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Achieving Substantive Justice In Mediation Through Procedural Justice: An Illusory Or Realizable Goal?, Dorcas QUEK ANDERSON 2018 Singapore Management University

Achieving Substantive Justice In Mediation Through Procedural Justice: An Illusory Or Realizable Goal?, Dorcas Quek Anderson

Research Collection School Of Law

Mediation has been plagued with a problem of legitimacy. Genn stated that mediation “does not contribute to substantive justice because mediation requires the parties to relinquish ideas of legal rights during mediation and focus, instead, on problem-solving”. Mediation appears to be all about procedural justice, a concept that is associated with perceptions of fair treatment. And procedural justice does not seem to have any discernible link with substantive justice, in terms of giving effect to well-accepted norms.This blog entry is drawn from a paper that was presented at the Australasian Dispute Resolution Research Network 6th Annual Roundtable and the ...


Deferred Prosecution Agreements In Singapore?, Eunice CHUA 2018 Singapore Management University

Deferred Prosecution Agreements In Singapore?, Eunice Chua

Research Collection School Of Law

On 15 January 2018, Minister for Law and Home Affairs K Shanmugam said at a dialogue organised by the Law Society that deferred prosecution agreements (DPAs) could be introduced in Singapore as part of proposed changes to the criminal justice system. DPAs are agreements by the prosecutor to suspend prosecution of a corporate entity if it complies with specific conditions. If the corporation fails to comply with the conditions, the prosecution may resume. This post examines the case for and against DPAs and explores the issues they may present in the Singapore context.


Defining The Limits To Abuse Of Process: Lim Geok Lin Andy V Yap Jin Meng Bryan, Dorcas QUEK ANDERSON 2018 Singapore Management University

Defining The Limits To Abuse Of Process: Lim Geok Lin Andy V Yap Jin Meng Bryan, Dorcas Quek Anderson

Research Collection School Of Law

The abuse of process jurisdiction, which forms part of the doctrine of res judicata, is meant to uphold finality of litigation and prevent abusive litigation. While the jurisdiction has been applied to the original parties of earlier court proceedings, it could also prevent a person who was not part of earlier court proceedings from litigating his claim. In such circumstances, the abuse of process doctrine has to be cognisant of the commercial realities and motivations driving choices to advance separate rather than consolidated proceedings, while also protecting litigants from repeated litigation. A recent Singapore Court of Appeal decision imposed constraints ...


A Review Of Nevada Patron Dispute Decisions, Mark Lerner, Emily Cunningham 2017 University of Nevada, Las Vegas -- William S. Boyd School of Law

A Review Of Nevada Patron Dispute Decisions, Mark Lerner, Emily Cunningham

UNLV Gaming Law Journal

No abstract provided.


A Tale Of Two Trade Powers: Balancing Investor-State Dispute Settlement And Environmental Risk Between The European Union And United States In A Changing Political Climate, Sarah Ben-Moussa 2017 Fordham University School of Law

A Tale Of Two Trade Powers: Balancing Investor-State Dispute Settlement And Environmental Risk Between The European Union And United States In A Changing Political Climate, Sarah Ben-Moussa

Fordham Environmental Law Review

No abstract provided.


Contingent Fee Litigation In New York City, Eric Helland, Daniel M. Klerman, Brenda Dowling, Alexander Kappner 2017 Claremont McKenna College

Contingent Fee Litigation In New York City, Eric Helland, Daniel M. Klerman, Brenda Dowling, Alexander Kappner

University of Southern California Legal Studies Working Paper Series

Since 1957, New York courts have required contingent fee lawyers to file “closing statements” that disclose settlement amounts, lawyers’ fees, an accounting of expenses, and other information. This article provides preliminary analysis of these data for the period 2004-2013. Among this article’s findings are that settlement rates in New York state courts are very high (84%) relative to previous studies, that very few cases are resolved by dispositive motions, that litigated cases and settled cases have almost exactly the same average recovery, that median litigation expenses, other than attorney’s fees, are 3% of gross recovery, that claims are ...


Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr. 2017 University of Maine School of Law

Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr.

Maine Law Review

With these words of prophecy the Commission to Study the Future of Maine's Courts launched its discussion of alternative dispute resolution (ADR). Although conceding that “the adversary process ... has served the people of the state well” and acknowledging that “the state must continue to provide a forum for forceful advocacy that produces a definite and binding judicial decision” the Commission asked the Maine judicial and legislative branches to embrace ADR. For the last dozen years, the Author has been the Supreme Judicial Court's (SJC's) liaison to its ADR Planning and Implementation Committee and Chair of the Court ...


