RESPONDING TO THE CALL FOR CHILD CUSTODY EVALUATORS TO JUSTIFY THE REASON FOR THEIR PROFESSIONAL EXISTENCE: SOME THOUGHTS ON KELLY AND RAMSEY (2009)

Kelly and Ramsey (2009 ) propose that it is time to examine the costs and benefits courts and participants derive from child custody evaluations. A structure for a research program was suggested. This article endorses this call for such an examination on the system that provides for forensic mental health evaluations for custody disputes. There is a need to examine the costs and benefits of various types of approaches that are emerging, including the comprehensive evaluation and brief, focused evaluations. This article suggests that there is a need for forensic quality control of the work product that is produced by evaluators. Courts are cognizant of the need to encourage settlement between parties, but they also need to be accurate in making judicial determinations that will be in the best interests of children. Quality evaluations are a cornerstone in working toward this goal. Kelly and Ramsey are mindful of the need for evaluations to facilitate settlement, but also to get it right for the court on accurate predictions about children's developmental outcomes.     

Determinants of states' allocations of the master settlement agreement payments

To determine which factors influence states' allocation decisions for the tobacco Master Settlement Agreement and the four individual settlements' annual payments, including the decision to securitize, we analyzed the effects of voter characteristics, political parties, interest groups, prior spending on public tobacco control programs, and state fiscal health on per capita settlement funds allocated to tobacco-control, health, and other programs. Tobacco-producing states and those with high proportions of conservative Democrats or elderly, black, Hispanic, or wealthy people tended to spend less on tobacco control. Education and medical lobbies had strong positive influences on per capita allocations for tobacco-control and health-related programs. State fiscal crises affected amounts spent by states from settlement funds as well as the probability of securitizing future cash flows from the settlements.     

从纠纷到审判利用的过程分析——兼论权利意识和诉讼意识的关系

通过界定权利意识和诉讼意识的概念，指出纠纷发生后，当事人为谋求纠纷的实质性解决，倾向于援引规范作为他们说服的根据，从而使纠纷衍化权利纠纷，权利纠纷使当事人具备权利意识。此．后当事人经过对成本的权衡，并得到国家诉讼政策的允许，选择进行诉讼，将权利意识转化为诉讼意识。结论认为，诉讼意识范畴小于权利意识范畴，具有权利意识的纠纷当事者并不必然选择诉讼作为其权利实现的手段。因此，国家所要做的，就是为当事人之间适于通过审判解决的纠纷提供便利，使其接近司法、接近正义。     

Sequential trials and the English rule

The allocation of trial costs and the way a trial progresses are two important issues in civil procedure. The combination of these two elements has received relatively little attention in the law and economics literature. The prior literature has only compared unitary litigation (e.g. liability and damage issues are litigated, after which the court decides on both issues) under the American rule with sequential litigation (e.g. the parties first litigate the liability issue after which the court makes a decision, and then if still necessary the parties litigate the damages issue) under the American rule. In this article, I examine the influence of sequential litigation when the loser at trial pays all the litigation costs and compare the results with (a) the situation in which litigation is unitary and the loser pays all the litigation costs and (b) the situation in which litigation is sequential and each party bears her own costs. I focus on the incentive to sue, the incentive to settle (or to litigate) and on the settlement amount. Some interesting differences with the previous literature are discussed in detail.     

经济全球化条件下外国仲裁机构在中国仲裁及其影响

外国仲裁机构到中国仲裁,主要是指由外国仲裁机构管理的适用该外国仲裁机构仲裁规则在中国境内进行的仲裁。这对于我国境内的仲裁机构而言,既是挑战,也是机遇。作者认为,建立一支高素质的、为国内外当事人所信赖、能够公正地解决国际商事争议的仲裁员队伍,是我国各仲裁委员会赖以生存与发展的生命线。     

论刑事和解与民间规范

刑事和解,是我国正在倡导和试验的一种刑事纠纷解决方式。刑事和解的核心问题是处理加害人和受害人之间的权利义务关系。究竟根据什么规范处理、分配刑事和解中当事人的权利义务问题,是刑事和解的重要前提。民间规范如果一旦获得刑事和解主持人、当事人在行为上的遵从、接受和心理上的确信、认同,则可以被援引为刑事和解中当事人权利义务分配的根据。不同类型的民间规范,具有不同模式的权利义务配置方式,但这都不影响在刑事和解中对当事人的权利义务分配。国家有关刑事和解正式制度的建立,应关注民间规范的参与,关注对民间规范的吸纳。     

论中国如何利用《联合国海洋法公约》有拘束力争端解决制度

有拘束力争端解决制度是《联合国海洋法公约》争端解决制度的第二步．穷尽第一步即争端方通过自身努力用和平方式解决争端，或依靠外力如斡旋、和解、仲裁等之后才能适用。谊制度适用于南海争端。中国应在南沙群岛划定领海基线，运用跳出机制，申请临时措施，要求船员或船只迅速释放。依靠“历史性权利”声索海域权利等方面更好地利用有拘束力争端解决制度。     

