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Full-Text Articles in Law
Family, The Market, And Adr, The, Amy J. Cohen
Family, The Market, And Adr, The, Amy J. Cohen
Journal of Dispute Resolution
This Article proceeds in three Parts. I begin by briefly summarizing what I will refer to as separate spheres ideology-the idea that our normative understandings of the family and the market are constructed in contradistinction to one another. I then show how this conceptual distinction between the family and the market shaped the development of alternative dispute processing during two periods of time. The first period, which I introduce to frame the second, examines how dispute processing reformers-beginning during the Progressive era and continuing to the 1930s-distinguished alternative forums for family disputes from alternative forums for commercial ones. In Part …
Comment: Trends And Challenges In Bringing Together Adr And The Rule Of Law, Stephanie E. Smith
Comment: Trends And Challenges In Bringing Together Adr And The Rule Of Law, Stephanie E. Smith
Journal of Dispute Resolution
The goals of justice, peace, and prosperity will not be achieved overnight. Strategies that aim to achieve a perfect state in a short time frame are doomed to failure. Rule of law approaches should be individualized for local context, and be nimble enough to adapt over time to advance these ambitious goals. Success will require drawing upon expertise from many practice areas and academic fields, and coordinating activities to maximize limited resources.
Procedural Justice And The Rule Of Law: Fostering Legitimacy In Alternative Dispute Resolution, Rebecca Hollander-Blumoff, Tom R. Tyler
Procedural Justice And The Rule Of Law: Fostering Legitimacy In Alternative Dispute Resolution, Rebecca Hollander-Blumoff, Tom R. Tyler
Journal of Dispute Resolution
In Part II, we provide background on the psychology of procedural justice. Then, because the term rule of law has been used so widely and in so many different ways, we explain its various meanings and go on to draw connections between the elements of procedural justice and the rule of law, highlighting both the similarities and distinctions between the two principles. We then marshal evidence in support of the critical role that procedural justice and rule of law values play in fostering perceptions of legitimacy. Part III explores the links among procedural justice, rule of law, and specific ADR …
Alternative Dispute Resolution And The Rule Of Law In International Development Cooperation, James Michel
Alternative Dispute Resolution And The Rule Of Law In International Development Cooperation, James Michel
Journal of Dispute Resolution
This paper briefly reviews the concept of development and related international cooperation. It then examines how the rule of law has been addressed in development programs and offers some thoughts about the contribution of ADR for advancing the rule of law and, in turn, contributing to human security, wellbeing, and dignity.
Adr And Transitional Justice As Reconstructing The Rule Of Law, Michal Alberstein
Adr And Transitional Justice As Reconstructing The Rule Of Law, Michal Alberstein
Journal of Dispute Resolution
This paper addresses the role of ADR in reconstructing the rule of law following the critique this idea received during the 20th century, and exemplifies this role through reference to another alternative movement in law-The Transitional Justice movement. In contrast to efforts to reconcile the notion of the rule of law with ADR, or to demarcate the proper interaction between these social institutions in achieving justice, this paper argues for a deeper connection between the two notions: After briefly analyzing the intricate meanings of the rule of law notion through history and its relation to ADR, the paper continues to …
Deliberative Look At Alternative Dispute Resolution And The Rule Of Law, A, Peter Muhlberger
Deliberative Look At Alternative Dispute Resolution And The Rule Of Law, A, Peter Muhlberger
Journal of Dispute Resolution
This paper critiques the foundations of Aragaki's analysis, but also gives credit on the importance of dealing with people as less than fully rational. The critique suggests, again, a deep commonality between DD and ADR and potential improvements to both approaches. True collaboration between these approaches, however, requires some re-theorizing of both, including a reconsideration of rationality itself. This paper will sketch some ways in which this might be achieved and, in particular, how DD theory and research may prove helpful for ADR.
Access To Justice And Alternative Dispute Resolution, William Davis, Helga Turku
Access To Justice And Alternative Dispute Resolution, William Davis, Helga Turku
Journal of Dispute Resolution
This article reviews access to justice both theoretically and in practice. Second, it highlights some of the challenges and successes of implementing access to justice projects. Finally, it discusses alternative dispute resolution (ADR) reforms in the developing world as one important element of access to justice.
