Model Of Dispute Resolution Research Articles

Federal Family Law Reform in 2005: The Problems and Pitfalls for Women and Children of an Increased Emphasis on Post-Separation Informal Dispute Resolution

This article discusses dilemmas for women and children arising out of the Government’s decision to increase the use of informal dispute resolution processes in family matters. It suggests that in the light of the disadvantages that women can face in informal processes, a model of dispute resolution that includes lawyers is justified. This is in direct contrast to the approach suggested in the reforms which states that lawyers are to be excluded from the proposed Family Relationship Centres on the basis that they are likely to make the processes practised in the Centres adversarial.

Leading employees in one‐to‐one dispute resolution

PurposeLeaders are challenged with the efficient and effective management of their own and their employees’ disputes. These are often managed inadequately using “fight”, “flight”, or management intervention. This paper aims to present the findings of a study into an effective alternative, “one‐to‐one dispute resolution”. The method involves two employees resolving their dispute through face‐to‐face communication and without direct intervention by management.Design/methodology/approachUsing the Critical Incident Technique, incidents of one‐to‐one dispute resolution (n=249) were reported by 88 employees. The contents were analysed, and skill‐related findings were validated using a questionnaire (n=106).FindingsThe findings are presented in a descriptive model of the skilful process of one‐to‐one dispute resolution. The model is built on eight skill‐sets that were central to the dispute resolution process.Research limitations/implicationsHow and when to effectively coach employees in the use of one‐to‐one dispute resolution, and the resulting personal and organisational outcomes, need to be examined. In addition, research into the practical application of the model, and in specific organisational contexts, is required.Practical implicationsThe study highlights the potential for more employees (including both the leaders and the led) to effectively “face” their own disputes without using “fight” or “flight”. It challenges those leaders, who often act as third‐party interveners, instead to coach their employees in the one‐to‐one resolution of disputes, while modelling the method themselves.Originality/valueEmployees are offered a research‐based model of dispute resolution that differs from problematic models in the dispute resolution literature and skills‐training programs. A workable alternative to the methods of fight, flight and intervention is provided.

Revisiting Deep Disagreement

Argument-giving reasons for a view-is our model of rational dispute resolution. Fogelin (1985) suggests that certain "deep" disagreements cannot be resolved in this way because features of their context "undercut the conditions essential to arguing" (p. 5). In this paper we add some detail to Fogelin's treatment of intractable disagreements. In doing so we distinguish between his relatively modest claim that some disputes cannot be resolved through argument and his more radical claim that such disputes are beyond rational resolution. This distinction, along with some ofthe detail we add to Fogelin's treatment, sheds some useful light on the project of informal logic.

A Feminist Model of Mediation that Centralises the Role of Lawyers as Advocates for Participants who are Victims of Domestic Violence

There are many aspects of mediation that support an analysis of the process as a feminist approach to dispute resolution. This analysis might be used in terms of justifying the increased use of mediation in family dispute contexts where the number of women disputants is high. Women who are victims of domestic violence, however, face many practical and process disadvantages in family law mediation, and whilst feminist scholarship has enabled a better understanding of the impact of domestic violence on a victim’s ability to participate effectively in mediation, the rates of participation remain high. This article considers some of the arguments for considering mediation as a feminist model of dispute resolution and contextualises those arguments in terms of their application to the participation of victims of domestic violence in mediation. The article argues that as victims of domestic violence increasingly find themselves in the mediation context, specific strategies are needed to protect their interests and ensure their safety. The article proposes a distinct model of family law mediation for matters where there is a history of domestic violence that centralises the role of a legal advocate for the victim.

Expediting Permanency through Community Decision‐Making

ABSTRACTPermanency for children has taken on a renewed urgency since passage of the Adoption and Safe Families Act of 1997. This article describes the process of building a community approach to using alternative dispute resolution for expediting permanency, and reports on the initiative's progress to date. Expediting Permanency through Community Decision‐Making, a U.S. Department of Health and Human Services‐funded demonstration project, is simultaneously building community collaboration around the specific issue of permanency and establishing alternative dispute resolution models as a key component of permanency planning services. Lessons learned from implementation are instructive for others embarking on a community response to the demands of ASFA.

Restorative Justice and Gendered Violence: Diversion or Effective Justice?

