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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:
Orna Rabinovich-Einy* & Roee Tsurt
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
1. See infra notes 22-24 and accompanying text.

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