替代性糾紛解決

1. 有哪位好心人幫我找一篇替代性糾紛解決機製程序（ADR）的外文文獻

Alternative dispute resolution (ADR) (also known as External Dispute Resolution in some countries, such as Australia[1]) includes dispute resolution processes and techniques that fall outside of the government judicial process. Despite historic resistance to ADR by both parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the indivial or indivials who will decide their dispute.[citation needed]

ADR is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. (Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation. See conciliation for further details.) ADR can be used alongside existing legal systems such as Sharia Courts within Common Law jurisdictions such as the UK.[2]

ADR traditions vary somewhat by country and culture. There are significant common elements which justify a main topic, and each country or region's difference should be delegated to sub-pages.

ADR or Alternative Dispute Resolution is of two historic types. First, methods for resolving disputes outside of the official judicial mechanisms. Second, informal methods attached to or pendant to official judicial mechanisms. There are in addition free-standing and or independent methods, such as mediation programs and ombuds offices within organizations. The methods are similar, whether or not they are pendant, and generally use similar tool or skill sets, which are basically sub-sets of the skills of negotiation.

ADR includes informal tribunals, informal mediative processes, formal tribunals and formal mediative processes. The classic formal tribunal forms of ADR are arbitration (both binding and advisory or non-binding) and private judges (either sitting alone, on panels or over summary jury trials). The classic formal mediative process is referral for mediation before a court appointed mediator or mediation panel. Structured transformative mediation as used by the U.S. Postal Service is a formal process. Classic informal methods include social processes, referrals to non-formal authorities (such as a respected member of a trade or social group) and intercession. The major differences between formal and informal processes are (a) pendency to a court procere and (b) the possession or lack of a formal structure for the application of the procere.

For example, freeform negotiation is merely the use of the tools without any process. Negotiation within a labor arbitration setting is the use of the tools within a highly formalized and controlled setting.

Calling upon an organizational ombudsman's office is never a formal procere. (Calling upon an organizational ombudsman is always voluntary; by the International Ombudsman Association Standards of practice, no one can be compelled to use an ombuds office.)

Informal referral to a co-worker known to help people work out issues is an informal procere. Co-worker interventions are usually informal.

Conceptualizing ADR in this way makes it easy to avoid confusing tools and methods (does negotiation once a law suit is filed cease to be ADR? If it is a tool, then the question is the wrong question) (is mediation ADR unless a court orders it? If you look at court orders and similar things as formalism, then the answer is clear: court annexed mediation is merely a formal ADR process).

Dividing lines in ADR processes are often provider driven rather than consumer driven. Ecated consumers will often choose to use many different options depending on the needs and circumstances that they face.

Finally, it is important to realize that conflict resolution is one major goal of all the ADR processes. If a process leads to resolution, it is a dispute resolution process.

[taken with permission from a presentation by Stephen R. Marsh of http://adrr.com/]

The salient features of each type are as follows:

In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution. (NB – a third party like a chaplain or organizational ombudsperson or social worker or a skilled friend may be coaching one or both of the parties behind the scene, a process called "Helping People Help Themselves" – see Helping People Help Themselves, in Negotiation Journal July 1990, pp. 239–248, which includes a section on helping someone draft a letter to someone who is perceived to have wronged them.)
In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a "mediator's proposal"), but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR is synonymous with what is generally referred to as mediation in other countries.
In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within specifically contracted terms. The parties reach agreement with support of the attorneys (who are trained in the process) and mutually-agreed experts. No one imposes a resolution on the parties. However, the process is a formalized process that is part of the litigation and court system. Rather than being an Alternative Resolution methodology it is a litigation variant that happens to rely on ADR like attitudes and processes.
In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. This is known as a 'Scott Avery Clause'. In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements (e.g., credit card agreements), has drawn scrutiny from courts. Although parties may appeal arbitration outcomes to courts, such appeals face an exacting standard of review.
Beyond the basic types of alternative dispute resolutions there are other different forms of ADR:

Case evaluation: a non-binding process in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of their respective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator.
Early neutral evaluation: a process that takes place soon after a case has been filed in court. The case is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute. The evaluation of the expert can assist the parties in assessing their case and may influence them towards a settlement.
Family group conference: a meeting between members of a family and members of their extended related group. At this meeting (or often a series of meetings) the family becomes involved in learning skills for interaction and in making a plan to stop the abuse or other ill-treatment between its members.
Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes.
Ombuds: third party selected by an institution – for example a university, hospital, corporation or government agency – to deal with complaints by employees, clients or constituents. The Standards of Practice for Organizational Ombuds may be found at http://www.ombudsassociation.org/standards/.
An organizational ombudsman works within the institution to look into complaints independently and impartially.[3]

"Alternative" dispute resolution is usually considered to be alternative to litigation. It also can be used as a colloquialism for allowing a dispute to drop or as an alternative to violence.

In recent years there has been more discussion about taking a systems approach in order to offer different kinds of options to people who are in conflict, and to foster "appropriate" dispute resolution. (See Lynch, J. "ADR and Beyond: A Systems Approach to Conflict Management", Negotiation Journal, Volume 17, Number 3, July 2001, Volume, p. 213.)

