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Alternative dispute resolution

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Articles 181 - 210 of 309

Full-Text Articles in Dispute Resolution and Arbitration

Adr And Transitional Justice As Reconstructing The Rule Of Law, Michal Alberstein Jan 2011

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 …

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Comment: Trends And Challenges In Bringing Together Adr And The Rule Of Law, Stephanie E. Smith Jan 2011

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.

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Lost In Translation: Can Exporting Adr Harm Rule Of Law Development, Cynthia Alkon Jan 2011

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 …

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Criminal Alternative Dispute Resolution: Restoring Justice, Respecting Responsibility, And Renewing Public Norms, Maggie T. Grace Jan 2010

Criminal Alternative Dispute Resolution: Restoring Justice, Respecting Responsibility, And Renewing Public Norms, Maggie T. Grace

Student Articles and Papers

This Article explores theoretical concerns underlying contemporary appeals to Alternative Dispute Resolution ("ADR") in the criminal justice system. Analyzing literature on free will and responsibility and leading work on transitional justice, I argue that a restorative justice approach to criminal ADR better accommodates the realities of social conditions that correlate with criminality while respecting deeply-held concepts of responsibility. I further argue that this approach provides a useful response to critics, such as Owen Fiss, who argue that ADR privatizes disputes, thereby failing to produce and reinforce essential public norms.

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Lawyerless Dispute Resolution: Rethinking A Paradigm, Jean R. Sternlight Jan 2010

Lawyerless Dispute Resolution: Rethinking A Paradigm, Jean R. Sternlight

Scholarly Works

Do participants in mediation and arbitration have attorneys? Do they need them? Although the phenomenon of pro se litigation has received substantial attention in recent years, few commentators or policymakers have focused on these questions. The failure to focus on the possible need for representation in mediation and arbitration is based on an often unstated premise that because ADR processes are purportedly non-adversarial or less adversarial than litigation, disputants need representation less in ADR than they do in litigation. This Article suggests that the failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided. …

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Making Peace And Making Money: Economic Analysis Of The Market For Mediators In Private Practice, Urska Velikonja Jan 2009

Making Peace And Making Money: Economic Analysis Of The Market For Mediators In Private Practice, Urska Velikonja

Faculty Scholarship

Mediation has grown tremendously in the last three decades, yet only a small number of mediators have been able to benefit financially from its growth. The supply of willing mediators by far exceeds the demand for their services. Mediator trainee overoptimism and the lack of formal barriers to entry result in excess entry in the market for mediators. However, the lack of a formal barrier, but the existence of de facto barriers to entry, such as mediator selection practices and specialization, combined with excessive individual optimism, creates inefficiently high levels of entry. This is socially suboptimal: many aspirant mediators spend …

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Dreamers And Visionaries: The History Of Adr In Idaho, Maureen Laflin Jan 2009

Dreamers And Visionaries: The History Of Adr In Idaho, Maureen Laflin

Articles

No abstract provided.

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Extending The Shadow Of The Law: Using Hybrid Mechanisms To Establish Constitutional Norms In Socioeconomic Rights Cases, Brian E. Ray Jan 2009

Extending The Shadow Of The Law: Using Hybrid Mechanisms To Establish Constitutional Norms In Socioeconomic Rights Cases, Brian E. Ray

Law Faculty Articles and Essays

This Article challenges the general perception that ADR processes cannot develop public law norms. It follows a recent trend in ADR literature that seeks to define a public norm creation role for ADR in part by connecting these processes to other alternative legal and political problem-solving methods. This Article focuses on a recent South African Constitutional Court case, Occupiers of 51 Olivia Road v City of Johannesburg, in which the court interpreted the right to housing in the South African Constitution. The court held that municipalities must develop processes for negotiating - or, in the court's language "engaging" - with …

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The Mediator As Fugu Chef: Preserving Protections Without Poisoning The Process, Maureen Laflin Jul 2008

The Mediator As Fugu Chef: Preserving Protections Without Poisoning The Process, Maureen Laflin

Articles

No abstract provided.

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Bargaining With A Hugger: The Weaknesses And Limitations Of A Communitarian Conception Of Legal Dispute Bargaining, Or Why We Can't All Just Get Along, Robert J. Condlin Jan 2008

Bargaining With A Hugger: The Weaknesses And Limitations Of A Communitarian Conception Of Legal Dispute Bargaining, Or Why We Can't All Just Get Along, Robert J. Condlin

Faculty Scholarship

The communitarian conception of dispute-bargaining now popular with legal academics presupposes a world in which people are always at their best. Clients and lawyers share information about themselves and their situations candidly and honestly, construct agreements from the perspective of their common interests and resolve differences according to objectively derived and jointly agreed upon substantive standards. This is supposed to take the hard edge off their disputing and make it less antagonistic, less competitive, less deceptive, less manipulative and less mean-spirited than it otherwise might be. This is a wonderfully inspiring view and it would be a source of great …

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Technology Mediated Dispute Resolution Can Improve The Registry Of Interpreters For The Deaf Ethical Practices System: The Deaf Community Is Well Prepared And Can Lead By Example, David Allen Larson, Paula Gajewski Mickelson Jan 2008

