Volume 10, Issue 3 - March 2012

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The Ohio State Journal on Dispute Resolution, in collaboration with the Moritz College of Law's Program on Dispute Resolution, is pleased to bring you Volume 10, Issue 3, of the Mayhew-Hite Report on Dispute Resolution and the Courts.


Paul F. Kirgis

Over the past three decades, the Supreme Court has taken a series of steps having the design or effect of restricting access to judicial process. This “disadjudication” project has proceeded along three tracks: 1) with respect to its own docket, the Court has dramatically reduced the number of cases it decides each year; 2) in the criminal area, the Court has cut way back on access to the federal courts through habeas corpus; and 3) in the civil area, the Court has simultaneously erected barriers to litigation by heightening pleading standards and expanded the scope of arbitration to suck more and more claims out of courts at both the federal and state levels.

For the Rehnquist Court, the disadjudication project at times seemed motivated primarily by a desire to clear judicial dockets. The Roberts Court appears to have a more ambitious agenda, particularly when it comes to arbitration. It has almost always sided with the Chamber of Commerce in business cases, and the Chamber wants its members to have control over the processes used to ensure that they comply with the law. The Court has enthusiastically complied. Through a string ...
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Claim-Suppressing Arbitration: The New Rules

David S. Schwartz
87 Ind. L.J. 239 (2012)

Binding arbitration should be recognized for what it is: claim-suppressing arbitration. It is not Alternative Dispute Resolution (ADR) because the process is neither voluntary at the beginning nor nonbinding at the end. It is not a justice system because it is only imposed by one side, and it is not mandatory arbitration because the defendant voluntarily drafts it into the agreement. Instead, it is a process designed and intended to suppress claims. Supreme Court interpretations of the Federal Arbitration Act (FAA) have only se ...
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NLRB Decision Bars Mandatory Waiver of Class Action in Employment Arbitration Agreements

The NLRB’s decision in D.R. Horton, Inc. and Michael Cuda, 12-CA-25764 January 3, 2012, held that that employers may not deprive either unionized or non-unionized employees of the opportunity to bring class actions against their employer in any forum, arbitral or judicial.  This decision overturned an Administrative Law Judge’s (ALJ) January 3, 2011, determination that a mutual arbitration agreement requiring the employee to agree, as a term of employment, to submit all employment disputes to individual arbitration and allowing the arbitrator no authority to consolidate claims or fashion a proceeding as a class or collective action did not constitute an unlawful restraint on employees’ collective bargaining rights.  D.R. Horton, Inc., NLRB Div. of Judges, 12-CA-25764.

This decision is controversial due to the Supreme Court’s recent ruling in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011). In Concepcion, the Court, in a 5-4 decision, prohibited class proceedings by enforcing an arbitration provision contained in AT&T’s customer cellular telephone contract that provided for mandatory arbitration on an individua ...
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Mediator of Secret Talks that Ended Apartheid Shares His Experience at Moritz
Michael Young, a critical player in the fall of apartheid in South Africa, spoke at Moritz College of Law on March 7th. During the Lawrence Lecture, attendees had the rare opportunity to learn from someone who had changed the course of history. In 1986, while working for Consolidated Gold Fields, a British mining consortium, Young organized secret meetings at Mells Park House, a private mansion in Somerset, U.K., between representatives of the South African government and the leadership of the African National Congress (ANC). More than a dozen covert meetings occurred over a five-year period, all of which were purposefully kept out of the media spotlight. These secret negotiations laid the groundwork for the public negotiations which ended apartheid and freed Nelson Mandela. [Read More]

Truancy Mediation Project Trains New Set of Mediators to Keep Kids in School
On February 10th and 11th, the Truancy Mediation Project held its training for their new set of mediators. The all-weekend training prepared law students to conduct discussions between parents and teachers of elementary and middle school students in order to help address the causes of student absences and reduce truancy in local schools in the Columbus area. [Read More]

Annual Schwartz Lecture to feature Deborah Kolb
The 2012 Schwartz Lecture on Dispute Resolution will be given by Deborah M. Kolb, an internationally renowned expert on gender issues in negotiation and leadership. On April 4th at noon in Saxbe Auditorium, she will speak on “Negotiating in the Shadow of Organizations: Doing Well by Doing Good.” [Read More]

Negotiation Team Competes at ABA National Competition
The Midwest Regional Negotiation champions, Kwame Christian ’13 and Chris Bordenave ’12, competed in the 28th annual ABA Negotiation National Competition on February 3 and 4 in New Orleans. Twenty-four teams competed in the National Competition. The Moritz team advanced beyond the opening round and was ranked as high as fifth place going into the semifinals but ultimately did not advance to the finals. [Read More]

Jennifer Herman

This third issue of the Report focuses on legal and policy matters surrounding arbitration.  Disputants with a wide array of conflict types may elect arbitration as their resolution mechanism; as such, the concerns about arbitration are equally varied.  I selected the articles in this issue to highlight a few of these discussions—namely, diverse interpretations of domestic arbitration statutes (The Roberts Court vs. The Regulators and Case Summary), the effectiveness of international land dispute arbitrations (Student Spotlight), and allegations of the claim-suppressing nature of pre-dispute arbitration clauses (Article Summar ...
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Elizabeth Ward
Abyei: An Examination of the Effectiveness of Arbitration for African Land Disputes

Elizabeth Ward
The Ohio State University Moritz College of Law
Class of 2012

Critics question the effectiveness of arbitration in resolving international land disputes, such as the Abyei dispute.  This paper analyzes the Abyei arbitration and uses the Abyei arbitration as a backdrop for analysis of arbitration’s effectiveness in resolving international land disputes..  Abyei is a resource-rich, centrally-located region whose b ...
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Moritz Program on Dispute Resolution
Widely regarded as one of the nation's finest programs in the area of Alternative Dispute Resolution, the Moritz ADR program was established in recognition of the need for future lawyers to be trained in an array of dispute resolution methods beyond litigation, including negotiation, mediation, and arbitration. [Program Home]

Ohio State Journal on Dispute Resolution
The Ohio State Journal on Dispute Resolution ("JDR") is a student-initiated, student-run publication and is the official law journal of the American Bar Association's Section on Dispute Resolution. [JDR Home]

The Caucus
The Caucus is a monthly e-newsletter that highlights the scholarship and accomplishments of the Moritz Program on Dispute Resolution faculty and students. [The Caucus Home]

Indisputably is a blog operated by law professors from around the United States concentrating on issues involving dispute resolution. [Indisputably Home]

Bridge Initiative @ Mershon and Moritz
The Bridge Initiative, which combines resources from Moritz College of Law and the Mershon Center for International Securities Studies, is an indispensable resource for those doing research in issues involving dispute resolution. [Bridge Initiative Home]

Ohio State Journal on Dispute Resolution
The Ohio State University
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Columbus, Ohio 43210-1391
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