Alternative Dispute Resolution

Alliances and Dispute Review Boards: Best Friends or Worst Enemies?

by paula gerber

Gerber, Paula ‘Alliances and Dispute Review Boards: Best Friends or Worst Enemies?’ (2012) 10(1) Australian Journal of Civil Engineering 57-66.

Dispute Review Boards (DRBs) are a very popular dispute avoidance process (DAP) used widely around the world as an... more Dispute Review Boards (DRBs) are a very popular dispute avoidance process (DAP) used widely around the world as an effective tool for ensuring that the conflicts, which invariably arise during the course of construction projects, do not escalate into disputes. DRBs have enjoyed phenomenal success, with 98% of projects that used a DRB being completed with no outstanding disputes. However, Australia has not been part of the global DRB trend. Instead, Australia has embraced an alternative form of DAP, namely, project alliances. While alliances continue to grow in popularity within Australia, this DAP model remains virtually unknown internationally. This article examines why Australia has not embraced DRBs, and whether this country’s enthusiasm for alliances has been at the expense of DRBs, before considering whether there is room for both models of dispute management.

Should DAPs be included in standard form contracts?

by paula gerber

Paula Gerber & Brennan Ong 'Should DAPs be included in standard form contracts?' (2012) 143 Australian Construction Law Newsletter 6-20.

Dispute Avoidance Processes (DAPs), such as Dispute Review Boards (DRBs), Dispute Adjudication Boards (DABs) and... more Dispute Avoidance Processes (DAPs), such as Dispute Review Boards (DRBs), Dispute Adjudication Boards (DABs) and Dispute Resolution Advisors (DRAs) are now a common feature of construction projects around the world. However, Australia has been slow to embrace DAPs. There is no history of DABs or DRAs being used in this country and only modest use of DRBs. The failure of the Australian construction industry to embrace DAPs is surprising given the proven international track record of DAPs in ensuring that construction projects reach completion with no outstanding disputes. One possible explanation for the lack of uptake of DAPs in Australia may be the complete absence of any provisions relating to DAPs in any Australian standard form contract. This article considers how provisions relating to DAPs have been incorporated into standard form contracts in other jurisdictions, whether Australia should follow suit, and if so, how this could be achieved.

An Empirical Investigation of Interorganizational Opportunism and Contracting Mechanisms

by Fabrice Lumineau

Lumineau F. & Quélin B. V. 2012. “An Empirical Investigation of Interorganizational Opportunism and Contracting Mechanisms.” Strategic Organization, 10(1): 55-84.

This study investigates contracting mechanisms in situations of opportunistic disputes between organizations. We... more This study investigates contracting mechanisms in situations of opportunistic disputes between organizations. We specifically explore the relationships between the formal versus informal nature of opportunism and the formal versus informal nature of contractual governance. We use a unique data set of 102 buyer-supplier disputes to explore in depth different types of opportunism—that is, strong form versus weak form opportunism—and different types of contracting mechanisms—that is, the controlling and coordinating functions of formal contracts and the cooperative and competitive sides of relational contracts. Our detailed empirical analysis suggests distinct relationships between the different contracting mechanisms, the different types of opportunism, and the level of legal fees necessary to deal with the dispute. These findings enable us to derive implications for research on the role of contractual mechanisms in dealing with interorganizational opportunism.

E. Sullivan and A. Solomou, "Alternative Dispute Resolution in Land Use Disputes - Two Continents and Two Approaches", 43(4) Urban Lawyer (2011) 1035-1059.

by Alexia Solomou

In pursuit of the pagans: Muslim law in the English context

by Prakash Shah

Western and Muslim law. Muslim law is itself a complex, pluralistic amalgam of different legal ‘bricks’, and in the... more Western and Muslim law. Muslim law is itself a complex, pluralistic amalgam of different legal ‘bricks’, and in the context of the struggle for Islam to be acknowledged as a legitimate source of value pluralism in the Western context, the religious aspects of Muslim law, with their doctrinal justifications, are being foregrounded. With the English case as the main focus, I further argue that customs among Muslims are suppressed in this process of ‘shariatisation’. Beyond that, even Muslim doctrines are being placed under the spotlight in various ways. These changes are taking place as a result of Muslims living as nondominant communities in Europe, where they are under the gaze of the dominant culture and are judged to be potential or actual violators of human rights and the rule of law. Relying on Balagangadhara’s (2005) explanation of the ‘dynamic of religion’, I present these processes as an outcome of the collision of two religious cultures, the Islamic and the Western.

