Judicial actions in the courtroom remain for the most part off the record and hard to discern. Moreover, judicial settlement practices in the United States, for example, can take place in judicial chambers, far from the public eye. Thus there is a need for physical presence of researchers in public hearings to understand what judges do today in the age of vanishing trials. Researchers of this study entered courts in London, Florence, and Tel-Aviv. The various judicial conflict resolution practices that emerged in Israel’s most active first-instance court, in Tel-Aviv, provide a new perspective on power in the courtroom, identifying new forms of legitimation and justice developed by judges as they perform their settlement-promoting roles. In addition, we discuss an alternative model, found in the Florence Court, where judges were only recently permitted to use settlement practices. There the judges are supported by interns who screen cases before trial to examine whether they may be appropriate for mediation. In court, judges may offer mediation to the parties and explain their reasoning for doing so but will usually not try to settle the cases themselves. Lastly, we showcase intervention styles that offer new visions for the judicial role.

The narratives of judges and lawyers in interviews give a behind-the-scenes glimpse into the beliefs and dilemmas underlying judicial settlement-promoting decisions in court. In this chapter we describe findings from our interviews with judges and lawyers. What is their view of the judicial role in the pursuit of settlement? What is their view of ADR? What is their perspective on the interplay between justice and efficiency? Which theories of legal justice do they develop? Findings are described on the background of the comparison between legal cultures.

This chapter introduces the vanishing trial phenomenon – the emphasis on settlement and plea bargains and the decline of the judicial verdict. This phenomenon began in common law systems and coincided with the rise of alternative dispute resolution (ADR). ADR has been promulgated through a variety of legal constructs, including national laws and transnational directives. However, to date, it is often the case that neither the normative values of adjudication nor the fundamental values of ADR (such as dialogue and relation building) prevail. In their stead, especially in common law countries, there is a drive for efficiency in both courts and mediation sessions. Efficiency has, to a large extent, become synonymous with settlement and the means by which settlement is reached receive little to no notice. Judges, in this setting, are expected to manage cases until they settle – though, as our research shows, some judges have more ambitious horizons for their role, lending new insights to the possible new trajectories. As methods to replace the judicial role are under experimentation, the value and place of the judicial role have reached a critical crossroads.

We propose a typology that accounts for current priorities of legal systems and the main mechanisms through which they dispose of cases.

The proposed typology is the result of a five-year empirical study of legal systems, analyzing data from court dockets, court observations, and interviews with legal actors. The study uncovers: (1) legal systems that have reshaped themselves to place an emphasis on pre-filing, creating disincentives to filing cases and trial while promoting settlement; (2) legal systems that place an emphasis on pretrial, allowing filing of cases but introducing incentives to help cases settle before they reach trial; and (3) legal systems that continue to place an emphasis on trial while allowing other forms of dispute resolution.

We show that each family differs in the aim of civil justice, the function of law, the nature of the judicial role, access to justice, and the institutional function of courts. Moreover, a pre-filing emphasis seems conducive to AI-based dispute resolution that may be developed in the future. The typology allows for a dynamic observation of legal systems as they transition from one family to another, and has implications for legal reforms and harmonization.

This chapter outlines the new landscape of judicial discretion in the settlement era, referring to both critical claims of law and advanced perspectives on conflict resolution. It integrates theoretical claims as to the notion of law and legal formalism together with advanced approaches to conflict resolution. It suggests a new model for judicial discretion and provides a theoretical framework to combine the principles of conflict resolution and law as they pertain to the judicial role. In addition, it shows how judges may exercise their discretion in the courtroom (rather than through a judicial verdict). We then entwine our theories and findings, constructing a training scheme suggested for judges, which integrates conflict resolution perspectives as well as normative and ethical considerations.

It has been estimated that 2–3% of all hospital admissions in Australia are medication-related and 50% are preventable (1, 2). A recent review of data from 44 general medical practices in New Zealand demonstrated that 10.8% of patients experienced medication-related harms over a 3-year period. Most were deemed minor; however, one in five harms were moderate or severe and three patients died due to medication harm (3). The almost 2 million Australians that suffer an adverse event from medicines each year (4) are not all due to an adverse drug reactions (ADR), but are also caused by human and systemic medication errors (Table 3.1). Patients claiming a history of drug allergy are a daily occurrence in dental practice, so this chapter includes a description of allergy physiology, various adverse reactions due to drugs, with detail regarding immune-mediated allergic reactions, focussing on Type 1 and 4 reactions. As many claimed allergic reactions by patients are false, how to correctly diagnose and manage actual drug allergies will also be discussed.

