Showing posts with label Mediation and ADR. Show all posts
Showing posts with label Mediation and ADR. Show all posts

Tuesday, May 13, 2014

Morris on the History of Mediation in New Zealand

Grant Hamilton Morris, Victoria University of Wellington Faculty of Law, has posted Towards a History of Mediation in New Zealand's Legal System, which also appears in Australasian Dispute Resolution Journal 24 (2013): 86-101.  Here is the abstract:    
The history of mediation in New Zealand reflects a number of influences and developments. While prototypes of mediation can be found in New Zealand’s early industrial relations, the modern mediation movement is primarily a result of state-led reform in a variety of legal areas. Much of this reform has been influenced by overseas models emphasizing New Zealand’s role as a “fast-follower” of alternative dispute resolution trends rather than an initiator. The rise of mediation in New Zealand has been ad hoc and pragmatic with a distinct lack of systematic development. This pragmatic change was a response to pressures such as the cost and delay involved in litigation, and major social trends challenging traditional ways, including traditional approaches to resolving disputes. Mediation continues to play a vital role in the New Zealand legal system but the exponential growth of the 1980s and 1990s has slowed as mediation begins to clearly locate and confirm its “territory” in the New Zealand legal system.

Wednesday, August 20, 2008

Kessler on the Freedman's Bureau's Concilation Courts

Deciding Against Conciliation: The Nineteenth-Century Rejection of a European Transplant and the Rise of a Distinctively American Ideal of Adversarial Adjudication by Amalia Kessler, Stanford Law School looks to be another revealing use of her understanding of continental legal systems to put the American adversarial system in comparative perspective. (An earlier example is Amalia D. Kessler, Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial, 90 Cornell Law Review 1181 (2005).) "Deciding against Conciliation" will appear in Theoretical Inquiries in Law, July 2009. Here is the abstract:
A sizeable body of literature suggests that informal methods of dispute resolution - and, in particular, conciliation - flourish only in societies marked by extensive social hierarchy. Given this literature, it is quite surprising to discover that in the mid-nineteenth century, the United States embarked on an extensive debate regarding whether to adopt conciliation courts, whose primary function was to reconcile the disputants by persuading them to embrace an equitable compromise.

First created by the French Revolutionaries in 1790, conciliation courts were widely established throughout continental Europe. Observing this development, leading American lawyers and politicians - anxious to respond to public complaints about the costly nature of litigation and the growing power of the legal profession, and seeking a solution to the deep social rifts threatened by new forces of urbanization and industrialization - pondered seriously whether the United States ought to follow suit. Debate over whether to embrace such institutions occurred at the very highest of levels - including at the New York Constitutional Convention of 1846, now more famously remembered for giving rise to the Field Code. And a series of states enacted constitutional provisions authorizing their legislatures to create conciliation courts.

Ultimately, however, despite the widespread interest in such institutions, these were never meaningfully established - except in the notable case of the Freedmen's Bureau courts of the Reconstruction south. This paper explores this largely forgotten episode in American legal history. It examines why a nation that was radically egalitarian by standards of the time would seriously consider embracing an institution that we tend more commonly to associate with inegalitarian, strongly hierarchical societies - and why, after coming so close to adopting conciliation courts, it ultimately failed to do so. In the process, by situating the debate over conciliation courts in a broader social and legal context, the paper also excavates the origins of the modern, quintessentially American commitment to the virtues of formal, adversarial legal process.

Saturday, September 22, 2007

Corbacho on Prenegotiation and Mediation: The Ango-Argentine Diplomacy After the Falklands/Malvinas War

Alejandro Corbacho, Universidad del CEMA, Argentina, has posted a new paper, Prenegotiation and Mediation: The Anglo-Argentine Diplomacy After the Falklands/Malvinas War (1983-1989). Here's the abstract:
This paper studies the process of prenegotiation and the role of mediators during the negotiations between the Argentine and British governments about the dispute over the sovereignty of the Falkland/Malvinas Islands from immediately after the war of 1982 to 1990. In this period, the relationship between both governments evolved from rupture and no-relations to the agreement on the conditions to negotiate the renewal of full diplomatic relations concluded in early 1990. In a preliminary process of prenegotiation, the governments of Switzerland, initially, and the United States played a role in helping to reach an agreement.
The former failed when the talks ended abruptly in July 1984. The latter succeeded in getting both parties to the table and keeping them there, thus avoiding a potential rupture until the two parties reached an agreement in principle.
During the prenegotiation stage, the principal parties were able to reduce the risks of escalation; they defined and narrowed the boundaries of the dispute, clearly identified the trade-offs, and structured the agenda of formal negotiations. Consequently, the likelihood of successful negotiation improved significantly when the parties reach an agreement during prenegotiation on what will be discussed later.
This case also illustrate that sometimes, when negotiations reach a point of stalemate, a mediator can help to find a “zone of agreement.” When this situation occurs, the degree of involvement and the resources of the mediator are particularly important. Finally, this case confirms the assertions that effective mediation is more a matter of leverage and influence than a matter of impartiality.