Use Of Alternative Dispute Resolution Research Articles

ALTERNATIVE MEDIATION OPERABILITY MECHANISMS UNDER STANDARD CONSTRUCTION CONTRACT CONDITIONS

The use of alternative dispute resolution (ADR) techniques has been on the rise, particularly as part of the contemporary, staged-type mechanisms forming part of the pertinent conditions of the construction contract. Among the several ADR methods in use, mediation is the method widely found to be explicitly or implicitly incorporated in any such mechanisms, with its use being often stipulated as condition precedent to ultimately resorting to arbitration. This paper investigates the varying statuses of mediation as prescribed under three American-based standard contract conditions, in comparison with its implied status under international such conditions. The within and in-between comparative analyses revealed distinct differences and some resemblances in respect of several concerned attributes including: (1) the staging (sequence step) of the mediation process within the involved claim/dispute resolution timelines, (2) the condition(s) for triggering such a process, (3) the provisions governing its length, and (4) the manner with which it may be ended. The paper concludes with inferences as to the characteristics that may be hypothetically viewed as more conducive to the effective employment of such an ADR technique in resolving disputes.

Mediation in Ghanaas Criminal Justice System: A Proposal for an Extension to Cover Severe Offences

Unlike a civil wrong, a crime upon its commission is regarded as an offence against the State and not the human victim(s) involved. This has made the use of Alternative Dispute Resolution (ADR) mechanisms in the resolution of a crime rather challenging. Regardless of this, the Ghanaian law provides for the use of mediation in resolving non-severe offences that do not amount to felony and are not aggravated in nature. Notwithstanding the gains made by Ghana in legislating criminal mediation in non-severe offences, an evaluation of its laws disclose that this provision does not extend to severe criminal cases. This paper seeks to fill this lacunae and focuses on the need to extend mediation to resolve severe offences. Drawing lessons from how severe offences have been successfully mediated in other jurisdictions and the benefits of restorative justice , it concludes on how Ghana can learn from same , and by extension, mold its own thereof having regard to its unique legal and socio-cultural setting.

Alternative dispute resolution in Palestine: the myth and dilemma of construction mediation

Purpose This paper aims to investigate the use of alternative dispute resolution (ADR) techniques in the Palestinian construction industry. It also seeks to identify some of the drivers and barriers to the greater use of particular ADR techniques. Design/methodology/approach In this study, 12 semi-structured in-depth interviews were conducted with senior ADR practitioners comprising nine construction professionals, two eminent lawyers and a retired judge. Findings This research has explored the practices of mediation, adjudication and expert evaluation in the Palestinian construction industry and has identified deficiencies in implementation and the roles that the cultural and legal contexts play in this. The research findings cast some doubt on the results of previous studies asserting the widespread use of construction mediation. Originality/value This paper contributes to knowledge by bringing new insight into the practice of particular ADR techniques in the Palestinian construction industry and in identifying challenges to the more widespread adoption of these ADR techniques. This paper exposes the myth of the popularity of construction mediation and the dilemma to the use of mediation brought by the social construction and conceptualisation of the mediator’s role.

No Day In Court: Access to Justice and the Politics of Judicial Retrenchment. By Sarah Staszak. New York: Oxford University Press, 2015. 320 pp. $99.00 cloth.