An adverse drug reaction (ADR) is defined as a response to a medicine that is noxious and unintended, and occurs at doses normally used or tested in humans’ (1). ADRs that manifest in the orofacial region are common, being associated with at least 43 of the top 100 drugs dispensed on the Pharmaceutical Benefits Scheme (PBS) in Australia (2). ADRs are becoming more relevant in dentistry with increasing awareness of oral ADRs amongst dental professionals, increasing number of people taking medications, polypharmacy becoming more common especially with increasing age, and the elderly being more prone to adverse effects. In Australia, 87.1% of the population aged 50 years or more takes at least one medicine regularly (3). ADRs are a major public health problem because they occur frequently and contribute significantly to human suffering and economic expense. The Medication Safety Report from the Pharmaceutical Society of Australia in 2019 stated that 250,000 Australian hospitalisations per year are caused by adverse drug events, most of which are due to ADRs, at a cost of approximately AU$1.4 billion (4).

From an economic point of view, the substantive law is a mechanism to generate incentives towards efficient behaviour, i.e. behaviour that maximizes the social surplus. The same applies to the legal rules that the parties agree in the contracts they make. The behavioural response that legal rules aim for depends on accurate enforcement. Litigation, arbitration and other mechanisms of dispute settlement must be viewed and evaluated as tools for the accurate enforcement of legal rules. This contribution analyzes arbitration as an efficient enforcement mechanism that may be used by the parties to maximize the surplus they jointly reap from their transactions. The paper addresses the decision to be made by the parties in choosing arbitration over litigation and other tools of ADR, but also the choice between institutional and ad hoc arbitration. As it turns out, the parameters that influence these choices differ, depending on the domestic or international nature of the given transaction. However, the economics of arbitration are not only about the choices to be made by the parties. Thus, the paper also looks at the incentives faced by the arbitrators.

Although proponents of online dispute resolution systems proclaim that their innovations will expand access to justice for so-called “simple cases,” evidence of how the technology actually operates and who is benefitting from it demonstrates just the opposite. Resolution of some disputes may be more expeditious and user interface more intuitive. But in order to achieve this, parties generally do not receive meaningful information about their rights and defenses. The opacity of the technology (ODR code is not public and unlike court appearance its proceedings are private) means that due process defects and systemic biases are difficult to identify and address. Worse still, the “simple cases” argument for ODR assumes that the dollar value of a dispute is a reasonable proxy for its complexity and significance to the parties. This assumption is contradicted by well established research on procedural justice. Moreover, recent empirical studies show that low money value cases, which dominate state court dockets, are for the most part debt collection proceedings brought by well-represented private creditors or public creditors (including courts themselves, which increasingly depend on fines and fees for their operating budget). Defendants in these proceedings are overwhelmingly unrepresented individuals. What ODR offers in these settings is not access to justice for ordinary people, but rather a powerful accelerated collection and compliance technology for private creditors and the state. This chapter examines the design features of ODR and connects them to the ideology of tech evangelism that drives deregulation and market capture, the aspirations of the alternative dispute resolution movement, and hostility to the adversary system that has made strange bedfellows of traditional proponents of access to justice and tech profiteers. The chapter closes with an analysis of front-end standards for courts and bar regulators to consider to ensure that technology marketed in the name of access to justice actually serves the legal needs of ordinary people.

Chapter 11 covers issues relating to litigation. Part A first addresses the right of exclusive licensees of patents, copyrights, trademarks and trade secrets to sue to enforce licensed IP against third party infringers, and the rules requiring licensors to be joined in such suits. The chapter next moves to contractual clauses that allocate responsibilty for litigation among the licensor and licensee (Ryan v. Graco). It next addresses contractual provisions relating to domestic and international choice of law and dispute resolution, including required arbitration and mediation (alternate dispute resolution). The shifting of fees and litigation expenses is covered next. The chapter concludes by considering special provisions germane to licenses that are entered into in settlement of litigation.

Multi-tier dispute resolution clauses are provisions in contracts that provide for distinct stages, involving separate procedures, for dealing with and seeking to resolve disputes. Multi-tier dispute resolution is used in Russian practice. But it must be recognised that Russian procedural legislation in support of ADR is still in the making. The rules of law governing pre-trial settlement of disputes have undergone many changes recently. Nonetheless, the legislature has been undecided for some time on the precise categories of dispute in respect of which a mandatory claim procedure or protocol should be established. The lawmaker has therefore revised the law in a disorderly fashion and that has generated caused intense criticism from the professional community. The main aim of pre-trial dispute regulation in Russia is to reduce the number of cases submitted to the courts. However, the backlog of cases before the courts continues to be as it was before the implementation of the most recent legislative amendments and the pre-trial settlement of disputes still remains mostly formal insofar as procedure is concerned (whether entered into as a result of mandatory requirements under the law or settled out of court by the parties). This article will start with an overview of the Russian judicial system. It will then review the institutions mentioned above, as well as analyse modern judicial practice in their application. It will conclude with practical recommendations for the improvement of pre-trial dispute resolution in Russia.