Enforcement of Multi-Tiered Dispute Resolution Clauses

by Wian Erlank

This research paper considers the general enforceability of Alternative Dispute Resolution Clauses (ADR) particularly... more This research paper considers the general enforceability of Alternative Dispute Resolution Clauses (ADR) particularly in the context of Multi-Tiered Dispute Resolution Clauses (MTDRC) by courts in selected jurisdictions. It looks at the problem of enforceability in a legal-comparative perspective by comparing cases from various civil- as well as common-law jurisdictions.

The conclusions reached in this research paper is that there is an increasing support for the use of such clauses and thus for the enforcement thereof by the courts. However, the requirements that each jurisdiction has for enforcement shows significant differences. Therefore a party who wishes to utilise such a clause must make sure that he/she is familiar with the specific requirements of relevant national laws before drafting the clause.

[Russland] VerfGE vom 26.5.2011 zur Kompetenz der Schiedsgerichte

by Leonid Shmatenko

Published in: 3 OER 335 - 338 (2011).

In der Entscheidung vom 26. Mai 2011 setzte sich das Verfassugsgericht mit Artt.11 Abs. 1 ZGB, Art. 33 Abs. 1, 51... more In der Entscheidung vom 26. Mai 2011 setzte sich das Verfassugsgericht mit Artt.11 Abs. 1 ZGB, Art. 33 Abs. 1, 51 Hypothekengesetz, dem Schiedsgerichtsverfahrensgesetz
sowie Art. 28 des Gesetzes über die Anmeldung von Rechten an Immobilien auseinander.

Die Arbeitsgerichtsbarkeit in der Ukraine

by Leonid Shmatenko

Co-authored with Martin Matthias Blüm
Published in: 4 OER 397 - 402 (2011).

So wie in der Russischen Föderation, so sind auch in der Ukraine die Arbeitsgerichtsbarkeit und das Prozessrecht nicht... more So wie in der Russischen Föderation, so sind auch in der Ukraine die Arbeitsgerichtsbarkeit und das Prozessrecht nicht gesondert geregelt, sondern Bestandteil des Arbeitsgesetzbuchs (ArbGB). Im Anschluss an den Beitrag über das ukrainische Individualarbeitsrecht, widmet sich dieser Artikel dem gerichtlichen Individualechtsschutz, der ebenfalls·im Arbeitsgesetzbuch geregelt ist. Die Verfahrensregeln beinhaltet das 15. Kapitel. Grundsätzlich sind drei verschiedene Arten des Rechtsschutzes im Fall von individualarbeitsrechtlichen
Streitigkeiten vorgesehen.

Integrating conflict resolution into EAPs

by Sherrill Hayes

Conflict resolution (CR) has been known by several different names, including conflict management, dispute resolution,... more Conflict resolution (CR) has been known by several different names, including conflict management, dispute resolution, and alternative dispute resolution. Regardless of the name, the core skills and interventions are the same, and some of them will be familiar to employee assistance professionals. Opportunities for collaboration between EA and CR professionals have expanded over the last few years (Margulies 2008; Porter and Sawyer-Harmon 2005; Wilburn 2006), in part because of the similarities between the two fields. Both seek to empower individuals to resolve their own problems, use similar skill sets, and encourage alternative means of resolving workplace disputes and conflicts. This article provides an overview of some of the basic skills and interventions used by conflict resolution professionals and lists CR-specific references and resources. It also offers examples of direct applications of CR skills to EA practices.

