Dispute Processes: ADR and the Primary Forms of Decision-Making

by Simon Roberts , Michael Palmer

• ISBN13: 9780521676014
• ISBN10: 0521676010
• Edition: 2nd
• Format: Paperback
• Copyright: 2005-11-21
• Publisher: Cambridge University Press

Summary

This volume considers the primary forms of decision-making for disputes: negotiation, mediation, and umpiring - in the context of the rapidly changing discourses and practices of civil justice taking place across a broad range of jurisdictions. Potential litigants increasingly need to be aware of the comple range of dispute management processes available to them, and lawyers have to develop skills beyond those traditionally associated with litigation and the courts. This new edition brings together and anlyzes a wide range of material dealing with dispute processes and the current debates on civil justice.

Table of Contents

Preface	xiii
Acknowledgements	xiv
Introduction	1	(8)
Prologue	1	(1)
Shifting Ground in the Common Law World	1	(4)
The Comparative Scene	5	(1)
Civilian Parallels	6	(1)
Legal Reform Initiatives and the Role of ADR	7	(1)
The Scope of this Book	7	(2)
Cultures of Decision-making: Precursors to the Emergence of ADR	9	(36)
Introduction	9	(1)
Ideals of Informal Justice	10	(1)
The Establishment of Formal Justice	11	(7)
The Religious Impulse Towards Informalism	18	(3)
The Political Impulse Towards Informalism	21	(4)
The Ethnic Impulse Towards Informalism	25	(2)
The Occupational Impulse Towards Informalism	27	(4)
Territorial Identity and the Impulse Towards Informalism	31	(7)
Movements for Legal Reform and Informalism	38	(3)
Temporal Dimensions	41	(2)
Conclusions	43	(2)
The Debates Around Civil Justice and the Movement Towards Procedural Innovation	45	(34)
Introduction	45	(5)
The Debates of the 1980s	50	(15)
The Subsequent Trajectory of the ADR Movement	65	(11)
Reiterating the Critiques of Informalism	76	(1)
The Direction of ADR	77	(2)
Disputes and Dispute Processes	79	(34)
Introduction	79	(2)
Typologies of Response	81	(4)
Reconstructing a Panorama of Decision-making	85	(28)
Negotiations	113	(40)
The Nature of Negotiation	113	(6)
Intra-party and Multi-party Negotiations	119	(6)
The Processual Shape of Negotiation	125	(7)
Power in Negotiation	132	(1)
Strategy in Negotiation	133	(9)
Representative Negotiations	142	(4)
Ethical Issues in Negotiation	146	(7)
Mediation	153	(68)
Introduction -- The Nature of Mediation	153	(19)
The Mediator in the Negotiation Process: The Processual Shape of Mediation	172	(5)
The Late Twentieth Century Re-institutionalisation of Mediation	177	(42)
Conclusion	219	(2)
Umpiring	221	(56)
Introduction	221	(1)
Government and Dispute Institutions	222	(5)
The Legitimation of Third-party Decision-making	227	(9)
The Role of Courts	236	(7)
The Heterogeneity of Court Practice	243	(2)
Contemporary Transformations in the Common Law World	245	(15)
The Popular Element in Courts	260	(4)
Arbitration -- General	264	(5)
Arbitration -- Court-linked	269	(1)
Arbitration -- International	269	(8)
Hybrid Forms and Processual Experimentation	277	(82)
Introduction	277	(6)
Settlement as Civil Justice	283	(3)
Negotiation-related Innovations	286	(3)
Mediation-related Innovations	289	(21)
Refurbishing Umpiring -- Adjudication	310	(21)
Refurbishing Umpiring -- Arbitration	331	(15)
The Ombudsperson	346	(13)
The Trajectory of Alternative Dispute Resolution	359	(6)
Introduction	359	(1)
The Contemporary Scene	360	(2)
The Future	362	(3)
Bibliography	365	(14)
Index	379