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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 1 of the Mayhew-Hite Report on Dispute Resolution and the Courts.

ON BABIES AND BATHWATER: THE ARBITRATION FAIRNESS ACT AND THE SUPREME COURT'S RECENT ARBITRATION JURISPRUDENCE

Sarah Cole

An important, but widely overlooked, issue has plagued arbitration for many years—the disconnect between the judicial embrace of predispute arbitration agreements in consumer (or employment) contracts and the negative public and legislative attitude toward such agreements. For many years, Democratic legislators attempted to pass a law banning the use of predispute arbitration agreements in employment disputes. In 2011, the legislators renamed this legislation and expanded its reach. Under the proposed Arbitration Fairness Act (AFA), all predispute arbitration agreements in employment and consumer agreements would be invalidated. At the same time, the Supreme Court repeatedly has enforced arbitration agreements of all types and in a variety of settings. While the Supreme Court's rulings do much to reinforce the value and importance of arbitration as a dispute resolution mechanism, the rulings also ignore a growing problem in consumer arbitration—the inability of consumers to band together in either class arbitration or class actions in court, to vindicate low value claims. This problem deserves legislative attention rather than the issue of the viability of consumer arbitration agreements in general. [Read More]

ARTICLE SUMMARY

NAVIGATING THE MURKY WATERS OF UNTRUTH IN NEGOTIATION: LESSONS FOR ETHICAL LAWYERS

Deborah Schmedemann
12 Cardozo J. Conflict Res. 83 (2010)

In "Navigating the Murky Waters of Untruth in Negotiation: Lessons for Ethical Lawyers," Deborah Schmedemann addresses an issue that the law has largely seemed to ignore—the role of truthfulness in the negotiation process. According to Schmedemann, the laws underlying the negotiation process condemn affirmative misrepresentations and non-disclosure of information. She further notes that it is unlikely that lawyers want to engage in unethical conduct. The question Schmedemann addresses, then, is why lawyers actually engage in such behavior. [Read More]

CASE SUMMARY

Khan v. BDO Seidman, LLP, 404 Ill. App. 3d 892, 935 N.E.2d 1174, 343 Ill. Dec. 946 (Ill. App. 4 Dist. 2010)
The question of arbitrability arises whenever one disputant, who is a party to an arbitration agreement, moves a court to compel arbitration of the entire dispute or a specific issue within the case. Usually, a motion to compel arbitration is accompanied by a motion to stay judicial proceedings while the arbitration proceeds. Historically, the United States Supreme Court has presumed that most disputes arising out of a contract that contains an arbitration agreement should be arbitrated, even holding that a challenge to the application of a statute of limitations (which would have barred one party's claim) was an issue for the arbitrator rather than a court. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002). This case raises the question whether an arbitrator or the court should decide arbitrability of a claim when the parties disagree about whether the arbitration agreement covers the particular claim. [Read More]

HEADLINE NEWS

Lawrence Negotiation Lecture explores Negotiations in College Sports
The annual Lawrence Negotiation Lecture this year featured Julie Vannatta, who spoke on "Negotiations in the World of Athletics." Ms. Vannatta is Senior Associate Athletics Director—Legal and Senior Assistant General Counsel for Athletics at The Ohio State University and concentrates her practice on legal issues affecting the Department of Athletics. The lecture took place on October 11, and students interested in the Dispute Resolution Certificate will be given an hour of externship credit if they attended the lecture. [Read More]

Four Students Achieve Certificate in Dispute Resolution
Four students—Joseph Clark III, Noura Dabdoub, Anne C. Evans, and Daniel Lynch—received the Moritz College of Law Certificate in Dispute Resolution in 2011. The Certificate in Dispute Resolution is a way for students interested in dispute resolution to distinguish themselves as knowledgeable in alternative dispute resolution theory and practice in the legal world. Students who complete the requirements for the certificate are honored by the College of Law with a special notation on their transcript as well as a separate document, which certifies the student as having advanced knowledge and practical experience in the field of dispute resolution. [Read More]

Lawrence Negotiation Competition October 17-20
The annual Lawrence Negotiation Competition took place October 17-20 this year. The teams of Daniel Best & Andy Gammill and Chris Bordenave & Kwame Christian will advance to the regional competition in Ottawa, Ontario November 12-13, 2011. The competition is a chance for any student interested in negotiation to hone his or her skills; the winners and runners up qualify as Moritz's representatives in the regional ABA Law Student Division Negotiation Competition and can move on to the national competition. [Read More]

EDITOR'S CORNER

Welcome to the 2011-2012 Mayhew-Hite Report! My name is Jennifer Herman; I am a third year Juris Doctor candidate at the Moritz College of Law and new editor of the Report. The Report will consist of four issues this year; tentative publication dates for the remaining three issues are November 30, February 29, and April 30.

The Report always welcomes feedback and suggestions for improvement. If you, the reader, have a topic, article, or case that you would like to see the Report include, please email me. Additionally, if you would like to submit a paper for the Lead Article feature, please contact me so that we may discuss that opportunity.

Thank you for reading!
Jennifer Herman
Editor
Email: herman.214@buckeyemail.osu.edu

STUDENT SPOTLIGHT

Ingrid Babri - Mediation: A New Way to Discuss the Complexities of Racialization in the American Workplace
Workplace discrimination is not simply a matter of individual action; it is a multi-dimensional process that needs to be fully analyzed. As mediators are uniquely empowered to facilitate constructive conversations and develop solutions that incorporate multiple interests, they should be heavily utilized in workplace discrimination disputes. In order to develop solutions involving race, the larger structural framework of racialization must be understood. Discriminatory practices cannot be understood without an understanding of the inter-institutional arrangements in society which help to create and distribute benefits and burdens in society. Thus, when mediating workplace discrimination, proper attention must be paid to the system as a whole—from the relationship between two people to the history of slavery and segregation as well as the prevalence of uneven and unequal rights. [Read More]

MORITZ ADR LINKS

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
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]

CONTACT US
Ohio State Journal on Dispute Resolution
The Ohio State University
Moritz College of Law
55 West 12th Avenue
Columbus, Ohio 43210-1391
(614) 292-7170
osu-jdr@osu.edu

The Ohio State University | Michael E. Moritz College of Law | 55 West 12th Avenue | Columbus, OH 43210-1391