Teetering at the Top of the Ladder: The Experience of Citizen Group Participants in Alternative Dispute Resolution Processes

1996 ◽  
Vol 39 (2) ◽  
pp. 249-262 ◽  
Author(s):  
Julia M. Wondolleck ◽  
Nancy J. Manring ◽  
James E. Crowfoot
Keyword(s):  
Dispute Resolution ◽  
Citizen Participation ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Working Relationships ◽  
Citizen Groups ◽  
Citizen Group ◽  
Critical Components ◽  
Resolution Processes ◽  
Do So

Citizen groups that participate in alternative dispute resolution processes have overcome many of the barriers described in Sherry Arnstein's classic article, “A Ladder of Citizen Participation.” A well-structured collaborative process can remedy some of the imbalances and other stumbling blocks inherent in traditional forums, broadening the issues considered as well as the potential solutions. At the top of the ladder, there exists a three-runged extension of choices. First citizens must make the strategic choice whether or not to participate in the dispute resolution process. Second, if they choose to participate, citizens must then determine how to do so effectively. Citizen representatives can significantly influence the outcome of a negotiation if they pay attention to the critical components comprising the dispute settlement process and ensure that these are satisfactory at the outset. They must also maintain effective communication with their constituencies. At the third rung, citizen groups confront the need for continued involvement, both to ensure implementation of any agreements reached, as well as to capitalize on the productive working relationships and opportunities for further influence provided by their participation in this process.

scholarly journals Arbitration of family separation issues – a useful adjunct to mediation and the court process

2014 ◽  
Vol 17 (6) ◽  
pp. 2356 ◽  
Author(s):  
M De Jong
Keyword(s):  
South Africa ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Family Law ◽  
The United States ◽  
Family Breakdown ◽  
The Many ◽  
Substantive Law ◽  
Resolution Processes

For over half a century now, section 2(a) of the Arbitration Act 42 of 1965 has prohibited arbitration in respect of matrimonial and related matters. In this article it will be illustrated that this prohibition is clearly incompatible with present-day demands. Today there is a strong tendency in public policy towards alternative dispute resolution processes such as arbitration. As any recommendations that arbitration should be applied to family law disputes must be anchored in an analysis of the specific character of the arbitral remedy, the article begins by giving a broad overview of the nature of arbitration. This is followed by a discussion of the present-day demand for family arbitration, which examines the problems experienced with the adversarial system of litigation in resolving family law disputes, party autonomy, the development of alternative dispute resolution processes such as mediation and arbitration, the special synergy between mediation and arbitration, the success of arbitration in other fields of law and possible forerunners for family arbitration in South Africa. Inherent in the demand for family law arbitration are the many advantages of arbitration, which are also touched upon. Thirdly, current trends in England, Australia, the United States of America, Canada and India are analysed so as to identify a suitable family law arbitration model for South Africa. Special attention is paid to the matters that should be referred to arbitration – for example, should it be confined to matrimonial property and financial disputes or extended to all matters incidental to divorce or family breakdown, including children's issues? Other questions examined include whether family arbitration should comply with substantive law only, who should act as arbitrators, whether family arbitration should be voluntary or compulsory, what the court's role in the family arbitration process should be, and whether family law arbitration should be regulated by the existing Arbitration Act or by a separate statute with specialised rules for family matters. Lastly, it is concluded that although family arbitration will not have universal appeal or common application, it should be encouraged and enforceable for those who choose this private alternative dispute settlement technique to resolve their family disputes.

scholarly journals The alternative law of alternative dispute resolution

2005 ◽  
Vol 32 (1) ◽  
pp. 3
Author(s):  
Gordon R. Woodman
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Good Reason ◽  
Legal Pluralism ◽  
The State ◽  
The Social ◽  
Social Fields ◽  
The Law ◽  
Resolution Processes

