Arbitration is an alternative dispute resolution that has been commonly used in recent years in the employment agreement and commercial contract. The differences between arbitration and mediation are that the third party makes a decision of outcome. Basically, it is a process of any disputes that the solution can make it outside of the public court system. The parties select their arbitrator however they want, or they can get a help from the American Arbitration Association to find an available arbitrator. Furthermore, the process of arbitration is similar to court such as bring witnesses, proof of evidence (Barnes 2017, 28). There are two types of arbitration including a private and judicial arbitration. The “private arbitration” is the simple
First of all, arbitration can save time and cost instead of a long trail and expensive lawsuit. It can be proven that the speed of solving the dispute is less than court. One of the reasons that the businesses use the arbitration. There are some examples from AAA reports in 2008, the median length of time is from 238 days to 7.9 months. On the other hand, under U.S. District Court of median length of time is from 30.7 months in jury, and 27.0 months for the non-jury cases. Another reason that the businesses use the arbitration is cost. Even though the basic access to the courts is free, however, the overall cost is cheaper in arbitration. There is no statistical information comparing with the cost, but the evidence of using arbitration is cheaper. Next, flexible process, it can create arbitration contract based on both parties’ essential requirements. It can be less formal, and minimize the risk of business relationships. Next, subject matter expertise, it allows the parties to choose their settlements based on knowledge and issue. Next, finality, the court decision is restricted to only certain issues, which indicates that the most results are firm. The result is very important, especially in business transactions. Finally, and most importantly, arbitration is to protect privacy and confidentiality agreed upon by both parties. This is very important in the business world because dispute can be dealing with important information regarding the company or trade secrets
The form of arbitration in Japan resolves conflict through emphasizing compromise or conciliation. The lawsuit disrupts harmony and tranquility and therefore is not favored as form of dispute resolution. In Japan harmony is culturally very important to communicate with people. In the normal negotiation Japanese often promise without any paper contract unless it is important business.
Sue contracts with Tom to deliver a quantity of computers to Sue’s Computer Store. They disagree over the amount, the delivery date, the price, and the quality. Sue files a suit against Tom in a state court. Their state requires that their dispute be submitted to mediation or nonbinding arbitration. If the dispute is not resolved, or if either party disagrees with the decision of the mediator or arbitrator, will a court hear the case? Explain. (See Alternative Dispute Resolution.)
1. What are the differences between meditation and arbitration and what are the pros and cons of each? Arbitration is more for parties to be involved in a process and then decide how it will go. It makes decisions for both parties so they want have to make them. Some cons for arbitration is they can be costly but that depends what it is used for. There is also privacy that allows companies to keep their dispute private. But I think in some way this can be bad for a company and their customers.
A due process protocol for mediation and arbitration of statutory employment disputes has a meeting before the Superintendent. The defendant receives legal notice (summons) or documents (process) of a court to enable the person to respond to court or tribunal. The teacher union, such as American Federation of Teacher Union (AFT) require representative receive notification as well attend the meeting. It is often with teacher union protection and tenure, underperforming teachers are hard to terminate. This protocol provides a prompt, inexpensive, and fair enforcement of the dispute (Nolan, 2008). The arbitration agreement should be timely because of conflicting interest with counsel to represent employee rights (Dhanoa & Kleiner, 2000). In addition, discuss fees for counsel especially for lower paid employee. The arbitrator is a neutral person with knowledge and skills to conduct the hearing. Employee should have access to documentation (teacher evaluation) present...
Arbitration is an alternative to litigation for resolving disputes. It is defined as a process through which a neutral party (the arbitrator) listens to the two parties’ dispute and then makes a ruling that is usually binding on the parties. In comparison to litigation, the parties control the process so that they have say in certain rules such as degree of formality, privacy, and the arbitrator. In the end, this alternative dispute resolution is cheaper and quicker which leads to an overall sense of satisfaction for both parties. The arbitration process is outlined in Clause 19 of the Airbnb Terms of Service. Before potentially engaging in arbitration, the two parties will attempt to negotiate an informal resolution with the
Negotiation process can lead to a speedy and informal resolution of disputes. It also helps protect the confidentiality and avoid publicity of the parties involved. Parties may improve communication between them that will enhance or preserve relationship between parties and hence leads to a speedy resolution of disputes. Parties have high degree control of the negotiation process. If an agreement is reached, parties can craft out their own agreements. Resolutions can be tailored to the needs and underlying concerns of the parties and can address legal and non-legal issues as well as providing for remedies unavailable through adjudicative processes. Legal or other just methods can be used in crafting agreements.
In order to have an organizations’ internal operations to run as efficient as possible, the workplace environment created by management must be able to work alongside with their employees in order to produce a satisfied, productive, and motivated workforce that will work in the firms’ best interests and ultimately maximizes profits. It is common to have conflicting perspectives amongst the employees and employers regarding the interpretation, application or administration of a binding collective agreement. If a satisfactory settlement between the two parties cannot come to an effective agreement through internal practices, the grievance arbitration system is the primary process for resolving disputes in unionized workplaces. Arbitrators can
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 essay analysis Alternative Dispute Law and more specific mediation and arbitration sections. Mediation and Arbitration is part of Alternative Dispute resolution. In first part I will try explain the term without prejudice and its legal implications in the case of Unilever plc v The Procter & Gamble Co - [2001] 1 All ER 783. In the judgment of Robert Walker LJ in Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 was described the most important exceptions to the without prejudice rule. Also there is analysis of mediation principle and received experience of mediation in the ADR lecture. Additionally analyzed Arbitration and more precisely Arbitrators impartiality and independence.
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):
Arbitration as a means of alternative dispute resolution has the key advantages of being more expeditious and confidential than the litigation process; therefore safeguarding the commercial interests of the parties to arbitrations. This public interest of; protecting the commercial nature of arbitration seems to be in collision with the public interest of citizens accessing information held by the state that might arise out of arbitration proceedings.
Defining Arbitration is hard, as several writers have proposed various definitions. I will start exploring definitions of other writers, and concluding with my personal definition.
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.
... 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.
Gies, T. P., & Bagley, A. W. (2013). Mandatory arbitration of employment disputes: What's new and what's next?. Employee Relations Law Journal, 39(3), 22-33.