Although the last few years have seen considerable advances in the theoretical clarification of restorative justice as well as proliferation of programmes putting the ideas into practice, there are still some important questions that remain unresolved. These revolve around the issues of the range of cases and offenders for which restorative justice is appropriate, and the extent to which restorative justice needs to incorporate due process safeguards and standards such as proportionality, which are important in formal criminal justice. After reviewing some of the issues that have arisen in established restorative justice usages (juvenile justice; less serious offences) the article looks at more controversial applications—domestic violence, sexual assault—and examines the arguments for and against their suitability for restorative justice processes. It is suggested that arguments against extension to these ‘hard cases’ usually envisage restorative justice as diversion, while arguments for its application to these seriously harmful and antisocial wrongs advocate restorative justice as effective justice. The author concludes that questions of range and questions of standards cannot be dealt with in isolation, and that the wider the range of offences and offenders restorative justice deals with, the more it may merge with formal criminal justice.

Radiation litigation and the nuclear industry--the experience in the United Kingdom.

In the United Kingdom, the Nuclear Installations Act 1965 places a "strict" statutory duty on the operators of nuclear facilities to ensure that any exposure to radiation resulting from operations does not cause injury or damage. A claimant does not have to prove fault to receive compensation under the Act, only causation. The 1965 Act has been fundamental in shaping litigation involving the nuclear industry in the UK. Civil law cases brought under the Act will be heard before a single judge (with no jury or technical assessor) who must present his or her decision in a reasoned judgment. This process leads to a considerable volume of expert evidence being presented to the court and extensive cross-examination of witnesses. The expense and uncertain outcome of cases involving claims by nuclear workers that occupational exposure to radiation had caused the development of cancer has led to employers and trade unions setting up the voluntary Compensation Scheme for Radiation-linked Diseases as an alternative to litigation. This Scheme has worked well and is held up as a model of alternative dispute resolution. However, a few cases concerning personal injury or damage to property have come before the courts when the defendant nuclear operator considered that the claims were technically unjustified and where settlement was not a policy option. As anticipated, these cases were lengthy, complex, and expensive. The radiation doses assessed to have been received by the individuals who were the subject of claims, whether workers or members of the public, have been crucial to the outcome. The technical expertise of health physicists and allied specialists has been vital in establishing defensible estimates of dose, and this contribution can be expected to remain of high importance in radiation litigation in the UK.

Principles of Islamic Interpersonal Conflict Intervention: A Search within Islam and Western Literature

The purpose of this paper is to discuss potential principles for interpersonal dispute resolution models within an Islamic context. Such a task requires an Islamic researcher to walk a fine line in order to avoid falling in one of two methodological traps. The first trap is to draw upon western literature on conflict analysis and resolution without sufficient consideration of whether and how that literature may be applied in an Islamic setting. The subtle assumptions underlying most of the conflict intervention models developed in the west have gone undetected, until recently. The other trap is to embark upon a review of the existing Islamic literature relevant to conflict. This approach leads directly to entrapment in circles of legalistic interpretations developed centuries ago, which lack the spirit of conflict resolution as a movement for social change and an interdisciplinary field of research.

Precedent Lost: Why Encourage Settlement, and Why Permit Non-party Involvement in Settlements?

Settlement and precedent conflict because a settlement precludes a potential precedent. Precedent is the foundation of our common law system, but settlement is the usual outcome of any dispute. Even considering only cases actually docketed in court, approximately 90 percent settle; many additional disputes settle before docketing. Given the fact that the overwhelming majority of cases settle, and given the public value of precedent, one might seek to encourage trials, at least in cases that stand to resolve controversial issues. Instead, courts, commentators, and federal policy, seem to favor settlement, with little attention given to precedent that may be lost in the process.The favoritism of settlement is consistent with the view that litigation serves as a dispute-resolution mechanism. Under this view, bringing peace to the parties is paramount, and precedent created through court decisions is a mere byproduct of the dispute-resolution process. The dispute-resolution model fits well with the perspective of litigants, who control most aspects of litigation, including whether and when they settle. Litigants, both actual and prospective, have strong incentives to settle because the costs of litigation so outweigh the costs of settlement. In addition, because of the justiciability constraints in Article III courts, cases in those courts fit the dispute-resolution model of litigation well. That is, in courts created under the authority of Article III of the Constitution, evolution of the law occurs only in actual disputes that arise between adverse parties. And in justiciability doctrine, as predicted by the dispute resolution model, third-party concerns about precedent play no role.As this approach to precedent reveals, the dispute-resolution model of litigation focuses on the private costs and benefits of litigation or settlement. Owen Fiss, by contrast, views courts as institutions that help illuminate public values. He therefore purports to be against settlement. Of course, each of these views only explains a part of the litigation process, and both are right in the sense that all litigation includes both private and public aspects. An appropriate model of the litigation process should balance both private and public roles in litigation, to illuminate the roles of both precedent and settlement. Part I of the article develops a basic model of the prototypical litigation, in which the parties are the ones who bargain over settlement, and non-parties are not involved. It explores how even in this simple scenario, private and public concerns over settlement and precedent conflict. It also examines how settlement nonrandomly affects the substantive content of precedent, as well as the path-dependence of precedent. Part II complicates the model. It considers the question of the proper role of settlement and precedent in litigation influenced by third-party interest groups. This Part considers the effect of third-party maneuvering in both Article III cases, using the controversial settlement in Piscataway Township Board of Ed. v. Taxman, as an example, and in Article I cases, using as an example Smith v. Commissioner, a tax shelter case involving an unsucessful third-party attempt to engineer a settlement. Part III of the article draws on the expanded model to gain insights into the public and private factors in litigation and settlement in Article I courts and in Article III courts. In part, Part III looks at judges' own incentives to encourage settlement as one source of the general favoritism of settlement, as well as the extent to which encouraging settlement is efficient. It also considers the consequences of settlements obtained through third-party engineering of a settlement to avoid unfavorable precedent, concluding that these settlements should not be treated differently from other settlements simply because a third party funded the settlement.