The perceptions afforded by the study of legal pluralism assist an understanding of the full scope and the social and moral significance of alternative dispute resolution. The latter term includes all modes and forms of dispute resolution within the legal order of the state other than the usual forms of adjudication by the ordinary courts. These modes may be classified in relatively wide and fluid categories as other forms of adjudication, and arbitration, mediation and negotiation. However, alternative dispute resolution also includes instances of all these processes which are not established, adopted, or made effective by the state. The study of legal pluralism throughout the world shows that almost everywhere are many such instances, generated within many semi-autonomous social fields other than the state, and falling into all the listed categories. The study of legal pluralism further suggests that the different dispute settlement processes are likely to be associated with different bodies of legal norms. There is evidence that to some extent alternative state processes employ different bodies of laws. The evidence also shows that non-state processes employ bodies of norms which always differ, and may differ widely from those of state law. While legal centralism denies these norms the name of "laws", there seems no good reason not to classify such rules and principles, which order relations within social fields other than the state, as "customary law", or by some similar term. Alternative dispure resolution processes have been lauded as enhancing the effectiveness of the law, providing wider access to justice or law. However, if the argument presented here is correct, it is not sufficient to represent them as implementing "the law". Rather each implements a different variety of law. The social functions of these different laws of different dispute resolution processes, both state and non-state, vary, and so need investigation in each particular case. Whether any law is to be approved as affecting power relations in the society concerned is similarly a matter for investigation. While it has been suggested that alternative dispute resolution processes can confer on the weak and underprivileged an opportunity to assert their interests, it has been argued against such a view that they may provide opportunities for the already powerful to increase their powers, free of the restraining influence of regular state courts. On the other hand, state processes may at certain historical moments be manipulated by the weak to their advantage. Non-state processes may, also in special circumstances, empower collectively the members of the social fields in which they operate.

scholarly journals Kewenangan Badan Penyelesaian Sengketa Konsumen (BPSK) dalam Menyelesaikan Sengketa Asuransi Pasca Keluarnya Peraturan Otoritas Jasa Keuangan (OJK) Nomor 1/POJK.07/2014

2019 ◽  
Vol 12 (2) ◽  
pp. 102
Author(s):  
Wisnu Kumala ◽  
Yaswirman Yaswirman ◽  
Ulfanora Ulfanora
Keyword(s):  
Dispute Resolution ◽  
Consumer Protection ◽  
Financial Services ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Legal Research ◽  
Research Results ◽  
Consumer Protection Act ◽  
Legal Effect ◽  
Legal Consequences

There is a tug of authority in resolving insurance disputes outside the court between the Consumer Dispute Settlement Agency (BPSK) based on Law Nomor 8 of 1999 concerning Consumer Protection with Alternative Dispute Resolution Institutions (LAPS) based on Financial Services Authority Regulation Number 1/POJK.07/2014. This encourages the author to conduct legal research in order to determine the authority of BPSK in resolving insurance disputes as well as the legal consequences of the decision after the issuance of the Financial Services Authority Regulation Number 1/POJK.07/2014 using the statutory approach. This legal research results in the finding that BPSK is still authorized to settle insurance disputes following the issuance of the Financial Services Authority Regulation Number 1/POJK.07/2014, this is based on the provisions of the Lex superior derogat legi inferiori principle. Then there is no legal effect on the BPSK decision after the issuance of the Financial Services Authority Regulation. This is because BPSK's decision has been based on Law Number 8 of 1999 concerning Consumer Protection, whose position is higher than the Regulation of the Financial Services Authority. So there is no need for BPSK to follow the provisions of the regulations whose hierarchy of legislation is lower than the Consumer Protection Act. Therefore BPSK's decision is "final and binding" as explained in Article 54 paragraph 3 of the Consumer Protection Act.

scholarly journals СУТНІСТЬ ТА ОСОБЛИВОСТІ ДОСУДОВОГО ВРЕГУЛЮВАННЯ АДМІНІСТРАТИВНО-ПРАВОВИХ СПОРІВ

2019 ◽  
Vol 14 ◽  
pp. 5-18
Author(s):  
C. В. Ківалов
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
The Relationship

У статті проаналізовано поняття, сутність та особливості досудового урегулювання адміністративно-правових спорів. Особливу увагу приділено співвідношенню понять «спо­соби, альтернативні правосуддю» й «альтернативне вирішення спорів». Здійснено поділ до­судових способів за такими критеріями: 1) за суб'єктом, що здійснює процедуру вирішення спору: а) державні процедури врегулювання спору; б) недержавні процедури врегулювання спору; 2) за методом врегулювання спору: а) примирювальні (компромісні) процедури; б) правовїдновлювальні процедури; в) змішані процедури. Визначено, що найбільш поши­реними методами досудового вирішення спорів с переговори, посередництво, арбітраж.   The paper analyzes the concept, essence, and characteristics of pre-trial settlement of administrative legal disputes. Particular attention is paid to the relationship between the concepts "methods alternative to justice" and "alternative dispute resolution". The author carries out the classification of pre-trial methods according to the following criteria: 1) by the entity that carries out the procedure for dispute settlement: a) state dispute settlement procedures; b) non-state dispute settlement procedures; 2) by the method of settlement of the dispute: a) conciliation (compromise) procedures; b) procedures for restoration of rights; c) mixed procedures. It is determined that the most common methods of pre-trial dispute resolution are: negotiation, mediation, arbitration.