Lost In Translation: Can Exporting Adr Harm Rule Of Law Development, Cynthia Alkon
Lost In Translation: Can Exporting Adr Harm Rule Of Law Development, Cynthia Alkon
Journal of Dispute Resolution
This article will begin with a brief explanation of rule of law development work. Section III will describe the role of legitimacy in developing rule of law. Section IV will discuss some examples of how ADR programs are typically included in rule of law development work. Section V will discuss when promotion of ADR programs may work against the development of rule of laws, specifically when ADR might seem more like a new form of corruption or when it might reinforce already existing bad practices. Section VI will offer some questions for ADR and rule of law development practitioners to …
Rejecting The Intertwining Doctrine: Favoring Adr While Hindering Judicial Efficiency And Economy, Michael Bekesha
Rejecting The Intertwining Doctrine: Favoring Adr While Hindering Judicial Efficiency And Economy, Michael Bekesha
Journal of Dispute Resolution
Often the scope of arbitration clauses does not include all potential claims. When the provision fails to provide for all disputes, courts may proceed in one of two ways to resolve both arbitrable and nonarbitrable claims: enforce the arbitration clause with respect to arbitrable claims, or ignore the private contract and litigate all issues at once. The Colorado Supreme Court, in Ingold v. AIMCO, chose the former - rejecting the intertwining doctrine. In doing so, Colorado aligned itself with the position that the United States Supreme Court embraced over twenty years ago. This casenote will discuss whether the Colorado Supreme …
Adr Through A Cultural Lens: How Cultural Values Shape Our Disputing Processes, Julia Ann Gold
Adr Through A Cultural Lens: How Cultural Values Shape Our Disputing Processes, Julia Ann Gold
Journal of Dispute Resolution
I arrived for my second Nepali language class on time, but the teacher kept chatting about inconsequential things. I was paying by the hour, and we had already spent 25 minutes talking about nothing! A week later, I received an invitation to an art exhibit. The location was "Royal Museum," so that is where I went, only to find an empty building and no people. What had I missed? In my first meeting with the Dean of the Law Campus, we talked about trekking, the upcoming religious holidays, his visit to Seattle two years ago, relatives in the United States, …
Why Further Development Of Adr In Latin America Makes Sense: The Venezuelan Model, Jose Alberto Ramirez Leon
Why Further Development Of Adr In Latin America Makes Sense: The Venezuelan Model, Jose Alberto Ramirez Leon
Journal of Dispute Resolution
This paper argues that Venezuelan society would benefit from further development of ADR. Part II will provide an overview of the main problems affecting the Venezuelan judiciary, part III will provide a background of ADR in the country, part IV will identify the main challenges the field has to overcome, part V will propose a different approach, and part VI will present the conclusion.
Mediation And The Transformation Of American Labor Unions, Ann C. Hodges
Mediation And The Transformation Of American Labor Unions, Ann C. Hodges
Missouri Law Review
First, the Article analyzes the changes in the workplace that led to various proposals for reform. Then the Article looks at the potential for mediation of claims that do not arise out of the collective bargaining agreement, analyzing the possible benefits form the point of view of employers, employees and unions. Next, some of the issues and obstacles to mediation are reviewed. Ultimately, the Article concludes that the benefits of mediation outweigh the disadvantages and that in most collective bargaining relationships the obstacles should not prevent either negotiation of such provision or their successful use for at least some cases.
Adr Clause By Any Other Name Might Smell As Sweet: England's High Court Of Justice Queens Bench Attempts And Fails To Define What Is Not An Enforceable Adr Clause - Cable 7 & (And) Wireless Plc V. Ibm United Kingdom Ltd, An, Alyson Carrel
Journal of Dispute Resolution
The High Court of Justice Queens Bench Division in England issued a ruling that provides sweeping support for the use of Alternative Dispute Resolution (ADR) in private pre-dispute contract clauses.' While this support might seem to aid in developing the growing ADR movement in England, the judge may have put the cart before the horse by enforcing a non-descript and broad ADR contract clause that lacks the specificity needed to ensure a fair outcome. This decision could be detrimental for disputing parties and the future of the ADR movement itself.