No Day In Court: Access to Justice and the Politics of Judicial Retrenchment. By Sarah Staszak. New York: Oxford University Press, 2015. 320 pp. $99.00 cloth.Sarah Staszak's No Day In Court is an ambitious and comprehensive treatment of the politics of securing access to courts and justice. Staszak's general claim is that wide array of rules, procedures, and 5) operate as subterranean mechanisms 9) that constrict access to courts for civil litigants that seek their day in court as part of the rights revolution. This phenomenon, or retrenchment (p. 5), is theoretically explained by a confluence of multiple coalitions, promoting different goals and interests, which have changed over 6). The key variables that elucidate judicial retrenchment are insularity, ideology and temporality 10); that is, different actors and interests constrict access by autonomously maximizing their discretion within the institutional framework of the federal judiciary to make the of the game (pp. 5, 213) that advance their political goals in any given historical time period.Staszak adopts a historical institutional approach to test her theory of judicial retrenchment within the context of four case studies that show that access to courts is restricted by imposing fundamental changes to the decision-makers, rules, venues, and incentives that comprise adjudication 34). For Staszak, the case studies are illustrative of different strategies that are used by a variety of institutional actors, coalitions and interests to restrict court access over time 29). After clearly outlining her theory in chapter two, in the next chapter the author details the dramatic shift toward the use of alternative dispute resolution (ADR) and mandatory arbitration agreements, a process that has removed federal judges from deciding contested cases involving consumer protection, employment contract, or student loan disputes. Chapter four then demonstrates how different legal and political interests advocated for rule changes that culminated in the Rules Enabling Act of 1934 and the 1938 Federal Rules of Civil Procedure-each are significant because they provide the foundation for the set of procedural rules that govern civil adjudications. As with the rise of ADR, the creation of procedural rules were born out of initial reform efforts that were designed to facilitate access but ultimately worked to deny it in the ensuing post-New Deal institutional struggle between the legislative and judicial departments' effort to control the rulemaking process, especially after the 1970s. In both chapters, the author effectively argues that while the anti-litigation posture of the Supreme Court in recent decades has contributed mightily to retrenchment, the phenomenon itself can only be explained by the convergence of a multiplicity of ideological (and sometimes apolitical) interests that is often bipartisan in nature in any given political time. …

Systems of Legal Defence Used by Latin American Countries in Investment Disputes

This article describes the main features of the systems of legal defence that Latin American countries have been using when facing investment arbitration. It focuses on Argentina, Venezuela, Ecuador, Mexico, Peru, Bolivia, and Costa Rica, as a group of countries representative of the region and examines their strategies of internalisation or externalisation of the State’s legal defence and briefly addresses whether a policy to prevent investment disputes is in place. The article concludes that there is no uniform strategy of Latin American countries for the legal defence of investment disputes, but the large majority of States follow a mixed approach employing in-house lawyers and external counsel. With respect to the prevention of investment disputes, only some countries in the region have considered a preventive approach, or foster the use of alternative dispute resolution (ADR).

The importance of teaching dispute resolution in a twenty-first-century law school

ABSTRACTCivil justice reviews over the past 20 years have encouraged the use of alternative dispute resolution (ADR) and particularly mediation. Mediation is arguably now becoming more mainstream in terms of dispute resolution process choice. In some instances law changes have been introduced requiring parties in dispute to consider using mediation; similarly, lawyers have an ethical responsibility to provide advice to their clients about the range of dispute resolution processes available. What is lacking however is a corresponding appreciation of the changing attitudes to the teaching of dispute resolution in the majority of UK law schools, where the promotion of adversarialism within the curriculum appears to remain the focus as the primary and only method of dispute resolution. The article argues that this is unreflective of current attitudes and thinking towards dispute resolution in most common law countries, where litigation is no longer necessarily the primary dispute resolution process of choice. Whilst there was token appreciation of the importance of mediation advocacy and its inclusion recommended within the Bar Practice Training Course (BPTC), the recent Legal Education and Training Review was silent on any suggestions about the inclusion of dispute resolution based curriculum content at any stage of legal education in England and Wales. The article will explore the historical development of lawyers’ attitudes to dispute resolution within the civil justice arena and academics’ teaching of curriculum associated with it in UK law schools. The article will pose questions on why recent legal history suggests that law schools should now perhaps take a more socio-legal approach to their curriculum content and embrace the teaching of dispute resolution as a defined subject area for the twenty-first-century law school.

Improvement of national legislation in alternative resolution of legal disputes area

Problem setting. Current legislation does not adequately regulate using of alternative dispute resolution. The article emphasizes the need for amending existing legislation to ensure its compliance with international standards, its obligations in connection with the signing of the Association Agreement and ensure efficient use of alternative dispute resolution (hereinafter - ADR) party relations.Recent research and publications analysis. Problems of alternative dispute resolution were viewed in their works viewed N. Bondarenko-Zelinska, Y. Pritika, O. Spectr, A. Shypilova, V. Yakovleva and others.Paper objective The article goal is to analyze the proposals of the Constitutional Commission in the field of justice, as well as analysis of bills related to ADR, research of problems of legal regulation, which will help optimize procedures and improve the law in general.The paper main body. Realization of economic, political, governmental, legal and other reforms in society lead to a significant strengthening of social and legal tensions, the emergence of a large number of conflicts in the legal field. Traditionally, parties use courts that are organized and funded by the state in order to protect rights and legal interests. However, justice for many obvious advantages has several disadvantages: a large workload of courts, length and complexity of the proceedings, considerable legal costs not properly worked out mechanism of the principle of competition and equality.Conclusions of the research. Problems of alternative dispute resolution in domestic legal literature are mostly synthesis and theoretical. Various alternative forms, procedures, and methods are used by foreign countries, along with the traditional proceedings. They do not replace justice and do not deprive the persons right for judicial protection. Instead, give them a choice between public or non-governmental (private) forms of resolving legal disputes, allowing parties to decide which type of procedures will help to resolve specific legal dispute.