Alternative Dispute Resolution and Individual Workplace Rights: The Evolving Role of Fair Work Australia

2011 ◽  
Vol 53 (5) ◽  
pp. 718-732 ◽  
Author(s):  
Therese MacDermott ◽  
Joellen Riley
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Access To Justice ◽  
Traditional Role ◽  
Adverse Action ◽  
Recognition And Enforcement ◽  
Workplace Rights ◽  
The Right ◽  
Resolution Processes

This article examines the dispute resolution practices of Fair Work Australia that are evolving to deal with individual workplace rights, as its traditional role shifts away from conciliating and arbitrating collective industrial disputes. The workplace rights enshrined in the ‘general protections’ provisions in Part 3-1 of the Fair Work Act 2009 protect employees and prospective employees from any ‘adverse action’ taken against them because they are exercising a workplace right, or because they fall within one of the protected categories, such as the right to be free from discrimination. A broad range of alternative dispute resolution processes is now available to Fair Work Australia in dealing with such disputes. Alternative dispute resolution processes are seen as a way of avoiding costly and time-consuming litigation, and in some circumstances can improve access to justice for individuals. This article explores whether Fair Work Australia is likely to adopt different dispute resolution approaches from its traditional conciliation practices when managing ‘general protections’ applications, and whether the framework for dealing with these disputes will facilitate fair recognition and enforcement of workplace rights.

scholarly journals PELAKSANAAN SITA JAMINAN DALAM HUKUM ACARA ARBITRASE

Yuridika ◽  
2010 ◽  
Vol 25 (1) ◽  
Author(s):  
Sujayadi . ◽  
Yuniarti .
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
The Law ◽  
To Come ◽  
The Individual ◽  
Resolution Processes ◽  
Selection Of

Alternative dispute resolution (ADR) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. Despite historic resistance to ADR by many popular parties and their advocates, some courts now require some parties to resort to ADR of some type, usually mediation. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. In Indonesia based on the Law No. 30/1999 concerning Alternative Dispute Resolution and Arbitration, ADR is interpreted as alternative to adjudication as it is reflected in the title of the Law No. 30/1999. Based on article 32 the collateral forclosure is enable to be done. The procedure of this were adopting the procedure of the collateral forclosure in civil court.Keyword : Alternative dispute resolution, collateral forclosure.

scholarly journals Penyelesaian Sengketa antara Bank Sharî‘ah dengan Nasabah Bermasalah melalui Badan Arbitrase Sharî‘ah Nasional (BASYARNAS) menurut UU No. 30 tahun 1999

2015 ◽  
Vol 9 (1) ◽  
pp. 193
Author(s):  
Sulistyowati Sulistyowati
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Islamic Law ◽  
Legal Rules ◽  
Arbitration Board ◽  
Strong Emphasis ◽  
The Cost

<p>This study deals with dispute settlement between <em>Bank Syari’ah</em> and its customers through the National Shari’ah Arbitration Board (BASYARNAS). It focuses to elaborate the procedures of dispute settlement between <em>Bank Syari’ah</em> and its customers of financing from the perspective of Islamic law according to Bill No. 30/1999 above law No. 30 year 1999. Based on procedures as mentioned in the bill with regard to arbitration and alternative dispute resolution, Basyarnas, in proofing and resolving cases, has fulfilled the procedures and satisfied the conflicting parties with justice, so there is no need to appeal and reconsideration. This means that Basyarnas has conducted dispute resolution according to the existing procedures. The dispute settlement has also been in accordance with the Qur’ân and other Islamic legal rules which consist of the principles of power and mandate applied by the arbitrator in deciding and resolving the dispute. The board—as an independent institution—has setttled the disputes on the basis of justice for all parties, rejected the act of bribery since the cost is measurable. In addition, Basyarnas also gives strong emphasis on the principle of equality, friendship, consistence and response-bility in resolving disputes.</p>

scholarly journals Dispute Resolution Provisions of the Agreement on Internal Trade

