The alternative law of alternative dispute resolution

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.

Download Full-text

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

Sociological Perspectives ◽

10.2307/1389311 ◽

1996 ◽

Vol 39 (2) ◽

pp. 249-262 ◽

Cited By ~ 40

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.

Download Full-text

PELAKSANAAN SITA JAMINAN DALAM HUKUM ACARA ARBITRASE

Yuridika ◽

10.20473/ydk.v25i1.247 ◽

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.

Download Full-text

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

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad ◽

10.4314/pelj.v17i6.04 ◽

2014 ◽

Vol 17 (6) ◽

pp. 2356 ◽

Cited By ~ 1

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.

Download Full-text

THE FORMATION OF A SYSTEM OF ALTERNATIVE DISPUTE RESOLUTION MECHANISMS IN SERBIA

Journal of Foreign Legislation and Comparative Law ◽

10.12737/23477 ◽

2016 ◽

pp. 0-0

Author(s):

Валерий Шрам ◽

Valeriy Shram

Keyword(s):

Dispute Resolution ◽

Alternative Dispute Resolution ◽

Dispute Settlement ◽

Third Parties ◽

The State ◽

Settlement Agreement ◽

Minor Children ◽

Rights And Interests ◽

Settlement Of Disputes ◽

State Rights

The article is devoted to the analysis of the formation of a system of alternative dispute resolution mechanisms in Serbia as one of the instruments stimulating the development of entrepreneurship and combating corruption. The author considers such nonjudicial legitimate methods of dispute resolution as negotiations of the parties, mediation, arbitration (binding arbitration) and the court of honor at the Economic chamber of Serbia, as well as other conciliation procedures. One of the main characteristic by which non-judicial methods of dispute resolution can be classified is the participation in them of third parties. The Serbian law relates to them participation of mediators in the reconciliation procedures, ombudsmen, state rights activists (authorized to protect the rights and interests of the state), judges, lawyers. Special attention is paid to mediation as a set of voluntary modes of settlement of the conflicting parties with the participation of third parties. The mediation is conducted on the good will of the conflicting parties by the mediator who seeks to resolve disputes through a settlement agreement. Under the law mediation can be realized by mediators, ombudsmen, state rights activists (authorized to protect the rights and interests of the state) who are trained by judges and lawyers. The article discusses the mechanism of pre-trial dispute settlement between the conflicting parties. Special attention is paid to the analysis of pre-trial settlement of disputes between parents of minor children decided to divorce. In Serbia an important role in the formation of alternative dispute resolution mechanisms of economic entities plays a chamber of Commerce of Serbia under which exists the court of honor and court of arbitration. Their competence includes the resolution of disputes through mediation.

Download Full-text

Kia Whakatōmuri Haere Whakamua: Implementing Tikanga Māori as the Jurisdictional Framework for Overlapping Claims Disputes

Victoria University of Wellington Law Review ◽

10.26686/vuwlr.v52i1.6850 ◽

2021 ◽

Vol 52 (1) ◽

pp. 197-220

Author(s):

Rhianna Morar

Keyword(s):

New Zealand ◽

Dispute Resolution ◽

Legal System ◽

Alternative Dispute Resolution ◽

The State ◽

Aotearoa New Zealand ◽

Treaty Of Waitangi ◽

Resolution Processes

This article addresses the misconception that overlapping rights to land are always in tension with one another. In this article, I apply a tikanga-based analysis to the policy on overlapping rights that is used in the settlement of historical Treaty of Waitangi claims. I argue that the supremacy of colonial law within the State legal system continues to suppress indigenous relationality and limit the mechanisms for reciprocity. This article problematises the following claims made about overlapping claims disputes. First, that overlapping rights are too complex for judicial resolution. This article examines the ways in which overlapping rights are capable of co-existing to preserve relationships between different iwi and hapū. Second, that tikanga is a contestable system of law and should not be regarded as a question of law or as a jurisdictional framework for resolving such disputes. This article critically analyses the extent to which these claims are based on the supremacy of colonial law within the State legal system by considering the application of tikanga in the courts and alternative dispute resolution processes. I argue that tikanga Māori is the only applicable framework whereby differences can be mediated in a way that preserves the relationships between the parties and provides redress mechanisms for continuing reciprocity. This article concludes that the State legal system at present continues to delegitimise indigenous relationality in ways that amalgamate rights into a colonial recognition framework, which fails to recognise tikanga Māori as an equal system of law in Aotearoa New Zealand.

