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Article

The Use of Technology (and Other Measures) to Increase Court Capacity

A View from Australia

Journal International Journal of Online Dispute Resolution, Issue 2 2021
Keywords court capacity, COVID-19, Australia, online dispute resolution, open justice, procedural fairness, access to justice, online courts, justice technology, judicial function
Authors Felicity Bell, Michael Legg, Joe McIntyre e.a.
AbstractAuthor's information

    The COVID-19 pandemic has forced courts around the world to embrace technology and other innovative measures in order to continue functioning. This article explores how Australian courts have approached this challenge. We show how adaptations in response to the pandemic have sometimes been in tension with principles of open justice, procedural fairness and access to justice, and consider how courts have attempted to resolve that tension.


Felicity Bell
Felicity Bell is a Research Fellow for the Law Society of NSW’s Future of Law and Innovation in the Profession (FLIP) research stream at UNSW Law, Sydney.

Michael Legg
Michael Legg is Professor and Director of the FLIP stream at UNSW Law, Sydney.

Joe McIntyre
Joe McIntyre is a Senior Lecturer in Law at UniSA: Justice and Society, University of South Australia.

Anna Olijnyk
Anna Olijnyk is a Senior Lecturer and Director of the Public Law and Policy Research Unit at Adelaide Law School, University of Adelaide, South Australia.

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA. Contact author: awdzur@bgsu.edu.
Article

Exploring the growth and development of restorative justice in Bangladesh

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords restorative justice, Bangladesh, salish, village courts, INGOs
Authors Muhammad Asadullah and Brenda Morrison
AbstractAuthor's information

    Although restorative justice is a new concept in Bangladesh (BD), resolving wrongdoing outside the criminal justice system is not a new practice. Community-based mediation, known as salish, has been practised for centuries – withstanding colonisation, adaptation and distortion. Other practices, such as village courts and customary justice, are also prevalent in Bangladesh. Of these, village courts are currently the most widely practised in Bangladesh. Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ Bangladesh) formally introduced restorative justice in 2013 with the support of international non-governmental organisations (INGOs), NGOs, academics and government agencies. Most of the literature on community-based justice practice focuses on village courts; academic, peer-reviewed research on restorative justice in Bangladesh is scarce. This qualitative study explores the growth and development of restorative justice in Bangladesh. Using in-depth qualitative interviews and survey, the study retraces the genesis of restorative justice in Bangladesh. In recent times, GIZ Bangladesh has been key to the development of restorative justice, which was further expanded by UNDP’s Activating Village Courts project, as well as a graduate course on restorative justice at the University of Dhaka. This study also finds contentious themes raised by the key informants, specifically the role of INGOs, government and community.


Muhammad Asadullah
Muhammad Asadullah is Assistant Professor at the Department of Justice Studies, University of Regina, Canada.

Brenda Morrison
Brenda Morrison is Associate Professor at the School of Criminology, Simon Fraser University, Canada. Contact author: Muhammad.Asadullah@uregina.ca.
Article

Comments and Content from Virtual International Online Dispute Resolution Forum

1-2 March 2021, Hosted by the National Center for Technology and Dispute Resolution (NCTDR)

Journal International Journal of Online Dispute Resolution, Issue 1 2021
Authors David Allen Larson, Noam Ebner, Jan Martinez e.a.
Abstract

    For the past 20 years, NCTDR has hosted a series of ODR Forums in locations around the world. For 2021, the Forum was held virtually, with live presentation over a web video platform, and recorded presentations available to participants. A full recording of the sessions can be found through http://odr.info/2021-virtual-odr-forum-now-live/. The following items are narrative notes from some of the presentations:

    • David Allen Larson – ODR Accessibility

    • Noam Ebner – Human Touch

    • Jan Martinez & Amy Schmitz – ODR and Innovation

    • Frank Fowlie – Online Sport Dispute Resolution

    • Larry Bridgesmith – AI Introductory Notes

    • Julie Sobowale – AI and Systemic Bias

    • Clare Fowler – DEODRISE

    • Michael Wolf – ODR 2.0 System Design

    • Chris Draper – Algorithmic ODR

    • Zbynek Loebl – Open ODR


David Allen Larson

Noam Ebner

Jan Martinez

Amy Schmitz

Frank Fowlie

Larry Bridgesmith

Julie Sobowale

Clare Fowler

Michael Wolf

Chris Draper

Zbynek Loebl
Article

Access_open Bits and Bytes and Apps – Oh My!

Scary Things in the ODR Forest

Journal International Journal of Online Dispute Resolution, Issue 1 2021
Keywords access to justice, digital divide, Artificial Intelligence, algorithms, Online Dispute Resolution
Authors Daniel Rainey and Larry Bridgesmith
AbstractAuthor's information

    This article addresses three issues related to online dispute resolution (ODR) that offer promise, and may carry risks for those who develop, provide, and use technology to address disputes and confects. The authors offer some principles to guide the use of technology, and some predictions about the future of ODR.


