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Foreword: Achieving Access To Justice Through Adr: Fact Or Fiction?, Jacqueline Nolan-Haley
Foreword: Achieving Access To Justice Through Adr: Fact Or Fiction?, Jacqueline Nolan-Haley
Fordham Law Review
This Symposium will offer a critical analysis of ADR’s access to justice claims and consider the extent to which they should be more modest. An outstanding group of scholars have addressed this question in a variety of contexts, including procedural and substantive justice; restorative justice; arbitration; mediation; online dispute resolution (ODR); and international, comparative, and cross-cultural perspectives.
Online Resources And Family Cases: Access To Justice In Implementation Of A Plan, Kristen M. Blankley
Online Resources And Family Cases: Access To Justice In Implementation Of A Plan, Kristen M. Blankley
Fordham Law Review
This Article discusses access to justice in the implementation of orders in family cases. Parenting, financial, and other types of family court orders may last up to eighteen or twenty-one years in the case of minor children or longer in the case of protected adults. In the case of financial obligations, these orders set forth ongoing requirements to make monthly payments (such as child support, alimony, and medical expense reimbursements) and to maintain other financial obligations (such as maintaining health insurance, daycare expenses, and payment of costs for extracurricular activities). Most importantly, these court orders allocate parenting time, which may …
American Diversity In International Arbitration: A New Arbitration Story Or Evidence Of Things Not Seen, Benjamin G. Davis
American Diversity In International Arbitration: A New Arbitration Story Or Evidence Of Things Not Seen, Benjamin G. Davis
Fordham Law Review
This Essay suggests that the unseen presence of blacks and other underrepresented groups (such as women, minorities, LGBTQ individuals, and persons with disabilities) in the shadows of the development of international arbitration law in the United States helps us to see that diversity, while unrecognized, has been inherent in American international arbitration for hundreds of years.
The Dark Side Of Consensus And Creativity: What Mediators Of Mass Disputes Need To Know About Agency Risks, Howard M. Erichson
The Dark Side Of Consensus And Creativity: What Mediators Of Mass Disputes Need To Know About Agency Risks, Howard M. Erichson
Fordham Law Review
This Essay looks at how mediators describe their role, and it asks whether—in negotiations to resolve mass disputes—the mindset and skill set of mediators may sometimes exacerbate rather than mitigate risks of self- serving conduct by lawyers. The Essay applies general concerns about class settlements and nonclass settlements to the particular problem of mass dispute mediation.
Remedy Without Diagnosis: How To Optimize Results By Leveraging The Appropriate Dispute Resolution And Shared Decision-Making Process, Mariana Hernandez-Crespo Gonstead
Remedy Without Diagnosis: How To Optimize Results By Leveraging The Appropriate Dispute Resolution And Shared Decision-Making Process, Mariana Hernandez-Crespo Gonstead
Fordham Law Review
This Article aims to realize the untapped potential of the dispute resolution field beyond traditional understandings of access to justice for everyone’s benefit. It argues that, by developing skills, citizens can significantly contribute to altering the course of history in our global economy, especially in Latin America and Venezuela. It introduces and familiarizes citizens with the knowledge developed in the dispute resolution field for the past fifty years. As a new field, dispute resolution is rapidly growing and evolving. Even though the knowledge produced is vital to help us interact more effectively, the materials are complex, dispersed, and, in some …
Arbitrarily Selecting Black Arbitrators, Michael Z. Green
Arbitrarily Selecting Black Arbitrators, Michael Z. Green
Fordham Law Review
Calls for increased diversity among arbitrators have surged with the growth of the employer movement, so-called mandatory arbitration, which requires employees to agree to arbitrate employment discrimination matters as a condition of employment. Despite good-faith efforts by neutral service providers, civil rights organizations, bar associations, and employer and employee groups to identify and address the need for more diverse arbitrators in mandatory arbitration, many commentators still lament that this diversity problem reflects negatively on access to justice. With the #MeToo movement’s focus in recent years on the lack of a public and transparent resolution for sexual harassment matters, as well …
Adr, Dynamic (In)Justice, And Achieving Access: A Foreclosure Crisis Case Study, Lydia Nussbaum
Adr, Dynamic (In)Justice, And Achieving Access: A Foreclosure Crisis Case Study, Lydia Nussbaum
Fordham Law Review
This Article proceeds in two parts. Part I argues for a dynamic, rather than fixed, conception of access to justice. It then explores how ADR processes, when placed in this dynamic framework, can create new forms of injustice and intensify preexisting ones. Part II presents a case study from the foreclosure crisis to illustrate how the features of ADR processes are especially well suited to respond to dynamic injustices. It further demonstrates how ADR design must evolve to respond to the dynamic system of (in)justice in which ADR processes operate.
