Dispute Processes: ADR and the Primary Forms of Decision-making

Description

This wide-ranging study considers the primary forms of decision-making - negotiation, mediation, umpiring, as well as the processes of avoidance and violence - in the context of rapidly changing discourses and practices of civil justice across a range of jurisdictions. Many contemporary discussions in this field-and associated projects of institutional design-are taking place under the broad but imprecise label of Alternative Dispute Resolution (ADR). The book brings together and analyses a wide range of materials dealing with dispute processes, and the current debates on and developments in civil justice. With the help of analysis of materials beyond those ordinarily found in the ADR literature, it provides a comprehensive and comparative perspective on modes of handling civil disputes. The new edition is thoroughly revised and is extended to include new chapters on avoidance and self-help, the ombuds, Online Dispute Resolution and pressures of institutionalisation.

Michael Palmer is Emeritus Professor of Law at the University of London's School of Oriental and African Studies (SOAS). He is also Senior Research Fellow at the Institute of Advanced Legal Studies (IALS) and at the Hong Kong Institute of Asia-Pacific Studies (HKIAPS) at the Chinese University of Hong Kong. His publications are mainly in the field of comparative legal studies and give particular attention to Chinese law, both traditional and modern. Michael has been Joint Editor of the Journal of Comparative Law for more than a decade and is also Editor of the journal Amicus Curiae. He is a barrister at Serle Court and at McNair Chambers. He has been a special adviser to the Attorney-General of Hong Kong, the Office of the UN High Commissioner for Human Rights and the European Commission, and also recently served as (very probably) the first western dean of a mainland Chinese law school. Simon Roberts (1941-2014) was Professor of Law at the London School of Economics and Political Science (LSE). A renowned legal anthropologist, his early career included two years' teaching in Malawi in the 1960s and three years as Adviser on Customary Law to the Botswana Government (1968-71). He authored the seminal work Order and Dispute: An Introduction to Legal Anthropology (1979, with a second edition in 2013), a study of law, order and dispute settlement and how they are conceptualised and socially founded. His analysis drew inter alia upon field research among the Kgatla in Botswana and later encouraged his work on issues in dispute processes in jurisdictions such as England and Wales. His most recent book was A Court in the City: Civil and Commercial Litigation in London at the Beginning of the 21st Century (2013), based on his ethnographic research at the Mayor's and City of London Court. This study examined the work of the court in sponsoring dispute settlement. He continued to teach ADR at the LSE long after retirement. Simon also served on the Lord Chancellor's family law advisory board which assisted in preparations for the Family Law Act (1996) and was General Editor of the Modern Law Review from 1988 until 1995. In 2011, Simon was elected an Honorary Fellow of the LSE.