Daniel Rainey
A version of this article will be published in Portuguese as a chapter in Processo Civil e Tecnologia: os impactos da virada tecnologia no mundo, Dierle Nunes, Paulo Lucon and Isadora Werneck, eds., Editora Juspodivm, Salvador/BA–Brazil, forthcoming 2021. Daniel Rainey is, among other things, a principal in Holistic Solutions, Inc., a Fellow of the National Center for Technology and Dispute Resolution (NCTDR), a founding Board Member of the International Council for Online Dispute Resolution (ICODR), Editor-in-Chief of the International Journal of Online Dispute Resolution (IJODR) and a Member of the Self-Represented Litigants Committee of the Access to Justice Commission of the Virginia Supreme Court.

Larry Bridgesmith
Larry Bridgesmith is, among other things, a practicing lawyer, professor of law at Vanderbilt Law School and co-founder of its Program on Law & Innovation, a Fellow of the International Association of Mediators, co-founder of LegalAlignment LLC, AccelerateInsite LLC and Lifefilz Inc., co-founder of the International Institute of Legal Project Management and Chair of the Tennessee Supreme Court Alternative Dispute Resolution Commission.
Article

Towards Online Dispute Resolution-Led Justice in China

Journal International Journal of Online Dispute Resolution, Issue 2 2020
Keywords Online Dispute Resolution, smart court, internet court, access to justice, China
Authors Carrie Shu Shang and Wenli Guo
AbstractAuthor's information

    The use of online dispute resolution (ODR) in courts is a growing topic of interest. By focusing on the recent development of ODR-connected smart courts in China, this article explores ODR’s potential impact on Chinese legal systems from three aspects: role of courts and the legal profession, due process rights, and information safety. By focusing on changing dispute resolution theories – from emphasizing on conflict resolution to dispute prevention – the article argues that ODR-led court reforms rose to the centre because the reform caters to specific purposes of the recent series of reforms conducted under the auspices of the Rule of Law campaign, by prioritizing efficiency goals and attempting to enhance individualist justice experiences. In this article, we define the meaning of ODR in China and describe and categorize ODR technologies that are currently in use in China. Based on these general findings and promising technological options of ODR, we also recommend ways to better implement ODR in Chinese courts to take full advantage of technological advancements.


Carrie Shu Shang
Carrie Shu Shang, Assistant Professor, Coordinator, Business Law program, California State Polytechnic University, Pomona,

Wenli Guo
Wenli Guo, Ph.D., Assistant President, Beiming Software Co. Ltd., President, Internet Nomocracy Institute of Beiming Software Co. Ltd.,
Article

Smart Contracts and Smart Dispute Resolution

Just Hype or a Real Game Changer?

Journal International Journal of Online Dispute Resolution, Issue 2 2020
Keywords smart contracts, blockchain, arbitration, dispute resolution, contract law, distributed ledger technology, internet of things, cyber law, technology, innovation
Authors Mangal Chauhan
AbstractAuthor's information

    This article explains the functioning of smart contracts and technology underlying blockchain. This contribution aims to compare smart contracts with traditional contracts and discuss their situation under the present contract law. It further discusses possible issues that may arise out of the application of smart contracts, for instance, coding errors and programming defects. It studies the possible application of smart contracts to specific fields, such as e-commerce and consumer transactions and possible disputes arising out of this application. It divides the smart contracts into categories based on their form and discusses legal issues in regard to their application.
    Against the common perception that smart contracts will replace the judicial enforcement of traditional contracts, it argues that smart contracts will not replace the system but are rather another form of contracts to be governed by it. In fact, the interplay of smart contracts and contractual law creates possible legal issues as to their validity, recognition and enforcement. It provides possible solutions as to the legal issues arising out of the application of smart contracts under present contract law. The study concludes that a robust and ‘smart’ dispute resolution mechanism is required for dealing with disputes arising out of the application of new technology. Online or blockchain arbitration and other online dispute resolution mechanisms are argued to be better suited to dealing with such disputes.


Mangal Chauhan
Mangal Chauhan is Risk Analyst (Global Entity Management) at TMF Group, Amsterdam, Netherlands. Master of Laws (LL.M.) in Comparative and International Dispute Resolution from Queen Mary University of London, United Kingdom.
Article

Online Dispute Resolution in a Traditional Justice System

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords ODR, traditional justice system, insecure areas, Afghanistan
Authors Fathudin Yazdani
AbstractAuthor's information

    This article examines the applicability of Online Dispute Resolution (ODR) in Afghanistan. It evaluates whether ODR can resolve disputes in a traditional justice system, like Jirga, where the formal justice system is weak. This analysis questions whether ODR can complement the traditional jurisdiction system, where the public relies on customary practices to solve disputes. Further, the analysis focuses on the applicability of ODR in insecure areas, where access to formal judicial processes is limited. The findings from this study suggest the development of effective dispute resolution mechanisms in Afghanistan, mainly using ODR.