Settlement during patent litigation trials. An empirical analysis for Germany

Settlement in patent litigation suits is a frequently observed phenomenon. Even though parties have the opportunity of achieving an agreement at the first negotiation round they often reach one during trial. Game theoretic models suggest that additional or differently evaluated information may trigger settlement after a first bargaining round. This paper investigates settlement decisions in patent infringement suits for Germany. Based on a data set of 824 patents involved in infringement suits in Germany during 1993 and 1995 I find legal differences between the District Courts to have a significant impact on the settlement rates during trial. The results also reveal it is only in later stages of the trial that invalidity suits as a means of defense have a positive impact on the probability of settlement. Prior opposition to the litigated patent, however, always has a negative impact on settlement probability. Contrary to results for the US the adoption of the prevailing or not at the first instance has no effect on the settlement decision at the second instance.

What the #@!* are they Fighting About?!?: Reflections on Fairness,Identity, Social Capital,and Peacemaking in Family Conflicts

Peacemaking is particularly challenging in family conflicts. Deeply held feelings about identity, fair treatment, moral issues, and protecting social capital often cause people in conflict to make self‐defeating decisions. There are, however, techniques that enable mediators, Collaborative Practice professionals, and other peacemakers to overcome the settlement barriers created by these strongly held views. These techniques include those pioneered by psychotherapists using the Internal Family Systems model, which enables parties to see that their strongly held views comprise only part of the constellation of feelings that they have about the conflict.

Key Points for the Family Court Community:
• Parents who feel that their role as father or mother is in danger often find it difficult to focus on the children's best interests.
• The “rule of reciprocity” causes people who feel wronged to exact even harsher punishment on those who harmed them.
• The concept of “social capital” explains why people care so passionately about whether they are treated fairly and about their reputation for fairness.
• The Internal Family Systems model helps peacemakers to understand how to work with the parties’ ambivalence about settlement versus courtroom vindication.

     

Safety,Satisfaction, and Settlement in Domestic Relations Mediations: New Findings

Researchers and mediators have long been concerned about coercion, intimidation, and safety threats that could occur in mediation for cases where previous violence between the parties has occurred. Most of the research focuses on screening tools to identify parties at risk. When parties screen positive for intimate partner violence (IPV), some proceed to mediation and some do not, depending on the policies of individual mediation programs. But this misses a step: Some cases may benefit from mediation while others won't, but how can we predict whether mediation will be useful and safe in specific instances? This study uses survey data obtained from parties in domestic relations mediations to examine issues of safety, satisfaction, and settlement in the presence of various IPV behaviors.     

May Mediators Draft Settlement Agreements?

This article surveys the current law in various states as well as the Model Rules of Professional Conduct regarding whether a mediator‐lawyer may draft a settlement agreement at the conclusion of a mediation. It includes a look at the traditional boundaries between a lawyer and a mediator and concludes with a recommendation on how California should approach whether a mediator‐lawyer should be allowed to draft a settlement agreement for parties at the conclusion of a mediation.     

与ADR相关的保密制度探讨

与ADR相关的保密制度在结构上包括需保密的对象和保密义务的承担者两方面,其渊源包括要求保密的法律或规则以及当事人间的保密条款,要求ADR程序参与者或当事人彼此对包括意愿、建议、陈述或承认等在内的所有的在程序中透露的信息进行保密,但是,如果当事人同意、法律要求或者为实施或强制执行调解协议也可以或不得对部分信息保密,即存在保密例外     

Imbalances of Power in ADR: The Impact of Representation and Dispute Resolution Method on Case Outcomes

In recent decades, alternative dispute resolution processes have gained worldwide recognition, a growing role in legal practice, and increasing academic attention. Despite their professed advantages, they have also faced fierce opposition. In a seminal article, Owen Fiss argued that ADR exacerbates imbalances of power between the parties. But while the theoretical argument has been widely developed, empirical evidence has remained scant. This article empirically examines the impact of representation patterns and dispute resolution methods on case outcomes. Arguably, professional representation of weaker parties may reduce the effects of inequality, whereas less formal, transparent, and adjudicatory processes may exacerbate them. The article focuses on small claims settlement conferences, using the Israeli labor courts system as a test case. The main findings are that representation increases the probability of a successful settlement conference, and that the more formal the process, the greater the ratio between the sum obtained by the plaintiff and the sum claimed.     

