Alternative Dispute Resolution Procedures Research Articles

Procedural Preferences in Alternative Dispute Resolution: A Closer, Modern Look at an Old Idea.

This article reports three experiments that elaborate on previous research regarding preferences for alternative dispute resolution procedures for the resolution of legal disputes. Preferences for decision control, process control, and control over the choice of substantive rules used in the resolution process were examined. The moderating effects of social status (equal vs. lower status relative to the other disputant) and role (defendant vs. plaintiff) were also assessed. Relative preferences for two common types of mediation - evaluative versus facilitative - were also investigated. Participants generally preferred the following: (a) control over outcome, such that a neutral third party would help disputants reach a mutually satisfactory resolution; (b) control over process such that disputants would relay information on their own behalf without the help of a representative; and (c) either substantive rules that disputants would have agreed to before the resolution process, or the rules typically used in court. Preference strength was moderated by experimental condition. Results suggest that mediation was the most preferred procedure and facilitative mediation was generally preferred over evaluative mediation. Implications for law and policy are discussed.

La résolution des conflits individuels du travail

Cet article a pour objectif de présenter une analyse économique du fonctionnement de la juridiction prud’homale. Cette juridiction est l’une des rares, en France, à connaître une phase obligatoire de tentative de conciliation. Ce particularisme nous amène à nous interroger sur l’efficacité des modes alternatifs de résolution des conflits en matière de droit du travail. L’analyse proposée s’inscrit dans la lignée des modèles optimistes de résolution des conflits et, plus particulièrement, s’appuie sur la méthodologie proposée par Shavell [1995]. Nous montrons que la médiation, dès lors que la crédibilité du médiateur est assurée, répond à la nécessité de proposer une procédure moins coûteuse que le procès et plus efficace que la conciliation obligatoire.

Alternative dispute resolution procedures in labour issues: towards an EU mechanism?

Alternative dispute resolution procedures in labour issues: towards an EU mechanism?

“Carve‐outs” from the workers' compensation system

AbstractDecentralized regulation has become increasingly important in many areas; examples range from school vouchers to workplace safety committees to alternative dispute resolution procedures replacing courts. Consistent with this trend, in 1993 California permitted construction unions and employers to “carve out” their own workers' compensation system. This study examines California's early experience with carve‐outs by analyzing two case studies, a survey of all carve‐outs in existence during the study period, and preliminary data on costs and dispute frequency at one carve‐out. Overall, carve‐outs do not appear to harm employees, and sometimes they help. At the same time, data analysis of one carve‐out showed it had no effect on costs and dispute rates. Moreover, the low involvement of union officials and the many issues that overlap other parts of workplace regulation raise concerns about decentralizing workers' compensation. Lessons can be learned for other spheres of regulation. © 2002 by the Association for Public Policy Analysis and Management.

Comparative Dispute Management: Court-connected Mediation in Japan and Germany

During the last decade, there has been a widespread trend in Germany and internationally away from litigation towards Alternative Dispute Resolution (ADR) procedures. In recent years, the German interest has especially focused on mediation as a means of dispute resolution. The year 2000 saw the introduction of a federal mediation law that permits all German states (“Länder”) to launch mandatory court-connected mediation with respect to certain kinds of civil disputes. However, mediation is still in its infancy in Germany. Thus, it could be helpful for the purpose of improving the German system to look to other jurisdictions that have mature mediation systems.

