› › An Empirical Study Of Dispute Resolution Under An Arbitration System


From Court Surrogate to Regulatory Tool

Author : Mark C. Weidemaier

Publisher :

Page : 0 pages

File Size : 15,65 MB

Release : 2008

Category :

ISBN :

Get eBook

Book Description

A growing body of empirical research explores the use of arbitration to resolve employment disputes, typically by comparing arbitration to litigation using relatively traditional outcome measures: who wins, how much, and how quickly. On the whole, this research suggests that employees fare reasonably well in arbitration. Yet there remain sizeable gaps in our knowledge. This Essay explores these gaps with two goals in mind. The first and narrower goal is to explain why it remains exceedingly difficult to assess the relative fairness of arbitration and litigation. The outcome research does not account for a variety of "filtering" mechanisms that influence the relative merits of the cases adjudicated in each system. This Essay explores these filters, focusing on one in particular: most employee grievances are resolved within the workplace through relatively informal procedures. Workplace structures thus filter out most employee grievances before they reach arbitration. This fact has significant implications for efforts to interpret the arbitration outcome research. It also highlights the significance of the workplace as a locus of dispute resolution activity. Indeed, a growing body of research focuses directly on workplace compliance and grievance procedures. Recognizing the significance of workplace dispute resolution leads to this Essay's broader goal. That goal is to expose, and hopefully bridge, an artificial conceptual divide that separates the arbitration research from research into workplace dispute resolution. Many researchers view internal compliance and grievance procedures as a means of harnessing the employer's own regulatory capacity. This conception drives a research agenda that explores the role of workplace structures in generating private norms and in implementing (or subverting) public norms like anti-discrimination. By contrast, the arbitration outcome research conceives of arbitration narrowly as a court surrogate, one that should ideally yield equivalent outcomes at lower cost. Although legitimate to a degree, this conception artificially separates arbitration from other employer-structured disputing procedures and yields an empirical agenda that leaves fundamental questions unanswered. This Essay closes by discussing two of these questions: First, do arbitrators play a meaningful regulatory role, either by shaping other arbitrators' practices or by shaping the terms of arbitration contracts? Second, under what circumstances do arbitrators effectively generate and enforce norms?







Dispute Resolution

Author : Carrie J. Menkel-Meadow

Publisher : Aspen Publishing

Page : 819 pages

File Size : 27,37 MB

Release : 2018-09-14

Category : Law

ISBN : 1543803105

Get eBook

Book Description

Dispute Resolution: Beyond the Adversarial Model, Third Edition provides a comprehensive look at the current state of ADR. For each area of Negotiation, Mediation, Arbitration, and Hybrid processes, the text incorporates four key aspects: the theoretical framework defining the process; the skills needed to practice it; the ethical issues implicated in its use and how to counsel users of such processes; and legal and policy analyses, with questions and problems within the text. New to the Third Edition: A shorter, more compact book designed to be student-friendly Exercises and discussion problems throughout Designed for one chapter to be covered each week of a typical ADR course The latest on Online Dispute Resolution, Dispute System Design, Supreme Court decisions on arbitration, and empirical work on mediation and negotiation Professors and students will benefit from: Comprehensive, current coverage. The theory, skills, ethical issues, and legal and policy analyses relevant to all key areas of contemporary ADR practice—Negotiation, Mediation, Arbitration, and hybrid and multi-party processes and their appropriate uses—are thoroughly covered using a rich range of up-to-date cases and readings. Authored by the leading scholars and teachers in the field of Dispute Resolution. The authors are award winning and recognized for their scholarship, teaching, practice, policy making, and standards drafting throughout the wide range of particular ADR processes. Practical approach to problem-solving. The text engages students as active participants in resolving human and legal problems, using individual or combined resolution processes in varying gender, race, and cultural contexts. International and multi-party dispute resolution. These important, high-interest contexts and applications are thoroughly covered in discrete chapters. Readings balance theory and theory-in-use. Readings include cases, behaviorally and critically based articles, examples, empirical studies, and relevant statutory and other regulatory material to illuminate the challenge of balancing rules and laws with the economic and emotional constraints inherent in disputes. Challenging, relevant readings. The text includes a wide range of perspectives, from Fisher, Ury, and Patton’s Getting to Yes, Raiffa’s Art and Science of Negotiation, and materials on modern deliberative democracy, group facilitation and decision making, counseling clients about uses of ADR, enforcement of negotiation, and mediation agreements. Key cases include AT&T v. Concepcion and other recent Supreme court cases on arbitration. Teaching materials include: Numerous role-plays and simulations for skills development Suggested teaching exercises, syllabi and “answers” to problem boxes found in text Recommendations for supplemental materials, such as videos and transcripts Examination and paper suggestions for each chapter



The Discourses of Dispute Resolution

Author : Vijay Kumar Bhatia

Publisher : Peter Lang

Page : 304 pages

File Size : 36,30 MB

Release : 2010

Category : Dispute resolution (Law)

ISBN : 9783034304764

Get eBook

Book Description

This volume presents some of the findings from a project on various aspects of Alternative Dispute Resolution (ADR), including conciliation, mediation, and arbitration. To study the discursive practices of ADR today, an international initiative has been undertaken by a group of specialists in discourse analysis, law, and arbitration from more than twenty countries. The chapters in this volume draw on discourse-based data (narrative, documentary and interactional) to investigate the extent to which the 'integrity' of ADR principles is maintained in practice, and to what extent there is an increasing level of influence from litigative processes and procedures. The primary evidence for such practices comes from textual and discourse-based studies, ethnographic observations, and narratives of experience on the part of experts in the field, as well as on the part of some of the major corporate stakeholders drawn from commercial sectors.