The Role of the Court in Alternative Dispute Resolution

This paper discusses the role of the court in the context of the development and use of Alternative Dispute Resolution (“ADR”) in Australia and highlights the wide range of processes that are now used to resolve disputes at all levels of the Australian society. ADR use has greatly expanded in Australia in recent years and this has sometimes been accompanied by some concern that traditional litigation systems or justice will be adversely affected by the promotion of this “new order”. However, despite some voicing concerns, ADR has been enthusiastically adopted in a range of areas and a series of state, federal and judicial initiatives support ADR. ADR processes have not remained static and there are emergent forms of ADR that have been established as a result of a perceived need to vary ADR practice. Some of these emergent forms, such as collaborative practice, are directed at multidisciplinary approaches to conflict resolution that exists outside the court system. Other forms of ADR that focus on facilitative processes are directed at group decision-making and planning. Many of these developments have limited the role of the court in ADR, essentially as courts no longer play a lead or management role in respect of much of the ADR that takes place.

Selection and use of Alternative Dispute Resolution (ADR) in construction projects — Past and future research

Research on Alternative Dispute Resolution (ADR) selection and use has been gaining prevalent interest from project practitioners and researchers. This study presents a systematic review of the factors influencing ADR selection and use in construction projects for the last 32years. A total of 446 articles from 21 construction project-related journals were identified and reviewed. Among these, only 13 articles focused on the factors influencing ADR selection and use. These 13 articles were then analysed, synthesized, and summarized in terms of the research methods used, distribution across countries and citation influences. The studies on the selection and use of ADR were mainly based on utility. Utility factors offer less conceptual basis to explain decision making. To address this deficiency, this study reclassified ADR selection and use with reference to Theory of Planned Behaviour (TPB) based framework. The potential development and research avenues of using the TPB framework were also discussed.

Families Matter: Recommendations to Improve Outcomes for Children and Families in Court

The Families Matter initiative was designed as a major, multi-year undertaking to develop legal practice methods and approaches to reduce the destructive consequences of the family legal process. The initiative was intended to respond to the need for deep and meaningful reform of the family law process. Convened in June 2010 by the University of Baltimore School of Law Sayra and Neil Meyerhoff Center for Families, Children and the Courts (CFCC), the Families Matter Symposium brought together an interdisciplinary group of family law experts for two days at the University of Baltimore to identify problems regarding the practice of family law and to make recommendations about promising solutions. The best outcomes for family law cases require a combination of lawyers and mental health professionals, social scientists, mediators, judges, academics, policymakers and financial experts, among others. In addition, Symposium participants acknowledged that the resolution of family law cases must not be “win or lose” and that a major shift in tone is needed. The main question was, “How do we radically transform a family court system from one that disrupts and tears apart families to one that helps heal them?” The Families Matter initiative intended to help develop and support a family justice system with an interdisciplinary, holistic and therapeutic focus; to make a broad range of family and individual services available to separating families; to foster greater use of alternative dispute resolution at the earliest stages of a case; and to encourage training law students, lawyers, judges, and court personnel toward a less adversarial, therapeutic, holistic focus when dealing with family law matters. This report provides a summary and overview of the Symposium discussions and the suggestions for reform that emerged from those discussions.

