Dispute Resolution

Parenting coordination is a client-pay, hybrid alternative dispute resolution (ADR) process designed for parents and guardians involved in on-going, high conflict child custody disputes. The basic idea underlying the parenting coordination process is that a parenting coordinator (PC) can act more quickly than court processes and with more authority than a mediator to resolve the seemingly continuous series of issues arising between high conflict parents.

(with Madeleine J. Lewis)

Conditions precedent to Farmout Agreements (FOA) are critical in ensuring that an agreement is fulfilled under conditions that are protective of the parties' interests in the agreement. Conditions precedent offer parties an escape route from a project if certain approvals are not obtained or if other unexpected circumstances render the project legally or technically infeasible. In the context of FOAs, parties may make their agreement to a project contingent upon governmental approvals, the farmee's timely drilling of wells, or environmental assessments, for example. Generally, if one or several conditions have not been fulfilled by a certain date, the parties may have the right to terminate the contract. As with any contractual clause, ambiguous or contentious conditions precedent are likely to foment disagreement among parties and may result in disputes. Though many ambiguities can be avoided through precise language and careful drafting, it is not always possible to avoid the host of potential disagreements regarding the correct interpretation of a contract. For seamless resolution of disputes, parties to a FOA must carefully select their FOA model in light of the parties' specific positions and interests. This article endeavors to provide a limited overview of conditions precedent in FOAs for students and young practitioners, and highlight possible dispute resolution planning techniques for use in practice.

This paper focuses on the effects of nonbinding recommendations on bargaining outcomes. Recommendations are theorized to have two effects: they can create a focal point for final bargaining positions, and they can decrease outcome uncertainty should dispute persist. While the focal point effect may help lower dispute rates, the uncertainty reduction effect is predicted to do the opposite for risk-averse bargainers. Which of these effects dominates is of critical importance in the optimal design of alternative dispute resolution (ADR) procedures, which are becoming increasingly utilized to help resolve disputes in a variety of settings. We theoretically examine the effects of recommendations on the bargaining contract zone. Our theoretical framework, which allows bargainers ’ final positions to influence a binding outcome should negotiations fail, provides for a more stringent test of focal points than previously considered. We also present data from controlled laboratory bargaining ...

This working paper explores the interplay of socioeconomic, institutional, and cultural factors that affect disputing behaviour in Russia and China. It compares their cultural attitudes towards conflicts, explores the differences in their contemporary institutional arrangements for responding to grievances, and analyses the role of the judiciary in relation to Russia’s ‘managed democracy’ and Chinese authoritarianism.

The primary mechanism for dispute resolution under IDEA (Individuals with Disabilities Education Act) is a due process hearing. The total number of adjudicated hearings under IDEA has dropped from the high level during the latter part of the 1990s and the early part of the current decade. Yet relatively few jurisdictions, led by the District of Columbia and New York, account for the overwhelming majority of these decisions. This article presents the results of a state-by-state survey of the hearing officer system. This current “snapshot” identifies the key features, including (a) whether the system is one-tier or two-tiered; (b) whether the IHOs are part-time or full-time; (c) whether their legal background is primarily in law or special education; (d) which agency assigns them and its procedures for the assignment; and (e) what is the updated volume of adjudicated hearings—i.e., those conducted to completion resulting in a written decision.

The article is devoted to the approaches of the Republic of Belarus and foreign countries to arbitrability of the disputes
connected with unfair competition. The authors analyse both the provisions of treaties and normative legal acts, as well as
the materials of judicial practice on this issue. Based on the analysis made they conclude that it is reasonable for the parties
of an arbitration agreement to choose as the law applicable to the contract and lex arbitri the law of the state which in principle
allows arbitrability of the mentioned disputes.

Malachi’s dream of becoming a lawyer has been diminished as a result of the accident therefore suffering pain and loss of his dream career can claim general and specific damages. The plaintiff must prove that the defendant owned a duty of care to the plaintiff. Such that, driver owe a duty of care to their pedestrians, and the said duty of care was breached by the defendant when the driver knocked Malachi down. The injuries sustained by Malachi should be linked to the actions of the driver. The breach of duty in this case is direct and proximate to the cause.

A certain amount of pollution invariably accompanies industrialization
and no claim is made of an international right to a completely pollution free environment. However, the principles of responsibility for actions adversely affecting the natural environment of other nations, offer sufficient guidance to impose limits on national emissions and define the allowed activities. Any non-compliance with treaty provisions can be seen as constituting a point at which concerns surrounding the environmental effects of transboundary air pollution outweigh a nations' interest in industrial development. The International Court of Justice is entitled to define duties and clear legal rules well enough to apply them to specific controversies.
The submission of matters of controversy to the International Court of Justice will enable the court to rule on any dispute arising between the LRTAP Parties. Therefore, one of the most respected bodies will give force not only to international environmental principles, but to the provisions of respective treaties as well.
The new framework of the 1979 Convention on Long-Range Transboundary Air Pollution does foster preventing action introducing all the requirements of information exchange and cooperation. It establishes bodies, within which consultations and negotiations are conducted. The time of the "fire-brigade mentality" has irrevocably passed. Contemporary efforts are more focused on prevention than on estimation and compensation of air pollution damages.
Claimants are not required to demonstrate the injury to the degree necessary in the past. The LRTAP framework creates monitoring system, therefore the organized scientific researches clarify the link between emissions and damages.