Dancing With The One That Brung Us - Why The Texas Adr Community Has Declined To Embrace The Uma, Brian D. Shannon
Dancing With The One That Brung Us - Why The Texas Adr Community Has Declined To Embrace The Uma, Brian D. Shannon
Journal of Dispute Resolution
I readily acknowledge that the UMA is a bold and noble project, and it is certainly the result of substantial effort and compromise. Indeed, I largely concur with the sentiment of Philip Harter that "[tihe UMA is the product of heroic effort that brought together many interests and perspectives to thrash out a workable framework for mediation." That being said, however, much of the Texas mediation community, of which I am a part, has largely opposed enactment of the UMA's framework for our state. As I have written previously, the Alternative Dispute Resolution Section of the State Bar of Texas …
Challenge Of Institutionalizing Alternative Dispute Resolution: Attorney Perspectives On The Effect Of Rule 17 On Civil Litigation In Missouri, The, Bobbi Mcadoo, Art Hinshaw
Challenge Of Institutionalizing Alternative Dispute Resolution: Attorney Perspectives On The Effect Of Rule 17 On Civil Litigation In Missouri, The, Bobbi Mcadoo, Art Hinshaw
Missouri Law Review
In 1997 the Missouri Supreme Court revised its civil (non-family) ADR rule, Rule 17, to give individual judges the power to order cases to ADR. One of the primary reasons for the revision was to increase the use of what was seen as a worthwhile but underutilized rule. In an effort to evaluate the revised rule and its effects, the Missouri Supreme Court commissioned the Authors to conduct an extensive attorney survey to assess when and why lawyers choose to use ADR, especially mediation; what ADR has on the litigation process; and how and when judges get involved in choosing …
Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P, Love
Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P, Love
Journal of Dispute Resolution
The thesis of this essay is that when mediators try to resolve a controversy by providing their analysis fo the legal - or other- merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral's judgment, award or opinion to determine or jump-start a resolution. That add-on activity to mediation should be called by its proper name. This essay will not review the many reasons that a single neutral combining the roles of facilitator and evaluator is problematic, since that has been done extensively elsewhere.' Instead, in part one, we highlight …
Inevitability Of The Eclectic: Liberating Adr From Ideology, The, Jeffrey W. Stempel, Kimberlee K. Kovach
Inevitability Of The Eclectic: Liberating Adr From Ideology, The, Jeffrey W. Stempel, Kimberlee K. Kovach
Journal of Dispute Resolution
In this essay, I continue to argue against such rigid characterization of the mediation enterprise and in favor of what I term an "eclectic" approach to mediation. The eclectic style is one in which a mediator - while maintaining neutrality and impartiality at all times - attempts to both assist the disputants in finding acceptable solutions on their own and also remains free to provide necessary guidance as to the outcomes that might obtain in the legal regime that will govern their dispute should no agreement result from the mediation. In short, my view of good mediation practice is one …
Future Of Adr - The Earl F. Nelson Memorial Lecture, The, Frank E. A. Sander
Future Of Adr - The Earl F. Nelson Memorial Lecture, The, Frank E. A. Sander
Journal of Dispute Resolution
Because I've been fortunate to observe the ADR scene for much of its recent development, I'm often asked my views of where we stand now. My somewhat flip answer is, "On Monday, Wednesday and Friday, I think we've made amazing progress. On Tuesday, Thursday and Saturday, ADR seems more like a grain of sand on the adversary system beach." So I think we have a way to go. Let me try to elaborate a little on those thoughts
Continuing The Conversation About The Current Status And The Future Of Adr: A View From The Courts, Wayne D. Brazil
Continuing The Conversation About The Current Status And The Future Of Adr: A View From The Courts, Wayne D. Brazil
Journal of Dispute Resolution
In this essay I would like to complement the picture that Professor Sander has presented by adding information about and commentary from the perspective of the courts. After offering some general observations about the current status of ADR in the courts, I will describe what I think the near-term future looks like. Then I will articulate values that we need to take special care to preserve in court-sponsored ADR programs. I also will identify dangers that we, as courts, must try to avoid on the road ahead. Along the way, I will respond specifically to three of the concerns that …
Some Reflections On Adr, James F. Henry
Some Reflections On Adr, James F. Henry
Journal of Dispute Resolution
It may be time for practitioners and theorists who have contributed quality and innovation to the ADR movement to declare victory. It also may be time to "cut and run," because ADR must address some difficult issues if it is to realize its full potential. So far, we have assembled an excellent state-of-the-art in a relatively short period, but we have paid relatively little attention to the ADR infrastructure required to fulfill the quality and promises of ADR. It is that delivery system of ADR which will determine the degree of economy, accessability, expedience, innovation and party control that are …
Adr Research At The Crossroads, Deborah R. Hensler
Adr Research At The Crossroads, Deborah R. Hensler
Journal of Dispute Resolution
One of the remarkable aspects of the ADR movement is the empirical research that it has engendered. The granddaddy of court-administered alternative dispute resolution--the pretrial settlement conference--was the occasion for the first experimental study of an innovative legal procedure.' Small claims courts--another early alternative to full-fledged litigation--were put under the microscope in the 1960s.' Over the years, a host of empirical studies on the adoption, implementation and consequences of court ADR programs has been published.'
