Dispute Resolution Methods Research Articles

Nova Lei de Franquias e Arbitragem

Franchising is an important tool in the production, distribution and sale of services and goods. The present article aims at analyzing the main characteristics of franchise agreements, its classifications and practical repercussions. First, the different formats of franchise and arrangements by which it may be carried out will be presented in order to properly contextualize the analyzed subject. Next, the main new aspects of the legal framework which was applied to the franchise system for over two decades will be examined, with particular focus on choice of law, forum and arbitration. Once the most important foundations of the franchising system have been discussed, the case law concerning the use of arbitration as an alternative dispute resolution method will be addressed in the context of franchise agreements. Lastly, it will be possible to conclude that the new law ratifies the regularity of the use of arbitration in franchise-related subjects, removes unnecessary discussions before the judicial courts being, therefore, supportive to new deals.

Court innovations and access to justice in times of crisis

BackgroundCOVID-19 has disrupted not only the health sector but also justice systems. Courts around the world have had to respond quickly to the challenges presented by the pandemic and the associated social distancing restrictions. This has created significant challenges for the justice system and such challenges are likely to be further compounded in the post-pandemic era as there is a ‘tsunami’ of COVID-19-related disputes predicted. MethodsThis study will examine how global court responses have transitioned from being primarily traditional, face-to-face proceedings to online court processes (as supported by internet technology). By adopting a comparative approach, we will analyse how some countries have adapted to this shift to online mode while also maintaining a focus on access to justice. ResultsWe argue that online modes of dispute resolution, often referred to as Online Dispute Resolution (ODR), can promote resolution while facilitating social distancing in this new COVID-era. The rapid shift from traditional court processes to an online mode has further assisted the public, lawyers and experts to access the justice system in some jurisdictions, even during the crisis. In light of the scale of recent changes, there have been concerns about the capacity of courts to adopt newer technologies as well as issues relating to the impact of a new online model of justice, particularly in terms of the barriers for more vulnerable members of society. Further, the use of disruptive technologies in some courts have posed questions around whether outcomes generated by these innovations reflect the meaning of ‘justice’ in its traditional sense. ConclusionsThis article argues that courts should embrace newer technologies that support court services while being mindful of possible tech-related issues that can impact on justice objectives. We argue that by placing further emphasis on alternative dispute resolution methods and ODR into the future, this might offset the likely tsunami of COVID-related litigation which would enable courts, hospitals, medical professionals and patients to settle disputes in a just, equitable and more efficient manner.

The Singapore Convention: Towards a Universal Standard for the Recognition and Enforcement of International Settlement Agreements?

Abstract The Singapore Convention seeks to establish a universal standard for the recognition and enforcement of international settlement agreements resulting from mediation. Assuming it finds wide acceptance, the Convention could harmonize existing enforcement mechanisms, the effect of which typically does not extend to foreign jurisdictions. Ideally, this could leverage mediation in a similar way as the New York Convention helped establish arbitration as the prime means of dispute settlement on the international plane. After contextualizing the Singapore Convention in light of the increasing diversification of dispute resolution methods, this article concludes that this aspiration is unlikely to turn into reality anytime soon. To this end, it considers traditional approaches to the enforcement of settlement agreements as well as the genesis and cornerstones of the Singapore Convention and briefly examines its interplay with arbitral proceedings and domestic legal systems.

Family mediation as a form of alternative dispute resolution in Poland

For years, mediation has been unused as an institutionalised form of dispute resolution. The introduction of methods for alternative dispute resolution (ADR) into social life, including the use of impartial mediation in the practice of the Polish justice system, signals some social change. The practice and procedure of mediation is of particular importance in cases regarding close relationships between people. This article explains and promotes family mediation as a form of ADR. Experience shows that mediation in family matters brings a number of benefits to conflicted parties and the justice system.
 
 Keywords: Conflict, dispute, mediation, family.

Reflexiones sobre la nueva convención de las Naciones Unidas sobre los acuerdos de transacción internacionales resultantes de la mediación (“Convención de Singapur”)

This article will analyze the reasons that justified the creation of the Singapore Convention and its positive consequences. In particular, it will address the nature of the agreements, their effects, the requirements for their validity, their enforceability, and the grounds for refusal of measures contained in the agreement. Furthermore, it will also assess the links with the New York Convention and the relationship between mediation agreements and State courts. Finally, it will conclude highlighting the impact that the instrument may have at the global level, and its possible repercussions in the field of alternative dispute resolution methods.