In both private and public justice systems, online dispute resolution (ODR) technologies are profoundly affecting people’s access to justice and redress and the nature of their procedural experiences. Automation and artificial intelligence play a key role in delivering the promise of ODR. At the same time, there are challenging normative and practical concerns regarding the ability of “machine made justice” to meet appropriate procedural and substantive standards. The article presents a conceptual framework for evaluating the role of technology in dispute resolution and its effect on procedural justice. Subsequently, it proposes an instrument for evaluating procedural justice experiences in ODR; and reports the results of a study comparing the impact of automated (software-powered) and human-powered online mediation and arbitration on disputants’ procedural justice experiences. Finally, the article discusses the implications of its findings on ODR process design, regulation, and pra...

The European single market is a symbol of European integration. Certainly, the European internal market brings great opportunities to its citizens and professionals, especially when the European legislators enact new provisions in order to boost the internal market.
        In May 2013, the European legislator enacted two legislative measures, whose aim was to encourage the employment of out-of-court mechanisms in order to solve consumer disputes: the European Regulation establishing the Online Dispute Resolution interactive website and the Directive on Alternative Dispute Mechanisms. Taking its cue from the first report issued by the European Commission on the Online Dispute Resolution, this article focuses on the enforcement of the European Regulation in Italy and concludes that, due to legal incongruence, no enforcement means have been dictated in order to sanction infringements to the European Regulation carried out by Italian professionals.

Title: A Primer on the Barangay Justice with ADR Law
Author: Judge Eliza B. Yu, LLM, DCL
Publisher: Central Book Supply, Inc.
ISBN: 978-971-011-204-3
No. Of Pages: 180
Size: 6"x9"
Binding: Softbound
Price:  ₱ 395
Description:  We belong to a country where our government spent huge amount of money for adversarial litigations that generate hostile feelings between the parties who are involved in expensive and protracted law suits. In 2009, the Public Attorney’s Office (PAO) Accomplishment Report and Executive Summary reported a total of 4, 154, 587 pauper clients assisted and a total of 591, 358 cases handled. In 2008, the National Prosecution Service (NPS) handled a total of 417,000 cases for preliminary investigation and a total of more or less 750,000 cases in the first and level courts averaging to 1 prosecutor for every 406 court cases. In 2007, the case load of First Level Courts totalled to 546, 314 while the case load of Second Level courts totalled to 546, 033. With these high figures, we have congested court dockets, a perennial problem since time immemorial, that hamper access to justice by the poor, a right enshrined in our Constitution. Part of the solution to this problem is to resort to Katarungang Pambarangay, known also as Barangay Justice as an alternative way of settling disputes in a cheaper and faster way. To realize this better dispute resolution, there must be an information campaign to the public, and so out of this imposing purpose, this book A PRIMER ON THE BARANGAY JUSTICE WITH ADR LAW was made upon the suggestion of a former UP College of Law Dean Froilan M. Bacungan, who was a member of Presidential Decree No. 1293 that created a presidential commission tasked with a duty of studying the feasibility of instituting a system of settling disputes among the members in the barangay without going to the courts. The author, Judge Eliza B. Yu, LLM was a former Sangguniang Kabataan (SK) Chairman and an Ex Officio member of the Sangguniang Barangay in 1992. As SK Chairman, among others, she was exposed to the legislative works in the Barangay ; She exercised the duties and responsibilities of a Barangay official; and she gained experience on simple matters dealing with the Barangay Justice System. She finished her pre-law degree from the University of the Philippines in the Visayas without paying any tuition fees as a Department of Interior and Local Government Scholar because of her position as SK Chairman. In a way, this book is her humble way of thanking the Barangay and the DILG for the free education from 1993 to 1996. She earned the distinction as the only SK Chairman from the province (Western Samar) who became a National Capital Region (Pasay City) Metropolitan Trial Court Judge in the country.

