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Article

Ethical Principles for Online Dispute Resolution

A GPS Device for the Field

Journal International Journal of Online Dispute Resolution, Issue 1 2016
Keywords ODR, ethics, alternative dispute resolution, technology
Authors Leah Wing
AbstractAuthor's information

    The disruptive force of technology has led to innovative dispute resolution practices that increase access to justice and also raise new ethical considerations. In response, there have been assertions about the importance of applying to online dispute resolution (ODR) the shared values already enshrined within alternative dispute resolution (ADR) as well as calls to more carefully assess ways they may be insufficient or need refining to adequately address the new ethical challenges emerging in ODR. As ODR is increasingly incorporated into legislation, regulation and a wide variety of sectors in society, it is timely to explore the importance of ethical principles specifically for ODR. In the hope of contributing to these efforts, this article examines the benefits and challenges of articulating a set of ethical principles to guide the development and implementation of ODR systems, technology and processes.


Leah Wing
Leah Wing is Co-Director, National Center for Technology and Dispute Resolution, and Senior Lecturer, Legal Studies Program, Department of Political Science, University of Massachusetts at Amherst (USA).

    Online dispute resolution (ODR) has been developed in response to the growth of disputes in electronic commerce transactions. It is based on the legal framework of alternative dispute resolution (ADR) by taking into consideration electronic communications and information technology. This article will introduce the current legal framework and practice of ODR in China, find legal issues that affect the development of ODR and, finally, propose suggestions to overcome these barriers.


Jie Zheng
Jie Zheng is a PhD researcher in Ghent University, Faculty of Law, Department of Interdisciplinary Study of Law, Private Law and Business Law. E-mail: <jie.zheng@ugent.be>.
Article

Model Standards of Conduct for Mediators

[Annotated for Online Dispute Resolution Practice in 2016]

Journal International Journal of Online Dispute Resolution, Issue 1 2016
Authors Daniel Rainey
Author's information

Daniel Rainey
The notations made to these model rules were made under the direction of Daniel Rainey, Board Member of the InternetBar.Org (http://danielrainey.us), in dialogue with Susan Nauss Exon, Professor of Law at La Verne School of Law, and with the assistance of graduate students in the Dispute Resolution Program at Southern Methodist University. The annotation team consisted of Betsy Attel, Ann Ellison, Dana Garnett, Brandon Hillhouse, Joseph Kanu, Izzy Lewis, Sarah Nevins Al-Zubi, David Russell, Jeffrey Thompson, Yanina Vashchenko, and Niki Watson. The purpose of the annotation project is to begin a discussion regarding how to update the model rules and to accommodate changes in practice that have occurred as a result of the integration of a wide range of information and communication technology (ICT) into mediation and other forms of conflict or dispute engagement.

    What is there to learn about managing conflict or negotiation that you do not already know? How can mediation techniques make a difference in achieving your personal goals and advance the objectives of your organisation even when there is no conflict? How can new skills benefit all management levels and change the role of the legal department?
    This issue of the Corporate Mediation Journal will address these and other questions. Is corporate mediation a prospect for the legal department and organisations as a whole?


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).
Editorial

Access_open Editorial

Journal Corporate Mediation Journal, Issue 1 2016
Authors Martin Brink

Martin Brink

Claire Mulder
Article

Access_open A World Apart? Private Investigations in the Corporate Sector

Journal Erasmus Law Review, Issue 4 2016
Keywords Corporate security, private investigations, private troubles, public/private differentiation
Authors Clarissa Meerts
AbstractAuthor's information

    This article explores the investigative methods used by corporate security within organisations concerned about property misappropriation by their own staff and/or others. The research methods are qualitative: interviews, observations and case studies carried out between October 2012 and November 2015. The findings include that, even though corporate investigators do not have the formal investigative powers enjoyed by police and other public agencies, they do have multiple methods of investigation at their disposal, some of which are less used by public investigative agencies, for example the in-depth investigation of internal systems. Corporate investigators also rely heavily on interviews, the investigation of documentation and financial administration and the investigation of communication devices and open sources. However, there are many additional sources of information (for example, site visits or observations), which might be available to corporate investigators. The influences from people from different backgrounds, most notably (forensic) accountants, (former) police officers, private investigators and lawyers, together with the creativity that is necessary (and possible) when working without formal investigative powers, make corporate security a diverse field. It is argued that these factors contribute to a differentiation between public and private actors in the field of corporate security.