CRISE DO JUDICIÁRIO: O ACESSO À JUSTIÇA GARANTIDO PELOS MÉTODOS ADEQUADOS DE SOLUÇÃO DE CONFLITOS

The work proposes to analyze the effectiveness of the principle of access to justice considering the hyperbolic Judiciary statistics. Initially, to understand the application of the principle, it will be studier its definition. Afterwards, the Judiciary’s data will be analyzed to check the situation of the national courts. Finally, the alternative dispute resolution methods will be studied as a solution to guarantee the effectiveness of the principle and the reduction of the number of processes in progress. This article uses the deductive method and its theoretical framework is the Constitution of the Republic and the Justice in Numbers 2020 report

Is this Workplace Bullying? How Ideas about Conflict Shape Conflict Management Strategies

Litigation avoidance, union avoidance, and human resource strategies have been identified for a long time as drivers for the adoption of specific conflict management strategies and Alternative Dispute Resolution (ADR) methods. This paper adds an important element when determining how organizations respond to conflicts in the workplace: the way that the conflict is understood by actors involved in it. Drawing on interviews with managers from 14 different banks and leaders from 6 different unions in the Brazilian banking sector, and complemented by thorough archival research on unions’ newspapers, this paper suggests that unions and banks have different understandings of workplace bullying, which are dependent on the frames of reference that they use to interpret labor relations (critical/pluralist in the case of unions, unitarist in the case of banks). Those different understandings have direct impacts on how each actor responds to workplace bullying. Unions favor collective tools that frame bullying as a structural issue, while banks favor conflict management tools that focus on individual managerial behavior.

La mediación como requisito de procesabilidad. Una mirada crítica de tal exigencia

In our system they are demanding as a pre- processing to sue the alternative method of dispute resolution. We see this reflected in three areas specifically (family, work and health) have been carried out so in the present work to seeks analyze the effectiveness of such methods if they represent any problems in accessing the courts.

Kajian Ekonomis Penyelesaian Sengketa Bisnis melalui ADR (Alternative Despute Resolution)

<p align="center"> </p><p><em>In line with the increasing demands of the business in the era of globalization, especially related to the resolution of business conflicts, business people have tried to find alternative dispute resolution methods other than justice. This is because the judicial institution as a legal institution that should be able to play its role in efforts to resolve various kinds of business conflicts, is in reality not as expected by business people. There is support for normative formalities. Therefore alternative dispute resolution institutions can be used as a very possible choice. This alternative institution is considered more effective in various aspects of business dispute resolution, in response to the demands of very fierce business competition. Some economic benefits gained from choosing a solution through ADR (Alternative Despute Resolution) are that this model is not formal, saves more time and also minimize costs in dispute resolution.</em></p><p> </p>

Gendered Justice in China: Victim-Offender Mediation as the "Different Voice" of Female Judges.

Attempts to uncover the “different voice” of female judges through testing the statistical significance of judges’ gender in decision making have offered inconsistent results. Meanwhile, a proliferation of research suggests that such “voice” might be detected through qualitative analysis. Existing findings indicate that when female judges have discretionary power regarding case management, they will typically foster a process of settlement. Based on this information, I conducted eight months of fieldwork in China and observed 68 victim–offender mediations in four district courts. I found that the criminal division is widely perceived as a masculine setting, and female judges are accustomed to employing mediation as a preferred dispute resolution method to facilitate reconciliation between the two parties and seek civil compensation for victims. Such judicial behavior is a result of propaganda from the Supreme People’s Court and a reflection of female judges’ life and work experience. By contrast, a neglect of mediation among male judges can be identified in the same workplace. The belief that mediation is feminine and time-consuming contributes to this neglect. In addition, rape lawsuits are an exception for mediation. This explorative research not only represents one of the first efforts to reveal a “different voice” in the Chinese criminal justice system but points out a direction of research for studying the judicial behaviors of female judges worldwide.

Corporate Dispute Resolution Strategies to Make Mediation and Arbitration Better Alternatives

This article is centered on the desirability of instilling a particular culture in corporate decision making on responsible and effective dispute resolution methods.

Alternatives of judicial economic disputes settlement in investment and construction sphere

