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Article

e-Court – Dutch Alternative Online Resolution of Debt Collection Claims

A Violation of the Law or Blessing in Disguise?

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords fair trial, money claims, judiciary, ECHR, arbitration
Authors Willemien Netjes and Arno R. Lodder
AbstractAuthor's information

    In 2017, the Dutch alternative dispute resolution (ADR) initiative e-Court handled 20,000 debt collection claims via an online arbitration procedure, and this number was expected to double in 2018. In September of that same year, the Chairman for the Council of the Judiciary, Frits Bakker, argued on the Day for the Judiciary that in the future most lawsuits can be handled automatically and that a robot judge could work fast, efficiently and cheaply. However, in January 2018, Frits Bakker seemed to have changed his mind and criticized e-Court for its lack of impartiality, lack of transparency, unlawfully denying people the right to a state Court, and for being a ‘robot judge’. Ultimately, all criticism boiled down to one issue: that the defendant’s right to a fair trial was not sufficiently protected in e-Court’s procedure. This accusation led to a huge media outcry, and as a result Courts were no longer willing to grant an exequatur to e-Court’s arbitral awards until the Supreme Court had given its approval. This forced e-Court to temporarily halt its services. Questions such as ‘is arbitration desirable in the case of bulk debt collection procedures?’ and ‘are arbitration agreements in standard terms of consumer contracts desirable?’ are relevant and important, but inherently political. In this article, we argue that the conclusion of the judiciary and media that e-Court’s procedure is in breach of the right to a fair trial is not substantiated by convincing legal arguments. Our aim is not to evaluate whether online arbitration is the best solution to the debt collection claim congestion of Courts in the Netherlands, but instead to assess e-Court’s procedure in the light of Article 6 of the European Convention of Human Rights. The conclusion is that e-Court’s procedure sufficiently guarantees the right to a fair trial and thus that the criticism expressed was of a political rather than legal nature.


Willemien Netjes
Faculty of Law, Vrije Universiteit Amsterdam.

Arno R. Lodder
Article

The Pull of Unbiased AI Mediators

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords automation, artificial intelligence, algorithm development, mediation, pull style communication
Authors Chris Draper
AbstractAuthor's information

    There is significant concern in the access to justice community that expanding current count-based online dispute resolution (ODR) efforts will further exacerbate the systemic inequities present in the American justice system. This well-founded fear stems from the fact that current ODR tools typically calibrate artificial intelligence (AI) algorithms with past outcomes so that any future cases are consistently analysed and filtered in a manner that produces similar results. As courts consider ODR tools for more complicated cases that often require mediation, there is significant disagreement on whether it is possible to create an AI mediator and how that could be achieved. This article argues that an effective AI mediator could be created if its design focuses not on the outcomes achieved by the mediation but on the manner of the communication prompts used by the AI mediator.


Chris Draper
Chris Draper, PhD, PE, is the Managing Director of Trokt, responsible for guiding the development, adoption and growth of the Trokt Online Dispute Resolution platform. Dr. Draper is a trained engineer with a focus on human-technology interface risks, a certified mediator with a focus on special needs education conflicts, and an expert on the evaluation of highly complex systems that assist in the human management of legally sensitive data. Dr. Draper received his Bachelor of Science from the University of California at Berkeley and his Doctor of Philosophy from the University of Glasgow.
Article

Mobile Online Dispute Resolution Tools’ Potential Applications for Government Offices

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords mobile online dispute resolution, MODR, ODR, computer mediated communication, dispute prevention, workplace conflict
Authors Stephanie Gustin and Norman Dolan
AbstractAuthor's information

    Online communication practices have become intrinsic to government work environments. Understanding the impact of these practices, whether they be general computer mediated communication (CMC) or specifically online dispute resolution (ODR) processes, is an essential step in supporting respectful and healthy work environments. ODR literature focuses almost exclusively on e-commerce, leaving large gaps in the body of knowledge as ODR applications diversify. Available ODR tools, which simply transpose traditional alternative dispute resolution (ADR) processes online through the use of office videoconferencing systems, are not mobile and do not utilize the full capabilities of the existing technology. This article explores the potential impacts mobile ODR (MODR) tools could have on the dispute interventions and prevention initiatives in government office settings. The study used an exploratory model to establish an understanding of the experiences and needs of Canadian and Australian government employees. Findings demonstrate an interest in the introduction of education-oriented MODR tools as supplementary support with the purposes of knowledge retention and further skill development following dispute prevention training. Findings suggest that workplace attitudes towards online communication and ODR have a significant impact on the extent to which individuals successfully develop and maintain relationships either fully or partially through the use of CMC.


Stephanie Gustin
Stephanie Gustin holds an MA in Dispute Resolution from the University of Victoria, Canada.