Clarissa Meerts
Clarissa Meerts, MSc., is a PhD student at the Criminology Department of the Erasmus University Rotterdam.
Article

Access_open Power and Principle in Constitutional Law

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords sovereignty, constitutional law, positivism, constructivism, common law
Authors Pavlos Eleftheriadis
AbstractAuthor's information

    Legal and sociological theories of sovereignty disagree about the role of legal and social matters in grounding state power. This paper defends a constructivist view, according to which the constitution is a judgment of practical reason. The paper argues that a constitution sets out a comprehensive institutional architecture of social life in terms of principles and official roles that are necessary for any legitimate scheme of social cooperation to exist. It follows that legal and sociological theories of sovereignty capture only part of the truth of sovereignty. Legal reasoning engages with political power, but it is not determined by it. There is no causal chain between power and validity, as suggested by the legal positivists. The relation between power and law is interpretive, not causal. It follows that the circularity of law and the constitution, namely the fact that the law makes the constitution and the constitution makes the law, is not a vicious circle. It is part of an ordinary process of deliberation.


Pavlos Eleftheriadis
Pavlos Eleftheriadis is Associate Professor of Law and Fellow in Law at Mansfield College, University of Oxford.
Article

The New Handshake: Where We Are Now

Journal International Journal of Online Dispute Resolution, Issue 2 2016
Keywords consumers, consumer protection, online dispute resolution (ODR), remedies, e-commerce
Authors Amy J. Schmitz and Colin Rule
AbstractAuthor's information

    The internet has empowered consumers in new and exciting ways. It has opened more efficient avenues for consumers to buy just about anything. Want proof? Just pull out your smartphone, swipe your finger across the screen a few times, and presto – your collector’s edition Notorious RBG bobblehead is on its way from China. Unfortunately, however, the internet has not yet delivered on its promise to improve consumer protection.


Amy J. Schmitz
Amy J. Schmitz is the Elwood L. Thomas Missouri Endowed Professor at the University of Missouri School of Law and Center for the Study of Dispute Resolution, and the founder of MyConsumertips.info.

Colin Rule
Colin Rule is co-founder and Chairman of Modria.com and the former Director of Online Dispute Resolution for eBay and PayPal.
Article

Identifying and Establishing Standard ODR Processes

Journal International Journal of Online Dispute Resolution, Issue 2 2016
Keywords alternative dispute resolution (ADR), online dispute resolution (ODR), e-justice, standards, low-value
Authors Zbynek Loebl
AbstractAuthor's information

    This article describes future ODR standards. It differentiates between two layers of ODR standards: (i) access layer and (ii) integration layer. An access layer will contribute to achieving general access for individuals to the most convenient ODR system available, depending on circumstances and preferences of the parties involved. The integration layer will enable wide and flexible sharing of ODR know-how.


Zbynek Loebl
zbynek@loebl.info.

Daniel Rainey
Article

From Practice to Profession: The ODR Community’s Next Vital Step

Journal International Journal of Online Dispute Resolution, Issue 2 2016
Keywords global applicability, knowledge, professionalism, Qualifying Assessment Programs (QAPs), skills
Authors Ana Gonçalves and Irena Vanenkova
AbstractAuthor's information

    If ODR practitioners and service providers visibly and enthusiastically support the need for the set of transparent high practice and approval standards for ODR that are now under preparation by the ODR Task Force of the International Mediation Institute, and become certified, disputants will much more easily recognize the additional knowledge and skills needed to use technology to resolve disputes, ODR will be recognized as a professional field, they will be more open to using ODR, and the field will grow throughout the world in changing times.


Ana Gonçalves
Ana Gonçalves is Chair of the ODR Task Force at the International Mediation Institute.