Intellectual Property Disputes and the Supercourt of the World Trade Organisation: The Case for a New Model of Dispute Resolution

ABSTRACT The closing decade of the 20th century witnessed the emergence of a WTO ‘supercourt’ having the power to review states' intellectual property legislation. This article challenges the use of law as an instrument of global economic integration without a commensurate growth in legitimacy and public accountability to accompany the process. The recent case of United States and India—Patent Protection for Pharmaceutical and Agricultural Chemical Products provides a focal point for an analysis of key issues of legitimacy in the dispute resolution process. The article concludes that matters would be best remedied with an appropriate theoretical model in mind. To this end, having reviewed various models of trade legalism, the author endorses the stakeholder model as best suited to underpin the necessary reforms.

Custody Disputes in the Provincial Court of Alberta: A New Judicial Dispute Resolution Model

In Alberta there is no uniform process or guideline for the application of the best interests of the child standard in custody disputes. The author asserts that in the absence of such provisions, the Provincial Court is free to develop its own process. The process for the application of the best interests of the child standard should be flexible so that each case may be treated individually, but, at the same time, follow defined standards. The author suggests that the Court must define community standards so that litigants understand the criteria used in decision-making. For many people, if the process is open and understandable then they are more likely to feel that justice has been done even in the face of an adverse result. The author addresses these process-based concerns by offering a new three stage model for custody dispute resolution. In the first stage the author suggests that details of how the child is functioning in his or her home, neighbourhood, and school should be explicitly outlined in an affidavit. The affidavit should emphasize the community values and child-centred perspective to be used by the Court. In the second, judicial dispute resolution, the author envisages a mediation that incorporates mini-trial procedure with the judge acting as an active participant in a non-adversarial context. If this fails, the presiding judge must step aside in favour of an independent judge and a regular trial will commence.

AFTA after NAFTA: Regional Trade Blocs and the Propagation of Environmental and Labor Standards

Acknowledging the special difficulty of managing the politically critical linkage of free trade with labor welfare and environmental protection across the Pacific Basin, this Article argues that, despite the differences between various regional free trade groupings, regional development of this linkage presents distinct advantages over the GATT model of global, multilateral standards. It examines the regional model that evolved as a product of controversies over NAFTA (and particularly the dispute resolution model originated in the NAFTA Side Agreements). The Article demonstrates how this model can be drawn upon to facilitate constructive linkage of trade liberalization with environmental and labor welfare, to meet the challenges for developing a Pacific Basin free trade area.

New models of negotiation, dispute resolution, and joint problem solving

New models of negotiation, dispute resolution, and joint problem solving

New Models of Negotiation, Dispute Resolution, and Joint Problem Solving

The revolutionary changes sweeping the workplace, union‐management relationships, and the world economy have contributed to a sharply redefined role for the Federal Mediation and Conciliation Service (FMCS), the primary provider of mediation services to labor and management in the United States. In this article's three main sections, the authors trace the history and provide background information about FMCS; consider the changing role of mediation, driven by societal forces of change from the late 1970s to the present; and speculate on the agency's future and the expected expansion in the use of mediation.