Fathudin Yazdani
Yazdani Fathudin completed his Post Graduation in Master of Science in Law (MSL) from The University of The Pacific McGeorge School of Law in 2020. He served as a legal advisor and assistant to the deputy minister ministry of interior in Afghanistan. Also, he worked as investigator and security associate in the United Nation Offices for Project Services (UNOPS) in Afghanistan.
Article

Artificial Intelligence in the Courtroom

Increasing or Decreasing Access to Justice?

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords artificial intelligence, robojudge, separation of powers, algorithm, due proces
Authors Analisa Morrison
AbstractAuthor's information

    Jurisdictions around the world are experimenting with the use of artificially intelligent systems to help them adjudicate cases. With heavily overloaded dockets and cases that go on for years, many courts in the U.S. are eager to follow suit. However, American authorities should be slow to substitute human judges with automated entities. The uniqueness of the U.S. Constitution has demands that artificially intelligent “judges” may not be able to meet, starting with a machine’s lack of what may be called “true intelligence”. Philosopher John Searle wrote about the distinction between true intelligence and artificial intelligence in his famous “Chinese Room” analogy, which is applicable to the discussion of artificial intelligence in the courtroom. Former Navy Reserves officer, robotics engineer, and current patent lawyer Bob Lambrechts analyzed the idea of robots in court in his article, May It Please the Algorithm. Other scholars have started to explore it, too, but the idea of robots as judges remains a vast legal frontier that ought to be excavated thoroughly before it is inhabited by the American legal system.


Analisa Morrison
Juris Doctor Candidate, 2021, University of the Pacific, McGeorge School of Law
Article

Readiness for Family and Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords online dispute resolution, family dispute resolution, domestic violence, ripeness and readiness, divorce
Authors Nussen Ainsworth, Lisa Zeleznikow and John Zeleznikow
AbstractAuthor's information

    The International Conflict Resolution Community has developed considerable theory and many case studies about ripeness and readiness for mediation. Readiness involves a readiness of the disputant to resolve the conflict, while ripeness indicates the time is appropriate to attempt a resolution. There is a sparse amount of theory about these issues in commercial and family dispute resolution (FDR). We discuss the practice of readiness for mediation, FDR and online dispute resolution and develop practices about when to mediate such disputes – especially when domestic violence has occurred.


Nussen Ainsworth
Nussen Ainsworth, Victoria University, Melbourne, Australia – nussen.ainsworth@vu.edu.au.

Lisa Zeleznikow
Lisa Zeleznikow, Jewish Mediation Centre, Melbourne, Australia – lisa@jmc.org.au.

John Zeleznikow
John Zeleznikow, Victoria University, Melbourne, Australia – john.zeleznikow@vu.edu.au.

Sir Geoffrey Vos
Chancellor of the High Court of England and Wales.
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

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

Access_open World Justice Forum VI

Insights and Takeaways

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords World Justice Forum, World Justice Project, World Justice Report, online dispute resolution, technology, access to justice, Justice Layer of the Internet
Authors Jeffrey Aresty and Larry Bridgesmith
AbstractAuthor's information

    In May 2019, the World Justice Project (WJP) convened its sixth annual conference to explore the state of access to justice (A2J) in the global context. World Justice Forum VI met in The Hague and published the most recent A2J report compiled after a year of analysis and based on more than a decade of public, government and citizen data. Measuring the Justice Gap revealed less than optimistic data reflecting the lack of significant progress toward fulfilling the United Nations Sustainable Development Goal 16: achieving just, peaceful and inclusive societies by 2030. The 2019 conference showcased many global initiatives seeking to narrow the justice gap. For the most part these initiatives rely on institutional action by governments, financial institutions and NGO’s. As important as these projects are, transforming the access to justice status of the world can also be achieved through actions focused on Justice at the Layer of the Internet. A consensus based governance model can build a legal framework which is not reliant on the enactment of laws, the promulgation of regulations or overcoming the inertia of institutional inaction. This article reviews the learning gleaned from the WJP and the 2019 Forum. It also seeks to augment the great work of the WJP by exploring the potential for justice as delivered by individuals joined in consensus and relying on emerging technologies.


Jeffrey Aresty
Jeff Aresty is an international business and e-commerce lawyer with 35 years of experience in international cyberlaw technology transfer. He is the Founder and President of the InternetBar.Org.

