PRINCIPALES CRÍTICAS A LA TEORÍA DE PIAGET

9. Any contract relating to terms and conditions of employment unless the clause agreeing to arbitrate is initiated by all signatories at the time of the execution of the agreement;

10. Any agreement to arbitrate future claims arising out of personal bodily injury or wrongful death based on tort.⁵¹⁹

 referral to agencies or services in the community that addresses the specific need⁵²¹

Any dispute may be taken to the Community Information and Referral Programme and family disputes may be taken to the Family Mediation Programme. Those who have civil or small claims issues often first file with the Court before participating in mediation.⁵²² An attorney is not needed to participate in Multi-Door programmes. However, attorneys often participate in civil mediation, arbitration, and case evaluation.

The court mediators do not give legal advice to parties, do not represent them in Court, and do not make reports to the Court about the discussions that take place in mediation sessions.

If a party therefore chooses to have the assistance of an attorney in its matter, the mediator assigned to the case will explain how the attorney can be integrated into the ADR process.⁵²³ The Multi-Door's services are free to anyone who lives in the District of Columbia. Parties are expected to make a good-faith effort - including attention, thought and self-reflection - to resolve their dispute in a manner that considers everyone concerned.

If parties are unable to reach a resolution of their issues through Multi-Door, the mediator assigned to the case will talk with them about possible next steps as it is believed that though the ADR process gives many parties the best opportunity to reach a satisfactory, sensible and lasting resolution to their disputes, it is not the best forum for everyone.⁵²⁴ The Court-ADR has different services including the Child Protection Mediation, Civil Mediation and Case Evaluation Programme, the Small Claims Mediation Programme and the Judicial Arbitration programme.

Child Protection Mediation (CPM) is a free service where parents and other caretakers meet with all parties involved in their legal case in respect of child abuse or neglect. A specially trained mediator will facilitate a discussion between guardians, social workers, attorneys, foster parents, and other concerned individuals who are involved in the case. The mediator is neutral and non-judgmental. The role of the CPM mediator is to guide a large group discussion which may result in an agreement. The discussion in mediation is centered on the best interest of the child(ren) and resolving the court case. The programme accepts case referrals at any stage of the proceedings from the initial hearing up to and through adoption.

Issues that may be discussed in CPM include: Abuse, Neglect, Guardianship, Permanency,

521 http://www.dccourts.gov/dccourts/superior/multi/community.jsp

522 http://www.dccourts.gov/dccourts/superior/multi/faq.jsp

523 Ibid

524 Ibid

Custody, Adoption, Visitation, Placement options, Child’s wishes, Additional services, Legal issues or Case plan⁵²⁵ There is also the Civil Mediation and Case Evaluation Programme. In the Mediation section, a trained mediator assists parties to communicate their positions and interests, and explore settlement options. The mediator does not give an evaluation or opinion. The mediator helps formulate a mutually acceptable agreement between the parties to a case. The mediation date is mailed to the parties approximately sixty (60) days prior to mediation and each party is responsible for submitting a Confidential Settlement Statement (CSS). If mediation is rescheduled, a new CSS must be filed with the new date noted. The mediator will call the parties approximately two weeks before the mediation to discuss their view of the case, the status of any negotiations, and any obstacles to settlement. Parties are informed to prepare for a two-hour mediation session. Follow-up sessions are available as needed. If parties reach an agreement in mediation, the mediator will help write it and it may be immediately submitted to the court as settlement once all parties have signed it. If no agreement is reached in mediation, a pre-trial date will be set by Multi-Door staff.⁵²⁶

In respect of Case evaluation, a mediator-evaluator helps parties identify the issues in dispute and provides an opinion of the settlement value of the case, the likelihood of liability, and probable range of damages. The steps for case-evaluation is similar to that of mediation stated above, except that parties are informed to prepare for a single session which may last up to two hours. The mediator-evaluator will provide a non-binding opinion at the end of the session. Parties can continue settlement negotiations or request mediation after the evaluation session.⁵²⁷

The Small Claims Mediation Programme provides trained mediators to handle matters on the day of trial. All mediation sessions are confidential. Most cases are assigned to mediation at the discretion of the judge. Parties do not need an attorney to participate in small claims mediation. Once in mediation, sessions generally last an hour. Mediation is confidential.

However, credible threats of violence and reports of abuse to children or elders are an exception to this rule. Agreements reached in mediation are enforceable but do not create a formal judgment. Agreements reached in mediation will be approved by the Mediation Supervisor and entered into the Court record. All parties receive a copy of the agreement and do not need to return to the courtroom. If no agreement is reached, parties will go before the

525 http://www.dccourts.gov/dccourts/superior/multi/child.jsp

526 http://www.dccourts.gov/dccourts/superior/multi/civil.jsp

judge for the next step in their case, which could be a hearing on a motion, judicial arbitration, or a trial.

In the Judicial Arbitration programme, the judge conducts the arbitration. It is different from a trial because: all parties must agree to participate in arbitration; a judgement is entered only if the party does not abide by the terms of the judicial arbitration; the parties do not have the right to appeal the decision after it has been made. The parties cannot withdraw from arbitration once it begins. ⁵²⁸ During the initial scheduling conference in a civil case, the judge, parties and attorneys may select arbitration as the best forum for reaching a settlement.

In this process, a trained arbitrator is given the authority to manage the case for approximately 120 days. Arbitrators may be selected from a list available in the courtroom.

Arbitrators oversee discovery and decide all motions after a case is assigned to them, conduct evidentiary hearings, and render decisions. If the parties choose binding arbitration, the arbitrator's award is converted into a judgement of the Court. If the arbitration is non-binding, the parties must file a timely request for a trial de novo or the arbitrator's award is converted into a judgement of the Court. These motions for a trial are filed, in person or by mail.⁵²⁹ 3.2 Evaluation of Court Connected ADR in the USA

As the advantages of ADR to civil litigants and those involved in family disputes became increasingly clear over the last several years, and court backlogs increased substantially, state and federal courts began exploring and incorporating mediation, arbitration, and other settlement procedures directly into their scope of power. As of 1992, over 1200 state court-sponsored ADR programmes were identified in the United States.⁵³⁰ Over one-third of the Federal court districts had implemented some form of ADR by 1990 including, in some jurisdictions, authorising judges to order litigants to use some form of ADR in an effort to settle their dispute.⁵³¹ The Civil Justice Reform Act of 1990⁵³² is seen by many legal scholars and observers as one of the primary catalysts of the courts' rising use of ADR.⁵³³

527 ibid

528 http://www.dccourts.gov/dccourts/superior/multi/small.jsp

529 http://www.dccourts.gov/dccourts/superior/multi/arbitration.jsp

530 Shaw, M.L. 1994. Courts Point Justice in a New Direction, NAT'L L. J., April 11, , at Cl.

531 Ibid at C16

532 28 U.S.C. §§ 471-482 (1993).

533 Mazadoorian, H.N. 1994. Practice Experience is Solid Evidence of ADR's Effectiveness, NAT'L L.J., Apr.

11, at C10

Resnik warns that the marriage of the courts and ADR, like most marriages, will transform both parties.⁵³⁴ ADR, which its originators envisioned as constantly expanding in its forms and variations, will find itself uncomfortably constrained in its courtly new home where the premium will be on cheap, reliable methods of settlement, and mediation and settlement conferences will be preferred to arbitration. In the end, Resnik fears, the claimant may face the worst of both worlds--a diminished opportunity to litigate and a punier selection of alternatives to litigation.⁵³⁵