Does Adr Feel Like Justice?, Jennifer W. Reynolds
Does Adr Feel Like Justice?, Jennifer W. Reynolds
Fordham Law Review
This Article contends that modern conflict spectacles, fueled by snap disputing dynamics and foisted upon the polity through media and social media, are so far afield from traditional ADR principles and practices that they may keep ADR from “feeling” like justice to many people. How people feel about alternative practices and processes will have an impact on whether they avail themselves of those methods in their own disputes. In other words, even if we had widely available, high-quality, and free ADR services available to everyone, we might still have an access to justice problem because those services would not be …
Measuring “Access To Justice” In The Rush To Digitize, Amy J. Schmitz
Measuring “Access To Justice” In The Rush To Digitize, Amy J. Schmitz
Fordham Law Review
Access to Justice (A2J) is the hot topic of the day, energizing Twitter and judges alike. Meanwhile, professors and policymakers join in song, singing the praises of online dispute resolution (ODR) as means for expanding A2J. This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and …
Access To Justice And Dispute Resolution Across Cultures, Sukhsimranjit Singh
Access To Justice And Dispute Resolution Across Cultures, Sukhsimranjit Singh
Fordham Law Review
There is a saying in the United States: the justice one receives is the justice one can afford. All too often, this saying proves true for both lower- and middle-class individuals. For the greatly impoverished, the access to justice crisis is twofold: part of the problem is knowing when to seek legal help and another is ensuring adequate delivery of legal assistance on request. Middle- class individuals face a different challenge, as they surpass the income threshold for free civil public legal aid but cannot afford the rising costs of conventional litigation. The problem persists across different cultures. This Article …
How Mediation Contributes To The “Justice Gap” And Possible Technological Fixes, Ellen Waldman
How Mediation Contributes To The “Justice Gap” And Possible Technological Fixes, Ellen Waldman
Fordham Law Review
This Essay’s basic premise is that mediation, as it currently is presented to pro se parties in the lower courts, risks significant depredations of justice. This risk flows directly from the ethics rules that either discourage or outright forbid mediators from providing disputants with exactly the information they need to make informed judgments as they bargain over housing, time with children, and scarce financial resources.
Bringing Transparency And Accountability (With A Dash Of Competition) To Court-Connected Dispute Resolution, Nancy A. Welsh
Bringing Transparency And Accountability (With A Dash Of Competition) To Court-Connected Dispute Resolution, Nancy A. Welsh
Fordham Law Review
Among the various dispute resolution processes, mediation is the most widely institutionalized in American courts. As a result, this Article focuses primarily, although not exclusively, on the data collected and disseminated regarding court-connected mediation. The Article begins with a brief description of the institutionalization of mediation and other dispute resolution processes in the federal judicial system and in select U.S. state court systems. This narrative reveals substantial reference to the availability of mediation but a dizzying patchwork in terms of institutionalization and a significant lack of system-wide information in some states. The Article then focuses on the data that these …
Arbitration Archetypes For Enhancing Access To Justice, Jill I. Gross
Arbitration Archetypes For Enhancing Access To Justice, Jill I. Gross
Fordham Law Review
In the second half of the twentieth century, the use of arbitration proliferated in the United States as part of a greater alternative dispute resolution (ADR) movement, with the promise that using ADR processes would, among other things, enhance disputants’ access to justice. Arbitration offers disputing parties a process to resolve their dispute, which, at least in theory, is known for decreased cost, increased speed, party control, privacy, and finality. These characteristics generally enhance parties’ access to justice because, as compared to litigation, barriers to entry are lower, outcomes are delivered more quickly, substantive outcomes are more equitable, and parties …
Restorative Justice From Prosecutors’ Perspective, Bruce A. Green, Lara Bazelon
Restorative Justice From Prosecutors’ Perspective, Bruce A. Green, Lara Bazelon
Fordham Law Review
Restorative justice processes have been promoted as an alternative to criminal adjudication for many years outside the United States and, in recent years, in the United States as well. In the United States, restorative justice processes are used in some jurisdictions in cases involving juvenile offenders or low-level, nonviolent offenses by adults, but they have rarely been used in cases of adult felony offenders charged with serious violent crimes. Whether restorative justice processes will be used more broadly depends largely on whether prosecutors become receptive to their use. A handful of newly elected “progressive prosecutors” have expressed interest in applying …