Parenting Coordination: Resolving High Conflict Disputes in the USA

by Sherrill Hayes

Research has demonstrated the significant negative impact of ongoing inter-parental conflict on children. In addition... more Research has demonstrated the significant negative impact of ongoing inter-parental conflict on children. In addition to the
harm they may be causing their children, ‘high conflict’ separated and divorced parents have frustrated attorneys and created additional workloads for the courts. In reaction to these issues, courts and state legislatures have often turned to third-party, alternative dispute resolution (ADR) processes such as mediation, arbitration, and parent education for solutions. A recent addition to the ADR spectrum is parenting coordination (PC). Although this practice has been known by different names in different states,all of these designations essentially refer to a consistent idea of a child-focused ADR process in which a mental health or legal professional with mediation training and experience assists high conflict families to implement their custody order.

Dispute Avoidance Procedures (" DAPs")-The Changing Face of Construction Dispute Management

by paula gerber

Mediazione e soluzioni alternative delle controversie nelle legislazioni straniere (in materia di trust)

by Michele Angelo Lupoi

Community based divorce education programmes: Short-term and longer-term impacts

by Sherrill Hayes

co-author Lori Pelletier

Evaluation of a community-based parenting education program for parents in conflict over child custody and visitation.... more Evaluation of a community-based parenting education program for parents in conflict over child custody and visitation. The evaluation shows the positive short and longer term impacts of this program on parenting attitudes and behaviors and situates it in similar programs across North America.

Understanding Conflict Resolution from the Inside Out OR Why 800 Pound Gorillas Aren’t Great Mediators

by Sherrill Hayes

Imagine you are a party to mediation and you arrive at your mediation session only to be faced with an 800 pound... more Imagine you are a party to mediation and you arrive at your mediation session only to be faced with an 800 pound gorilla, in a suit of course, who will be your mediator so you ask yourself,
“Can a gorilla be a mediator?” This article examines the philosophical and theoretical foundations of human conflict, reviews some of the thinking about mediation in the last 30 years, and introduces the author's "critical incident and intervention approach" to working with conflict.

Dispute Avoidance Processes (DAPs) In Australia — Bringing The Future Into The Present

by paula gerber

Ong, Brennan and Gerber, Paula ‘Dispute Avoidance Processes (DAPs) In Australia—Bringing The Future Into The Present’ (2011) 141 Australian Construction Law Newsletter 51-59.

Dispute Avoidance Processes (DAPs) such as Dispute Review Boards (DRBs), Dispute Adjudication Boards (DABs) and... more Dispute Avoidance Processes (DAPs) such as Dispute Review Boards (DRBs), Dispute Adjudication Boards (DABs) and Dispute Resolution Advisors (DRAs) are becoming commonplace on major construction and infrastructure projects around the world. This is not surprising given that DAPs have a proven track record of assisting parties to complete their major projects within time, within budget and without outstanding disputes.  However, it is becoming increasingly obvious that Australia has not yet fully embraced DAPs, and is not part of the global DAPs movement. This is surprising, given that a recent study revealed that $7 billion is being expended annually in connection with construction disputes in Australia.  Given this degree of wastage, one would have thought that the Australian construction industry would be at the forefront of efforts to reduce disputes. 

Let's Work it Out (or We'll See You in Court): Litigation and Private Dispute Resolution in Vertical Exchange Relationships

by Fabrice Lumineau

Lumineau F. & Oxley J. 2012. “Let’s Work It Out (Or We’ll See You in Court): Litigation and Private Dispute Resolution in Vertical Exchange Relationships.” Organization Science, Forthcoming.

We examine how partners in vertical exchange relationships actually resolve disputes that are sufficiently serious to... more We examine how partners in vertical exchange relationships actually resolve disputes that are sufficiently serious to get lawyers involved. Reaching beyond the usual domain of organizational and management research, we leverage findings from law and economics to offer a novel organizational perspective on litigation and private dispute resolution, and we develop hypotheses about the likelihood of litigation in different exchange settings. Our empirical analysis generates three sets of new findings: First, counter to the received wisdom, we see that the involvement of lawyers does not necessarily signal the bitter end of an exchange relationship, because firms frequently manage to avoid litigation and resolve their disputes privately, and they do so in a manner that accords with our theoretical predictions. Second, we see that familiarity with exchange partners does not automatically lead to increased willingness to work things out; rather, our empirical results suggest that the impact of exchange duration on parties’ willingness to resolve disputes privately is contingent on the development of norms of cooperation: in the event that such norms do not develop, the probability of a litigated outcome actually increases over time. Finally, we see that firms’ willingness to work things out privately is also influenced positively by the shadow of the future. These findings are suggestive of a “discriminating alignment” between exchange characteristics and the choice of dispute resolution procedure, and they thus inject important new evidence into ongoing discussions about the legal underpinnings of different governance forms.

