미국의 가사중재
On the Family Law Arbitration in U.S.
0
조회
0
다운로드
3
인용
0
참고문헌
키워드
초록
Arbitration by agreement was once a reasonably discrete practice, mostly confined to business transactions, maritime law issues, construction contracts, agreements among professionals, labor disputes, international commercial matters, and the like. The idea of using arbitration in fields like family law was in force only recently. The prevalence of family law arbitration has changed dramatically in the past decade in U.S. Factors that may have influenced the rise of arbitration by agreement include the popularity of ADR and civil litigation’s increasing cost, complexity and delay etc. In some jurisdictions disputants have tried to use the Uniform Arbitration Act to resolve marital disputes. Some courts have declared that some issues, e.g., child support or child custody, may not be arbitrated as matters of public policy, but others have different views. Arbitral awards are final under the Act and similar legislation; these issues must always remain open to protect the best interests of the child, according to courts refusing to allow arbitration on child support, child custody or other related issues. Even though there are some differences between legal structures of Korean family law and that of U.S., two countries are simultaneously confronted such the same problems to harmonize of arbitral awards and the best interests of children. Therefore the developments and theories of family law arbitration in U.S. are worth reviewing for Korean practitioners.
Abstract
Arbitration by agreement was once a reasonably discrete practice, mostly confined to business transactions, maritime law issues, construction contracts, agreements among professionals, labor disputes, international commercial matters, and the like. The idea of using arbitration in fields like family law was in force only recently. The prevalence of family law arbitration has changed dramatically in the past decade in U.S. Factors that may have influenced the rise of arbitration by agreement include the popularity of ADR and civil litigation’s increasing cost, complexity and delay etc. In some jurisdictions disputants have tried to use the Uniform Arbitration Act to resolve marital disputes. Some courts have declared that some issues, e.g., child support or child custody, may not be arbitrated as matters of public policy, but others have different views. Arbitral awards are final under the Act and similar legislation; these issues must always remain open to protect the best interests of the child, according to courts refusing to allow arbitration on child support, child custody or other related issues. Even though there are some differences between legal structures of Korean family law and that of U.S., two countries are simultaneously confronted such the same problems to harmonize of arbitral awards and the best interests of children. Therefore the developments and theories of family law arbitration in U.S. are worth reviewing for Korean practitioners.
참고문헌 (32)
- Belinkie, Alfred R., "Matrimonial Arbitration", Ct. B.J, 65, pp.309~ (1991)
- Black, Laura B., "Survey: Developments in Maryland Law: 1985-1988", Md. L. Rev, 46, pp.73~ (1987)
- Block, Richard R, "Divorce Arbitration: An Alternative to Mediation", Fairshare, 4 (1984)
- Brazil, Wayne D., "Effective Approaches to Settlement: A Handbook for Lawyers and Judges", ~ (1998)
- Coulson, Robert, "Family Arbitration ― An Exercise in Sensitivity", Fam.L.Q, 3, pp.22~ (1969)
- Dolgin, Janet L., "The Fate of Childhood: Legal Models of Children and the Parent-Child Relationship", Alb. L. Rev, 61, pp.345~ (1997)
- Edwards, Harry T., "Alternative Dispute Resolution: Panacea or Anathema?", HARV. L. REV., 99, pp.679~ (1986)
- Foster, Henry H., "Child Custody (Pt.1)", N.Y.U. L. Rev, 39, pp.413~ (1964)
- Galasso, Peter J., "Prejudging the Arbitration of Custody", N.Y.L.J, 23, pp.2~ (1994)
- Gerber, Rudolph J., "Recommendation on Domestic Relations Reform", Ariz. L. Rev, 32, pp.9~ (1990)
- Hayford, Stephen L., "Commercial Arbitration in the Supreme Court 1983-1995: A Sea Change", Wake Forest L. Rev, 31, pp.1~ (1996)
- Hilary, Astor, "Swimming against the Tide: Keeping Violent Men out of Mediation" (1994), WOMEN, MALE VIOLENCE AND THE LAW
- Holman, Nancy Ann, "Agreement and Arbitration: Relief to Over-Litigation in Domestic Relations Disputes in Washington", Willamette L.J., 12, pp.5274~ (1976)
- Imbrogno, Andre R., "Arbitration as an Alternative to Divorce Litigation: Redefending the Judicial Role", Cap. U. L. Rev, 31, pp.431~ (2003)
- Jenkins, Elizabeth A., "Annot., Validity and Construction of Provisions for Arbitration of Disputes As To Alimony or Support Payments or Child Visitation or Custody Matters", A.L.R.5th, 38, pp.69~ (1996)
- Johnston, Janet R., "Building Multidisciplinary Professional Partnerships with the Court on Behalf of High-Conflict Divorcing Families and Their Children: Who Needs What Kind of Help?", U. ARK. LITTLE ROCK L. REV, 22, pp.457~ (2000)
- Kessler, Joan F., "Why Arbitrate Family Law Matters?", J. Am. Acad. Matrim. Law, 14, pp.333~
- Lerman, Lisa G., "Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women", HARV. WOMEN'S L. J, 7, pp.57~ (1983)
- Middleton, John, "Burger: Arbitrate More and Litigate Less", A.B.A. J, 68, pp.257~ (1982)
- Philbrick, Melissa Douthart, "Note, Agreements to Arbitrate Post-Divorce Custody Disputes", Colum. J.L. & Soc. Probs, 18, pp.419~ (1985)
- Pillitire, Melodie, "Comment, Grandparent Visitation Rights: The Pitfalls and the Promise", Loy. J. Pub. Int. L., 2, pp.177~ (2001)
- Rigby, Kenneth J., "Family Law: Alternative Dispute Resolution", LA. L. REV, 44, pp.1725~ (1984)
- Samborn, Hope Viner, "The Vanishing Trial", A.B.A.J, 88, pp.24~ (2002)
- Sander, Frank, "Varieties of Dispute Processing", F.R.D, 70, pp.111~ (1976)
- Scaggs, Diana L., "Arbitration in Kentucky Divorce Cases?", Divorce Law Journal (2006)
- Schepard, Andrew, "Divorce, Interspousal Torts, and Res Judicata", Fam. L.Q, 24(9), pp.127~ (1990)
- Schepard, Andrew, "Perspective: Peace: A Program of Parental Education", N.Y.L.J, 2 (1991)
- Spencer, Janet M., "Reflections on Arbitration Under the Family Dispute Services", Arb. J., 32, pp.111~ (1977)
- Streeter-Schaefer, Holly A., "A Look at Court Mandated Civil Mediation", DRAKE L. REV, 49, pp.368~ (2001)
- Tupman, W. Michael, "Discovery and Evidence in U.S. Arbitration: The Prevailing Views", Arb. J., 44, pp.27~ (1989)
- Walker, George K, "Arbitrating Family Law Cases by Agreement", J. Am. Acad. Matrim. Law, 18, pp.429~
- Walker, George K., "Family Law Arbitration: Legislation and Trends", J. Am. Acad. Matrim. Law, 21, pp.649~