Preventing internal displacement: conciliating land conflicts in Guatemala

One of the most challenging issues present in post-conflict societies is the design of national mechanisms to resolve disputes which arise when displaced persons return to their place of origin, or resettle in a new area, and are confronted by persons laying claim to the same land. Given that one of the common sources of forced migration is conflict erupting from land disputes, it is important to assess which strategies the State and the international community may select in order to prevent a new cycle of violence and displacement Beginning from the premise that internal flight is often linked to a breakdown or complete absence of effective conflict resolution procedures, the goal is to consider the adoption of alternative dispute resolution (ADR) procedures which may be based on an amalgamation of traditional conciliation and modem ADR norms. The linkage between customary norms and state practice serves to join the previously polarized legal systems in order to establish a sense of unity within the legal structure of the nation. In a sense, the basic legal infrastructure for the establishment of a viable nation-state based on a sense of community has proved deficient This problem is heightened by the fact that much of the progress being made in the creation of international law on this issue tends to focus on substantive rights, without much attention being given to procedural guarantees. Hence this may weaken implementation of any protection granted to the internally displaced. Therefore, any attempts to devise a preventive framework in this arena should include procedural standards in order to uphold substantive rights and equity concerns1. Brief comparison with the Land Claims Court of South Africa, the Mexican Office for Conciliation and Arbitration of Land Conflicts, and the Property Commission in Bosnia is included.

Habermas fightin' waste. Problems of alternative dispute resolution in the risk society

Since the early 1990s, German environmental policies have been characterized by a broad range of alternative dispute resolution procedures, such as, for instance, ‘mediation’ and ‘risk dialogue’. Based on the ethics of discourse, developed by German social theorist Habermas, they are designed to solve problems in risk management caused by citizen protest. However, alternative dispute resolution (ADR) failed rather often in environmental issues. Based on a ‘risk society’ perspective, this paper presents a systematic argument for the empirical problems of discursive dispute regulation. End-of-pipe practical discourse is not suitable for dealing with questioned expert knowledge claims, problems of unawareness and manufactured uncertainties, central to regulation conflicts in risk society. This calls for an earlier public engagement via discourse, focusing on scientific and technological research and development agendas, as well as replacing traditional risk management with management of uncertainties and unawareness. Copyright © 2000 John Wiley & Sons, Ltd.

Cultural values and authority relations: The psychology of conflict resolution across cultures.

The findings of 4 studies suggest that cultural values about power distance influence the way that people react to third-party authorities in a manner predicted by the relational model of authority (T. R. Tyler & E. A. Lind, 1992). Power-distance values reflect beliefs about the appropriate power relationship between authorities and their subordinates. As predicted, when making evaluations of authorities, those lower in their power-distance values placed more weight on the quality of their treatment by authorities. In contrast, those with higher power-distance values focused more strongly on the favorability of their outcomes. These findings suggest that the degree to which authorities can gain acceptance for themselves and their decisions through providing dignified, respectful treatment is influenced by the cultural values of the disputants. Informal alternative dispute resolution procedures, such as mediation, are more likely to be effective among those who have low power-distance values.

Habermas fightin’ waste. Problems of alternative dispute resolution in the risk society

Since the early 1990s, German environmental policies have been characterized by a broad range of alternative dispute resolution procedures, such as, for instance, ‘mediation’ and ‘risk dialogue’. Based on the ethics of discourse, developed by German social theorist Habermas, they are designed to solve problems in risk management caused by citizen protest. However, alternative dispute resolution (ADR) failed rather often in environmental issues. Based on a ‘risk society’ perspective, this paper presents a systematic argument for the empirical problems of discursive dispute regulation. End-of-pipe practical discourse is not suitable for dealing with questioned expert knowledge claims, problems of unawareness and manufactured uncertainties, central to regulation conflicts in risk society. This calls for an earlier public engagement via discourse, focusing on scientific and technological research and development agendas, as well as replacing traditional risk management with management of uncertainties and unawareness. Copyright © 2000 John Wiley & Sons, Ltd.

