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

Published online by Cambridge University Press:  27 December 2018

Oren Gazal‐Ayal  and
Ronen Perry
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Abstract

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.

Type
Articles
Information
Law & Social Inquiry , Volume 39 , Issue 4 , Fall 2014 , pp. 791 - 823
Copyright
Copyright © American Bar Foundation, 2014 

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