Question 1
The PBA signed between both parties refers to an arbitration clause in the contract. Arbitration as a process is very different from the process of litigation, for business disputes.
Here is a listing of the differences
• Public/Private, Formality o Its private between 2 parties while litigation is conducted in a public court
• Speed of Process o Arbitration is a fairly quick process, while litigation is a length process dictated by the courts
• Cost of the Process o Arbitration costs are limited to the Arbitrator, while litigation consists of courts and attorney fees
• Selection of Arbitrator/Judge o Arbitration is a joint selected process, while litigation is based on a court appointed judge and the parties have no say in the matter
• Use of Attorneys o Arbitration attorneys are optional, while litigation attorneys are required
• Evidence Allowed o Arbitration evidence is limited, while litigation full disclosure is required
• Availability of Appeal o Arbitration there is no appeal process, while litigation there is.
In reference to the PBA the points are found in section 40.4
40.4 Where a dispute is referred to arbitration the following shall apply:
40.4.1 The arbitrator shall be appointed at the request of either party by the body stated in 40.2.2
40.4.2 The arbitration shall be conducted by the arbitrator in accordance with the rules of the body stated in the contract data
40.4.3 The arbitrator shall have the power to open or revise any certificate, opinion, decision, requisition, or notice relating to the dispute as if no such certificate, opinion, decision, requisition or notice had been issued or given
40.4.4 The arbitrator's decision shall be binding on the parties who shall give effect to it without ...
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...and until it is subsequently revised by an arbitrator [40.4]
40.3.4 Should either party be dissatisfied with the decision given by the adjudicator, or should no decision be given within the period set in the Rules, such party may give notice of dissatisfaction to the other party and to the adjudicator within ten (10) working days of receipt of the decision or, should no decision be given, within ten (10) working days of expiry of the date by which the decision was required to be given the dissatisfied party shall refer the dispute to arbitration
The process follow by arbitration and adjudication is very much the same. Medication is very similar to a court hearing, with both parties bringing evidence and witness to an agreed arbiter to justify their case. The arbiter will the weigh up the evidence presented and then comes back with a solution to the situation.
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
Alternative Dispute Resolution (ADR) and traditional litigation are different types of ways to resolve legal matters. Traditional litigation can prove very costly and often times drawn out for lengthy periods. ADR affords companies the opportunity to resolve a legal matter in a reasonable amount of time and at times without the exorbitant cost of a trail. The case detailed in this paper is Kovalchick v. South Baldwin Hospital, which used traditional litigation, but reversed on appeal the hospital may want to examine the benefits of ADR.
-Court must be convinced that failure to comply with an agreement will lead to one of the parties to suffer prejudice. Court will protect innocent party, will provide remedy
The rule provides delegation to the judicial registrars and gives powers to the court in hearing and determination of matters.
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
Throughout the years there have been limitless legal cases presented to the court systems. All cases are not the same. Some cases vary from decisions that are made by a single judge, while other cases decisions are made by a jury. As cases are presented, they typically start off as disputes, misunderstandings, or failure to comply, among other things. It is possible to settle some cases outside of the courts, but that does require understanding and cooperation by all parties involved.
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.)
Civil complaints usually result in fines, with the court determining if one party is responsible for damages done to the other and making sure the responsible party is held accountable by paying damages. Criminal proceedings can result in much heftier rulings, including “time in prison, a fine to be paid to the government, and restitution to be paid to crime victims.” Bankruptcy cases involve disputes over property and debt, so the outputs of the cases usually involve decisions about the debts, who owns the properties, how much they are worth, and much is owed in debt, among others. Appeals cases can involve all of the previously mentioned case types and their outputs, and whether to uphold previous
If an individual decides that they want to take the dispute to court and sue the other, they need to present themselves and evidence before a judge. If the judge decides that the party is responsible for the incident, they must pay money to the other. When examining both systems of justice, there are many similarities and differences in
Mediation is typically ordered in types of cases that there is significant emotional ties; creating a potential for hostility, loss of relationships or personal feelings getting in the way of reaching an agreement. Arbitration is the best option for cases where the parties simply cannot come to an agreement and decide to have someone else decide the outcome of the case for them, without the expense and formality of a trial. Arbitration is also useful in highly complex cases where it is necessary to have a highly trained professional come to the
The Commission on the date of April 8, 2011 announced to the Tribunal and the alleged parties that is would not be involved in the hearing directly. They enclosed
"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."
... 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.
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.