ADR and Islamic Law: The Cases of the UK and Singapore

This paper examines the use of Alternative Dispute Resolution – and more particularly arbitration mechanisms – available to Muslims in the UK and in Singapore. With the rising importance of arbitration and other methods of ADR across many areas of law, the use of ‘religious arbitration’ has come to the fore. One of the oft-heralded virtues of arbitration has been its capacity to allow parties to choose the law governing their agreements and to choose the arbitrators to settle disagreements. In this respect, arbitration, even more so than other ADR methodologies, may be viewed as ‘pluralism enhancing’ since it opens the possibility of a wide range of different legal orders operating within one jurisdiction. When arbitration meets religious norms, however, certain issues can arise. First, need there be any limitation on the impact of religious norms in the arbitration process at either the level of substantive law or background of the arbitrators? Second, what if the substantive law that comes from religious norms is itself subject to diverse interpretations? This second issue is particularly relevant where the invocation of the Shari‘a in arbitration agreements can actually invoke a broad spectrum of legal opinion. If states attempt to define the Shari‘a, they may bring clarity to these norms. However, such a process runs the serious risk of constricting the interpretive plurality inherent in the Shari‘a, and thus could, paradoxically, undermine the pluralism enhancing virtues of arbitration. The paper will explore these issues by examining the different contexts of the UK and Singapore.

Domestic violence made public: a case study of the use of alternative dispute resolution among underprivileged women in Bangladesh

Disputes within the family and cases of domestic violence in Bangladesh have traditionally been resolved either among kinsmen or in village panchayats where young women have had less opportunity to be heard. This article describes a third-sector initiative in alternative dispute resolution (ADR) in cases of domestic violence in Sylhet, Bangladesh. Data from 20 case studies of female victims of domestic violence, interviews with six lawyers, and participant observation in 10 mediations in a counselling centre are used to examine how this kind of social innovation affects the bargaining position of battered women in a kin-based, patrilineal and patrilocal society. The battered women involved in these mediations were rural or urban, less educated, and economically disadvantaged. The findings illustrate the limitations of ADR in cases of domestic violence. ADR as practiced in Sylhet, Bangladesh provides poor women a chance to be publicly heard in mediations of their domestic crises. However, ADR often fails to deliver lasting, just, and socially progressive solutions. The adoption of ADR practices should not be considered as an alternative to the development of the formal judicial system, because it lacks the power to enforce agreements and supports the hegemonic status quo, leaving the battered woman and her natal family with very limited options.

Use of Alternative Dispute Resolution in Labor Disputes in India, An Analysis

Resolving individual labor rights disputes in recent years has taken new significance and prominence for both domestic and multinational corporations, especially in a country like India, wherein traditional justice delivery mechanism is overburdened, time consuming and costly. ADR is has evolved as a perfect alternative in such a situation, for speedy and cheaper settlement of the disputes. This paper briefly analyses the history of ADR and comparative analysis of use ADR in labor disputes.

ADR Clause by Any Other Name Might Smell as Sweet: England's High Court of Justice Queens Bench Attempts and Fails to Define What Is Not an Enforceable ADR Clause - Cable 7 & Wireless Plc v. IBM United Kingdom Ltd

The High Court of Justice Queens Bench Division in England issued a ruling that provides sweeping support for the use of Alternative Dispute Resolution (ADR) in private pre-dispute contract clauses.' While this support might seem to aid in developing the growing ADR movement in England, the judge may have put the cart before the horse by enforcing a non-descript and broad ADR contract clause that lacks the specificity needed to ensure a fair outcome. This decision could be detrimental for disputing parties and the future of the ADR movement itself.

The feasibility of alternative dispute resolution to resolve intellectual property disputes in Jordan

Bashar H. Malkawi is Associate Professor of Law at the University of Sharjah, United Arab Emirates. The purpose of this article is to examine the feasibility and working of the conciliatory means for settlement of intellectual property disputes in Jordan. Arbitration is the principal mechanism used. This article discusses two specific issues relating to the use of alternative dispute resolution (ADR) for the resolution of intellectual property disputes: the reasons why an owner or user of intellectual property rights might prefer to resolve disputes concerning those rights by means of ADR and whether disputes involving intellectual property rights are arbitrable. My discussion of the first issue is not specific to any particular country. However, discussion of the second issue reports on the state of the law in Jordan as a case study for other Arab countries.

Can Alternative Dispute Resolution Mechanisms Become the Default Method for Solving International Intellectual Property Disputes?

This essay explores how the use of alternative dispute resolution (ADR) mechanisms can be promoted to solve international IP disputes. It presents the case of internet domain name dispute resolution and focus particularly on the Uniform Domain Name Dispute Resolution Policy (UDRP) and the way in which this policy has been adopted as a model by legislators. On this basis, it analyzes how, and under what conditions, other types of IP ADR systems can be developed in light of the UDRP, and will explore whether ADR systems can become the default method for solving international IP disputes.