That is, some cases and some complaints in fact ought to go to formal grievance or to court or to the police or to a compliance officer or to a government IG. Other conflicts could be settled by the parties if they had enough support and coaching, and yet other cases need mediation or arbitration. Thus "alternative" dispute resolution usually means a method that is not the courts. "Appropriate" dispute resolution considers all the possible responsible options for conflict resolution that are relevant for a given issue.[4]

Arbitration and mediation are the best known and most commonly used forms of ADR within the UK. However in recent years adjudication is rapidly gaining attention as a quick, fair and cheap was to settle disputes. [5]

ADR can increasingly be concted online, which is known as online dispute resolution (ODR, which is mostly a buzzword and an attempt to create a distinctive proct). It should be noted, however, that ODR services can be provided by government entities, and as such may form part of the litigation process. Moreover, they can be provided on a global scale, where no effective domestic remedies are available to disputing parties, as in the case of the UDRP and domain name disputes. In this respect, ODR might not satisfy the "alternative" element of ADR.

2. 替代性糾紛解決機制和民事訴訟的區別

我國現行的民事糾紛解決機制概括起來主要有四種:和解,調解,仲裁和訴訟。前三種可概括為非訴訟糾紛解決機制,國外則稱其為替代性糾紛解決機制（ADR），英文是Alternative Dispute Resolution，即通過多種訴訟外的方式，替代訴訟方式解決糾紛，又稱為多元化糾紛解決機制，或稱為非訴訟糾紛解決機制、法院外糾紛解決機制。

從二者的特徵你可歸納出至少兩點區別：強制性和規范性上的區別。

替代性糾紛解決機制主要特徵包括：（1）糾紛當事人具有高度的自主性，當事人意思自治在其中佔有重要地位。（2）具有較大的靈活性，當事人可視爭議的具體情況來選擇合適的解決方案和程序。（3）解決糾紛快捷且費用低廉。（4）所達成的協議、裁斷(仲裁裁決除外)一般不具有法律約束力，但由於協議完全是在雙方當事人友好協商、互諒互讓的基礎上達成的，故一般容易得到雙方當事人的承認和自覺執行。（5）以非對抗和非公開的方式解決糾紛。這樣更有利於維護雙方當事人之間長久存在的經貿交往和人際關系，並有助於保守當事人的個人隱私和商業技術秘密。替代性糾紛解決機制是一種開放的、發展的體系，對新穎的民事糾紛的處理具有較強的適應性。

民事訴訟具有兩個特點：①國家強制性，即法院憑借國家審判權強制性確定糾紛主體雙方之間的民事權利義務關系，並以國家強制執行權迫使義務主體履行生效的裁判；②嚴格的規范性，即民事訴訟必須嚴格按照法定程序進行。

3. 什麼是替代性爭議解決機制

就是所抄謂的ADR（Alternative Dispute Resolution）意為「解決爭議的替代方式」，或者翻譯為「非訴訟糾紛解決程序」，傳統上的ADR通常是指除訴訟與仲裁以外的各種解決爭議的方法的總稱，如協商、談判、斡旋、調解、等方式。換言之，ADR所代替的是除了訴訟以外的各種解決爭議方法的總稱。

4. 仲裁是什麼意思

仲裁是指爭議雙方在爭議發生前或爭議發生後達成協議，自願將爭議交給第三者做出裁決，雙方有義務執行的一種解決爭議的方法。

1.調解，作為民事糾紛解決機制的一種，是指第三者依據一定的社會規范

（包括習慣、道德、法律等規范），在糾紛主體之間溝通信息，擺事實明道理，促成糾紛主體相互諒解、妥協，從而達成最終解決糾紛的合意。

具有意思自治性、非嚴格的規范性等特點。鑒於目 前實踐，調解可分為訴訟內調解和訴訟外調解。

2.訴訟，則是指由特定的國家機關，在糾紛主體的參加下，以國家公權力解決社會糾紛的一種機制。

在現代社會，訴訟是由國家司法機關來主持進行的，由於國家公權力的行使，它具有國家強制力、嚴格的規范性等特徵。

(4)替代性糾紛解決擴展閱讀：

立什麼樣的仲裁製度，直接關系仲裁的生存和發展，也直接關繫到能否公正，及時，有效地解決當事人之間的爭議，仲裁法在總結中國仲裁的經驗，借鑒國外經驗的基礎上，提出了三項基本制度，即協議仲裁製度，或裁或審制度，一裁終局制度。

協議仲裁

這是仲裁中當事人自願原則的最根本體現，也是自願原則在仲裁過程中得以實現的最基本的保證，仲裁法規定仲裁必須要有書面的仲裁協議，仲裁協議可以是合同中寫明的仲裁條款，也可以是單獨書寫的仲裁協議書。仲裁協議的內容應當包括請求仲裁的意思表示，約定的仲裁事項，以及選定的仲裁委員會。

或裁或審

或裁或審是尊重當事人選擇解決爭議途徑的制度。其含義是，當事人達成書面仲裁協議的，應當向仲裁機構申請仲裁，不能向法院起訴。人民法院也不受理有仲裁協議的起訴。

如果一方當事人出於自身的利益或者其它原因，沒有信守仲裁協議或者有意迴避仲裁而將爭議起訴到法院，那麼被訴方當事人可以依據仲裁協議向法院提出管轄權異議，要求法院駁回起訴，法院按照仲裁法的規定，將對具有有效仲裁協議的起訴予以駁回並讓當事人將爭議交付仲裁。

一裁終局

《仲裁法》第9條規定「仲裁實行一裁終局的制度，裁決作出後，當事人就同一糾紛再申請仲裁或者向人民法院起訴的，仲裁委員會不予受理。

一裁終局的基本含義在於，裁決作出後，即產生法律效力，即使當事人對裁決不服，也不能就同一案件向法院提出起訴。

所以一裁終局，不僅排除了中國沿用多年的一裁二審的可能性，同時也排除了一裁一復議和二裁終局的可能性。

5. 法律英語 ADR是替代性糾紛解決方式 請勿用翻譯軟體翻譯 懂的來

好難，，，，，