试论多元化纠纷解决机制的法理特征与困境

多元化纠纷解决机制是现实社会中解决矛盾与纠纷的重要手段,承载着解决民事纠纷的重要功能。其表现在法理上的特征值得仔细研究,对其司法调解中的限度问题值得关注,尤其是当前法治中的现实困境对纠纷解决机制也产生了不可忽视的影响。     

INFORMED CHOICE AND EMERGENT SYSTEMS AT THE GROWTH EDGE OF COLLABORATIVE PRACTICE

Integrated interdisciplinary team practice evolves over time as collaborative lawyers encounter the limitations of their own skill‐set in helping clients to reach consensual resolution outside the courts. Team collaboration represents the evolutionary growth edge of the collaborative practice movement. Working in teams with financial neutrals and mental health professionals who act as coaches and child specialists, collaborative lawyers become engaged in an emergent learning system called into being to assist each couple through their divorce. All professionals working on a collaborative team case participate in the process from the beginning and share responsibility for helping the clients achieve the values‐based goals identified by them early in the process. This shared professional engagement in the divorce conflict resolution process gives rise to a need for agreed roadmaps and protocols, sophisticated planning and debriefing sessions, case conferencing, and careful attention to the quality of communications at the negotiating table. None of this can happen at a “best practices” level without mutual trust between and among the professionals and a culture of transparency and accountability. These characteristics emerge over time as a natural outgrowth of working in teams.     

EARLY INTERVENTION IN NEW ZEALAND FAMILY COURT CASES

In April 2010 the New Zealand Family Court introduced the National Early Intervention Process (NEIP) to diversify its previous unitary dispute resolution pathway into two tracks (standard and urgent). A “triage” model is now in use to assess and assign cases appropriately. This article outlines the key milestones in the Family Court's 30‐year history which have led to this new initiative to reduce delays and help avoid the escalation of family conflicts over the care of children into bitter and intractable disputes. NEIP represents the most overarching reform of the Family Court since the Court's inception in 1981.     

SETTLEMENT‐FOCUSED PARENTING PLAN CONSULTATIONS: AN EVALUATIVE MEDIATION ALTERNATIVE TO CHILD CUSTODY EVALUATIONS

The divorce mediation field has recently seen the development of several “hybrid” alternative dispute resolution approaches to child custody disputes. The “settlement‐focused parenting plan consultation” (SFPPC) is a form of evaluative mediation, conducted by a “parenting plan consultant” (PPC), who possesses the combined expertise of a mediator and child custody evaluator. This hybrid model is a more expedient and considerably less expensive approach than a child custody evaluation, but preserves the hallmark mediation principle of self‐determination. The article describes the theory underlying the SFPPC, delineates the role requirements, procedures, and techniques of the parenting plan consultant, and addresses legal and ethical issues.     

基层治理的完善和农村冲突化解机制构建

农村冲突的发生源于基层治理过程中出现的种种问题,当基层政府的治理能力弱化,无力向农民提供公共服务,或者由于与资本相结合,出现＂逐利＂行为,直接侵害农民利益时,都有可能导致矛盾的发生和冲突的激化。要实现基层的＂良治＂,需要通过基层政府部门的职能转化、上下级之间财权、事权不对等现象的重新调整、基层干部的评价方式变化,以及乡村债务的化解等方式,促使基层政府真正做到为人民服务,从而构建起真正有利社会稳定的农村冲突化解机制。     

Internet domain names and the interaction with intellectual property

This is the fourth in a series of articles looking at the interaction between Internet domain names and intellectual property. It outlines the ICANN dispute resolution procedure for gTLDs whereby objectionable domain names can be transferred away from their registrants or cancelled. It also compares this to legal proceedings in the UK Courts and outlines a referral to the European Court of Justice on issues relating to a trade mark registration as the basis or legitimate interest for a .eu domain name registration.     

与第三方物流相关的法律问题

在介绍第三方物流的概念的基础上,分析第三方物流经营人的法律身份及制定现代物流特别法的必要性与存在的困难,探讨第三方物流纠纷的处理思路,即依次确定合同的性质,确定第三方物流经营人的法律身份,确定争议适用的法律等,并介绍第三方物流纠纷的解决途径。     

解决民间纠纷的立场定位与路径选择——从两则案例说起

民间纠纷的解决影响到我国法治的建设与和谐社会的构建。解决民间纠纷应当根据现代法治的精神和理念,兼顾社会的复杂性和“地方知识”的特殊性,通过国家法和民间法的理性沟通实现二者在解决民间纠纷中的妥协、让步、合作与支持,建立起多元化的纠纷解决机制。     

Dimensions of Chinese foreign conflict and cooperation: A research note

Key mediation attributes, such as mediating actors, the strategy they choose, and previous mediation experiences, are widely thought to influence the nature of a conflict management outcome. But how and when these features shape outcomes is not a straightforward matter, and a standard analysis of these factors does not lead to their widely anticipated results. Why? We develop a new analytical framework that argues that a dispute's intensity alters the conflict management processes. Furthermore, in order to observe this variation, we also need to expand the traditional, dichotomous notion of conflict management outcomes (success or failure) to include a fuller range of observed results. Using the most recent International Conflict Management data set and our new analytical framework, we analyze the effect on conflict management outcome of mediator (a) identity, (b) strategy and (c) history. We find that directive strategies and international mediators are effective in resolving high intensity conflicts, procedural strategies and regional mediators are effective in resolving low intensity conflicts, and that mediation history always affects resolution. Our results have implications for both the study and practice of international dispute mediation.     

Mediation Research: A Current Review

In this article, we review the mediation literature from the past decade, utilizing a cybernetic mediation paradigm to organize the material. In this paradigm, we note that the type of conflict, country, culture, and mediation institutions affect the mediation process. Within this process, the mediator and disputants interact with each other, attempting to reach their own goals. This interaction produces outcomes for the disputants, the mediators, and other parties. The literature — organized using this paradigm — indicates that mediation is frequently practiced in many venues; the literature also provides an exhaustive list of mediation goals, describes many mediation strategies, and reports manifold mediation outcomes. Unfortunately, the number of studies examining the relative effectiveness of specific strategies (e.g., pressing, relational, and analytic) seems insufficient. Few studies have used control groups or reported observations of mediator and disputants' behavior in actual mediations.