Alternative Dispute Resolution
Alternative dispute resolution (ADR) is an alternative way for people
to settle disputes instead of going through the courts. There are many
different types of ADR, which can be used to settle disputes. The most
common methods of ADR are Tribunals, Negotiation, conciliation,
mediation and arbitration.
Negotiation is the method that most parties in dispute take before
they take any further action. This normally conducted either directly
between the parties who have a dispute or through their lawyers.
Conciliation, this is where a conciliator takes an active role and
suggests methods of compromise for the parties.
Mediation, this ADR is conducted with an independent 3rd party
mediator who doesn’t impose a legally binding decision, but helps the
parties come to a compromise solution. Mediation has become a popular
way of settling disputes and is also now available on the onternet.
The cost of a mediator is about £1500, which is a lot more cost
effective than litigation, which can cost thousands in legal fees. The
Family law act 1996 made mediation compulsory within the divorce
process, however pilot schemes conducted proved it to be unpopular so
the Act was never brought into force.
Arbitration is a form of ADR in which two parties in a dispute agree
to an independent 3rd party making a legally binding decision to
resolve the dispute. Arbitration is especially important in commercial
business disputes, most arbitrators are legally qualified, so they
have a good knowledge of the law. The regulations of arbitration are
set in the Arbitration Act 1996, under this act courts and judges will
usually refuse to hear cases where there is an arbitration agreement.
There are three main ways in which arbitration can come about. Firstly
by contract parties signing a contract may include a clause sometimes
known as the Scott V Avery clause, which will state that in the event
of the two parties having a dispute they will use an arbitrator to
resolve the dispute. Secondly the two parties may decide to use
It deals with perceptions of overall fairness (Blancero, Delcampo & Marron, 2010). Under Civil Procedure Rules, it is generally expected that the parties consider using ADR before beginning deciding on litigation (Ward, 2007). Overall, ADR parties have the freedom to choose who will decide the case, involves a non-hostile environment and disputes are confidential. Whereas, litigation does not have the option to decide who hears the case, the environment can be hostile and the files become public record, although it does offer due process (Benkin, 1994). There are three commonly accepted forms of ADR, negotiation, mediation and arbitration. Although, no method of ADR is equally exclusive to any issue, the benefits of ADR outweigh the
1. Arbitration is a matter of contract. That means the parties are not required to arbitrate a dispute they do not agree to submit to arbitration. The court will decide if there is a duty to arbitrate or not. 2.
This statement is further elaborated by Schmitz who states that the parties of the arbitral proceedings have to respect and maintain whatever they have learnt in the arbitration as secret. The press and the public lose the access to the hearings and the awards. The documents used in the arbitral proceeding would not be admissible in court proceedings. But in reality this type of secrecy does not exist in arbitral proceedings since certain information need to be disclosed for the public welfare. As one author has noted, “Privacy is concerned with the right of persons other than the arbitrators, parties and their necessary representatives and witnesses, to attend the arbitration hearing and to know about the arbitration. Confidentiality by contrast, is concerned with information relating to the content of the proceedings, evidence and documents, addresses, transcripts of the hearings or the award.” The general practice for determining the issue of confidentiality is to see through the customs, usage and whether confidentiality has been impliedly included in the arbitration
This report is set to outline and highlight key developments in a very important piece of law “Federal Arbitration Act” which is also commonly known as FAA. In order to look at the FAA in detail which was developed in late 1925, first let’s see what the word Arbitration mean. In simple words, Arbitration is known be to a very informal, private and isolated process in which all participating parties agree to hand in their disputes and problems in writing to one or more independent parties who are sanctioned to resolve the problem or issue. If someone ask you a question to define the act of Arbitration or what does it mean, most of us will have one of the following opinion:
Negotiation is a fundamental process used in resolving conflicts, making business deals, and in managing working relationships with others. Negotiations occur for two reasons: (1) to resolve a problem or dispute between parties, or (2) to create something new that neither party could do on its own.
Unlike divorce court, mediation is private and confidential. Mediation involves you, your former spouse and the mediator. Anyone can sit in on a case in divorce court, and the information is public. Divorce court is expensive and may cost as much as $15,000 and take over a year to settle. Mediation costs much less, with the actual price depending on the mediation service you choose and how long mediation takes.
Negotiation is a discussion between two or more people with goal of reaching agreement on
Many people enjoy working or participating in a group or team, but when a group of people work together chances are that conflicts will occur. Hazleton describes conflict as the discrepancy between what is the perceived reality and what is seen as ideal (2007). “We enter into conflicts reluctantly, cautiously, angrily, nervously, confidently- and emerge from them battered, exhausted, sad, satisfied, triumphant. And still many of us underestimate or overlook the merits of conflict- the opportunity conflict offers every time it occurs” (Schilling, nd.). Conflict does not have to lead to a hostile environment or to broken relationships. Conflict if resolved effectively can lead to a positive experience for everyone involved. First, there must be an understanding of the reasons why conflicts occur. The conflict must be approached with an open mind. Using specific strategies can lead to a successful resolution for all parties involved. The Thomas-Kilmann Conflict Mode Instrument states “there are five general approaches to dealing with conflict. The five approaches are avoidance, accommodation, competition, compromise, and collaboration. Conflict resolution is situational and no one approach provides the best or right approach for all circumstances” (Thomas, 2000).