1995 ◽  
Vol 34 (1) ◽  
pp. 240
Author(s):  
Luigi Di Marzo
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Trade Agreement ◽  
Screening Process ◽  
Municipal Governments ◽  
General Application ◽  
Free Movement Of Persons ◽  
Made In ◽  
Do So ◽  
Internal Trade

The author discusses the new Agreement on Internal Trade, a multilateral trade agreement to which the federal government and all the provincial governments in Canada are parties. The Agreement can also extend to municipal governments and any qualifying 'persons' in certain circumstances. The object of the Agreement is to remove barriers to the free movement of persons, goods, services and investment within Canada. This article concentrates on the dispute resolution provisions of the Agreement The article is organized into three parts: the main characteristics of these provisions, how they operate for different entities and an assessment of the provisions. The Agreement prescribes alternative dispute resolution in an effort to avoid the length and cost of traditional court settlements. It has dispute resolution provisions in two places: for each industry in its respective sector chapter and for general application in chapter 17. While the provincial and federal governments may use the dispute resolution provisions directly as needed, non-parties to the Agreement who wish to make use of the provisions may do so only if a government with which they have a "substantial connection" initiates proceedings on their behalf, or after passing a screening process. The article reviews each step of the process that must be made in order to resolve disputes under the Agreement, both for government-to-government and person-to-government disputes. The article ends with an assessment of the dispute resolution provisions and some suggested improvements to them that may have improved and streamlined the provisions, especially for person-to-government disputes.

scholarly journals EFISIENSI PEMILIHAN ALTERNATIF PENYELESAIAN SENGKETA DALAM PENYELESAIAN SENGKETA WARALABA

FIAT JUSTISIA ◽  
2017 ◽  
Vol 10 (3) ◽  
Author(s):  
Rahmi Yuniarti
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Business Continuity ◽  
Legal Research ◽  
Descriptive Research ◽  
Business Contract

AbstractFranchise as a business contract between franchisor and frachisee which in the practice sometimes leads to a dispute. A dispute happens because their rights and obligations are not met. Dispute settlement businesses can choose a judiciary or non-judiciary institution. However, considering of the business continuity, the dispute must be resolved so each side can fulfill their needs to solve the dispute. The problems in this study are the factors that can arise disputes franchise and the efficiency of selecting alternatives of dispute resolution to resolve the dispute franchise. This type of the research used by the researcher is a normative legal research. This type of research is a descriptive research. The conclusions of this study are the factors that cause disputes franchise is the existence of rights and obligations are not met and fulfilled, and it happens mostly because the oversight and discontinuance of the franchise that are assumed not giving advantages or inflicting one of the parties. Moreover, there are possibilities of not keeping promises which have been decided before. Keywords: Alternative Dispute Resolution, Franchise Dispute AbstrakWaralaba sebagai suatu kontrak bisnis antara franchisor dan frachisee dalam pelaksanaannya tidak sedikit yang menimbulkan suatu sengketa. Suatu sengketa muncul dikarenakan adanya hak dan kewajiban yang tidak terpenuhi. Penyelesaian sengketa bisnis dapat memilih lembaga pengadilan atau lemabaga non-peradilan. Namun, dengan pertimbangan akan kelanjutan bisnis yang dijalani alternatif penyelesaian sengketa dianggap lebih dapat menyalurkan keinginan para pihak untuk menyelesaiakan sengketa bisnis. Permasalahan pada penelitian ini adalah faktor-faktor yang dapat menimbulkan sengketa waralaba dan efisiensi pemilihan alternatif penyelesaian sengketa untuk menyelesaikan sengketa waralaba. Jenis penelitian yang digunakan penulis dalam penelitian ini adalah bersifat penelitian hukum normatif. Tipe penelitian ini adalah penelitian deskriptif. Simpulan dari penelitian ini, faktor-faktor yang menyebabkan timbulnya sengketa waralaba adalah adanya suatu hak dan kewajiban yang tidak terpenuhi dan paling banyak terjadi dikarenakan pengawasan dan pemutusan hubungan waralaba yang dianggap merugikan salah satu pihak. Selain itu, ketidakpastian karena ada kemungkinan tidak ditepatinya janji serta risiko permintaan yang tidak sesuai dengan yang direncanakan. Kata Kunci: Penyelesaian Sengketa, Sengketa Waralaba

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