- ABA Groups
- Resources for Lawyers
- About Us
Referring family disputes to mediation and other ADR processes – especially matters concerning children – may be the most intuitive use of ADR. Most of us would agree that parents, not judges, are generally best equipped to make decisions about their children. Moreover, the benefits of a process with the capacity to foster communication and model collaborative problem-solving seem evident when there is a future long-term parenting relationship. Thus it should come as no surprise that family courts have long been among the earliest court adopters of dispute resolution programs – most often mediation.
I look forward to making our Section “Bigger, Better, and Stronger” by emphasizing and improving the professional programs we deliver, expanding our reach internationally, providing inclusivity and connection for our members, continuing our commitment to gender and diversity initiatives, and promoting civility in the law and beyond.
We have been asked to do the impossible: in a short piece, highlight how family ADR has influenced general civil ADR and vice versa. A comprehensive discussion of this question would require us to range broadly over the history of both ADR and civil procedure through many years. Given the limitations of this article, we thus disclaim any overarching theme or theory of cross-fertilization. What follows instead are a few observations on this subject by two academic practitioners and public policy advocates who have participated in the development of family and civil ADR practices over the past several decades. We will focus our comments on substantive areas of civil law that exhibit many of the characteristics of family law, making implementation of ADR appropriate; and examples of past and present cross-fertilization of processes between civil and family ADR.
My recent study shows that most SRLs are extremely anxious, overwhelmed by the court process, and desperate to do as good a job as they can in the face of skepticism from many lawyers and judges. Most are SRLs because they see no other option, and not out of choice. As one study participant said, “I was scared out of my mind. But I had a hard choice – either learning to do this for myself or letting my daughter go forever. I didn't know that even if I learned how to do this, anyone would believe me. But I could not give up without trying.” However, outside a small committed group of justice system professionals working to improve the SRL experience, a pervasive negative stereotype still drives much of our thinking about SRLs. SRLs are widely regarded – not only by many lawyers and judges but also in the wider public culture – as unreasonable, angry lawyer-wannabes, out of touch with their own limitations. Many think SRLs are gaming the system or milking it for sympathy and using to their advantage the courtroom chaos they sometimes create.
Underlying relationship issues or dynamics are often driving the legal action, and in recent years, courts and professionals have discovered that mediation can be a very practical, effective way to resolve disputes about caring for elderly family members. The presence of a trained neutral “outsider” with no stake in the outcome is usually effective in diffusing anger and hostility and focusing the parties on collaborative problem-solving. The privacy and confidentiality of the mediation process appeals to many families. In addition, family members usually appreciate having the opportunity to make their own decisions, as opposed to giving over this power to a judge who knows little or nothing about the family dynamics, interests, and needs and must decide the case on the legal merits alone. The mediation process is particularly useful when the claims involve ongoing relationships between the parties, which is so often the case in family disputes.
This article discusses the importance of screening for IPV; suggests who should screen, when screening should happen, and how it should be done; and presents some new screening instruments. The few existing studies on screening in mediation have found that many screeners do not talk to parties individually, ask appropriate questions, or spend enough time on the process. Even when IPV was identified as an issue in a pre-interview questionnaire, some screeners failed to ask any questions about the parties’ relationship. All programs should require effective screening for IPV before mediation, and if the parties choose to mediate, screening for IPV should continue throughout the process.
Outsourcing Justice relates the public/private nature of arbitration’s rise with interesting historical nuggets, including the formation of an arbitration committee in 1768, soon after the creation of the New York Chamber of Commerce and the New York legislature’s establishment in the 1870s of a Court of Arbitration, which operated as a joint venture between the chamber and the state. During the First World War, the US government referred disputes with an international character to the New York chamber.
If you are a US citizen or you run a US company and you make an investment abroad, you will most likely be protected by an international investment treaty between the United States and the host country of your investment that sets the rules relating to the establishment of your investment. Most important, perhaps, the treaty will also guarantee the protection of your investment and your property rights against political risks such as expropriation, nationalization, or restrictions on the free repatriation of capital and profits.