For each of the following scenarios, state whether you believe litigation, ADR, or criminal prosecution is the appropriate response and explain your answer, citing information from the textbook as support for your positions.
Adele is a secretary for her company. As part of her responsibilities, she can write checks for the purchase of office supplies. One week, she is short on cash and may not have enough money to buy groceries for herself and her daughter. She writes a check out to herself, intending only to do this once and reimburse the account. She never does, though, and finds herself in a similar situation a few weeks later. This happens several times and Adele ends up taking a large amount of money from the account. Eventually,
Alternative dispute resolution (ADR) is a popular and common group of methods to resolve disputes in many different contexts. In business, ADR is commonly used in business to business (B2B), busines to consumer (B2C), and business to employee (B2E) disputes. Several methods of ADR exist. The most commonly employed methods include negotiation, mediation, and arbitration. Under federal law, national policy favors arbitration. Sometimes ADR is perceived as unfair, because parties have unequal power relative to each other or because the subject matter of the dispute is not considered suitable for ADR. Like other areas of law and public policy, ADR is dynamic and subject to change, particularly when special interest groups coalesce successfully and create momentum for change within our legal system. Currently, there is a nascent movement to exclude certain types of disputes from ADR by amending the federal law that requires mandatory arbitration when parties have contractually consented to it. (Lau and Johnson,
Again, this is largely a cost-saving move. Facilitation and mediation are largely informal processes. Each side presents their case to an independent attorney or panel of attorneys. The facilitator or mediator then attempts to negotiate a settlement between the two sides. Occasionally, a facilitator or mediator will “put a number” on a case. This means that he has put forth a dollar value on the case that he believes is a reasonable amount to settle the matter. The parties then have a fixed time to accept or reject the number. If both parties accept, the case settles.
Arbitration is a more formal type of ADR. It is usually triggered by a contractual provision, where the parties or one of the parties have signed an agreement stating they would accept arbitration in the event of a dispute. Arbitration is basically a court case that is heard by a panel of attorneys or a single attorney instead of a judge or jury. It is less formal than litigation in the court system, and while not without cost, arbitration can often be cheaper than a court case due to the less stringent rules governing the proceeding. (Free advice,
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
...cision? Why did the Court rule that way? The Supreme Court remanded the case to the 11th circuit for a closer consideration of the arbitral forum’s financial accessibility to the borrower. The agreement to arbitrate was not rendered unenforceable simply because the agreement said nothing about arbitration costs and thus allegedly failed to provide the borrower protection from potentially substantive costs of pursuing her federal statutory claims in the arbitral forum.
In this assignment we will exam three case-studies and determine whether the best course of action would be litigation, ADR or criminal prosecution. In the first we look a case of embezzlement, the second is a case of product liability and the third involves a supplier providing non preforming goods. We will evaluate the specifics of each and determine the best course of action. Spoiler alert, some of these may involve more than one course of action.
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:
Journal of Dispute Resolution, 401-427.
As disputes are inevitable in any society, it is important for people to always improve the solutions to disputes. Usually, when a dispute becomes severe and unsolvable simply by negotiation, two parties will go to court for better solutions. In Canada, we have 2 systems that run parallel: administrative tribunal and the court system. However, administrative tribunals are not part of the court system; instead they are independent government agencies which are established under legislation (either federal or provincial) to implement legislative policy. Unlike court where the judge makes decision based on common law, administrative tribunals are less formal.
There are a few different reasons that one party may try to hold out for a court proceeding instead of agreeing to arbitration. One of the primary reasons of this occurring involves the financial situation of one of the involved parties (Allison, 1990). Depending on the perception of the strength of the case, a financially desperate party may either decide to agree to arbitration or hold out for litigation. A party that is struggling financially and views their case as strong may be willing to hold out for a larger potential payoff in the event of litigation. A party that is struggling financially that views the other party’s argument as strong may also prefer the lengthy time involved in litigation as it may delay a potential ruling that further strains resources (Allison, 1990).
The ADR process that is used in a particular situation depends on the circumstances of that case. According to the Commercial Division of the Supreme Court, New York County, the principal forms of ADR are the following: 1) Mediation- A process in which a Neutral attempts to facilitate a settlement of a dispute by conferring informally with the parties, jointly and in separate “caucuses,” and focusing upon practical concerns and needs as well as the merit of each side’s position; 2) Neutral Evaluation- A process in which an expert Neutral receives a presentation about the merits from each side and attempts to evaluate the presentations and predict how a court would decide the matter; 3) Arbitration- A process in which the parties present evidence to a neutral or panel of Neutrals, who then issues a decision determining the merits of the case. An arbitration may be binding or advisory, depending upon the agreement of the parties. If binding, the decision of the arbitrator (s) ends the case, subject only to circumscribed review pursuant to Article 75 of the Civil Practice Law and Rules.
ADR holds an extensive, easily influenced and diverging choice of processes for finding solutions for disputes which are personified by structured negotiation and consensus. It is regarded that arbitration is a familiar ADR technique, however, it is a more of a 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):
... 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.
This decision is called an award. When an arbitrator is appointed to arbitrate over the dispute, he will ask the parties to retell their sides of the dispute.
Both forms of ADR have several common characteristics. However, one must consider that a neutral side in both procedures fulfils distinct from one another duties. Mediators do not have the objective to make decision, whereas arbitrators determine an outcome of the case. Upon the termination of the procedure, an arbiter renders a binding award that cannot be later avoided by disputants. During mediation, parties are not contingent upon the third side and enjoy freedom of actions needed for dispute resolution. In contrast, in case of failure to reach an agreement, parties are not legally bound for actions afterwards. By considering the true qualities of arbitration and mediation taken individually, legislation and scientists suggest that in single arbitration, arbitrators may use mediators’ functions to promote amicable settlement and functions of both arbitrators and mediators have incongruous
Review the scenario below. Consider the legal principles influencing the likelihood of any successful action against Steve in negligence.
Mediation is a form of the Alternative Dispute Resolution (ADR). Mediation is a process which it assists disputed parties to arrive to a mutually agreed resolution without going to court. As the out of court problem solving approach, mediation is a more convenient way for parties which trying to avoid the hassle and loving some flexibility from the more rigid court procedure. Mediation can be said as an informal process of which parties during this process is encouraged to work together among the disputed parties in good faith in order to solve their problems and disputes at a lower financial cost and it consume lesser time as opposed to the court procedure. Mediation recently has become more common as one of dispute resolution process especially for disputes which have relations to divorce matter, child custody or even for child visitation especially for its privacy and confidentiality.