Norman Dolan
Norman Dolan holds a PhD in Public Administration and is an Adjunct Assistant Professor in the School of Public Administration at the University of Victoria, Canada.
Article

Managing Procedural Expectations in Small Claims ODR

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords fair trial, procedural justice, natural justice, waiver, small claims, consumer disputes, proportionality
Authors Fabien Gélinas
AbstractAuthor's information

    In this article, the author reflects on the appropriate place of traditional procedural guarantees in the resolution of consumer and small claims disputes using online tools. After examining the key aspects of procedural justice that constitute the right to a fair trial and analysing its effects on procedures designed for low-value disputes, the article argues for a flexible approach that takes procedural proportionality seriously.


Fabien Gélinas
Fabien Gélinas is Sir Wiliam C. Macdonald Professor of Law, McGill University, Co-Founder of the Montreal Cyberjustice Laboratory and Head of the Private Justice and the Rule of Law Research Team. The preparation of this article was made possible by grants from the SSHRC and the FQRSC. Thanks go to Dr Giacomo Marchisio and Ms Leyla Bahmany for their kind assistance. This article was originally published in Immaculada Barral (ed.) La resolución de conflictos con consumidores: de la mediation a las ODR (Madrid: Editorial Reus, 2018).

    In 2016 the Dutch Government Commission of Reassessment of Parenthood (GCRP) proposed a wide array of legal changes to Family Law, e.g. with regard to legal multi-parenthood and legal multiple parental responsibility. Although the commission researched these matters thoroughly in its quest towards proposing new directions in the field of Family Law, multi-parents themselves were not interviewed by the commission. Therefore, this article aims to explore a possible gap between the social experiences of parents and the recommendations of the GCRP. Data was drawn from in depth-interviews with a sample of 25 parents in plus-two-parent constellations living in Belgium and the Netherlands. For the most part the social experiences of parents aligned with the ways in which the GCRP plans to legally accommodate the former. However, my data tentatively suggests that other (legal) recommendations of the GCRP need to be explored more in depth.
    ---
    In 2016 stelde de Nederlandse Staatscommissie Herijking ouderschap voor om een wettelijk kader te creëren voor meerouderschap en meeroudergezag. Ondanks de grondigheid van het gevoerde onderzoek ontbraken er gegevens omtrent de ervaringen van de meerouders zelf. Dit artikel levert een bijdrage in het vullen van deze leemte door inzage te geven in de (juridische) ervaringen van 25 ouders in meerouderschapsconstellaties in België en Nederland.


Nola Cammu MA
Nola Cammu is PhD Candidate at the Law Faculty of the University of Antwerp.
Law Review

2019/1 EELC’s review of the year 2018

Journal European Employment Law Cases, Issue 1 2019
Authors Ruben Houweling, Catherine Barnard, Filip Dorssemont e.a.
Abstract

    For the second time, various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Catherine Barnard

Filip Dorssemont

Jean-Philippe Lhernould

Francesca Maffei

Niklas Bruun

Anthony Kerr

Jan-Pieter Vos

Luca Ratti

Daiva Petrylaite

Andrej Poruban

Stein Evju

Martin Wright
Martin Wright is a member of the Editorial Committee of the European Forum for Restorative Justice Newsletter and is based in the United Kingdom.

Christa Pelikan
Christa Pelikan (PhD) is Senior Researcher at the Institute for the Sociology of Law and Criminology (IRKS), Vienna, Austria.

Otmar Hagemann
Otmar Hagemann is professor of social work at Kiel University of Applied Sciences, Kiel, Germany.
Article

Restorative justice capacities in Middle Eastern culture and society: towards a hybrid model of juvenile justice in Palestine

Journal The International Journal of Restorative Justice, Issue 1 2019
Keywords Hybrid model, restorative justice, non-state justice, Palestine, Middle East
Authors Mutaz Qafisheh and Ali Wardak
AbstractAuthor's information

    Alongside the state juvenile justice system, various forms of non-state justice providers are strongly prevalent in Palestine. Although the state juvenile justice has evolved into a modern system, it lacks adequate human, professional and infrastructural capacities to provide effective justice to all children. This field research has identified key non-state justice providers in Palestine and reveals that they are more accessible and speedy and also place more emphasis on peacemaking and reconciliation than the state justice system. It also reveals that in the processes of justice dispensation, occasional violation of children’s rights takes place within some of the male-dominated non-state justice providers. In order to minimise rights violation, while capitalising on the restorative capacities of non-state justice providers, a ‘hybrid model of juvenile justice in Palestine’ has been developed and is proposed. It is argued in this article that the ‘hybrid model’ not only promises to provide a coherent framework of links between Palestinian state juvenile justice and non-state justice providers, but also has the capacity to minimise rights violation through proposed internal and external oversight mechanisms. It is further maintained that translating the hybrid model into practice may result in the provision of more accessible, inclusive and restorative juvenile justice to all children in Palestine.


Mutaz Qafisheh
Mutaz Qafisheh is Dean and Associate Professor of International Law, College of Law and Political Science, Hebron University, Hebron, Palestine.