Encouraging Greater Use of Alternative Dispute Resolution in Investor-State Dispute Settlement: Opportunities and Challenges

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Courts, Judges and Judicial Administration

The increasing volume of civil cases in the courts in Victoria requires courts to manage civil litigation innovatively to facilitate the just, efficient, timely and cost-effective resolution of the real issues in disputes between the parties. Effective methods of case management by specialist supervising judges with the use of alternative dispute resolution are at the forefront of the administration of civil justice in the County Court of Victoria.

Collective and individual alternative dispute resolution in France and Britain

The paper compares trends and case studies of individual and collective employment conflicts in France and the UK. Its focus is on the extent to which conciliation, mediation and mediation are used within the two different industrial relations systems. In both, third-party intervention is associated with the legitimacy conveyed by the involvement of both employers and trade unions, or by the presence of an impartial judge. The research finds extensive use of alternative dispute resolution is taking place in both countries, with dispute resolution taking place commonly in the justice system in France, while in the UK there is extensive use made of the arms-length independent government agency, Advisory Conciliation and Arbitration Service. However, the research concludes that the most effective third-party interventions take place when they are combined with mobilisation, rather than merely being the sole form of dispute resolution.

Special Issue on Construction Dispute Negotiation: Nuts and Bolts of Negotiation as a Means of Construction Dispute Resolution

This special issue provides a rich and inspiring deliberation on negotiation as a means of construction dispute resolution. Negotiation is a human activity that inevitably is affected by personality and behavioral dimensions. Yates timely reminds us that negotiation remains the most significant resolution method of construction disputes. Notwithstanding the wider use of alternative dispute resolution in construction in recent years, Yates explains that contract claims are a source of dispute. If these claims can be settled by negotiation, there is no more demand for alternate dispute resolution (ADR). The skill set of effective negotiators is also discussed. The performance of a negotiator depends on how confident the negotiator is on the tactics chosen for the negotiation. This is the proposition of Bandura’s self-efficacy theory. Yiu and Cheung elaborate on this proposition in the context of construction dispute negotiation. The degree of confidence will influence the result that in turn will drive the use of appropriate tactics. Four sources of selfefficacy are discussed, and these are performance accomplishments, vicarious experience, verbal persuasion and emotional arousal. Liu and Zhai are more concerned with the influence of personality on the adoption of conflict handling styles and conflict outcomes. Working with a sample of facility managers in Hong Kong, it was found that integrating and compromising conflict-handling styles could lead to functional conflict outcome, whereas avoiding style predicts dysfunctional conflict outcomes. It is suggested that in forming project teams, the personality of the members should be considered in the process of having these members working interdependently together. The mutual dependence and inherent diverging interests of the team members are a potential source of conflict. Charoenngam and Mahavarakorn further explore the notion of a negotiator’s behavior. The findings of a survey with construction managers in Thailand suggested that where collaborative behavior is derived, the chance of achieving win-win results in negotiation is higher. Five collaborative attributes, namely, rational, goal-oriented, reactive, cooperative, and rational, are developed. With respect to four types of common construction disputes, the respective negotiating behaviors are discussed. This study reinforces the human side of negotiation. Lau singles out distrust as the root cause of conflict relationship. Using 10 Hong Kong court cases, Lau illustrated how distrust featured and contributed to the dispute. Furthermore, the study unveils that in the 10 cases, a network of workers were involved. This complication is not uncommon in construction and is often the futile ground for dispute. Distrust hampers effective communication that is an essential success factor of a successful negotiation. Ren, Shen, Xue, and Hu provide two international project cases to illustrate the application and limitations of principled negotiation in construction disputes. Principled negotiation builds on the assumption that negotiators are rational utility maximizers. This is workable if emotional factors can be suppressed. The cases aptly illustrate this observation. International disputes are far more complex. Caroee and Singh describe the arguments and proceedings of an international dispute between Finland and Denmark in relation to a planned fixed link across the Great Belt. This case demonstrates the pragmatic side of negotiation and the art of compromise, as well as the wisdom in formulating innovative resolutions. After all, these are only available in consensus negotiation.