Is Binding Arbitration A Form Of Adr: An Argument That The Term Adr Has Begun To Outlive Its Usefulness, Jean R. Sternlight
Is Binding Arbitration A Form Of Adr: An Argument That The Term Adr Has Begun To Outlive Its Usefulness, Jean R. Sternlight
Journal of Dispute Resolution
While the semantic question may be uninteresting, I suggest that it is useful to ask the normative question of how we should categorize binding arbitration.'7 Again, there may be no clear "right" answer. Nevertheless, addressing the question of the appropriate categorization of binding arbitration provides a good means for rethinking the nature of binding arbitration, what we mean by ADR, and how the variety of dispute resolution techniques typically grouped together as ADR relate to litigation. Artificially grouping these disparate processes together under the "ADR" umbrella is beginning to prove problematic. While we may continue to use the phrase in …
Turning The Ship Of State, Jeffrey M. Senger
Turning The Ship Of State, Jeffrey M. Senger
Journal of Dispute Resolution
In his thoughtful article on the future of ADR, Professor Frank Sander notes, "On Monday, Wednesday and Friday, I think we've made amazing progress. On Tuesday, Thursday and Saturday, ADR seems more like a grain of sand on the adversary system beach."' In the federal government, I believe things are somewhat better than that. Perhaps five days out of seven I am impressed with the progress of the government in implementing ADR, particularly in the last ten years, which I will describe below. The other two days, like Professor Sander, I become more discouraged as we run into one of …
Giving Meaning To The Second Generation Of Adr Education: Attorneys' Duty To Learn About Adr And What They Must Learn, Suzanne J. Schmitz
Giving Meaning To The Second Generation Of Adr Education: Attorneys' Duty To Learn About Adr And What They Must Learn, Suzanne J. Schmitz
Journal of Dispute Resolution
This article explores the need for attorneys to learn about ADR and sets out a basic primer for the second generation of ADR education. Part II of this article details why attorneys have a duty to be educated about ADR. Part IV sets out an ADR primer, with recommended readings, for litigation and transactional attorneys who desire to meet the expectations of the courts and of their clients.
Is Alternative Dispute Resolution A Possibility In The Riverboat Gambling Quagmire - Akin V. Missouri Gaming Commission, Matthew Potter
Is Alternative Dispute Resolution A Possibility In The Riverboat Gambling Quagmire - Akin V. Missouri Gaming Commission, Matthew Potter
Journal of Dispute Resolution
During the 1990s, the emergence of riverboat gambling operations has led to an avalanche of social and political debates.' Since 1989, riverboat gaming has been electorally approved in several midwestern states, including Iowa, Illinois, Indiana, Mississippi, Missouri, and Louisiana.4 However, this voter acceptance of a formerly stigmatized industry has not come without a significant backlash. In particular, religious groups have denounced riverboat gambling, claiming that such activity inevitably leads to, inter alia, dissipated savings, chronic addictions, and other ancillary societal vices, including prostitution, alcoholism, and drug abuse.'