Shadow of the Contract: How Contract Structure Shapes Interfirm Dispute Resolution

by Fabrice Lumineau

Lumineau F. & Malhotra D. 2011. “Shadow of the Contract: How Contract Structure Shapes Inter-Firm Dispute Resolution.” Strategic Management Journal, 32(5): 532-555.

This paper investigates how contract structure influences inter-firm dispute resolution processes and outcomes by... more This paper investigates how contract structure influences inter-firm dispute resolution processes and outcomes by examining a unique dataset consisting of over 150,000 pages of documents relating to 102 business disputes. We find that the level of contract detail affects the type of dispute resolution approach that is adopted when conflict arises, and that different approaches are associated with different costs for resolving the dispute. We also find that the effect of contract choice on dispute resolution approach is moderated by the degree of coordination required in the relationship, and that the effect of dispute approach on costs is moderated by the degree of power asymmetry between the parties. Thus, even after controlling for various attributes of the exchange relationship and the dispute, the choice of contracting structure has important strategic implications.

Trust and Collaboration in the Aftermath of Conflict: The Effects of Contract Structure

by Fabrice Lumineau

Malhotra D. & Lumineau F. 2011. “Trust and Collaboration in the Aftermath of Conflict: The Effects of Contract Structure.” Academy of Management Journal, 54(5): 981-998.

Leveraging a longitudinal dataset concerning 102 inter-firm disputes, we evaluate the effects of contract structure on... more Leveraging a longitudinal dataset concerning 102 inter-firm disputes, we evaluate the effects of contract structure on trust and on the likelihood of continued collaboration. We theoretically refine and empirically extend prior research by (a) distinguishing between control and coordination functions of contracts, (b) separating goodwill-based and competence-based trust, and (c) evaluating the effects of contract structure on relational outcomes in the context of disputes. We find that control provisions increase competence-based trust, but reduce goodwill-based trust, resulting in a net decrease in the likelihood of continued collaboration. Coordination provisions increase competence-based trust, leading to an increased likelihood of continued collaboration.

The Hidden World of Consumer ADR: Redress and Behaviour

by Phil Dines

Christopher Hodges, Naomi Creutzfeldt-Banda, and Iris Benöhr

This report summarizes the findings of an Oxford research project and an international conference which assessed... more This report summarizes the findings of an Oxford research project and an international conference which assessed alternative methods for settling consumer disputes that do not involve the courts.

The report was published on the day the European Commission announced draft legislation on consumer ADR, and comes in response to the finding that many governments are interested in ADR as an alternative to courts to improve access to justice, overcome problems of costs and funding for court mechanisms, and help maintain competitive markets.
The report assesses the existing dispute resolution models used across Europe, and makes recommendations:

    to improve transparency and timeliness of dispute resolution
    to increase awareness of the alternative mechanisms available for both consumers and traders
    to consolidate the range of existing initiatives across Europe
    to improve the scope, quality, and reliability of ADR, particularly for cross-border and online transactions

A Model for Dispute Resolution in Europe

by Phil Dines

Christopher Hodges

This policy brief addresses alternative dispute resolution mechanisms in Europe to propose an integrated, holistic... more This policy brief addresses alternative dispute resolution mechanisms in Europe to propose an integrated, holistic approach to encompass the range of mechanisms for resolving disputes, including ombudsmen, compensation schemes, business codes of conduct, complaint boards, and other pathways.

In response to the increase in collective redress, a European alternative to US-style class actions is presented by way of a model for the alignment of the various existing systems to promote good practice.

The best ADR mechanisms do not just lead to resolution of disputes but also deliver information, incentives, and pressure to maintain and improve performance standards. Hence, dispute resolution systems should be designed to play their part within wider regulatory structures, providing lessons that can be used to influence future behaviour.