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Against settlement? Owen Fiss, ADR and Australian discrimination law

Allen, Dominique 2010, Against settlement? Owen Fiss, ADR and Australian discrimination law, International journal of discrimination and the law, vol. 10, no. 4, pp. 191-218.

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Title Against settlement? Owen Fiss, ADR and Australian discrimination law
Author(s) Allen, Dominique
Journal name International journal of discrimination and the law
Volume number 10
Issue number 4
Start page 191
End page 218
Total pages 28
Publisher A B Academic Publishers
Place of publication Oxon, England
Publication date 2010
ISSN 1358-2291
Keyword(s) ADR
discrimination
settlement
Australia
conciliation
Summary In his celebrated article, Against Settlement, Owen Fiss objected to settlement for, among other things, securing the peace while not necessarily delivering justice and denying the court the opportunity to interpret the law. Fiss sees settlement as a technique for streamlining court dockets, the civil equivalent of plea bargaining. This paper explores Fiss’s criticisms through the lens of resolving discrimination complaints in Australia. It argues that although it is valuable to offer complainants a system for resolving complaints quickly and informally, especially in a jurisdiction in which complainants are often from marginalised groups, it is also necessary to recognise that this system is limited in how effectively it can develop the law and, by extension, eradicate discrimination. In essence, the system’s operation epitomises Fiss’ opposition to settlement. Modifying the complaint resolution system would improve this situation. The paper concludes by proposing three reforms based on mechanisms used in comparable countries: introducing direct access to the court or tribunal; strengthening ADR by making it voluntary and incorporating a ‘rights-based’ approach; and encouraging the regular publication of specific information about settlements and significant cases.
Language eng
Field of Research 180114 Human Rights Law
Socio Economic Objective 970118 Expanding Knowledge in Law and Legal Studies
HERDC Research category C1 Refereed article in a scholarly journal
Copyright notice ©2010, A B Academic Publishers
Persistent URL http://hdl.handle.net/10536/DRO/DU:30033125

Document type: Journal Article
Collections: School of Law
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Every reasonable effort has been made to ensure that permission has been obtained for items included in DRO. If you believe that your rights have been infringed by this repository, please contact drosupport@deakin.edu.au.