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Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA.
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).
Discussion

Access_open Europe Kidnapped

Spanish Voices on Citizenship and Exile

Journal Netherlands Journal of Legal Philosophy, Issue 1 2019
Keywords migration, exile, citizenship, Europe, Spanish civil war
Authors Massimo La Torre
AbstractAuthor's information

    Exile and migration are once more central issues in the contemporary European predicament. This short article intends to discuss these questions elaborating on the ideas of two Spanish authors, a novelist, Max Aub, and a philosopher, María Zambrano, both marked by the tragic events of civil war and forced expatriation. Exile and migration in their existential perspective are meant as a prologue to the vindication of citizenship.


Massimo La Torre
Massimo La Torre is Professor of Legal Philosophy, Magna Græcia University of Catanzaro (Italy).
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

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.
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.
Article

Law Reform in a Federal System

The Australian Example

Journal European Journal of Law Reform, Issue 1 2019
Keywords customary law, federal system, Australia
Authors Kathryn Cronin
AbstractAuthor's information

    The Australian law reform arrangements comprise a ‘crowded field’ of law reformers. These include permanent, semi-permanent and ad hoc commissions, committees and inquiries charged with examining and recommending reform of Commonwealth/federal and state laws. These are supplemented by citizen-led deliberative forums on law reform. The author’s experience in her roles as a commissioner and deputy president of the Australian Law Reform Commission (ALRC) and also as counsel assigned to advise the Joint Standing Committee on Migration in the Australian Federal Parliament highlighted facets of Australian law reform – the particular role of a law commission working in a federal system and the co-option of legal expertise to scrutinize law reforms proposed within the parliamentary committee system.


Kathryn Cronin
Kathryn Cronin is former Deputy President Australian Law Reform Commissioner and now barrister at Garden Court Chambers.
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.

Martin Brink
Martin Brink, PhD, is attorney at law, arbitrator and deputy judge at the The Hague Court of Appeals and an internationally certified mediator (MfN, IMI, CEDR Global Panel).
Part I Courts and ODR

Access to Justice and Innovative Court Solutions for Litigants-in-Person

The Singapore Experience

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords access to justice, innovative court solutions, ODR, e-Negotiation, tribunal
Authors Ow Yong Tuck Leong
AbstractAuthor's information

    This article highlights the Singapore judiciary’s experience in introducing an online filing and case management system with Online Dispute Resolution (ODR) for small value disputes to improve access to justice. This system, called the Community Justice & Tribunals System (CJTS), is a fully integrated justice solution, allowing parties to settle their disputes and obtain a court order online. The article sets out the issues and challenges encountered in developing CJTS, the innovative solutions implemented and CJTS’ positive impact on litigants-in-person.


Ow Yong Tuck Leong
District Judge Ow Yong Tuck Leong is a judicial officer in the Community Justice and Tribunals Division of the State Courts of Singapore. He is the Executive Sponsor of the CJTS. Prior to joining the State Courts, Ow Yong had served in different positions as a Senior Assistant Registrar, Registry of Companies and Businesses; State Counsel, Attorney-General’s Chambers; and Deputy Director (Legal, Enforcement & International Affairs) of the Competition Commission of Singapore.
Part II Private Justice

ADR-Rooted ODR Design in Europe

A Bet for the Future

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, dispute system design, European law, redesign of ADR systems, artificial intelligence
Authors Fernando Esteban de la Rosa
AbstractAuthor's information

    The new European regulatory framework has a greater significance than it expressly declares, both for the development of online dispute resolution (ODR) in Europe and for the structure of alternative dispute resolution (ADR) entities of the Member States. A close reading of the ADR Directive reveals an implicit but clear mandate for the development and intensive use of ODR tools by certified ADR entities that could lead to the creation of new ODR platforms. The new ADR/ODR regulatory framework shows a clear tendency to produce important transformations in the traditional ADR structure in every Member State. This article aims to identify criteria for the development of ODR in Europe and to discover the European law’s implicit mandates related to the redesign of the ADR structure in the Member States, while assessing the role of the Member States, the ADR entities and the European Union itself.


Fernando Esteban de la Rosa
Fernando Esteban de la Rosa is Chair in Private International Law, University of Granada, Spain; NCTDR fellow.
Part II Private Justice

Reputational Feedback Systems and Consumer Rights

Improving the European Online Redress System

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords reputational feedback systems, consumer’s protection, dispute resolution, ADR, ODR, enforceability, ecommerce, European redress system small claims
Authors Aura Esther Vilalta Nicuesa
AbstractAuthor's information

    The European Union single market needs to tackle an outstanding issue to boost competitiveness and growth: a trust-based redress framework that ensures the effectiveness of consumers’ rights. The current disparities among dispute resolution mechanisms, added to the fact that in practice many do not guarantee participation and enforceability, are serious obstacles to this goal. Trust and the integration of certain dispute avoidance tools added to the regulation of some common enforcement mechanisms are key issues in the field of consumer protection. The goal of this article is to offer some insights within the context of the European Union legislative proposals aimed at improving the current redress system.