Alternative Dispute Resolution In The Federal Tax Arena: The Internal Revenue Service Opens Its Doors To Mediation, Tonya M. Scherer
Alternative Dispute Resolution In The Federal Tax Arena: The Internal Revenue Service Opens Its Doors To Mediation, Tonya M. Scherer
Journal of Dispute Resolution
This Comment examines the development of the new tax mediation program, its procedures and application, and its current status. Part II reviews the Appeals process leading up to and including the choice of an avenue to resolution of taxpayer disputes other than litigation. Part III explores the new mediation program including the scope of the cases allowed, the requirements for initiating the process and the procedures for implementing the program. Part IV discusses the policy reasons behind the IRS' implementation of the specific procedures and criteria into the new tax mediation program. Finally, Part V is an update of the …
Escaping The Courthouse: Private Alternative Dispute Resolution In Los Angeles , Elizabeth Rolph, Erik Moller, Laura Petersen
Escaping The Courthouse: Private Alternative Dispute Resolution In Los Angeles , Elizabeth Rolph, Erik Moller, Laura Petersen
Journal of Dispute Resolution
Formal dispute resolution, long thought to be the province of the state, seems to have piqued the interest of the private sector in recent years as a possible sphere of activity. In settings where courts are clogged and criminal cases are forcing civil cases off the calendar, where public juries are perceived as "out of control," and where many individuals are disillusioned with incremental tort reform; a growing number of private individuals are selling their services as neutrals to facilitate dispute resolution. For-profit firms, both independent and national networks, are springing up and positioning themselves in major metropolitan areas. Nonprofit …
Wisconsin's Court-Ordered Adr Law: Potential For Resolving Libel Disputes, Michael E. Weinzierl
Wisconsin's Court-Ordered Adr Law: Potential For Resolving Libel Disputes, Michael E. Weinzierl
Journal of Dispute Resolution
This Article argues that the Wisconsin Judicial Council's court-ordered ADR plan, which was adopted by the Wisconsin Supreme Court in December of 1993," will benefit libel litigants by giving them an alternative to the courtroom battle. The Article discusses the interests of the plaintiff and defendant in libel litigation and how ADR will benefit each, as well as critiques the structure of current libel law. The Article also analyzes other proposed alternatives to libel litigation and evaluates their effectiveness. The Article examines the efficiency and effectiveness of Florida's dispute resolution program, which provides settlement options similar to those found in …
Reversal Arbitration Board: An Adr Model For Resolving Intra-Corporate Disputes, The, Rene Stemple Ellis, Geetha Ravindra, Neil Vidmar, Thomas Davis
Reversal Arbitration Board: An Adr Model For Resolving Intra-Corporate Disputes, The, Rene Stemple Ellis, Geetha Ravindra, Neil Vidmar, Thomas Davis
Journal of Dispute Resolution
In this article, we describe the development and implementation of an innovative Alternative Dispute Resolution (ADR) program that uses neutral adjudicators to minimize lawsuits between Toyota Motor Sales, USA and its automobile dealerships. The Toyota Reversal Arbitration Board [hereinafterRAB] has several distinguishing characteristics. First, while many forms of ADR seek to shift the focus of disputes away from formal rules, the Toyota RAB was specifically designed to convey and enforce organizational rules. Second, an aspect of organizational decision making is entrusted to neutral, outside adjudicators trained as specialists in the rules and the context out of which disputes arise. Third, …
Civil Justice Reform In The Western District Of Missouri, Carl Tobias
Civil Justice Reform In The Western District Of Missouri, Carl Tobias
Missouri Law Review
Congress passed the Civil Justice Reform Act (CJRA) of 1990 out of growing concern about litigation abuse in federal civil lawsuits, increasing cost and delay in those cases, and declining federal court access.' The legislation commands every federal district court to promulgate a civil justice expense and delay reduction plan by December 1993. The statute also creates a demonstration program and designates the Northern District of California, the Northern District of West Virginia, and the Western District of Missouri as courts that are to "experiment with various methods of reducing cost and delay in civil litigation, including alternative dispute resolution.