Mediation, Arbitration and Litigation: Dispute Resolution in the People's Republic of China

MEDIATION, ARBITRATION AND LITIGATION: DISPUTE RESOLUTION IN THE PEOPLE'S REPUBLIC OF CHINA Jun Get The issue of how to provide for the resolution of disputes in the People's Republic of China ( China ) has become one of the most noteworthy topics worldwide since China opened its doors in 1978. The reasons behind this are obvious: ever since the pro- mulgation of the first significant foreign business-related law in China in 1979,1 many foreign businesspeople and entities have been deeply involved in economic cooperation with their Chi- nese counterparts in the forms of direct investment, licensing, and trade. With increasing international business, disputes occur more frequently and there is a growing need to resolve them. The way China handles these disputes inevitably attracts the world's attention because it is an important factor in determining whether economic ties between China and the rest of the world will continue to expand. In addition, despite cultural, political, and historical differences, Chinese methods and philosophies of dispute resolution reveal lessons for the rest of the world in seek- ing improvement in their own dispute resolution models or more appropriate methods for their societies to resolve their problems. As former U.S. Chief Justice Warren Burger noted, the unique Chinese model might be employed to stem the flood of litigation afflicting many court systems in the world. 2 The characteristics t Jun Ge is counsel of Intel Corporation. J.D. 1995, Northwestern School of Law of Lewis and Clark College; LL.B. 1986, East China Law School. The author would like to thank Henry J. Casey Professor Edward Brunet for his helpful com- ments on drafts of this Article. 1. This first significant foreign business-related legislation is the Law of the People's Republic of China Using Chinese and Foreign Investment, adopted at the 2nd Session of the Fifth National People's Congress on July 1, 1979 [hereinafter Equity Joint Venture Law]. 2. See U.S. Chief Justice in Shanghai (BBC Summary of World Broadcasts and Monitoring Reportings, Sept. 10, 1981), available in LEXIS, Nexis Library, BBCSWB File.

The New Ontario Judicial Alternative Dispute Resolution Model

The author introduces the new ADR Pilot Project currently being tried in the Ontario Court of Justice (General Division). Taking place in Toronto, the project is aimed at avoiding civil litigation. It involves ADR referral and management after filing of the Statement of Defence. First, the parties must meet. If the dispute remains unsettled, statements are submitted by the parties. The parties and counsel then attend an ADR session, which can be a mediation, mini-trial, or neutral evaluation. The advantages and disadvantages of the project are then detailed, for the parties, the public interest, and otherwise. The author notes that the pilot project stresses many of the same values that are dominant in provincial arbitration legislation. However, there are also significant differences between the schemes. In the end, the author is optimistic for the success of the project, but cautions that more time must pass before any meaningful assessments can be made.

When Social Outcomes Aren′t Fair: The Effect of Causal Attributions on Preferences

Building upon recent models of social utility theory, this paper outlines a theoretical framework for examining the effect of causal attributions on choice in social decision making. The results of three empirical studies are reported, which identify two dimensions of external attribution that affect how individuals weight absolute versus comparative payoffs. These dimensions are whether the causal agent is perceived to be human versus non-human (e.g., an act of nature) and the degree to which human agents are perceived to have an interest in the outcome of the decision. Together, these findings have implications for social welfare policies, dispute resolution, and game theoretic models.

The NAFTA Environmental Dispute Settlement System as Prototype for Regional Integration Arrangements

This article addresses NAFTA's environment-related dispute settlement mechanisms and how these might serve as a prototype for other regional integration efforts. The article focuses on a few critical issues with respect to NAFTA's environment-related dispute mechanisms. These are: (1) whether NAFTA's dispute settlement mechanisms are adequate for their purpose and therefore suitable for extension to the contemplated expansion of NAFTA throughout the Western Hemisphere; (2) how NAFTA's separate regional dispute settlement system will interface with the new World Trade Organization (WTO) multilateral dispute settlement mechanism as both relate to environmental issues, and; (3) how the NAFTA and European Union dispute resolution models may be comparatively evaluated for application to other regional arrangements.

Trial Courts: An Economic Perspective

This article describes economic research on models of legal disputes. Concepts such as rational choice and static equilibrium are often used inaccurately in the noneconomic research presented in this issue. This article critiques the longitudinal studies, illustrating a number of problems of conceptualization and data analysis. Finally, the authors consider normative models of dispute resolution and the evolution and effects of judge-made law.

A therapeutic mediation model for child custody dispute resolution

AbstractChild custody mediation by child therapists can enhance conflicted parents' ability to co‐parent and improve the mental health of their children.