Irena Vanenkova
Irena Vanenkova is Executive Director at the International Mediation Institute.

Ethan Katsh
Ethan Katsh is Director and Co-Founder of the National Center for Technology and Dispute Resolution, and Professor Emeritus of Legal Studies, University of Massachusetts.

Orna Rabinovich-Einy
Orna Rabinovich-Einy is Assistant Professor at the Faculty of Law of the University of Haifa, Israel.
Article

European Businesses and the New European Legal Requirements for ODR

Journal International Journal of Online Dispute Resolution, Issue 2 2016
Keywords online dispute resolution (ODR), alternative dispute resolution (ADR), consumer disputes, EU legislation, e-commerce
Authors Graham Ross
AbstractAuthor's information

    In terms of practical use outside of e-commerce platforms such as eBay, ODR has not advanced as speedily as many thought might be the case. Two pieces of legislation by the European Parliament applying to consumer disputes, being the European Directive on Alternative Dispute Resolution For Consumer Dispute and the associated Regulation on Online Dispute Resolution have opened up the opportunity for that to change. For the first time, there now is a law that effectively requires businesses to promote ODR. However, with widespread breach, evidence of which is referred to in this paper, this law has not as yet been implemented or honoured as it should be and is in danger that its impact could thereby become counter-productive to its essential objective, albeit not its whole scope, in increasing public confidence in cross-border buying of products and services online. One problem is that the EU decided in their wisdom to stop short of making participation in online ADR mandatory. So we have the odd situation in which it is an offence for businesses to not inform a dissatisfied customer of the web address of an online ADR provider who has been approved under the legislation by the Chartered Trading Standards Institute, yet when that customer seeks to use that service the business can refuse to participate. If refusal to participate is extensive, the situation could lead to a loss of trust generally in a law designed to improve consumer rights and access to justice. This is especially so if traders carry on their website the mandatory link to an EU portal that will refer dissatisfied consumers to an approved provider of online ADR, and which may have been a deciding factor for that consumer in selecting the particular trader to buy from, yet, when a complaint arises, refuse to participate in the provider selected by the consumer.
    Whilst awareness of ODR will grow as a result of this legislation, albeit as an awareness of ADR that will, in the sense of the medium for discussions and exchange of documents, operate online, I have concerns that broad awareness of the fullest extent of what ODR can offer by way of more advanced forms of ODR will not be fully achieved for some time. Whilst this law does indeed present a significant opportunity to expand the use of ODR, it will not happen without effort by those with interests, commercial or otherwise or both, in promoting the expansion of access to justice that ODR offers. Only in this way will this legislation help ensure that there is a commercial need to explore increasingly innovative technology.
    There is an even greater opportunity currently being lost by this legislation beyond consumer disputes. Given that ODR can enable mediation to take place at much more proportionate cost for disputes below the higher levels of value, ODR offers the opportunity to increase mediation’s share of ADR over arbitration. Further, if the public can begin to experience mediation in the busier field of consumer disputes, it would help more quickly embed mediation into our society’s vision of justice and make engagement in mediation for more complex disputes much more frequent. Instead, by lumping mediation in with ombudsman style adjudication, as does this legislation, a much less satisfactory process with at least one party, and often both, dissatisfied with the outcome, it lowers the satisfaction level of all forms of ADR.


Graham Ross
Head of the European Advisory Board to Modria.com Inc, Member of the Civil Justice Councils’ ODR Advisory Group and of its ADR Working Party, and Fellow of the National Center for Technology and Dispute Resolution.

