Third-party Dispute Resolution Research Articles

The Impact of the COVID-19 Pandemic on Mediation and New Zealand's Dispute Resolution System

The COVID-19 pandemic has transformed mediation practice in New Zealand's institutional, government-led mediation regimes. The introduction of lockdowns, social distancing and personal protective equipment created a "new normal" for the delivery of consensual third-party dispute resolution in this area. Many of the changes introduced during the pandemic remain despite the removal of restrictions in 2022. This article explores New Zealand's online alternative dispute resolution (ADR) capacity on the eve of the pandemic. This limited capacity was severely tested during the first lockdown in 2020, highlighting barriers and challenges but also opportunities. However, it was the second major lockdown beginning in August 2021 that cemented many of the changes. In addition to exploring the New Zealand experience, this article provides specific case studies, such as employment mediation, and make some comparisons with apposite overseas jurisdictions. ADR, and mediation in particular, is at a crossroads. A choice must now be made whether to return to a primarily in-person model or continue to emphasise online delivery.

To Settle or to Fight to the End? Case-level Determinants of Early Settlement of Investor-State Disputes

Abstract International investment arbitration is a third-party dispute resolution mechanism aimed mainly at depoliticizing investment disputes and maintaining efficient investment flows among countries. Almost one-third of treaty-based investor-state disputes brought before this system are settled before the tribunal’s final ruling. Given the classical “Against Settlement” debate in the legal literature, we build an original database of treaty-based arbitrations from 1996 to 2016 to empirically test the determinants of early settlement. We find that the probability of settlement increases if the host state has no experience of resolving those kinds of disputes but decrease if it anticipates a favorable outcome. The nature of the regulatory measures applied by the host state and the identity of foreign investors are additional important determinants of settlement. Interestingly, we find strong evidence of a Dutch effect in dispute resolution.

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.

Third-Party Intervention and the Preservation of Bargaining Relationships

This article uses longitudinal bargaining contract data to examine whether third-party dispute resolution procedures improve the health of bargaining relationships and contribute to their preservation. The author uses survival analysis to assess whether the procedures correlate with the likelihood of relationship dissolution. This analysis shows that earlier procedures in the dispute resolution process, such as conciliation and mediation, are related to a lower likelihood of dissolution than are later ones. The author then uses dynamic panel models to consider whether third-party intervention pushes the parties to settle subsequent collective agreements voluntarily or earlier in the process, but he finds no evidence to this effect.

The Brexit Fiasco and the Failure of Article 50 of the Treaty on the Functioning of the European Union

Abstract Modern game theory and the economic theory of federalism may offer an alternative view on the Brexit fiasco, in which the British government should not bear exclusive responsibility for current disaster. Moreover, the design of Article 50 of the Treaty on the Functioning of the European Union (TFEU) contains an intrinsic dysfunctional mechanism that generates irrational strategies. Article 50 is underdeveloped and should be redrafted. The two-year deadline provision should be replaced with a reasonable time period and should provide for a third-party dispute resolution mechanism in instances where free negotiations between the EU and the withdrawing Member State in the reasonable time period fail to achieve a winwin solution. This article also argues that the current sub-optimal institutional framework on the vertical and horizontal division of competences might be an additional generator of Euroscepticism. In order to prevent the decline of public support the EU should do less in current fields and should do much more in fields where it failed to exercise its authority and which cannot be addressed effectively at the local levels. The EU should redesign itself as an institution that mitigates broad potential sources of negative externalities, reinforcing the rule of law, protecting liberal democracy with all related civil liberties, reinforcing its political-global dimension, protecting its common cultural heritage, and combating destructive nationalisms, isolationisms and cultural introspections.

TOWARD HEALING AND RESTORATION AGAINST MEDICAL DISTURBANCE ( YINAO ) IN CHINA: RECONSIDERATIONS AND PROSPECTS OF RESPONSIBILITY SEARCH AND MALPRACTICE RESOLUTION

Imbalanced doctor-patient conflicts and divergences such as healthcare disturbance ( yinao ) significantly undermine the already-weakened mutual trust and lead to further deterioration of workplace safety and environment for medical professionals in China. China has to implement all sorts of efforts to cut off the hostile settings where medical disturbances are rooted and developed. Such measures should at least include sufficient remedies provided by medical insurance, refined administrative mediation mechanism, better workplace protective systems in medical institutions, and more importantly, a full-pledged framework with enforceable rules to circumvent medical disturbances and resolving medical accidents. It is necessary to stipulate administrative, civil and criminal measures to punish medical disturbers while guaranteeing medical professionals such as doctors, nurses and supporting staffs due secured medical practice. In particular, a third-party dispute resolution mechanism, an improved appraisal platform and protection of confidential information of patients and doctors should be implemented in due course. In addition to a more refined legal framework, the social, cultural and professional settings of medical practice should also be further improved by removing “revenge” attacks on Chinese hospital professionals.