Habermas fightin? waste. Problems of alternative dispute resolution in the risk society

Since the early 1990s, German environmental policies have been characterized by a broad range of alternative dispute resolution procedures, such as, for instance, ‘mediation’ and ‘risk dialogue’. Based on the ethics of discourse, developed by German social theorist Habermas, they are designed to solve problems in risk management caused by citizen protest. However, alternative dispute resolution (ADR) failed rather often in environmental issues. Based on a ‘risk society’ perspective, this paper presents a systematic argument for the empirical problems of discursive dispute regulation. End-of-pipe practical discourse is not suitable for dealing with questioned expert knowledge claims, problems of unawareness and manufactured uncertainties, central to regulation conflicts in risk society. This calls for an earlier public engagement via discourse, focusing on scientific and technological research and development agendas, as well as replacing traditional risk management with management of uncertainties and una...

The need for education in alternative dispute resolution (ADR) in the construction industry

The relative merits of alternative dispute resolution (ADR) over conventional methods of dispute resolution, namely litigation and arbitration, is well documented, but as yet, the various ADR procedures currently available are not being extensively utilized within the construction industry in the UK. The purpose of the present paper was to discover from UK experts in dispute resolution why ADR has not become a more frequently used technique for resolving disputes in the UK construction industry, and to suggest ways in which this problem can be overcome. The findings indicate that there is a lack of understanding of the principles behind ADR and a lack of experience in dispute resolution in general. The findings strongly suggest that the lack of understanding and experience in ADR can best be overcome by educating and training. This should be carried out early on in the working lives of professionals by universities, professional institutions and specialist bodies such as the CEDR.

Alternative Dispute Resolution in Government

Unlike most commercial business transactions, which are usually repetitive and involve a limited number of parties, construction contracts are unique and often complex agreements among multiple parties. Even a modest-sized public works project encompasses an array of contractual relationships that may represent well over 100 business interests. It is little wonder that within such a maze, unfulfilled expectations, disputes and claims arise. Alternative dispute resolution (ADR) techniques such as negotiation, mediation, minitrials, dispute review boards, and binding and nonbinding arbitration are effective ways to settle construction disputes in government contacts. However, the federal government’s use of these techniques has been limited to the few occasions when high-level initiatives are exercised. The time has come to make ADR the rule, not the exception. Government’s use of ADR has thus far been inefficient. This has resulted because it is necessary to design the ADR process and negotiate an ADR agreement between disputing parties anew each time it is used. Further, when the government uses a nonbinding ADR process, it requires the contracting officer to still produce full financial justification. When the settlement is really a compromise, the contracting officer goes through the useless and contrived exercise of backing into the agreed upon amount. The dispute resolution process should be specified in the construction contract to take advantage of appropriate ADR techniques. The government should embrace binding arbitration as equally valid alternative to litigation or actions before an agency’s board of contract appeals or the U.S. Claims Court. Binding decisions have the force of law and should not require contracting officer ratification or be subject to federal audit. When panels are selected for ADR procedures, such as DRBs or arbitration, they should always comprise individuals who are completely neutral and knowledgeable in the technical areas of the dispute. Continued attention should be given to dispute avoidance through the use of partnering. All levels of government should realize that allocating a percentage of construction costs is not a valid basis for determining or limiting professional fees. All professional services should be priced on the basis of a detailed scope of services including specific tasks and a methodology for design quality control

Alternative Dispute Resolution and Employee Voice in Nonunion Employment: An Ethical Analysis of Organizational Due Process Procedures and Mechanisms -- The Case of the United States

The purpose of this paper is to integrate and analyze the research findings of previous studies dealing both directly and tangentially with the strategic ethical issues involved in alternative dispute resolution procedures and systems found in nonunion employment. Particular attention will be given to one of the most significant issues in this area at the operating and tactical level of individual companies: the procedural techniques with respect to the processing of the complaints and grievances of employees in nonunion companies and firms. The paper concludes with policy recommendations for managers and recommendations for future research.