Employment Dispute Resolution and Worker Rights in the Changing Workplace

Author : Adrienne E. Eaton

Publisher : Cornell University Press

Page : 314 pages

File Size : 39,66 MB

Release : 1999

Category : Business & Economics

ISBN : 9780913447772

Get eBook

Book Description

Have the speed, informality, and low cost of the grievance and arbitration system deteriorated? Has the system become too adversarial? Has it lost its problem-solving character? This book examines the nature and degree of change in workplace dispute resolution in the context of ongoing changes in work and in labor relations.The volume begins with an editors' introduction that provides context and offers a political perspective on the current state of dispute resolution in the workplace. The chapters that follow contain critiques of the existing legal framework surrounding mandatory arbitration in the nonunion sector and a review of the empirical literature on nonunion dispute resolution. Employment Dispute Resolution and Worker Rights in the Changing Workplace includes sections on grievance mediation, the status of the grievance procedure in workplaces with extensive worker and/or union participation in decision making, and high-performance workplaces. The study concludes with trends in dispute resolution in the public sector and with the alternative dispute resolution system commonly practiced in the unionized construction industry.



Discussions in Dispute Resolution

Author : Art Hinshaw

Publisher : Oxford University Press

Page : 416 pages

File Size : 38,42 MB

Release : 2021-04-13

Category : Law

ISBN : 0197513263

Get eBook

Book Description

While arbitration was robust in colonial and early America, dispute resolution lost its footing to the court system as the United States grew into a bustling and burgeoning country. And while dispute resolution processes emerged briefly from time to time, they were dormant until the enactment of the Federal Arbitration Act and collective bargaining grew out of the labor movement. But it wasn't until 1976, when Frank Sander delivered his famous remarks at the Pound Conference, that the modern dispute resolution movement was born. By the year 2000, alternative dispute resolution had transformed from a populist rebellion against the judicial system to mainstream legal practice. Today, lawyers and retiring judges look to arbitration and mediation for a career pivot, and law schools train law students in the finer arts of dispute resolution practice as both providers and advocates. Discussions in Dispute Resolution brings together the modern dispute resolution field's most influential commentaries in its first few decades and reflects on what makes these pieces so important. This book collects 16 foundational writings, four pieces from each of the field's primary subfields--negotiation, mediation, arbitration, and public policy. Each piece has four commenters who answer the question: why is this work a foundational piece in the dispute resolution field? The purpose in asking this simple question is fourfold: to hail the field's foundational generation and their work, to bring a fresh look at these articles, to engage the articles' original authors where possible, and to challenge the articles with the benefit of hindsight. Where possible, the book gives the authors of the original pieces the opportunity either to reflect on the piece itself or to respond to the other commenters.



Mediation in the Reflection of Law and Society

Author : Lenka Holá

Publisher : Kluwer Law International B.V.

Page : 325 pages

File Size : 50,82 MB

Release : 2021-12-08

Category : Law

ISBN : 9403542926

Get eBook

Book Description

Despite slow progress in use, mediation continues to consolidate its presence in dispute resolution. This important book argues that a more favourable socio-legal climate must be created for mediation to thrive, and accordingly analyses the legal, cultural, social, systemic and spatial aspects of the use of mediation in the legal practice of the different countries of the European Union (EU). Based on a spatiotemporal analysis and models of mediation in the EU, it pinpoints the social and cultural reasons for the fragmentation of its legal regulation and shows what paths are available to promote the effective implementation of mediation in social practice. It is the first book to capture the socio-legal context of mediation. A spatiotemporal analysis of the extent of use of mediation in a region as large and at the same time as diverse as the EU has never been carried out before. Using various methodological and conceptual approaches to analyse the legal and social aspects of introducing mediation to legal systems, the authors – all with long-term experience in the exercise and research of mediation directly in the field – provide invaluable insights into such facets of the use of mediation as the following: the social context that raises the need for mediation; obstacles to the wider use of mediation in resolving disputes between parties; the effects of social influences reflected in legislation that shape the laws of each country; the basic models that make up the system of access to mediation in specific EU Member States; the role of law as a tool for social change and its reflection in the legal regulation of mediation; and perspectives for further development of mediation in the EU. The legislative efforts proposed to enhance the regulation of mediation in EU countries are based on modern knowledge of law, sociology and psychology. As a unique combination of exploration of the theoretical determinants of mediation and an empirical study of the extent of its use in the European area, this book’s fundamental contribution to the legal theory and practice of mediation is inarguable. Its analysis of mediation from three perspectives – as a means of improving citizens’ access to justice, as a means of applying social justice in society, and as a means of restorative justice – are of the utmost value in today’s global society. For users of mediation, EU institutions involved in mediation, EU Member State authorities addressing the issue of mediation, and the wider dispute resolution community worldwide, the book will be welcomed for the giant steps it takes toward refining arguments for the promotion of mediation and its development, in theory, research and practice.