Federalism and Democratic Reform in China with Lessons from India

The Chinese political fabric appears to be under great stress, with reports of nearly 200,000 “mass incidents” every year, especially from workers with labor disputes and ordinary people whose property is often seized by corrupt officials. Such incidents are fuelled by public dissatisfaction nationwide as well as the disenchantment of Chinese State policies among ethnic groups, who occupy at least a third of Chinese territory. China has so far been able to keep its peripheral communities under control (or in the case of Taiwan, to ensure a degree of restraint) through its clear willingness to use force, which has aggravated the unease. A democratic China, however, would find it difficult to adopt such a repressive posture. Drawing on Linz and Stepan and Yadav’s theoretical and empirical elaboration, the article examines the characteristics of Chinese federalism and the lessons that can be learnt from a large multinational state like India. The article suggests a dual mechanism of federalism on the Chinese mainland and confederation with peripheral communities for addressing China’s territorial and political development. A confederal arrangement for China’s peripheral communities would provide a reliable umbrella of national laws and institutions under which these communities could be brought together in the “statenation” vision. The viability of such an arrangement hinges on the presence of a strong judiciary for third-party dispute resolution and for implementing confederal agreements

Knowledge, trust and recourse: imperfect substitutes as sources of assurance in emerging economies

Uncertainty prevents voluntary interactions, but institutions of trust and/or recourse can substitute for knowledge by making promises relatively credible. Trust and various sources of recourse are imperfect substitutes, however, as demonstrated by consideration of the trade‐offs between trust based on repeated dealings, recourse to informal private sanctions such as reputation threats, ostracism sanctions and third‐party dispute resolution through formal commercial organizations operating under customary law, and the state's coercive legal system. The problems of knowledge and interest imply that, though not perfect, private sources of trust and recourse are superior in emerging markets to state‐provided recourse.

Hybrid Forms of Third-Party Dispute Resolution: Theoretical Implications of Combining Mediation and Arbitration

The authors contrast two hybrid dispute resolution procedures (arbitration-mediation and mediation-arbitration) that involve using mediation and arbitration in different sequences. The former's strengths stem from lowering disputant expectations and enhancing cooperative behaviors during the mediation phase. The latter procedure likely will be less costly and time consuming, enhance fairness judgments, and produce greater compliance to arbitrated decisions. The authors argue that the greatest benefit from arbitration-mediation is that it should encourage disputants to settle differences themselves.

Hybrid Forms of Third-Party Dispute Resolution: Theoretical Implications of Combining Mediation and Arbitration

Hybrid Forms of Third-Party Dispute Resolution: Theoretical Implications of Combining Mediation and Arbitration

Legalization as Strategy: The Asia-Pacific Case

The Asia-Pacific region offers an example of low legalization of regional institutions and perhaps an explicit aversion to legalization. An examination of three key regional institutions—ASEAN (Association of Southeast Asian Nations), APEC (Asia-Pacific Economic Cooperation), and the ARF (ASEAN Regional Forum)—confirms a regional process of institution building without legalization. Recent developments in these institutions permit some discrimination among competing explanations for low legalization. On the one hand, ASEAN has embraced a legalized dispute-settlement mechanism; Asian governments have also employed legalized global institutions. On the other hand, the ARF and APEC continue to resist clear-cut legal obligations and third-party dispute resolution. This pattern suggests that legalization is best viewed as driven by the demands of economic integration and as a strategic response by governments in particular institutional settings. These explanations undermine alternatives based on domestic legal culture and uniformly high sovereignty costs. The Asian economic crisis has reopened a debate over regional institutions, which may fix on legalization as part of a new regional institutional design.

Legalized Dispute Resolution: Interstate and Transnational

We identify two ideal types of international third-party dispute resolution: interstate and transnational. Under interstate dispute resolution, states closely control selection of, access to, and compliance with international courts and tribunals. Under transnational dispute resolution, by contrast, individuals and nongovernmental entities have significant influence over selection, access, and implementation. This distinction helps to explain the politics of international legalization—in particular, the initiation of cases, the tendency of courts to challenge national governments, the extent of compliance with judgments, and the long-term evolution of norms within legalized international regimes. By reducing the transaction costs of setting the process in motion and establishing new constituencies, transnational dispute resolution is more likely than interstate dispute resolution to generate a large number of cases. The types of cases brought under transnational dispute resolution lead more readily to challenges of state actions by international courts. Transnational dispute resolution tends to be associated with greater compliance with international legal judgments, particularly when autonomous domestic institutions such as the judiciary mediate between individuals and the international institutions. Overall, transnational dispute resolution enhances the prospects for long-term deepening and widening of international legalization.

Reactions to unjust dismissal and third-party dispute resolution: A justice framework

Little previous research has examined why dismissed workers view their discharge as unjust and how they respond to third-party dispute resolution interventions. This exploratory field study relied upon a justice framework to understand complainant motivations for filing unjust dismissal disputes and their reactions to a voluntary conciliation program. Analysis of archival and interview data suggested that procedural justice principles dominated both motivations for filing claims and reactions to third-party intervention. These findings were consistent with previous justice and labor relations research. Implications for future research, management practice, and third-party dispute resolution are discussed.