Modern state of construction industry signifies the necessity of coping with technological backwardness, accrued misbalances, low productiveness of construction business and also its persistent unprofitability and high level of conflict character of construction participants. Actual rise of economic interests contradictions caused by a more complicated character of projects, increase of social burden on construction business induced by inconsistent and even fragmentary measures of public regulation has led to enormous number of economic disputes. Bankruptcy caseload of investment and construction companies is at the highest possible level nowadays. Not only small and middle-sized business but also large companies cannot withstand modern challenges pressure. In this connection there is a huge field for elaboration of dispute resolution methods. Shifting towards project financing strengthens inner contradictions in the industry and also causes conflict of interests with banks. Decline of assets quality, increase of unfinished construction volume, loss of partners, withdrawal of turnover capital, waste of staff, enlargement of shadow economy segment – these are just the part of consequences which should be overcome immediately. Systemic possible solutions deal with the use of the whole specter of disputes resolution methods. Foreign experience, for example Belarusian one, proves that non-judicial methods are more flexible, rational, diverse and acceptable for parties in conflict. The most important thing is that these methods of settling differences have negotiating nature and let the parties find decisions with a high potential of practical fulfillment (not just winning the case in court). Experts expressed different opinions on the issue of conciliation procedure organizational form. The main requirement for arising disputes in investment and construction projects is an uninterrupted process and prevention of bankruptcies: debtors, contractors, subcontractors and construction shareholders. Participants of conference came to the conclusion that certain pilot projects promoting diverse disputes settlement procedures in investment and construction should be launched

The Peaceful Resolution of Territorial Disputes dataset, 1945–2015

This article introduces the Peaceful Resolution of Territorial Disputes (PRTD) dataset, covering all interstate territorial disputes (1945–2015). Our dataset captures proposals for the peaceful resolution of territorial disputes made by states involved in territorial claims at the disputant-year level. These proposals provide a concrete measure of changing state preferences toward negotiations, non-binding, and binding third-party dispute resolution methods over time. In contrast to existing attempt-level data, the monadic panel design of the dataset captures not only actual attempts at peaceful resolution – the result of an agreement between disputants – but also proposals for methods that did not occur but were preferred at a particular time point. Our dataset allows for robust and generalizable quantitative analyses of the peaceful resolution of territorial disputes that are sensitive to temporal, regional, claim-based, and state-level trends. To demonstrate the utility of our dataset, we use hybrid logistic regression to examine the determinants of binding PRTD proposals. Over-time changes in characteristics such as regime type and treaty commitments influence attitudes toward binding settlement methods differently than disputant-level measurements. We also show that time has a distinctively non-linear effect.

ОСОБЛИВОСТІ ФОРМУВАННЯ ОБ’ЄКТНО-ПРЕДМЕТНОЇ СФЕРИ ДЕРЖАВНОГО УПРАВЛІННЯ МЕДІАЦІЄЮ В УКРАЇНІ

Стаття присвячена розгляду особливостей формування об’єктно-предметної сфери державного управління медіацією в Україні. Розглянута модель медіації, а, також, підходи до побудови структури медіації та медіаційних процесів. Проаналізовано методологічні засади регулювання медіації та їх реалізацію у сьогоденні. Визначено сфери застосування медіації у державному управління. Змодельована модель медіації. Доведено, що медіація це процес спільного врегулювання та вирішення конфліктів. Її головними складовими є певні тенденції запровадження медіації у світі, відповідні їм закономірності й, пов’язані з ними, принципи. Запровадження медіації відповідно до вимог, що випливають із розроблених закономірностей і принципів, цілком залежить від конфліктуючих сторін.
 Обгрунтовано, що запровадження медіації визначається розвитком її інституту. Але головним фактором, що впливає на запровадження медіації, є державно-правова система, яка віддзеркалює всі явища, що відбуваються у державі та за її межами.
 Визначено, що медіація є одним із методів вирішення спорів. Тому в системі державного управління її потрібно розвивати й успішно застосовувати для досягнення мирного регулювання спорів.
 Доведено, що всі питання, які стосуються медіації під час судового провадження, мають бути врегульовані у процесуальних кодексах в такий самий спосіб, як це зроблено щодо мирової угоди та процедури врегулювання спору за участю судді, тобто в окремих статтях, розділах кодексів тощо. В іншому випадку, зазначене питання не буде врегульовано системно і в повній мірі, а, отже, не буде дотримано принципу верховенства права та його елементу принципу правової визначеності, що передбачені статтею 8 Конституції України.

Mandatory Arbitration of Intra-Corporate Disputes in Brazil: A Beacon of Light for Shareholder Litigation?

We survey law firms, firms and institutional investors to better understand their preferred method of intra-corporate dispute resolution in Brazil. Consistent with a number of theories, we find that these organizations prefer arbitration to judicial claims as the method of intra-corporate dispute resolution. Our findings suggest that their choice of arbitration is based on the parties’ preferred ranking of objectives: quality of the decision; time to resolution; and costs. We find that parties choose to resolve disputes involving up to US$ 2.5 million through mediation or conciliation. We also find that arbitration and mediation or conciliation are almost equally preferred methods for intra-corporate dispute resolution involving values above US$ 2.5 million.