Technology Mediated Dispute Resolution Can Improve The Registry Of Interpreters For The Deaf Ethical Practices System: The Deaf Community Is Well Prepared And Can Lead By Example, David Allen Larson, Paula Gajewski Mickelson

Faculty Scholarship

The work of American Sign Language (ASL)/English interpreters is filled with complex interpersonal, linguistic and cultural challenges. The decisions and ethical dilemmas interpreters face on a daily basis are countless and the potential for disagreement regarding those decisions is great. Technology Mediated Dispute Resolution (TMDR) processes can be particularly helpful when misunderstandings and conflicts arise. Technology Mediated Dispute Resolution is a more inclusive phrase than Online Dispute Resolution (ODR) and includes cellular telephones, radio frequency devices, and satellite communication systems. The Deaf Community has learned to adapt and rely upon a variety of technologies and, because many Deaf individuals already …

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The (New) Ethics Of Collaborative Law, Scott R. Peppet Jan 2008

The (New) Ethics Of Collaborative Law, Scott R. Peppet

Publications

No abstract provided.

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Rejecting The Intertwining Doctrine: Favoring Adr While Hindering Judicial Efficiency And Economy, Michael Bekesha Jan 2008

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 …

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The Ethics Of Collaborative Law, Scott R. Peppet Jan 2008

The Ethics Of Collaborative Law, Scott R. Peppet

Publications

The practice of Collaborative Law - in which both parties agree that should their case fail to settle, both lawyers will be disqualified from proceeding to court - has grown rapidly in the family bar over the last decade. At the same time, the ethics of this practice have been called into question. Competing ethics opinions in 2007 - from the Colorado Bar Association and the American Bar Association - alternately ban and permit the practice. This Article tries to clarify the underlying ethical issues in Collaborative Law, arguing that much confusion has resulted from imprecise understandings of what the …

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Process Purity And Innovation In Dispute Resolution: A Response To Professors Stempel, Cole, And Drahozal, Richard C. Reuben Oct 2007

Process Purity And Innovation In Dispute Resolution: A Response To Professors Stempel, Cole, And Drahozal, Richard C. Reuben

Faculty Publications

This article uses a "process characteristics and values" approach to make the case against displacing arbitration finality with substantive judicial review. It responds to a trio of articles in a forthcoming Nevada Law Review symposium on whether and how the Federal Arbitration Act should be amended. In one article, Nevada Law Professor Jeffrey Stempel contends all arbitration awards should be subject to substantive judicial review similar to that of public trial courts. In a second article, Ohio State Professor Sarah Cole argues that substantive review should generally be permitted when the parties agree to it by contract, an issue now …

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The Secret To Success: An Examination Of New York State Mediation Related Litigation, Andrew N. Weisberg Jan 2007

The Secret To Success: An Examination Of New York State Mediation Related Litigation, Andrew N. Weisberg

Fordham Urban Law Journal

This Comment examines the difficulties in using alternative dispute resolution, specifically mediation, to settle disputes between parties. While mediation is meant to lighten the courts' caseload, it occasionally results in post-settlement issues concerning the mediated agreement, leaving the court to determine whether the agreement should be enforced. This Comment examines such enforcement issues, specifically how often enforcement issues arise and the typical grounds on which parties rely to vacate or modify mediated agreements. It discusses the research conducted on New York State cases decided between 1/1/2004 and 10/31/2006 and describes research conducted by Hamline University School of Law Professors James …

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The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In The Contracts Of Publicly Held Companies, Theodore Eisenberg, Geoffrey P. Miller Jan 2007

The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In The Contracts Of Publicly Held Companies, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Informed parties bargaining for their mutual advantage will tend to agree to provisions that maximize the social surplus. Such bargaining includes provisions regarding the resolution of disputes that might arise under the contract. Thus, if a form of alternative dispute resolution, such as binding arbitration, provides greater social benefits than litigation, the dynamics of the process should tend to induce the parties to include a clause submitting future disputes to arbitration. This Article studies the actual contracting practices of large, sophisticated actors with respect to arbitration clauses. We examined over 2800 contracts, filed with the Securities Exchange Commission (SEC) in …

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Principles For Policymaking About Collaborative Law And Other Adr Processes, John M. Lande Jan 2007

Principles For Policymaking About Collaborative Law And Other Adr Processes, John M. Lande

Faculty Publications

This Article articulates a set of principles for policymaking about alternative dispute resolution (ADR) to promote values of process pluralism, choice in dispute resolution processes, and sound decision making. It argues that policymakers should use a dispute system design (DSD) framework in analyzing policy options. DSD involves systematically managing a series of disputes rather than handling individual disputes on an ad hoc basis. It generally includes assessing the needs of disputants and other stakeholders, planning to address those needs, providing necessary training and education for disputants and dispute resolution professionals, implementing the system, evaluating it, and making periodic modifications as …

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Colorado Ethics Opinion 115: Next Steps For Colorado's Collaborative Lawyers, Scott R. Peppet Jan 2007

Colorado Ethics Opinion 115: Next Steps For Colorado's Collaborative Lawyers, Scott R. Peppet

Publications

No abstract provided.