A group can only be called a team if the members are actively working together toward a common goal. A team must have the capability to set goals, make decisions, solve problems, and share responsibilities. For a team to be successful, trust must be earned between its members by being consistent and reliable (Temme & Katzel, 2005). When more than one person is working on a particular task, inconsistent views or opinions commonly arise. People come from different backgrounds and live through different life experiences therefore, even when working towards a common goal, they will not always see eye to eye. Major conflict that is not dealt with can devastate a team or organization (Make Conflict Work, 2008). In some situations, conflict can be more constructive than destructive. Recognizing the difference between conflict that is constructive to the team and conflict that is destructive to the team is important. Trying to prevent the conflict is not always the best way to manage conflict when working within a team setting. Understanding conflict, what causes it, and how to resolve conflict effectively, should consume full concentration.
workplace include greater total resources, greater knowledge band and a greater source of ideas. However, these advantages can also bring on conflict within teams and the entire workplace. Varney (1989) reported that conflict remained the number one problem within a large company. This was after several attempts were made to train management in conflict resolutions and procedures. However, the conflict remained. The conflict possibly remains because the managers and leaders did not pay attention to the seriousness of the issue. In order to maintain an effective team, leaders and team members must know and be proactive in the conflict resolution techniques and procedures.
ADR holds an extensive, easily influenced and diverging choice of processes for finding solutions to disputes which are personified by structured negotiation and consensus. It is regarded that arbitration is a familiar ADR technique, however, it is more of an official adjudicative and adversary technique initially a confidential litigation process which has more commonality to litigation than the more original consensual processes which symbolise ADR. As simplified by Angyal (Alternative Dispute Resolution, 1987, p. 11). "The key difference between ADR and those traditional techniques of litigation and arbitration is that ADR techniques are used to produce a resolution to dispute through a negotiated agreement while litigation and arbitration are processes by which a result is imposed on the parties. " We can say that many issues arise with terms.
... with the aggrieved worker and representative meeting with the supervisor involved, followed by an appeal system with strict time limits and ultimately ending in binding arbitration. When management and the union cannot resolve a grievance submitted by a union, the union must decide whether to proceed to the final step of the grievance procedure: arbitration. Arbitration is an adversary proceeding like a trial in court. An arbitrator’s function is usually to interpret the collective bargaining agreement between the parties, not to apply his or her standards of what is right in a given situation. The courts have sought to compel labour and management to a peaceful resolution of grievances through arbitration. The Supreme Court has given support to the arbitration process in a series of decisions, and judicial deferral to arbitration has become a basic tenet of national labour policy.
Negotiation is the process enacted by two or more parties, to resolve a difference and ideally create a solution benefiting all involved parties. Negotiation is all about knowledge, strategies, your preferred stance taken in the process, how much concession you can afford to yield, and what your ultimate goal is. Is your goal to take all the share and value of the available resources? Or are you the kind of person/company that is willing to take the extra mile to create equal value for both parties, ultimately adding value to the relationship? The process will always depend on the company, each team players' personality, trust and situation. A good negotiator will study their opponent, gain all knowledge needed and be able to adapt to the nature of the deal in short notice. We use the method of negotiation to solve problems and disputes taking place in business, government, between countries, and even in our day-to-day life, such as marriage and divorce, parenting and family.
The nature of a work team makes them vulnerable to conflicts and disagreements. Because people carry the weight of personal values, experiences and beliefs into the work team, there is always the possibility that conflict will arise. That is why recognizing the signs and source of conflict will help understand the role of conflict in the work team. Here is list of signs of conflicts that the work team should be aware of:
Most people believe that conflict is something negative. In many cases conflict can be. Whether1 a small dispute between two neighbors or a global conflict that leads to war, conflict is inevitable. Disagreement is a part of human nature. We are a society of individuals working together to achieve common goals. How we handle conflict determines whether the outcome is a negative or a positive one. If properly handled, conflict may lead to growth, maturity, and understanding of one another. If not, conflict at school could lead to broken ties, at home to hurt feelings, and in the workplace to discouragement. These negative outcomes may be avoided when conflict is handled properly. There is no single technique that works best for settling conflicts. What works in a school setting might not work at an office or at home. Regardless where or with whom the conflict is with, a person must examine themselves, his or her intentions and more importantly, core values.