Aura Esther Vilalta Nicuesa
Aura Esther Vilalta Nicuesa is Professor of Law, Universitat Oberta de Catalunya (UOC) and member of the National Center or Technology and Dispute Resolution, Massachusetts, Amherst.
Part II Private Justice

Standards, Qualifications, and Certification for e-Mediators

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords Online Dispute Resolution, e-Mediation, ethics, standards of practice, qualifications, certification, International Mediation Institute, Association for Conflict Resolution, American Bar Association, American Arbitration Association, National Center for Technology and Dispute Resolution, International Council for Online Dispute Resolution, National Center for State Courts
Authors Ana Maria Gonçalves and Daniel Rainey
AbstractAuthor's information

    This article explores the question ‘how does one judge whether a mediator working online is competent?’ The authors compare the basic standards used to certify mediators working offline to a set of e-mediation standards developed by the International Mediation Institute, and suggest that training modules addressing the specific skills and competencies needed to be a successful online mediator be incorporated into basic mediator training.


Ana Maria Gonçalves
Ana Maria Gonçalves is the co-chair of the IMI ODR Taskforce, the founder and president of ICFML and a member of the Portuguese Mediation Federation (FMC). She is a graduate from UAL Lisbon and has a master of law degree. She is an IMI-certified mediator and is listed in the major international panels of mediators. She is a lecturer in major Portuguese and Brazilian Universities and is a regular speaker in International Conferences on the topics of ADR, mediation, negotiation and ODR. As a mediator, she works with a wide range of international clients, particularly on cross-border disputes, often online, and has mediated a wide variety of disputes in Europe, Australia and USA. She also designs and facilitates collaboration management training programs and, as an ICF-accredited PCC coach, she supports senior executives and professionals to develop their conflict management and negotiation skills.

Daniel Rainey
Daniel Rainey is a principle in Holistic Solutions, Inc., and he served as the co-chair of the IMI ODR Task Force. He is an adjunct professor at multiple universities in the United States, and he serves as a Board Member for the InternetBar.Org (IBO) and the Northern Virginia Mediation Service (NVMS). He is a member of the Virginia State Supreme Court’s Access to Justice Commission Self-Represented Litigants Committee, a Fellow of the National Center for Technology and Dispute Resolution (NCTDR) and a founding Board Member of the International Council for Online Dispute Resolution (ICODR).
Part II Private Justice

Decentralized Justice in the Era of Blockchain

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, blockchain, arbitration, decentralization, crowdsourcing
Authors James Metzger
AbstractAuthor's information

    ODR that is built on blockchain technology and infrastructure is championed by supporters as being capable of revolutionizing dispute resolution. Kleros is a decentralized dispute resolution platform built on the Ethereum blockchain that uses cryptoeconomic theories and game theory to recruit and incentivize a worldwide pool of ‘jurors’ to decide the cases arbitrated through the platform. This article discusses some early evaluations of whether this kind of decentralized ODR is likely to succeed by viewing the model through a normative framework, including considering whether crowdsourcing of justice on a decentralized platform is a viable way to conduct ODR. The article then discusses the likelihood of the success of the sub-court model, including whether choice-of-law issues might be problematic for a worldwide, decentralized system. Finally, the article considers whether the cryptoeconomic and game theories that provide the foundation for the Kleros platform are likely to result in a jury pool, much less an actual jury, that could be considered ‘fair.’ The article is informed by the author’s experience with the Kleros platform through participation in its interactive initial coin offering and engaging in its beta-testing phase.


James Metzger
Dr. James Metzger is a lecturer at the University of New South Wales Faculty of Law.
Part II Private Justice

Making ODR Human

Using Human-Centred Design for ODR Product Development

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords online dispute resolution, courts and tribunals, human-centred design, legal tech, legal design, user testing, user-centred design, machine learning, alternative dispute resolution, product development
Authors Luke Thomas, Sarah Kaur and Simon Goodrich
AbstractAuthor's information

    This article discusses what we as human-centred design practitioners have learnt from researching and designing online dispute resolution (ODR) products both for clients and as part of our internal research and development initiatives.


Luke Thomas
Luke Thomas is Design Strategist/Legal Researcher at Portable.

Sarah Kaur
Sarah Kaur is Chief Operating Officer at Portable.

Simon Goodrich
Simon Goodrich is Managing Director at Portable.
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