Inside The Arbitrator's Mind, Susan D. Franck, Anne van Aaken, James Freda, Chris Guthrie, Jeffrey J. Rachlinski 2017 American University, Washington College of Law

Inside The Arbitrator's Mind, Susan D. Franck, Anne Van Aaken, James Freda, Chris Guthrie, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never ...


Do It Right Or Not At All: A Longitudinal Evaluation Of A Conflict Managment System Implementation, Benjamin B. Dunford, Kevin J. Mumford, R. Wayne Boss, Alan D. Boss, David S. Boss 2017 Purdue University

Do It Right Or Not At All: A Longitudinal Evaluation Of A Conflict Managment System Implementation, Benjamin B. Dunford, Kevin J. Mumford, R. Wayne Boss, Alan D. Boss, David S. Boss

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

We analyzed an eight-year multi-source longitudinal data set that followed a healthcare system in the Eastern United States as it implemented a major conflict management initiative to encourage line managers to consistently perform Personal Management Interviews (or PMIs) with their employees. PMIs are interviews held between two individuals, designed to prevent or quickly resolve interpersonal problems before they escalate to formal grievances. This initiative provided us a unique opportunity to empirically test key predictions of Integrated Conflict Management System (or ICMS) theory. Analyzing survey and personnel file data from 5,449 individuals from 2003 to 2010, we found that employees ...


Disputant Preferences For Mediated Or Adjudicated Processes In Administrative Agencies: The Occupational Safety And Health Review Commission Settlement Part Program, Deanna Malatesta, Lisa Blomgren Amsler, Susanna Foxworthy Scott 2017 Indiana University

Disputant Preferences For Mediated Or Adjudicated Processes In Administrative Agencies: The Occupational Safety And Health Review Commission Settlement Part Program, Deanna Malatesta, Lisa Blomgren Amsler, Susanna Foxworthy Scott

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

Previous research examining disputants’ preferences for mediation over more formal adjudicative proceedings is limited and mostly experimental. Moreover, this work has not examined preferences in relation to repeated experience with various types of proceedings. We surveyed disputants who have experienced different types of proceedings in administrative adjudication and administrative law judge mediation in the Settlement Part Program at the Occupational Safety and Health Review Commission (OSHRC). We find that the higher the perceptions of procedural justice, the greater the preference for use of mediation. In addition, the more total experience disputants have in the OSHRC dispute system (including both adjudication ...


Labor Relations Conflict In The Workplace: Scale Development, Consequences And Solutions, Lulu Zhou, Meng Xi, Xufan Zhang, Shuming Zhao 2017 Southeast University, China

Labor Relations Conflict In The Workplace: Scale Development, Consequences And Solutions, Lulu Zhou, Meng Xi, Xufan Zhang, Shuming Zhao

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

Because the goals of employers and employees are often incompatible, conflicts are inevitable and an essential part of organizational life. The three studies reported in this paper addressed the issues of identifying the dimensions of workplace conflicts within organizations, exploring the consequences of conflicts, and finding appropriate methods of conflict resolution. The first study identified and developed three dimensions of labor relations conflict, including interest-based, rights-based, and emotion-based conflicts. The second study explored two sets of individual outcomes of labor relations conflicts and found labor relations conflicts had a negative effect on employee job satisfaction and affective commitment and positive ...


Adr-Based Workplace Conflict Management Systems: A Case Of American Exceptionalism, Paul Teague, William Roche, Denise Currie, Tom Gormley 2017 Queen's University Belfast

Adr-Based Workplace Conflict Management Systems: A Case Of American Exceptionalism, Paul Teague, William Roche, Denise Currie, Tom Gormley

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

[Excerpt] The diffusion of ADR-based conflict management systems is a development increasingly highlighted in the literature. Organizations are seen as putting in place multiple procedures and practices so that different varieties of workplace conflict can be effectively addressed. Just why organizations are electing to introduce these integrated bundles of innovative conflict management practices is a matter of debate, but many view the development as transforming the manner in which workplace problems are managed in modern organizations, with some even pronouncing that it amounts to the rewriting of the social contract at work (Lipsky and Seeber 2006). This paper argues that ...


Organizational Conflict Resolution And Strategic Choice: Evidence From A Survey Of Fortune 1000 Companies, David B. Lipsky, Ariel C. Avgar, J. Ryan Lamare 2017 Cornell University

Organizational Conflict Resolution And Strategic Choice: Evidence From A Survey Of Fortune 1000 Companies, David B. Lipsky, Ariel C. Avgar, J. Ryan Lamare

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

In this paper we develop the argument that a firm’s ADR strategies are likely to be associated with a firm’s use of one conflict resolution option or the other. More specifically, we examine whether a firm’s use of either arbitration or mediation is a function of (1) the extent to which the use of either of these dispute resolution processes aligns with the goals and objectives management is seeking to advance, and (2) the extent of the firm’s commitment to the use of these practices. We expect to find that an organization’s use of either ...