    Het Haags Kinderontvoeringsverdrag (HKOV) is in het leven geroepen om internationale kinderontvoering tegen te gaan en is sinds 1 september 1990 voor Nederland van kracht. Het uitgangspunt van het verdrag is dat kinderen die van de ene naar de andere Verdragsstaat ontvoerd zijn zo spoedig mogelijk dienen terug te keren naar de Staat van gewoon verblijf. De rechter van de Staat waarnaar het kind ontvoerd is kan echter van dit uitgangspunt afwijken, en derhalve een verzoek tot teruggeleiding van het ontvoerde kind afwijzen, door gebruik te maken van een van de zogenoemde weigeringsgronden die zijn neergelegd in de artikelen 12, 13 en 20 HKOV. Deze bijdrage gaat in op de wijze waarop deze weigeringsgronden de afgelopen (ruim) vijfentwintig jaar in de Nederlandse jurisprudentie zijn toegepast. Uit die jurisprudentieanalyse volgt dat de weigeringsgronden in het algemeen niet (te) ruim worden geïnterpreteerd, maar dat een beroep daarop wel degelijk succesvol kan zijn. Vanwege de casuïstische aard van internationale kinderontvoeringszaken kunnen echter niet eenvoudig één of meer combinaties van factoren worden aangewezen op grond waarvan aanstonds duidelijk is dat een teruggeleidingsverzoek zal worden afgewezen.
    The Hague Convention on the Civil Aspects of International Child Abduction aims to prevent international child abduction. The Convention came into force in the Netherlands on the 1st September 1990.
    As a starting point, the Convention holds that a child abducted from one Contracting State and taken to another should be promptly returned to the country of his or her habitual residence. However, the court of the Contracting State to which a child has been abducted may depart from this rule and decide to dismiss the application for the return of the child on the basis of one of the exceptions stipulated in Articles 12, 13 or 20 of the Convention.
    This article deals with the way in which the above-mentioned provisions have been applied in Dutch case law since the Convention came into force. From the analysis of the case law it can be generally established that courts tent to interpret these exceptions rather restrictively. Nevertheless, such exceptions have still been successfully invoked. However, owing to the casuistically nature of international child abduction matters it is not possible to uncover certain combinations of factors that would definitively lead to the rejection of return of the child.


dr. mr. Geeske Ruitenberg
Geeske Ruitenberg is lecturer/researcher at the VU University Amsterdam.

    As the nature of global violence shifts and conflict becomes increasingly characterized by intrastate violence, theoretical underpinnings of violence and aggression based on Westphalian models have become insufficient. Contemporary warfare is no longer confined to acts of violence between states using large-scale weaponry where non-combatants are rarely at the front lines. Instead, small arms have allowed rebel groups to bring the front lines of conflict to villages, resulting in a much deadlier age of violence against civilians. This shift has led to an increase in attention to the impact of violent conflict on civilians, including a consideration of the gendered experiences of women, men, girls and boys.
    Of particular concern in this article is the way in which a discourse of victimhood, mobilized through international policy and intervention, can further marginalize and disempower women in postwar contexts. Drawing on ethnographic data from fieldwork with women in Bosnia-Herzegovina, this article will highlight the usefulness of a narrative framework for understanding how individuals make sense of violence, and the discursive politics at work in how these experiences are storied. To this end, the article endeavours to expand the theoretical base from which to understand women’s experiences of conflict in order to ensure postwar interventions do not confine women to the role of “victim,” but support a full range of their expression of agency.


Jessica M. Smith
Jessica Smith is a PhD candidate at the School for Conflict Analysis & Resolution at George Mason University. Her research is focused on exploring the intersection of photography, narrative theory, and women’s postwar political agency as a point of inquiry for developing a richer understanding of how to meaningfully engage women in conflict transformation processes. Currently, she is a fellow for the Center for the Study of Narrative and Conflict Resolution and the Managing Editor of Narrative & Conflict: Explorations in Theory and Practice.
Article

The Truth of Fiction: Literature as a Source of Insight into Social Conflict and Its Resolution

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2016
Keywords literary approaches to conflict resolution, narrative theory, mass movements, social transformation, social injustice
Authors Angelica R. Martinez and Richard E. Rubenstein
AbstractAuthor's information

    The study of literature, although relatively new to the field of peace and conflict studies, has proven to be a valuable way to develop our understanding of violent social conflicts and the possible methods of resolving or transforming them. Literary texts present students of human conflict and conflict resolution with an appreciation of the power of “thick” descriptions of the human experience and the problems with “thin” modes of expression. Narrative and literary works reveal the indelible marks that violence and conflict inscribe on those left in their wake. Examining conflict through literature also grants students access to the ethical and moral dilemmas that people face as they navigate complex and oppressive social systems. A graduate-level course in “Conflict and Literature” taught for the past ten years at George Mason University provides evidence of these uses and suggests the possibility of further pedagogical developments.