Download Full-text

Pluralisme Hukum Dalam Bingkai Masyarakat Madani: Masa Nabi dan Masa Kini

JURNAL INDO-ISLAMIKA ◽

10.15408/idi.v4i2.17395 ◽

2020 ◽

Vol 4 (2) ◽

pp. 190-201

Author(s):

Muhammadun Muhammadun

Keyword(s):

Social History ◽

Islamic Law ◽

Legal Pluralism ◽

The State ◽

Direct Access ◽

The Social ◽

History Of ◽

The Law

In the era of modernization, law is no longer understood as a norm system that binds every citizen. In practice, the law is controlled and supervised by the state through a number of regulations created and compiled by certain communities that have direct access to the state. This paper will explore more about the concept of legal pluralism that once applied in the social history of Islamic law, as well as describing cases of legal pluralism that were practiced during the time of the Prophet and also friends.

Download Full-text

Disputes Settlement To The Measured Object Of The Returns Border Of National Land Agency Against A Neighbor's Boundary Objects In Tegal

Jurnal Akta ◽

10.30659/akta.v5i2.3084 ◽

2018 ◽

Vol 5 (2) ◽

pp. 337

Author(s):

Mohammad Irfan Rifai ◽

Anis Mashdurohatun

Keyword(s):

Dispute Resolution ◽

Dispute Settlement ◽

Human Life ◽

Legal Protection ◽

Sociological Approach ◽

The Social ◽

Difference Of Opinion ◽

The Law ◽

The Government

The land has an important role in human life because it is completely cannot be separated from land. The issue of the disputes of land boundary may cause a difference of opinion; the value of the interest regarding the layout, borders and vast areas of land that is recognized is the most issue that appears frequently in the Office of land Bordering Counties. The method of the approach that is used in this study is the juridical sociological approach. This approach was conducted to understand the law in the context of the society is a non-doctrinal approach. Through this approach, the object of the law will be meant as part of the social subsystem between the subsystems of the social subsystem-other dispute resolution borders against the border returns object, in the form of legal protection, for misusing of the follow- the Government is due to gross negligence at the time of measurement wide plots of land for the creation of a letter, then the measurement of legal protection used is the preventive protection of the law, the role of the national land Agency Chief Rules Based BPN No. 3 Of 2011 is about the management and treatment of Cases of land. The agreement or the consent of the parties concerned is essential in the framework of the implementation of dispute settlement returns the border of land ownership.Keywords: Returns the Border; National Land Agency; Dispute Resolution.

Download Full-text

The social uses of the law at a Soweto garbage dump: Reclaiming the law and the state in the informal economy

Current Sociology ◽

10.1177/0011392116657293 ◽

2016 ◽

Vol 65 (2) ◽

pp. 222-234 ◽

Cited By ~ 10

Author(s):

Melanie Samson

Keyword(s):

Informal Economy ◽

Research Agenda ◽

Legal Theory ◽

Social World ◽

The State ◽

Informal Workers ◽

The Social ◽

Critical Legal Theory ◽

The Law ◽

Social Uses

The informal economy is typically understood as being outside the law. However, this article develops the concept ‘social uses of the law’ to interrogate how informal workers understand, engage and deploy the law, facilitating the development of more nuanced theorizations of both the informal economy and the law. The article explores how a legal victory over the Johannesburg Council by reclaimers of reusable and recyclable materials at the Marie Louise landfill in Soweto, South Africa shaped their subjectivities and became bound up in struggles between reclaimers at the dump. Engaging with critical legal theory, the author argues that in a social world where most people do not read, understand, or cite court rulings, the ‘social uses of the law’ can be of greater import than the actual judgement. This does not, however, render the state absent, as the assertion that the court sanctioned particular claims and rights is central to the reclaimers’ social uses of the law. Through the social uses of the law, these reclaimers force us to consider how and why the law, one of the cornerstones of state formation, cannot be separated from the informal ways it is understood and deployed. The article concludes by sketching a research agenda that can assist in developing a more relational understanding of the law and the informal economy.