" The LRA permits councils and the CCMA to arbitrate disputes immediately if conciliation fails. The process of 'con-arb' collapses the normal two-phase process of conciliation meeting, followed by arbitration on a later date. This expedited procedure has potential dangers. For one, the same commissioner must necessarily act as both conciliator and arbitrator, meaning that, when acting in the latter capacity, he or she may have been privy to compromising information received when acting in the former capacity. This may render the process subject to review. "

1. Our recommendations help –

A. Entrepreneurs to downsize, right size or close their enterprise without government permission.
B. But, all workers who have been laid off must get PF and Severance Pay (as in Europe and Brazil)

2. Therefore we are AGAINST THRESHOLDS. Entrepreneurs and Workers suffer because of TWO THRESHOLDS.
A. SIZE: Units with 100+ workers suffer many restraints to Labour flexibility. This is disagreeable to Entrepreneurs.
B. DURATION: Only workers who have been employed for over 240 days are entitled to benefits. This seriously disadvantages workers.

We are against all thresholds as they:
i. Encourage small enterprises and not big scale, high technology ones
ii. Encourage employment of non-permanent casual workers; this blocks skill development

3. ALL WORKERS ARE ON THE MUSTER and are entitled to all benefits.

4. When worker is retrenched/laid-off, the benefits over and above PF, Bonus also includes SEVERANCE PAY (as in Europe and Brazil). We have allowed for exceptions in “Seasonal Industries”, but there are certain constraints in this sector too.

5. So now no enterprise gains from being
A. Small and Employing below 100 workers
OR
B. Firing workers before 240 days of Employment are over

6. So hiring contract /casual workers now become less attractive.
     
THEREFORE:
A. All workers hired for non-core jobs must come from a contractor’s firm where this job is a core one
B. All contract workers, no matter where they are currently hired to work, are on the Muster of their parent firm

7. On Dispute Resolution we suggest:
A. One Workers’ Council whose office bearers are elected by universal secret ballot BUT only by those inside the company.
B. Trade Unions can function within but the body representing workers will be the Workers’ Council.

8. Also a Three Tier Dispute Resolution Mechanism is suggested.
A. Workers’ Council, whose office bearers will be internal and elected internally as well.
B. Conciliation Committee, which will have labour representatives.
C. Labour Tribunal.

The time taken at each level is fixed without exceptions.

English Abstract: Online dispute resolution (ODR) technologies are now increasingly used by courts, administrative agencies, companies and alternative dispute resolution (ADR) organizations to handle cases in various legal domains. Two decades have passed since the first ODR systems were launched and their impact on access to justice and the delivery of justice has evolved to a great extent. This Article offers an overview and analysis of these developments. First, it discusses the pragmatic and ideological antecedents of ODR: developments in information technology and online activity, and the rise of the effective access to justice and alternative dispute resolution movements. Second, it proposes a typological framework for evaluating ODR systems in terms of dispute types, resolution methods, settings, technologies, providers, and process designs. It then uses the framework to systematically analyze the current landscape of ODR, offering specific examples of ODR systems that demons...

Efforts at the University of Massachusetts at Amherst illustrate how academic programs such as Legal Studies can form the basis for conflict resolution in the local community as well as on campus.
The study of conflict and its resolution lies at the core of many disciplines , but perhaps none touches as closely on this subject as legal studies, the liberal arts study of law in society. Legal studies examines the form and structure of authority in society and the conflicts that authority is expected to resolve. Legal studies also examines the role of officially sanctioned authority in exacerbating conflict. Humanistic, liberal arts legal studies differs considerably from its law school counterpart, the professional study of law. While law school builds its curriculum around the needs of a profession, a liberal arts curriculum operates within a broader context: the study of power and conflict within cultural and historical perspectives. As distinct from a pre-law curriculum, legal studies explores legal issues that arise in connection with the design of public policy and the content of public interest research. Legal studies is not limited to the study of adjudication and adversary processes. It takes these as the dominant themes for conflict management in our society and examines their development and relationship to the structure of society. Official systems of dispute resolution are compared with informal systems, such as the family.

Dispute Review Boards (DRBs) are almost 40 years old, having first been used in the United States in 1975.  It is therefore timely to assess whether they provide the mature judgement that can assist parties to manage conflicts and resolve disputes that invariably arise on construction projects, without the need to resort to arbitration or litigation. Their record to date, suggests that they can – over 2,000 projects around the world have used a DRB, of which an impressive 98% were completed with no outstanding disputes.  This success rate has fuelled an exponential growth in the use of DRBs not only in the United States, but around the world.  While DRBs, like arbitration, are a creature of contract, unlike arbitration they do not have a long history in construction dispute resolution and do not enjoy the same support and recognition as arbitration, which is the subject of an international treaty  and numerous statutory regimes around the world.

