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Context Specific Alternative Dispute Resolution

Tuesday, June 12, 2018

There are a variety of alternatives to the successful resolution of disputes other than trial such as mediation or arbitration. This collection of papers looks at the use of Alternative Dispute mechanisms within particular contexts or subject areas.

ADR for Internet Start-ups

Author: Andrew Cockwell & Steve Morris
Year and Publisher: 2000, Department of Justice Canada, Dispute Resolution Award in Law Studies
Description: This paper posits that the litigation process’ failings are particularly acute to the sensitivities of Internet start-ups and consequently in order to address the arising concerns an alternative dispute resolution mechanism should be considered.
Link: adr_startups.pdf


International Commercial Arbitration/Mediation at CIETAC (China International Economic and Trade Arbitration Commission)

Author: Tanya Kozak
Year and Publisher: 1999, working paper
Description: This paper posits that while the China International Economic and Trade Arbitration Commission’s blending of arbitration and mediation raises a number of important issues, commentary on CIETAC’s preference to blend arbitration and mediation has been quintessentially theoretical and disregards the practical reality of the process. This article will assert that a number of criticisms directed at blending are of negligible force when examined in light of CIETAC’s dispute resolution process in practice.
Link: international_commercial_arb.pdf


Mediation of Domain Name Disputes: A Flexible Tool for an Elusive Medium

Author: Alexander D.C. Kask
Year and Publisher: 1999, working paper
Description: This paper looks at the application of intellectual property law to Internet related cases and posits that ADR may be applies to provide a preferable outcome for all parties involved.
Link: mediation_domain_names.pdf


New Directions: Divorce and Administrative Law

Author: Kathy Carmichael
Year and Publisher: 1999, working paper
Description: The argument put forth in this paper is that in order to offer the best service to divorcing couples, the government should create a comprehensive administrative system that can provide services to meet every family member’s needs. It is posited that an administrative agency would offers the best structure for handling divorce in a non-adversarial manner as it has the flexibility to provide a wide range of functions and could allow divorcees to choose the services that will work best for them and their family.
Link: new_directions.pdf


Godi v. Toronto Transit Commission: A Case for Court-Mandated Mediation?

​Author: Naomi Furmston
Year and Publisher: 1999, working paper
Description: This paper provides an exploration of Godi v TTC through a detailed analysis of the case, including an examination of the roles played by each of the parties, namely; the judiciary, counsel for the accident victims and their families, and counsel for the defendants – the TTC. The case represented one of the first mass tort claims to be heard in Ontario and it occurred almost entirely via ADR.
Link: godi_v_toronto.pdf


Restorative Justice and the Incorporation of Dispute Resolution into the Criminal Justice System: Playing Devil’s Advocate

Author: Andrew Montgomery
Year and Publisher: 1999, working paper
Description: This paper looks at the use of ADR in restorative justice and asks what major pitfalls or risks are associated with the magnitude of change being considered.
Link: restorative_justice.pdf


Beyond Punishment: Moving towards the Application of Conciliatory Justice in the Canadian Context

Author: Krista Friesen
Year and Publisher: 1999, working paper
Description: This paper argues that ADR should be incorporated into the criminal justice system, stating that “restorative justice is best implemented through an alternative stream of justice that involves mediation between the offender, the victim, and others that are affected by the criminal offence.”
Link: beyond_punishment.pdf


Human Rights Dispute Resolution: Protecting the “Public Interest”

Author: Tara Parker
Year and Publisher: 1999, working paper
Description: This paper argues that that the assumption that the public interest would be better protected through an adjudicative process or the tribunal process is open to question.
Link: rights_dr.pdf


Dispute Resolution in Environmental Conflicts: Panacea or Placebo?

Author: Jennifer Girard
Year and Publisher: 1999, working paper
Description: This paper posits that “dispute resolution techniques are a very good fit with environmental conflicts and with some minor modifications, many of the criticisms of dispute resolution can be dealt with inside of the process.”
Link: dr_environmental.pdf