Alternative and Appropriate Dispute Resolution in Context Formal, Informal, and Semiformal Legal Processes
Chapter 50 IN: The Handbook of Conflict Resolution: Theory and Practice, Eds. Peter T. Coleman, Morton Deutsch, and Eric C. Marcus. Wiley, 2014. 1-28.
29 Pages Posted: 25 Mar 2015
Date Written: March 23, 2015
This chapter of the Handbook of Conflict Resolution reviews the development of dispute resolution programs in courts, as theories of conflict resolution from the 19th and 20th century were operationalized in formal legal institutions. The chapter reviews the theories behind, the design of, the implementation of and empirical evaluations (where they exist) of court programs in the United States at both federal and state levels. Various court programs, from mandatory to voluntary, including mediation, arbitration, early or later case evaluation, pre-trial settlement conferences and hybrids of these are described and reviewed. Analytically the chapter characterizes these programs as blurring the forms of formal and informal justice to lead to a sometimes problematic notion of "semi-formal" justice in which there is neither adjudication, review and monitoring of processes, nor the creativity and tailoring of solutions that is one of the mainstays of theoretical reasons for the use of party-structured and controlled processes. Whether "alternative" dispute resolution, as practiced in formal courts, is really "appropriate" dispute resolution is explored and interrogated. This chapter is a revised version of an earlier work on international and comparative approaches to "appropriate" dispute resolution and semi-formal justice prepared for the International Procedural Law conference in Moscow.
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