Angelica R. Martinez
Angelica R. Martinez is a PhD candidate at George Mason University and the Branch Chief of Policy and Assessment for NATO’s Allied Land Command in Izmir, Turkey. She taught in the Department of Social Sciences at the U.S. Military Academy (West Point).

Richard E. Rubenstein
Richard E. Rubenstein is University Professor of Conflict Resolution and Public Affairs at George Mason University’s School for Conflict Analysis and Resolution. His most recent book is Resolving Structural Conflicts: How Violent Systems Can Be Transformed (2017).
Article

Narrative Approaches to Understanding and Responding to Conflict

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2016
Keywords narrative, conflict resolution, development, assessment, evaluation
Authors Sarah Federman
AbstractAuthor's information

    While stories have circulated for millennia and constitute the very fabric of life in society, narrative as an optic for understanding and engaging with conflict emerged in the field of conflict resolution only in the past few decades, and has already amassed an array of significant contributions (Bar-Tal and Salomon, 2006; Cobb, 2013; Grigorian and Kaufman, 2007; Kellett, 2001; Lara, 2007; Nelson, 2001; Rotberg, 2006; Winslade and Monk, 2000). They encompass several spheres of action. Narrative analysis provides a means to locate individual and communal meaning in their discourse and to pinpoint conflicts in their world views that threaten their identity and agency. Further, it helps explain how marginalized people remain marginalized. Narrative interventions allow for conflict transformation, helping people to renegotiate their social positions and reclaim lost agency stemming from marginalized positions. Narrative evaluation highlights the flexibility of that model to measure change through a detection of discursive shifts over time. This article provides an overview of narrative approaches to conflict, answering: (a) What is narrative and what is its potential as a tool for understanding and responding to conflict? (b) How might we conduct a narrative analysis of a conflict? (c) From this analysis, how might we then construct narrative interventions and programme evaluations?


Sarah Federman
Sarah Federman is an Assistant Professor at the University of Baltimore in the department of Negotiations and Conflict Management. Federman completed her doctorate at George Mason University’s School for Conflict Analysis and Resolution where she studied the role of the French National Railways (SNCF) in the Holocaust and the on-going conflict in the United States over whether the company has done enough to make amends. She used narrative and ethnographic methods to construct a narrative landscape of the conflict over time and to better understand the social construction of victim-perpetrator binaries. Federman began this research as a masters student at the American University of Paris.
Article

Access_open Harmony, Law and Criminal Reconciliation in China: A Historical Perspective

Journal Erasmus Law Review, Issue 1 2016
Keywords Criminal reconciliation, Confucianism, decentralisation, centralisation
Authors Wei Pei
AbstractAuthor's information

    In 2012, China revised its Criminal Procedure Law (2012 CPL). One of the major changes is its official approval of the use of victim-offender reconciliation, or ‘criminal reconciliation’ in certain public prosecution cases. This change, on the one hand, echoes the Confucian doctrine that favours harmonious inter-personal relationships and mediation, while, on the other hand, it deviates from the direction of legal reforms dating from the 1970s through the late 1990s. Questions have emerged concerning not only the cause of this change in legal norms but also the proper position of criminal reconciliation in the current criminal justice system in China. The answers to these questions largely rely on understanding the role of traditional informal dispute resolution as well as its interaction with legal norms. Criminal reconciliation in ancient China functioned as a means to centralise imperial power by decentralizing decentralising its administration. Abolishing or enabling such a mechanism in law is merely a small part of the government’s strategy to react to political or social crises and to maintain social stability. However, its actual effect depends on the vitality of Confucianism, which in turn relies on the economic foundation and corresponding structure of society.


Wei Pei
Wei Pei, Ph.D., is an Associate Professor at the Beihang School of Law in the Beihang University.
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