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34 Vt. L. Rev. 529 (2009-2010)
The Case for Greater Formality in ADR: Drawing on the Lessons of Benoam's Private Arbitration System

handle is hein.journals/vlr34 and id is 535 raw text is: THE CASE FOR GREATER FORMALITY IN ADR: DRAWING ON THE LESSONS OF BENOAM'S PRIVATE ARBITRATION SYSTEM Orna Rabinovich-Einy* & Roee Tsurt INTRODUCTION The relationship between formal law and its alternatives has been an important theme in legal writing. While a significant portion of the literature has emphasized the distinctions between courts and Alternative Dispute Resolution (ADR), some of the writing has highlighted similarities and areas of convergence. This Article draws on the case study of Benoam to offer a more nuanced approach. Under this approach, we acknowledge the fact that many ADR processes do indeed share common features that are distinct from those of courts. However, we also recognize the existence of ADR schemes that do not fit the ADR prototype.' We analyze the Benoam system, which diverges from the common pattern, to uncover a more diverse ADR landscape, the conditions under which unconventional ADR systems emerge, and the potential of such mechanisms to cure some of the ills associated with prevailing ADR practices. The common view of ADR is explored through a four-pronged prototype that we develop. According to this prototype, ADR processes are premised on the following principal elements: (1) promoting party control and flexibility; (2) addressing individual disputes on an ad hoc basis; (3) dependence on formal law and courts; and (4) the lack of publicity. These features, which have served to make ADR processes attractive to disputants, have also been the target of fierce critiques regarding the need for public airing of disputes for the continued development of law, protection of due process, fortification of individual rights, and equal rights for members of disempowered groups. We then use the Benoam example to better understand what factors influence the emergence of systems different from the ADR prototype and the implications of these uncommon ADR structures. Specifically, in our * Assistant Professor, Faculty of Law, University of Haifa. t Among the founders of Benoam, led the development team of Benoam, serves as a Benoam arbitrator, and has a private law practice in Israel. We would like to thank Adv. Yehuda Tunik, Ethan Katsh, Moraia Tafla, and Faina Milman-Sivan for their insights, suggestions, and comments, Maya Cohen for assisting us in locating relevant arbitrator decisions, and Reut Cohen for her thorough research assistance. Finally, we thank the editors at the Vermont Law Review for their helpful comments. 1. See infra notes 22-24 and accompanying text.

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