DRBs remain a relatively new dispute avoidance process (DAP) for much of the construction world, and it is difficult to find two projects that have designed and used a DRB in the same way. Principals and contractors continue to experiment with the process and often make adjustments to available standard DRB specifications,  either in the hope of yielding better outcomes from the DRB, or out of fear of what might happen if a DRB is given the full range of recommended powers. While some modifications have produced outstanding results and maximised the DRB’s ability to assist parties to avoid and/or resolve conflicts and disputes as they arise, other modifications have driven both principals and contractors to “swear that they would never use a DRB again”.  With this is mind, this article explores the factors that are critical to the success of DRBs and demonstrates through two case studies, how parties can maximise the benefits of the process, and avoid the hidden dangers that can derail a DRB.

Cooper, Donna Maree <http://eprints.qut.edu.au/view/person/Cooper,_Donna.html> & Brandon, Mieke <http://eprints.qut.edu.au/view/person/Brandon,_Mieke.html> (2008) Non-adversarial advocates and gatekeepers : lawyers, FDR practitioners and co-operative post-separation ...

The paper is a first critical analysis of the Prüm Convention on deepening transfrontier cooperation, amongst others in view of combating terrorism, transfrontier crime, and illegal migration, which was signed by Austria, Belgium, France, Germany, Luxembourg, The Netherlands and Spain on 27 May 2005 and which will enter into force after its ratification by two States. While its scope is

Territorial disputes, occasioned by colonialism in most if not all cases, remain a thorny issue in contemporary international relations. In the East China Sea (ECS), a portion of the Pacific Ocean, is a group of uninhabited islets and barren rocks which the Asian economic powers-China, Japan and Taiwan claim ownership and sovereignty over based on historical records, international legal documents and geographical fact. These islets, which China calls 'Diaoyu Islands' and Japan, 'Senkaku Islands', are close to important shipping lanes, potential hydrocarbon deposits, and good fishing areas. However, irredentism and nationalism in China, and the politics played by staunch nationalists in Japan, have from time to time led to simmering tensions between both countries. Though, China and Japan have a maritime delimitation feud over their overlapping Exclusive Economic Zone (EEZ), this paper solely examines the competing territorial claims of China and Japan to the Diaoyu/Senkaku Islands in the geostrategic East China Sea. For the study, the historical approach was adopted and data were garnered from secondary sources. The paper concludes that China has a rich history regarding the disputed islands. However, it has insufficient historical evidence to prove that it exercised territorial sovereignty over the islets centuries ago. For Japan, it has good historical evidence to make a case for the island's ownership. Also, it has met the international law requirement of 'effective occupation' of the islets.

The present paper analyzes the concept of ‘arbitrability’ in the context of construction disputes arising out of contracts with public authorities from a Bulgarian law perspective. What disputes are arbitrable under Bulgarian law? Are construction disputes with public authorities arbitrable and, if yes, are there any special rules that would apply so that the dispute becomes eligible for resolution by arbitration? What is the recent court practice on these issues? The answer to these and other questions related to the arbitrability of construction disputes
with public authorities can be found in this analysis. (Note: the paper is in English)

Traditional ideas of mediator neutrality and impartiality have come under increasing attack in recent decades. There is, however, a lack of consensus on what should replace them. Mediation Ethics offers a response to this question, developing a new theory of mediation that emphasises its nature as a relational process.

The authors argue that mediation ethics should move away from the untenable notions of mediator neutrality and impartiality and towards a focus on party self-determination. They supplement this focus with a view of mediation ethics as emerging dynamically from the efforts of mediators to respond to the unique needs and interests of the parties. This new paradigm provides the basis for a picture of the mediation profession as a community with its own internal standards of excellence, as well as a more sophisticated and realistic ethical framework for mediation practice.

Academics in law, social work and psychology will appreciate the book's nuanced account of the dynamics of mediation as a dispute resolution process. Mediation practitioners, including lawyers, social workers and counselors, will find the book a practical and helpful guide to addressing ethical dilemmas. And students of mediation will benefit from the book's clear and up to date overview of the development and principles of mediation ethics.

Imagine you are a party to mediation and you arrive at your mediation session only to be faced with an 800 pound gorilla, in a suit of course, who will be your mediator so you ask yourself,
“Can a gorilla be a mediator?” This article examines the philosophical and theoretical foundations of human conflict, reviews some of the thinking about mediation in the last 30 years, and introduces the author's "critical incident and intervention approach" to working with conflict.

Transboundary river basins are under increasing pressure due to population growth, agricultural and industrial developments, and climate change, as well as river pollution. Water scarcity is on the increase due to the increasing gap between water demands and supply. This will result in more tensions, disputes, conflicts, and deadlocks in negotiations over water distribution, length of time it takes to fill the reservoir, and allocation. Ethiopia is building the Grand Ethiopian Renaissance Dam (GERD) on the Blue Nile River with a hydropower capacity of 6,000 MW. The total estimated cost of the project is US$ 4.8 Billion and will be the largest dam in Africa, which is much larger than the Aswan Dam in Egypt. Regional controversies have risen over the construction of the dam between Ethiopia and the downstream countries (Sudan and