Ali Wardak
Ali Wardak is Professor of Criminology, University of South Wales, Pontypridd, United Kingdom.

Antony Pemberton
Antony Pemberton is Full Professor of Victimology and Director of the International Victimology Institute (INTERVICT), Tilburg University, Tilburg, The Netherlands.

Annemieke Wolthuis
Annemieke Wolthuis (PhD) is an independent researcher, trainer and mediator in the field of human rights, children’s rights and restorative justice.

Jacques Claessen
Jacques Claessen (PhD) is an Associate Professor of Criminal Law and Criminal Procedure at the Department of Criminal Law and Criminology of the Faculty of Law at Maastricht University.

Gert Jan Slump
Gert Jan Slump (MA) is an independent criminologist, restorative justice consultant and social entrepreneur.

Anneke van Hoek
Anneke van Hoek (MA) is an independent criminologist.
Article

The attitudes of prisoners towards participation in restorative justice procedures

Journal The International Journal of Restorative Justice, Issue 1 2019
Keywords Restorative justice, prisons, incarceration, punishment
Authors Inbal Peleg-Koriat and Dana Weimann-Saks
AbstractAuthor's information

    Restorative justice can be implemented at different stages of criminal proceedings. In Israel, restorative justice processes are mainly used prior to sentencing, while there are no restorative programmes for adults following sentencing and while serving their prison sentences. The aim of the present study is to examine the possibility of implementing restorative processes within prison walls. To this end, the present study empirically investigates the level of readiness and willingness of prisoners (n = 110) from two large prisons in Israel to participate in restorative processes and examines the psychological mechanisms underlying their attitudes towards actual participation in these processes. The study proposes a model according to which the relationship between the cognitive component of attitude towards victims and the harm caused by the offence (beliefs and thoughts) and the behavioural component of attitude (the inclination to participate in restorative processes) is mediated by the affective component of attitude towards the offence (sense of guilt and shame). The findings of the study support the proposed model. The study also found that the more prisoners perceived the harm they caused as having more dimensions (physical, economic, emotional), the more positive their attitudes towards restorative justice would be. This study will advance research into restorative justice at a stage that has not previously been researched in Israel and has rarely been investigated elsewhere.


Inbal Peleg-Koriat
Inbal Peleg-Koriat, PhD, is a lawyer and conflict management and negotiation specialist, and a faculty member at the Yezreel Valley Academic College, Israel.

Dana Weimann-Saks
Dana Weimann-Saks, PhD, is a lawyer and a social psychologist, and also a faculty member at the Yezreel Valley Academic College.
Article

Exploring the intertwining between human rights and restorative justice in private cross-border disputes

Journal The International Journal of Restorative Justice, Issue 1 2019
Keywords International human rights, private actors, horizontal effect, restorative justice
Authors Marta Sá Rebelo
AbstractAuthor's information

    International human rights instruments operate on the assumption that states are the focal human rights duty bearers. However, private actors can harm human rights as well. Moreover, since mechanisms at a supranational level are lacking, these instruments rely primarily on states for their enforcement. Yet states’ internal rules and courts are meant to address infringements that are confined within their borders, and are therefore often structurally unable to deal with violations having transnational impact. Restorative justice has proven to respond in depth to different kinds of wrongdoing and, although addressing the peculiarities of each case, restorative procedures can systemically prevent deviant behaviour as well. Additionally, as restorative justice relies on voluntary participation it need not operate in a specific territory. Having this broader picture in mind, the article explores whether restorative justice might be adequate for dealing with human rights infringements perpetrated by private actors that have cross-border impact.


Marta Sá Rebelo
Marta Sá Rebelo is a PhD researcher at Católica Global School of Law and a teaching assistant at Católica Lisbon School of Law, Universidade Católica Portuguesa, Lisbon, Portugal.

Chuck Dickey
TCTB, LLC, P. O. Box 591031, Houston, TX 77259.

Bas van Zelst
Article

Why Do People Fight First and Then Settle? A reaction

Reflective Practice: Another Way of Seeing Things

Journal Corporate Mediation Journal, Issue 1-2 2019
Authors Anna Walsh Doyle
Author's information

Anna Walsh Doyle
Independent Mediator.

Louis B. Buchman
Louis B. Buchman is an attorney at law, admitted to the Bar in Paris and in New York, arbitrator and mediator at Paris, France.
Article

Psychology of Conflict

Why Do People Fight First and Then Settle?

Journal Corporate Mediation Journal, Issue 1-2 2019
Keywords conflict, mediation, psychology
Authors Martin Brink
AbstractAuthor's information

    In many cases much harm and sorrow is caused first before people sit down and settle. Why not settle without fighting first?


Martin Brink
Martin Brink is Editor in Chief of this Corporate Mediation Journal

Laurence Katz
Partner at gunnercooke llp in London, United Kingdom.
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