Download Full-text

An Undergraduate Course in Psychology and the Law

Teaching of Psychology ◽

10.1207/s15328023top1404_15 ◽

1987 ◽

Vol 14 (4) ◽

pp. 238-239 ◽

Cited By ~ 5

Author(s):

Edith Greene ◽

Edith Greene

Keyword(s):

Decision Making ◽

Dispute Resolution ◽

Criminal Law ◽

Alternative Dispute Resolution ◽

Civil Law ◽

Plea Bargaining ◽

Jury Decision Making ◽

Teaching Aids ◽

The Law ◽

Jury Decision

This article describes a course that bridged the disciplines of clinical and experimental psychology and the law. The course included discussion of issues in criminal law, such as the psychology of policing, the reliability of confessions, victimization, plea bargaining, jury decision making, and alternative dispute resolution, and in civil law, such as civil commitment, predicting dangerousness, and child custody. Course objectives, requirements, and teaching aids are outlined, and some thoughts on integrating these diverse topics are included.

Download Full-text

Mediation Effectiveness in Sharia Economic Dispute Settlement: Phenomenology in Bukittinggi Religious Court

ALHURRIYAH Jurnal Hukum Islam (ALHURRIYAH JOURNAL OF ISLAMIC LAW) ◽

10.30983/alhurriyah.v6i1.4097 ◽

2021 ◽

Vol 6 (1) ◽

pp. 78

Author(s):

Riska Fauziah Hayati ◽

Busyro Busyro ◽

Bustamar Bustamar

Keyword(s):

Dispute Resolution ◽

Dispute Settlement ◽

Legal Culture ◽

Analysis Framework ◽

Legal Structure ◽

Inhibiting Factors ◽

The Law ◽

Mediation Effectiveness

The main problem in this paper is how the effectiveness of mediation in sharia economic dispute resolution based on PERMA No. 1 of 2016 at the Bukittinggi Religious Court, and what are the inhibiting factors success of mediation. To answer this question, the author uses an inductive and deductive analysis framework regarding the law effectiveness theory of Lawrence M. Friedman. This paper finds that mediation in sharia economic dispute resolution at the Bukittinggi Religious Court from 2016 to 2019 has not been effective. The ineffectiveness is caused by several factors that influence it: First, in terms of legal substance, PERMA No.1 of 2016 concerning Mediation Procedures in Courts still lacks in addressing the problems of the growing community. Second, in terms of legal structure, there are no judges who have mediator certificates. Third, the legal facilities and infrastructure at the Bukittinggi Religious Court have supported mediation. Fourth, in terms of legal culture, there are still many people who are not aware of the law and do not understand mediation well, so they consider mediation to be unimportant. Tulisan ini mengkaji tentang bagaimana efektivitas mediasi dalam penyelesaian sengketa ekonomi syariah berdasarkan PERMA Nomor 1 Tahun 2016 di Pengadilan Agama Bukittinggi dan apa saja yang menjadi faktor penghambat keberhasilan mediasi. Untuk menjawab pertanyaan tersebut, penulis menggunakan kerangka analisa induktif dan deduktif dengan mengacu pada teori efektivitas hukum Lawrence M. Friedman. Tulisan ini menemukan bahwa mediasi dalam penyelesaian sengketa ekonomi syariah di Pengadilan Agama Bukittinggi dari tahun 2016 sampai 2019 belum efektif. Hal ini karena dipengaruhi oleh beberapa faktor. Pertama, dari segi substansi hukum, yaitu PERMA No. 1 Tahun 2016 tentang Prosedur Mediasi di Pengadilan masih memiliki kekurangan dalam menjawab persoalan masyarakat yang terus berkembang. Kedua, dari segi struktur hukum, belum adanya hakim yang memiliki sertifikat mediator. Ketiga, sarana dan prasarana hukum di Pengadilan Agama Bukittinggi sudah mendukung mediasi. Keempat, dari segi budaya hukum, masih banyaknya masyarakat yang tidak sadar hukum dan tidak mengerti persoalan mediasi dengan baik, sehingga menganggap mediasi tidak penting.

Download Full-text