'A gem of a book, this third edition is a thoroughly updated revision of a classic and unique text. With new content in areas such as dispute avoidance, ODR and the institutionalisation of ADR, this collection is a brilliant resource for students of civil justice, dispute resolution and conflict studies, providing access to a rich tapestry of academic material supported by expert commentary.' Bryan Clark, Professor of Law and Civil Justice, Newcastle Law School, Newcastle University 'The third edition of Dispute Processes is a welcome and substantial addition to the literature and provides an invaluable teaching resource. Comparative and socio-legal, it provides both a historical and contemporary analysis of dispute resolution, set in the context of legal pluralism. This is a major achievement!' Carly Stychin, Director, Institute of Advanced Legal Studies, School of Advanced Study, University of London 'This immensely important work by a distinguished pair of dispute resolution scholars offers a richly textured and thoughtful articulation of the social, political, religious and theoretical underpinnings driving ADR developments from a global and comparative perspective. It is essential reading for anyone studying, analysing or engaging with the dispute resolution field.' Shahla Ali, Professor and Associate Dean (International), Faculty of Law, The University of Hong Kong 'Palmer and Roberts is the modern classic on ADR, now in its third edition with the expansion of comparative materials that greatly enrich the scope of the volume for reference and teaching purposes. In many ways, the authors have produced a comparative legal treatise as well as enriching their contribution to ADR itself. Those practising or teaching any of the alternative means of dispute resolution will find this volume indispensable.' William E. Butler, Dickinson Law, Pennsylvania State University, and Emeritus Professor of Comparative Law, University of London 'This is simply the deepest book on disputing processes in the English language. Situating the processes of dispute resolution in history, culture, religion, politics and different legal systems, it explores both the intellectual history of dispute handling and the more practical variations of different processes used in different contexts. Unlike many texts which extol only the virtues of informal disputing methods (mediation or negotiation), or others that criticise them, this work of careful scholarship spans the range of processes in Western, Eastern (e.g. China) and Southern (Africa) regions, and provides materials for learning about both the merits and concerns of each kind of process, and allows a balanced assessment of when a particular process might be 'appropriate' for the particular dispute at hand. This new edition is most welcome in its consideration of newer hybridised forms of dispute processing and comparative analysis of new developments in the field, including online dispute resolution, both in court systems and in non-governmental and private venues. The text offers suggestions for viewing of films that illustrate the cultural variations in dispute processing, which will enliven any teaching in this field. This book is a magnificent illustration of how legal pluralism now operates in the world. A MUST-read for every scholar, practitioner and student of conflict resolution.' Carrie Menkel-Meadow, Distinguished Professor of Law and Political Science, University of California-Irvine, and A. B. Chettle Professor of Law, Dispute Resolution and Civil Procedure Emerita, Georgetown University 'In the search for better forms and processes of decision-making, the book by Palmer and Roberts provides us with detailed and insightful understandings of both the theoretical underpinnings and practical aspects of dispute resolution, with a comprehensive and impartial coverage of the thinking, practices and reform in a range of legal cultures, both East and West. It shows the importance of the complex historical, social, cultural and legal contexts of dispute resolution processes, and provides many thought-provoking comments and ideas. It is not surprising that the text has established itself as the essential guide for academics, practitioners, policy-makers, students and the general public interested in thinking about dispute resolution.' Dr Weixia Gu, Associate Professor of Law, The University of Hong Kong, and Associate Member, International Academy of Comparative Law 'A must-read book for students, researchers and practitioners eager to learn about dispute resolution discourse from a comparative, interdisciplinary, critical and cutting-edge perspective. Dispute Processes does much more than examine the theory and practice of dispute resolution processes. It represents a unique contribution to the study of the jurisprudence of dispute resolution. It encourages the reader to question current policy and legal developments towards the formalisation and institutionalisation of informal justice found in many jurisdictions around the world. Drawing upon an impressive and unique variety of sources spanning from sociology to politics to anthropology, and enriched by the authors' own fieldwork research, this book inspires new empirical and theoretical questions within dispute resolution and access-to-justice discourses. It also provides a sophisticated assessment of the variety of dispute resolution processes that legal systems and their legal cultures present. In particular, in arguing that informal justice is to be found in all cultures and at all times, this book elevates the study of dispute resolution beyond the Western - Non-Western dichotomy. Ultimately, this is a book about respect for the other and about equality ... both essential elements in the successful resolution of disputes.' Maria Federica Moscati, Senior Lecturer in Family Law, Sussex University 'For a student who takes a keen interest in dispute processes, the work of Palmer and Roberts offered great insights into the academic discussion. The work not only is helpful to my studies, but has fundamentally redefined the way I see dispute processes and resolutions. In particular, I applaud Palmer and Roberts's tremendous effort in drawing readers' attention beyond dispute processes and resolution as formalised by Western legal systems, and presenting a wide picture of ADR, which has always been part of human society.' Bryan Lai, student, Sussex Law School, University of Sussex 'This 3rd Edition of Dispute Processes: ADR and the Primary Forms of Decision-Making is a valuable resource for all those interested in the nature of disputes, the processes by which to resolve them and their place in society. It draws on a rich body of theory in exploring the many complex issues that arise in resolving disputes and their processes. Its approach is multidisciplinary, for example offering sociological, anthropological, historical and comparative perspectives, which sets it apart from a usual approach to the examination of alternative dispute resolution processes, and as such, offers diverse and intellectually stimulating discussion of issues relevant to the on-going debates about informal and formal justice. The additions made to this 3rd edition are very welcome. The new chapters on Arbitration, the Ombuds process, on-line dispute resolution and the ever-continuing dialogue about the institutionalisation of ADR are a necessary and pertinent addition to the already rich material provided by this book. Additionally, for students of ADR, the roleplays and further reading list enhance this edition's content further. This book is most definitely required reading for all dispute resolution scholars and students alike!' Debbie De Girolamo, School of Law, Queen Mary University of London