Larry Bridgesmith
Larry Bridgesmith J.D., is CEO of LegalAlignment LLC, a practicing lawyer in Nashville, Tennessee, and Professor of Law at Vanderbilt University and coordinator of its programme on law and innovation.
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.

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

Claire Mulder LL.M
LL.M, business mediator, location Geneva, Switzerland.

    Alternative/amicable dispute resolution (ADR) is omnipresent these days. In line with global evolutions, the Belgian legislator embraced the use of these ADR mechanisms. Recent reforms of the law, first in 2013 with the act concerning the introduction of a Family and Juvenile Court and consecutively in 2018 with the act containing diverse provisions regarding civil law with a view to the promotion of alternative forms of conflict resolution, implemented more far-reaching measures to promote ADR than ever before. The ultimate goal seems to alter our society’s way of conflict resolution and make the court the ultimum remedium in case all other options failed.In that respect, the legislator took multiple initiatives to stimulate amicable dispute resolution. The reform of 2013 focused solely on family cases, the one in 2018 was broader and designed for all civil cases. The legal tools consist firstly of an information provision regarding ADR for the family judge’s clerk, lawyers and bailiffs. The judges can hear parties about prior initiatives they took to resolve their conflict amicably and assess whether amicable solutions can still be considered, as well as explain these types of solutions and adjourn the case for a short period to investigate the possibilities of amicable conflict resolution. A legal framework has been created for a new method, namely collaborative law and the law also regulates the link between a judicial procedure and the methods of mediation and collaborative law to facilitate the transition between these procedures. Finally, within the Family Courts, specific ‘Chambers of Amicable Settlement’ were created, which framework is investigated more closely in this article. All of these legal tools are further discussed and assessed on their strengths and weaknesses.
    ---
    Alternatieve of minnelijke conflictoplossing is alomtegenwoordig. De Belgische wetgever heeft het gebruik van deze minnelijke oplossingsmethodes omarmd, in navolging van wereldwijde evoluties. Recente wetshervormingen implementeerden maatregelen ter promotie van minnelijke conflictoplossing die verder reiken dan ooit tevoren. Het betreft vooreerst de hervorming in 2013 met de wet betreffende de invoering van een familie- en jeugdrechtbank en vervolgens kwam er in 2018 de wet houdende diverse bepalingen inzake burgerlijk recht en bepalingen met het oog op de bevordering van alternatieve vormen van geschillenoplossing. De ultieme doelstelling van deze hervormingen is een mentaliteitswijziging omtrent onze wijze van conflictoplossing teweegbrengen, waarbij de rechtbank het ultimum remedium dient te worden nadat alle overige opties faalden.De wetshervorming van 2013 focuste uitsluitend op familiale materies, de hervorming van 2018 was ruimer en had alle burgerlijke zaken voor ogen. De wettelijke mogelijkheden bestaan vooreerst uit een informatieverstrekking omtrent minnelijke conflictoplossing in hoofde van de griffier van de familierechtbank, advocaten en gerechtsdeurwaarders. Rechters kunnen partijen horen omtrent eerdere ondernomen initiatieven om hun conflict op een minnelijke manier op te lossen, zij beoordelen of minnelijke oplossingen alsnog kunnen worden overwogen, zij kunnen de diverse minnelijke mogelijkheden toelichten aan partijen alsook de zaak voor een korte periode uitstellen om partijen toe te laten de mogelijkheden aan minnelijke conflictoplossing te verkennen. Er werd voorts een wetgevend kader uitgewerkt voor een nieuwe oplossingsmethode, namelijk de collaboratieve onderhandeling. De wet creëert tevens een link tussen een gerechtelijke procedure en de methodes van bemiddeling en collaboratieve onderhandeling, om de overgang tussen deze procedures te vereenvoudigen. Tot slot werden er binnen de familierechtbanken specifieke kamers voor minnelijke schikking opgericht, waarvan het wetgevend kader in detail wordt bestudeerd in dit artikel. Al deze wettelijke opties worden nader besproken en beoordeeld aan de hand van hun sterktes en zwaktes.


Sofie Raes
Sofie Raes is a Ph.D. candidate at the Institute for Family Law of the University of Ghent, where she researches alternative dispute resolution, with a focus on the chambers of amicable settlement in Family Courts. She is also an accredited mediator in family cases.
Article

The Power of the CPR Pledge

Journal Corporate Mediation Journal, Issue 2 2018
Keywords collaboration, dispute resolution, pledge, prevention
Authors Noah J. Hanft
AbstractAuthor's information

    The International Institute for Conflict Prevention & Resolution (CPR) has a long history of helping people consider more thoughtful and collaborative ways of preventing and resolving disputes. One of their vehicles for doing so is a series of pledges.


Noah J. Hanft
Noah J. Hanft is the President and CEO of The International Institute for Conflict Prevention & Resolution.
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