Third-Party Intervention And The Preservation Of Bargaining Relationships, Bradley R. Weinberg 2017 Queen's University - Kingston, Ontario

Third-Party Intervention And The Preservation Of Bargaining Relationships, Bradley R. Weinberg

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

This article uses longitudinal contact data to examine if third-party dispute resolution procedures available in Ontario improve the health of bargaining relationships and contribute to their preservation. It performs this in two manners: (1) using survival analysis to see how the mechanisms correlate with the likelihood of relationship dissolution and (2) using dynamic panel models to observe their state dependence. The latter is undertaken to see if third-party intervention pushes the parties to settle subsequent agreements earlier in the process – a finding that would reveal another aspect of relationship preservation if those earlier interventions are shown to correlate with lower ...


Transforming New Zealand Employment Relations: At The Intersection Of Institutional Dispute Resolution And Workplace Conflict Management, Gaye Greenwood Ph.D., Erling Rasmussen 2017 Auckland University of Technology

Transforming New Zealand Employment Relations: At The Intersection Of Institutional Dispute Resolution And Workplace Conflict Management, Gaye Greenwood Ph.D., Erling Rasmussen

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

In New Zealand, the contemporary shift from highly regulated, collectivist employment rights to individual employment relationships included statutory direction to mediation. Good faith negotiation in the workplace and state provision of mediation were to be the primary mechanisms for resolution of ‘employment relationship problems’ (ERP). This paper investigates the intersection between workplace conflict management and institutional provision of mediation. We investigated ERP resolution by drawing on empirical evidence from 38 narrative interviews where participants recounted experiences of employment relationship problem (ERP) resolution. We analysed 243 ERP by comparing settlements to end employment relationships with resolution of ERP where relationships endured ...


Decision-Maker And Context Effects In Employment Arbitration, Mark Gough, Alexander Colvin 2017 The Pennsylvania State University

Decision-Maker And Context Effects In Employment Arbitration, Mark Gough, Alexander Colvin

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

Using a novel survey of 284 employment arbitrators, this study investigates how decision-maker characteristics and the context of the arbitration proceeding affect employee outcomes. We analyze the predictors of settlement before an arbitrator award and, if no settlement is reached, the likelihood an employee will receive a verdict in their favor after a full hearing. We find pre-arbitration dispute resolution procedures have significant effects on settlement behavior and employee outcomes. The characteristics of the presiding arbitrator as well as the structure of the arbitration proceeding were also found to affect employee outcomes at trial. This study contributes to the existing ...


Often Wrong, Never In Doubt: How Anti-Arbitration Expectancy Bias May Limit Access To Justice, Becky L. Jacobs 2017 University of Maine School of Law

Often Wrong, Never In Doubt: How Anti-Arbitration Expectancy Bias May Limit Access To Justice, Becky L. Jacobs

Maine Law Review

While there long have been “alternatives” to the traditional trial for those seeking to resolve disputes, the so-called “litigation explosion” in the 1970s inspired a campaign for reform of the administration of justice that resulted in the modern ADR movement. The movement had many disparate goals, not the least of which was to improve public access to justice. At the historic 1976 National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (Pound Conference), Harvard Law Professor Frank E.A. Sander first posited the concept of a “comprehensive justice center,” more famously referred to as a “multi-door ...


Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson 2017 University of Maine School of Law

Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

Maine Law Review

This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication in light of the Author’s analysis and the practical implications of this function.


Transforming News: How Mediation Principles Can Depolarize Public Talk, Carol Pauli 2017 Texas A&M University School of Law

Transforming News: How Mediation Principles Can Depolarize Public Talk, Carol Pauli

Carol Pauli

News media interviews bring opposing voices into the public forum where, ideally, audience members can deliberate and reach democratic compromise. But in today’s politically polarized atmosphere, partisans increasingly accuse each other of being a threat to the country, and prospects for compromise have suffered. Journalists have been urged to take a more affirmative role, promoting problem-solving and opposing conflict. They have stopped short, citing professional norms that demand a stance of neutral detachment. This Article turns to the principles of transformative mediation. Like journalism, it is detached from any goal of settlement. It aims instead at increasing the capacity ...


Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli 2017 Texas A&M University School of Law

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Carol Pauli

If Donald Trump, kicking off his campaign for the White House, was saying “what everyone is thinking,” about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales — some as old as the Flood. This article recommends that the news ...


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