Adapting Mediation to Link Resolution of Medical Malpractice Disputes with Health Care Quality Improvement

According to conventional theory, the tort liability system serves two objectives: compensating injured persons, and causing other persons to internalize the costs of their errors and thus to guard against them in the future. The system is driven by the energies of the claimant, whose self-interest in obtaining compensation is compatible with the larger social goal of reducing future risks. This coincidence of private and public objectives occurs both within the formal liability system and in the more frequent instances where the resolution of a claim is privately negotiated rather than publicly adjudicated—so long as the bargaining takes place, to steal a phrase, in the shadow of the law. There is good evidence that the tort liability system does not work that way in practice. And, to a considerable extent, those who are interested in satisfying either of the two objectives have gone their separate ways. Alternative dispute resolution procedures such as mediation have been developed and promoted as efficient techniques for resolving claims (the compensation objective), while quality improvement initiatives in health care have largely ignored the claims process as an avenue for effective error reduction. Ironically, devices such as the National Practitioner Data Bank that have attempted to facilitate the link between compensation and risk reduction are suspected by some of having exacerbated the difficulties in achieving more effective forms of claims resolution. Recent empirical studies have demonstrated in a very sturdy way that the predominant motivation of iatrogenically-injured claimants is not the need or desire for economic compensation. Rather, claimants are often simply at-

Alternatives to high-cost litigation

Workplace and employment-related disputes are inevitable, and so it seems are drawn-out, expensive trips to court—unless you're willing to consider alternative dispute resolution procedures.

Addressing the malpractice problem: the Robert Wood Johnson Foundation's programs.

Addressing the malpractice problem: the Robert Wood Johnson Foundation's programs.

The Disinterested Person: An Alternative Approach to Shareholder Derivative Litigation

With the increased use of alternative dispute resolution techniques in corporate and securities law,' we have reached the point Justice Frankfurter addressed in SEC v. Chenery Corp.,2 where we might inquire: But to say that an alternative dispute resolution technique is appropriate only begins the analysis; it gives direction to further inquiry, which alternative dispute resolution technique is appropriate? How should it be structured? I urge that we would do well to study Continental civil in particular its concept of an investigative judge, for suggestions of how to refine our existing alternative dispute resolution procedures in shareholder derivative litigation. Professor Langbein, for example, in an enthusiastic description of the former German method of civil procedure (German model), has emphasized the advantages of judicial fact gathering in streamlining discovery, selection of expert witnesses, and encouragement of settlements. Langbein suggests that the German model is preferable to [o]ur lawyer-dominated system of civil procedure, which he characterizes as often . . . criticized both for its incentives to distort evidence and for the

The Alternative Dispute Resolutions Procedures Act: Some Questions Answered About Family Mediation

The passing of Senate Bill 1436 established alternative dispute resolution procedures in Texas. Among the procedures established is family mediation. This article provides an introduction to the Al...

Researching Civil Justice: Problems and Pitfalls

Over the last decade there has been a burgeoning of empirical research on civil justice issues. Concern about congestion and delay on civil court calendars has rekindled analysts' interest in explaining civil case processing time.' Claims that the country is awash in litigation have provided support for continuing efforts to measure the number and types of lawsuits filed in state and federal courts2 and to analyze Americans' propensity to litigate.3 Increases in liability insurance premiums have spawned new interest in describing trends in civil jury verdicts4 and modeling litigation processes.5 The spread of alternative dispute resolution procedures has produced a new market for program evaluation research.6 In addition to more research on civil justice questions, there is more interest in using the results of such research. Along with heightened interest has come controversy over the validity of results of different studies, how the studies should be interpreted, and what their implications for policymaking

Mediation/Arbitration: Alternative Dispute Resolution Process

Interest in alternative dispute resolution (ADR) techniques for the construction industry has grown in recent years. Traditional litigation has been criticized on several fronts. The traditional procedures are often cumbersome, expensive, and lengthy. The outcome of litigation is uncertain and often confusing. For certain cases, alternative procedures may be useful in quickly resolving disputes. Sometimes there is no alternative to litigation. Each case is unique, and the appropriate form of dispute resolution mechanism must be established for each project. This paper reviews the process of mediation/arbitration, and compares that process to other alternative dispute resolution procedures.