission. Copyright © 1994 by Aspen Law and Business.
- Margaret L. Moses, The Principles and Practice of International Commercial Arbitration (2008), with permission of Cambridge University Press.
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Summary of Contents 2 results
Index 20 results (showing 5 best matches)
Preface 2 results
- This book surveys ADR—arbitration, negotiation, mediation, and other processes of dispute resolution. This book is written with one overriding goal, to serve as a clear and reliable statement of the law and concepts central to ADR. So this book should be useful to lawyers and scholars researching ADR.
- Prior to the 1970’s, lawyers did not talk about “Alternative Dispute Resolution.” They did, however, practice ADR. They negotiated settlement agreements and they represented clients in arbitration. Such activities have long been performed by lawyers. Only in the last forty or so years, though, has ADR emerged as a distinct field of study in law school. This book is an outgrowth of that emergence.
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Table of Cases 4 results
- Arbitration between Lemoine Skinner III v. Donaldson, Lufkin & Jenrette, 131
- Arbitration Between Trans Chemical Ltd. and China Nat. Machinery Import and China National Machinery Import and Export Corp., Matter of, 207
- The Florida Bar Re: Advisory Opinion on Nonlawyer Representation in Securities Arbitration, 139
- Thomson-CSF, S.A. v. American Arbitration Ass’n, 73, 113
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Chapter 3. Negotiation 8 results (showing 5 best matches)
- specializes in asserting securities fraud claims. If you specialize in international commercial arbitration, you may find that your counterpart is invariably one of the few lawyers who also specializes in international commercial arbitration. This sort of repeated interaction among a small group of lawyers creates a small town in the big city. Reputation, in short, matters more among
- Arbitration is adjudication in a private, that is, non-government, forum. See §§ 1.6(c), 2.1–2.63.
- The reasoning of this chapter generally applies to both settlement negotiation of disputes headed to litigation and settlement negotiation of disputes headed to arbitration. To avoid wordiness, however, the rest of this chapter is written entirely in terms of disputes headed to litigation.
- Rules of evidence in arbitration are discussed in § 2.37(d).
- Arbitration generally has these features of a party-funded “court” system. See Ch.2.
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- Publication Date: September 23rd, 2016
- ISBN: 9781634595742
- Subject: Dispute Resolution
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: Provides a clear and reliable statement of the law and concepts central to ADR (arbitration, negotiation, mediation, and other processes). Its thorough coverage of arbitration law renders this challenging and rapidly-changing body of statutes and case law accessible to the student or lawyer. The chapters on negotiation and mediation treat the subjects from the perspectives of theory, practice, and legal doctrine.