In the USA, commercial contracts often include tiered or stepped dispute resolution schemes that comprise multiple, varied mechanisms for resolving conflict. Contractual relationships are particularly suitable for tiered processes that accommodate business priorities, although critiques raise issues regarding necessity, utility and enforceability. Where courts have found contractual negotiation or mediation provisions to be valid and enforceable, the manner in which they address non-compliance under such agreements varies. When a party to a multi-step process fails or refuses to participate in contractually required negotiation or mediation prior to arbitration, there may be issues as to whether the consequences should be addressed in court or via arbitration. Despite being conventionally disfavoured in the USA, many neutrals have experience with ‘switching hats’ – ie moving from being mediator to being arbitrator, or vice versa – in the course of resolving disputes. Guidelines for the use of multi-tier processes take into account the uncertainties associated with judicial handling of stepped agreements as well as their inherent complexities, while recognising potential benefits.

Multi-tier dispute resolution, a combination of mediation and arbitration or litigation, has recently been gaining in importance in international business transactions. While arbitration has the advantages of being confidential, professional and effective across borders owing to the 1958 New York Convention, mediation, geared towards amicable settlements, is time- and cost-efficient and supportive of preserving commercial relationships. Both methods can complement each other in ‘med-arb’, ‘arb-med’ or ‘arb-med-arb’. This chapter discusses cardinal issues surrounding multi-tier dispute resolution in Japan, particularly the enforcement of agreements to mediate as a condition precedent to arbitration or litigation, and the methods of combining mediation and arbitral procedures. At the same time, this contribution sheds light on recent developments and efforts being made in Japan to enhance international arbitration and mediation. This trend will soon bring about legislative reforms and may possibly result in the ratification of the 2019 Singapore Convention on Mediation.

Much as different modes of alternative dispute resolution (ADR) have gained in popularity around the world, there has been growing global interest in the combined use of such modes, or hybrid modes of dispute resolution. This typically requires mediation, arbitration and other modes of ADR to be attempted in an agreed sequence. Such process is referred to as ‘multi-tier dispute resolution’ (MDR). Despite its widespread popularity, the development of MDR has followed different trajectories in different jurisdictions. This introductory chapter will provide a comparative survey of how MDR has been regulated and approached and its many pathways around the world.

In recent years, Singapore has been actively rethinking and reworking ‘access to justice’, with a strong focus on creating new options for dispute resolution and promoting the awareness of these options. This chapter examines the judicial, regulatory and institutional support in Singapore for the twinning of mediation and arbitration as a form of multi-tier dispute resolution mechanism for commercial disputes. It is a hybrid approach that draws upon ‘the strengths of both adversarial and consensual dispute resolution’. In particular, this chapter critically analyses the SIMC-SIAC Arb-Med-Arb Protocol (the ‘AMA Protocol’) and interrogates how it contributes towards improving the arb-med-arb mechanism.

Any discussion of alternative dispute resolution (ADR) necessarily relies on some basic, shared notions, allowing us to identify those procedures that are considered an alternative to litigation in national courts. When legal scholars refer to arbitration or mediation, for instance, they often take it for granted that those linguistic labels are sufficient to designate a certain procedure. To be sure, none of these labels have a monolithic quality: the word ‘arbitration’, for instance, designates a family of private adjudication phenomena, which can differ in significant ways. Each ADR mechanism, hence, is best understood as a spectrum of procedures. Nevertheless, all of the instances falling within that spectrum must necessarily have some shared broad-stroke feature, so that they can all (with an unavoidable degree of simplification) be referred to as arbitration, mediation or another ADR mechanism. In other words, there must necessarily be some boundaries that lawyers heuristically deploy to build a rough yet shared taxonomy of ADR.

Lex Mercatoria, Latin for ‘merchant law,’ is a very old concept that predates the rise of nation-states. During the medieval period, a body of legal conventions evolved through custom and commercial practice and was enforced by private courts along the merchant trade routes.1 Modern nation-states came to replace this traditional method of resolving disputes with domestic courts. But the gradual increase in international commerce has encouraged nations to defer to international arbitration as a solution to complex cross-border business disputes, and various other alternatives to lawsuits brought in civil courts.