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Bargaining With A Hugger: The Weaknesses And Limitations Of A Communitarian Conception Of Legal Dispute Bargaining, Or Why We Can't All Just Get Along, Robert J. Condlin Mar 2006

Bargaining With A Hugger: The Weaknesses And Limitations Of A Communitarian Conception Of Legal Dispute Bargaining, Or Why We Can't All Just Get Along, Robert J. Condlin

ExpressO

The communitarian conception of dispute-bargaining now popular with legal academics presupposes a world in which people are always at their best. Clients and lawyers share information about themselves and their situations candidly and honestly, construct agreements from the perspective of their common interests and resolve differences according to objectively derived and jointly agreed upon substantive standards. This is supposed to take the hard edge off their disputing and make it less antagonistic, less competitive, less deceptive, less manipulative and less mean-spirited than it otherwise might be. This is a wonderfully inspiring view and it would be a source of great …

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It's About The Relationship: Collaborative Law In The Employment Context, Marcia L. Mccormick Jan 2006

It's About The Relationship: Collaborative Law In The Employment Context, Marcia L. Mccormick

All Faculty Scholarship

Work is central to American life and drives us in fundamental ways. And the workplace, as a result, dominates our lives. We are spending ever greater amounts of time in the workplace and less time in civic and social engagements. As a consequence, our relationships at work have become so significant that they are nearly as important to us as our family relationships. In fact, the employment relationship is similar to the family relationship in the emotional support from coworkers it can provide and in the financial support it provides. Because the employment relationship is so common and psychologically so …

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Teaching Adr In The Labor Field In China, Theodore J. St. Antoine Jan 2006

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

Articles

My first visit to China, in 1994, was purely as a tourist, and came about almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October I was scheduled to begin teaching a one-term course in American law as a visiting professor at Cambridge University in England. Despite my hazy notions of geography, I realized it made no sense to return to the United States for the intervening week. The obvious solution was to continue flying …

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Adr Through A Cultural Lens: How Cultural Values Shape Our Disputing Processes, Julia Ann Gold Jul 2005

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, …

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Why Further Development Of Adr In Latin America Makes Sense: The Venezuelan Model, Jose Alberto Ramirez Leon Jul 2005

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.

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Separate And Not Equal: Integrating Civil Procedure And Adr In Legal Academia, Jean R. Sternlight Jan 2005

Separate And Not Equal: Integrating Civil Procedure And Adr In Legal Academia, Jean R. Sternlight

Scholarly Works

Traditionally, academics specializing in ADR and civil procedure have not tended to deal with each other's issues. The typical civil procedure course focuses on litigation, and at best throws in a few classes on mediation and negotiation. Similarly, the typical ADR course devotes little or no attention to litigation, law, courts, or administrative institutions. Thus, the two disciplines are taught quite separately. Further, this separation is not equal. While students are required to learn about litigation, and are also offered many additional litigation electives, the ADR curriculum is almost always purely elective, and the classes are much smaller. Yet, the …

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Necessity Never Made A Good Bargain: When Consumer Arbitration Agreements Prohibit Class Relief, Thomas V. Burch Jul 2004

Necessity Never Made A Good Bargain: When Consumer Arbitration Agreements Prohibit Class Relief, Thomas V. Burch

Scholarly Works

The American system of arbitration is constantly evolving. From the first formal arbitration tribunal in 1786—established by the New York Chamber of Commerce—to the creation of the Federal Arbitration Act in 1925—passed to suppress judicial hostility towards arbitration -- the system has continuously adapted to accommodate changing business practices and rising judicial concerns over the legitimacy of the institution. In fact, the system’s adaptation has been so effective that the Supreme Court now recognizes a “national policy favoring arbitration.” This “national policy” is the most recent phase of the arbitration evolution, and it raises several concerns. Most significantly, lower courts …

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Visualising The Adr Landscape, Nadja Alexander Jul 2004

Visualising The Adr Landscape, Nadja Alexander

Research Collection Yong Pung How School Of Law

Access to ADR can be conceptualised in a number of ways. Some commentators focus on the court or the legal profession as a central access point for disputes. While this may seem natural for lawyers and judges, such an approach fails to account for the vast majority of disputes – approximately 80 per cent – that never see a lawyer, let alone a court. Other commentators focus on private or community-based applications of ADR as well as transactional applications of mediation such as contract negotiations. Yet others analyse ADR from the perspective of particular stakeholder groups such as industry, insurers, …

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Contributions From The Social Sciences, Howard Gadlin Mar 2004

Contributions From The Social Sciences, Howard Gadlin

Journal of Legal Education

No abstract provided.

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Some Concluding Thoughts, Frank E. A Sander Mar 2004

Some Concluding Thoughts, Frank E. A Sander

Journal of Legal Education

No abstract provided.

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Dispute Resolution: Raising The Bar And Enlarging The Canon, Carrie Menkel-Meadow Mar 2004

Dispute Resolution: Raising The Bar And Enlarging The Canon, Carrie Menkel-Meadow

Journal of Legal Education

No abstract provided.

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