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Post by Sapphire Capital on Nov 5, 2008 0:22:25 GMT 4
Confronting ADR Agreements' Contract/No-Contract Conundrum with Good Faith Amy Schmitz University of Colorado Law School DePaul Law Review, Vol. 56, p. 55, 2006 U of Colorado Law Legal Studies Research Paper No. 08-16 Abstract: This Article explores the intricate problem, or conundrum, of enforcing "Alternative Dispute Resolution ('ADR') agreements" that require mediation or other non-binding dispute resolution procedures. Although public policy supports ADR, courts' inadequate analysis of ADR agreements is threatening their vitality. Instead of properly considering the flexible nature of these agreements, courts assume formalist contract or no-contract conclusions similar to those they impose on what Professor Charles Knapp has termed "contracts to bargain." ADR agreements and other contracts to bargain pose enforcement problems because they require parties' cooperation without specifying what cooperation means or how to enforce such flexible duties. This Article confronts those problems and proposes that courts use duties of good faith and revived contract remedies to contextually enforce these agreements in proper cases. papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1230083_code587965.pdf?abstractid=1230083&mirid=1
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Post by Sapphire Capital on Nov 5, 2008 0:23:38 GMT 4
Dangers of Deference to Form Arbitration Provisions Amy Schmitz University of Colorado Law School Nevada Law Journal, Vol. 9, pp. 37-57, 2007 U of Colorado Law Legal Studies Research Paper No. 08-17 Abstract: This Article is part of my larger project exploring what I call "contracting culture," which borrows from legal realism and relational contract theory by considering contextual factors such as negotiators' relations, understandings, and values. As part of this project, I am pursuing various threads, including empirical studies of how contracting realities impact arbitration. In this Article, however, I focus on how these realities in business to consumer contracts combine with the Federal Arbitration Act and formulaic contract law to foster dangerous deference to form arbitration provisions. The Article then invites procedural reforms and offers suggestions for regulations aimed to temper this deference to protect consumers' dispute resolution needs without sapping the beneficial use of consumer arbitration. papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1230011_code587965.pdf?abstractid=1230011&mirid=2
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