Brief Analysis of the Dispute Resolution Methods through Mediation in Romania

Mediation is an alternative way of resolving conflicts and in particular disputes that may otherwise reach a judiciary settlement. This procedure is a voluntary choice for the warring parties, but may be a compulsory procedure, when mediation is the only way to resolve disputes stipulated through a compromissory clause in the contract bet of the parties they are in dispute.
 Even though mediation is a non-contentious procedure, it has a set of rules and principles that govern this procedure, guaranteeing the respect of the rights of all parties in the dispute over mediation.

The role of mediation in solving medical disputes in China

BackgroundMedical litigation represents a growing cost to healthcare systems. Mediation, arbitration, and other alternative dispute resolution (ADR) methods are increasingly used to help solve the disputes and improve healthcare satisfaction. In China, the increasing number of medical disputes has contributed to concern for the safety of physicians and mistrust between physician and patients resulting in ADR processes being established in several provinces in recent years. Our aim was to describe and explain the impact of this new mediation process in the Chinese healthcare system.MethodsOur study investigated mediation practices in China using case-level data from 5614 mediation records in Guangdong Province between 2013 and 2015. We investigated how the resolution success as well as the compensations are associated with the case characteristics using regression analysis.ResultsAmong the cases analyzed, 1995 (41%) were solved with agreement through mediation, 1030 were closed by reconciliation, 559 were closed by referring to court and 1017 cases were withdrawn after mediation. Five hundred five Yinao cases were solved with the help of mediators on the spot. We find that mediation solved about 90% of medical disputes under present mechanisms, while more police support is needed to cope with Yinao. The average compensation of mediation is CNY60,200 and average length of mediation is 87 days. Longer time taken to reach resolution and more money claimed by patients are associated with lower resolution success rate (p < 0.01) and higher compensation levels (p < 0.01).ConclusionOur results show the performance of mediation mechanisms in China to help solve medical disputes. ADR plays a role in reducing the need for initiating litigation and may ultimately increase satisfaction with the healthcare system.

One Belt One Road Disputes: Does China Have Dispute Resolution Methods Fit for Purpose?

The One Belt One Road Initiative (‘OBORI’ or ‘OBOR’) is a top-level project primarily aimed at increasing infrastructure output and investment. It has been implemented in more than 60 countries across the world and has had a far-reaching impact on transnational trade. In order to respond to the increasing need for legal services to assist in the implementation process, China endeavours to provide a fair and trustworthy legal environment by establishing innovative international commercial courts in certain cities and by reforming existing international arbitration rules. Meanwhile, there remain many challenges to construct a collaborative legal system which covers a large range of jurisdictions, legal customs, and business approaches. This essay contends that the Chinese approach to arbitration and adjudication, since the launch of the OBORI, has undergone a paradigm shift from a domestic approach towards a dynamic and internationalised one. This is a result of the enhancement of the recognition and enforcement of foreign arbitral awards, the introduction of ad hoc arbitration, and the establishment of the China International Commercial Court (‘CICC’). However, to achieve China’s ambitious plan of promoting its dispute resolution mechanism to an international level, it could further enhance the independence and efficiency of its dispute settlement institutions.

Alternative dispute resolution procedures using information technologies: legal regulation in the European Union and the USA

The article is devoted to the research of legal issues of protection of the violated rights, determination of the effectiveness of the mechanism of ensuring the rights, investigation of alternative ways of protection of rights, analysis of the functioning of ODR platforms and prospects of their functioning. The article notes that with the widespread use of the Internet, legal institutions are changing, especially with regard to dispute resolution. The emergence of e-commerce has led to the emergence of online dispute resolution platforms that are already in use on all continents. The e-commerce market in Ukraine and in the world is gaining momentum, so Ukraine's desire for closer interaction with EU Member States and integration into the common market necessitates a detailed study of the experience of the EU and foreign countries to introduce the most effective and advanced mechanisms for securing the rights of e-commerce participants. The study concludes that it is advisable to use online dispute resolution (ODR) procedures, which are a cross-border alternative dispute resolution, as a fast and versatile way to resolve disputes, as a substitute for the ineffective existing forms of IPR protection. Based on the analysis of the existence of alternative dispute resolution methods, it is established that online dispute resolution due to its specific legal nature is an independent way of resolving disputes.

Tort of Negligence, Caparo Test and Alternative Dispute Resolution

This is case analysis about the remedies available under tort of negligence, the Caparo test and alternative dispute resolution methods. The first basic requirement to prove tort of negligence is that the defendant owed a duty of care to the claimant and that there has been a breach of that duty. The duty of care is borne out of the relationship between the claimant and defendant. The Caparo test lays down three main ingredients for breach of duty which are reasonably foreseen, requisite proximity and reasonability. ADR mechanisms include arbitration, mediation and other dispute resolution methods.