The Ohio State Journal on Dispute Resolution is pleased to bring you Volume 5, Issue 2 of the Mayhew-Hite Report on Dispute Resolution and the Courts.
Kristen M. Blankley, in Can Careful Drafting Expand Judicial Review?, examines whether parties to an arbitration agreement can provide for a more comprehensive judicial review of an arbitrator's award than ordinarily available under the Federal Arbitration Act ("FAA") by explicitly delineating the arbitrator's power in their agreement. Blankley provides an overview of judicial review under the FAA and also identifies potential advantages and pitfalls associated with the increased availability of judicial review for arbitration awards. In addition, the author details the current circuit split on the issue of whether parties can expand judicial review of arbitration awards by contract, and she then analyzes how parties can achieve increased judicial review under Section 10(a)(4) of the FAA by specifically identifying the powers an arbitrator can exert. The full-text of this article can be accessed here.
In their article Matching Cases and Dispute Resolution Procedures: Detailed Analysis Leading to a Mediation-Centered Approach, Professors Frank E.A. Sander and Lukasz Rozdeiczer examine how a party should select an ADR mechanism to resolve a particular dispute. In the authors' view, a party must choose the ADR mechanism which can best satisfy her goals. To this end, they argue that a party must evaluate her case and match it to a dispute resolution mechanism instead of first looking at mechanisms and then pairing the chosen procedure with the case. Using hypothetical examples, Sander and Rozdeiczer illustrate how various process goals, such as speed and public vindication, will impact a party's choice of a dispute resolution mechanism. They argue that a party should then assign a point value to each goal to represent its importance, and then calculate, using a table in the article, how effective each process is at achieving a particular goal. The result of the calculations will be that a party can determine the mechanism that will most likely achieve the goals that they consider to be most important. In Part III of the article, the authors outline their "User-Friendly, Mediation-Centered Approach" which advises that parties first presume that mediation will be their starting process, then consider whether certain features of their case make it inappropriate for mediation, and then determine which type of mediation should be used. Sander and Rozdeiczer also propose steps for parties to take when mediation is tried and proves to be ineffective in the resolution of their dispute. A detailed summary of this law review article can be accessed here.
Late last year, the California Supreme Court announced it decision in Fair v. Bakhtiari, 40 Cal. 4th 189, 147 P.3d 653 (2006), a case in which it had to determine whether an arbitration clause in a proposed settlement agreement sufficiently indicated the parties' intent to be bound by the agreement such that the statutory exception to California's rule of confidentiality for mediation documents was satisfied. The Court held that the statutory exception to confidentiality for mediation communications should be strictly construed and that to satisfy the exception, a settlement agreement must include language clearly indicating that the parties' awareness that they were entering into a binding agreement. A detailed summary of this case can be accessed here.
In This Land is Our Land: Proposing a Mediative Model for Public-Private Land Use Disputes, Erik Stock offers a very brief history of land-use regulation in the United States and then provide an overview of the problems that stem from employing a system of negotiated settlements to resolve public-private land use disputes. In the body of his paper, Stock argues that a meditative model could eliminate many of the concerns that result from using negotiation in public-private land disputes and identifies several situations in which mediation could have been used to effectively resolve a high profile public-private land-use dispute. Erik Stock is a 2008 J.D. candidate at The Ohio State University Moritz College of Law. He is the 2007-2008 Editor-in-Chief of the Ohio State Journal on Dispute Resolution and is pursuing the College's Certificate in Dispute Resolution. Erik will be a 2007 summer associate in the Columbus office of Schottenstein, Zox, and Dunn. The full-text of this paper can be accessed here.
Philip Morrow & Betsy Elder in collaboration with members of the Ohio State Journal on Dispute Resolution.
Professor Sarah R. Cole
Send Comments To:
Ohio State Journal on Dispute Resolution
The Ohio State University, Moritz College of Law
55 West 12th Avenue, Columbus, Ohio 43210-1391
Phone Number: (614) 292-7170