论我国民事再审制度的完善——兼谈申诉问题的理性解决

民事诉讼是人们为理性地解决民事纠纷而创设的一种程序 ,民事纠纷、民事诉讼的个性要求为当事人提供正当法律程序保障。申诉是一种非程序化的纠纷解决方式 ,申诉问题的严重存在 ,是人治社会公民缺乏正当法律程序保障的生动写照。申诉问题的理性解决 ,有赖于我国民事再审制度的完善。     

Online Dispute Resolution and Bargaining

The automated negotiation process seems to be a powerful mechanism to resolve disputes arising from Internet-based transactions. Automated negotiation is an online blind-bidding process in which an automated algorithm evaluates bids from the parties and settles the case if the offers are within a prescribed range. Following the arguments of the dispute resolution professionals, the main advantage of this procedure is to promote natural agreements by restoring the parties' right to negotiate on their own, without the presence of a third party in the shadow of negotiations. Our purpose is to investigate this issue by modelling the automated negotiation process as a two-person bargaining game under incomplete information. A first result states that, given incomplete information, not all mutually beneficial agreements can be attained via the procedure. Furthermore, the settlement rule has a drastic effect on the players' strategies, which induces that the automated negotiation process does not significantly increase the likelihood of a settlement. The ability of the procedure to generate efficiency is only due to the costs imposed on parties if a disagreement occurs, that is the combination of players' risk aversion and uncertainty.     

论民事执行和解协议效力的完善

民事执行和解协议是中国特有的一种制度,有利于缓解双方的紧张关系,加快法院判决的履行,实现当事人的权利。基于对法院权威的维护、生效判决既判力的尊重以及程序保障的考虑,我国法律没有赋予民事执行和解协议以强制性效力,这不利于执行债权人权利的保护。为了更好的保护执行债权人的利益,应当根据执行和解协议内容的不同而区别对待,对于履行方式的变更以及为债权的执行提供担保的执行和解协议,可以允许执行债权人通过诉讼的方式赋予其强制执行效力。     

刑事和解:刑事纠纷解决的“第三领域”

刑事和解是处于刑事纠纷解决的民间领域与国家领域之间的中间地带,其作用的发挥既依赖于刑事案件双方当事人之间的合作,也依赖于国家与当事人之间的合作。作为刑事纠纷解决的"第三领域",刑事和解充分体现了公力与私力之间的互动关系,有利于弥补民间私了案件与国家垄断司法二者之不足。只有合理配置刑事和解中的各种权力,才能做到既尊重双方当事人的自愿选择,减少公安司法机关及其工作人员的权力寻租机会,又确保国家对该程序实施有效控制,消除各种社会不良因素对当事人的干扰。     

农村集体财产纠纷解决模式之检讨

农村集体财产纠纷解决模式主要包括诉讼、仲裁、行政处理、调解、和解、信访等方式,这些解决模式于实务中各有利弊,纠纷当事人往往从自己利益角度出发进行选择。然而,为了切实地保护农村集体及其成员的利益,农村集体财产所有权和使用权权属纠纷由行政机关解决不妥,应由法院作为民事纠纷直接受理;土地征收标准纠纷不应以行政方式解决且产生终决性效力,应界定为民事纠纷,赋予法院享有此类纠纷的最终决定权;集体财产收益分配纠纷应明确引发纠纷的集体财产分配方案属于一种特殊法律行为类型,法院应受理此类纠纷。同时,现行农村承包纠纷仲裁存在的弊端甚多,应将其纳入《仲裁法》的仲裁范围。     

Hospital rate regulation: American and foreign comparisons

Rate regulation in the United States usually is inspired by widespread indignant pressures to protect the public against venal exploitation. Rate regulation of American hospitals does not ride such a wave of outrage but is motivated by the need to restrain Medicaid spending and insurance premium increases in some states. Hospital rate regulation in America lacks strong political support, makes many politically prudent concessions to hospitals, and is often threatened by repeal. Since Americans distrust regulators and since individual scrutiny of so many hospitals is burdensome and contentious, they often seek automatic formulae that will produce equitable results by rational calculation. In contrast, rate regulation in Europe is a method of refereeing between hospitals and alert third parties. Hospitals' prospective budgets are always scrutinized by regulators. Guidelines are transmitted by government to link public policy to hospital payment, and the regulators apply the guidelines to each hospital's individual situation. The system results in less contention and more stability in European than in American regulation. Certain features of European hospital practice have kept hospital costs high, but the regulators are now reducing annual increases in costs below America's. In order to reduce cost increases further, Europe is moving toward global budgeting and public grants of hospitals' operating costs, instead of regulation of unit rates. However, regulators may still be essential to scrutinize hospital prospective budgets and to investigate the merits of the claims by individual establishments.     

论民事诉讼二审中和解协议的性质——最高人民法院2号指导性案例评析

民事诉讼二审审理期间因当事人达成和解协议而撤诉,但被上诉人反悔,不履行或者不完全履行和解协议的争议,其实质乃为二审中和解协议性质认定的分歧。我国宜采德日"一行为两性质说",承认和解协议同时具有私法行为和诉讼行为两方面的性质。最高人民法院2号指导性案例对此问题的明确,对维护裁判统一和司法权威具有重要意义,但其仍未能穷尽司法实践情形,也缺乏对上诉期间和解协议性质的考虑。