Wait a second!
More handpicked essays just for you.
More handpicked essays just for you.
analyze alternative dispute resolution
analyze alternative dispute resolution
The case about arbitration
Don’t take our word for it - see why 10 million students trust us with their essay needs.
Recommended: analyze alternative dispute resolution
Mandatory Arbitration Infringes on the Rights of the Consumers
Barbara Kate Repa, a lawyer and journalist, defines arbitration as "... essentially, a contractual term that is included in a wide variety of agreements between two or more parties. This clause demands that any disputes that arise between these parties out of contracts or transactions be settled through an arbitration proceeding"(1) Arbitration is a form of ADR, Alternative Dispute Resolution, that is an alternaitve to a trial by jury. Instead of a judge deciding in favor of one of the parties during litigation, an arbitrator is able to make a legally binding decision. Arbitration was designed to be more beneficial to both parties over litigation as it's faster, cheaper, has
…show more content…
This often results in fewer individuals choosing to go forward with arbitration when a dispute arises. Without increased regulation of the arbitration process and rules, corporations can engineer clauses to exploit consumers. According to Honore Johnson, a researcher at Cornell University, corporations often insert arbitration clauses into their contractual agreements in order to increase the odds that litigation will not go forth when a dispute arises. …show more content…
And that is due to the fact that punitive damages are rarely part of arbitration awards. This gives the corporation less incentive to refrain from future wrong doings. The predictive nature of arbitration is another major plus for corporations. Because arbitrators are not required to strictly adhere to the law when making a decision, but are paid for their time, they are more likely to make a lawfully correct decicion. According to Stephen Smith, an international arbitration lawyer, arbitrators are not required to strictly follow the law when making a decision on a dispute. However, arbitratrators are more likey than court judges to correctly follow the law. They are paid, more qualified in business and civil law, and able to take take ample time to make a proper decision.
The Arbitration Fairness Act declares no dispute regarding arbitration of an employment, consumer, anti-trust, or civil right dispute be deemed a valid or enforceable pre-dispute arbitration agreement. The act has many arguments against it that increases the number of cases that are filed or even overburden by the courts. The consumer should not have benefits of the law that has been evolved because of the expense it causes. Although this is implied, business should have the ability to use contact laws that would force this result.
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.)
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:
They are appropriate in many situations to ensure the demands of the employees are properly addressed and potentially adhered to. Management and unions seek to avoid a strike. With an honest assessment of the internal resources and external forces that affect union strategy, the union should be able to identify concrete accomplishments that are within reach and those matters that would be nice but are probably unachievable (Missouri, 2015). An example is the NFL referees union that organized a strike in 2012. The strike materialized for two primary reasons. First, the referees were seeking benefits that they put at $16.5 million over the five years of a new contract (Mills, 2012). Secondly, the NFL felt as if they could use replacement referees until the referees union
An Alternative Dispute Resolution is an act that means for disagreeing parties that couldn’t solve their issues or still haven’t find the way out of the issues. It is a collective term for the ways that the parties will come to an agreement which everyone agrees on with or without the help of the third party. Usually some courts use parties to help them in some cases. Usually Alternative Dispute Resolution is the support term of the process. In which an impartial person from the Alternative Dispute Resolution which is an Alternative Dispute Resolution practitioner. That various person will assists to those who has the problem or the issues or dispute to resolve the problem or the issues between them. Alternative Dispute Resolution commonly use for abbreviation for Alternative Dispute Resolution but, it can also be used as to assist the issues which leading them to the conclusion and the decision.
However, many organizations require arbitration instead of litigation. Reasons for this requirement are several. Deciding whether to incorporate a mandatory arbitration clause into the organizational contract is a way to protect the company and the employee. Arbitration presents advantages to many organizations because of the time factor. "Speed may be the single greatest advantage to arbitration over litigation," states contributing author, Alan Freeman (2012). The court system is crowded with cases which involve the time of the disputing parties, lawyers, judges, and sometimes juries in litigations. Instead, arbitration is conducted in a private setting between two consenting parties and a neutral third party called the arbitrator (Fallon & McConnell, 2007). This process more often can be can be resolved more quickly than a dispute filed in court, allowing the two parties to spend less time litigating, and more time running their businesses which also affects the cost factor. With the arbitration process being less formal and private in nature, an ongoing, continuing business relationship can be more easily served. "One of the most compelling advantages of arbitration is the ability to keep the dispute, and its resolution, under wraps," says Freeman (2012). This can be a big asset to a company that would prefer to avoid publicity - as negative publicity is bad marketing and can substantially affect business in a
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
...fied with the decision they can appeal said decision and take the case back through the litigation system. In the case Kovalchick v. South Baldwin Hospital, arbitration might prove most beneficial for both parties concerned. This ADR will keep cost down for the plaintiff as well as the hospital, not that cost is a concern for the hospital but negative publicity may hurt the hospital in the long-term.
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):
...alternative dispute resolution, Professor Katz offers a different theory which justifies enforcement of this type of resolution. In the American Business Law Journal, Katz states that the parties’ agreement to submit to an alternative dispute resolution process leads the parties to discuss the problems at hand and that the non-litigation process will facilitate a quick, more efficient, less costly resolution than the traditional way of litigation. He theorizes that the argument against enforcement of alternative dispute resolution is without significance because more often than not the alternative method will result in a better overall solution than the litigation process.
In the world of commerce, employment, and other social relations, businesses and individuals strive to choose either arbitration or mediation (conciliation). There are situations when parties submit their cases to arbitration bodies for mediation and, vice versa, when mediators are requested to resolve the dispute through the arbitration award. The arbitration and mediation traditions vary from jurisdiction to jurisdiction, but their general ideas still remain similar. However, while a mediator in a single process possesses no entitled authority to render an award, an arbitrator is vested with more procedural powers and can execute a mediator’s functions. Furthermore, despite the flexibility of arbitration and mediation procedures, as well
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.
No appeal is allowed against an award granted by the arbitrator. If an irregularity has occurred or gross misconduct by the arbitrator or the commissioner is proven a party has six weeks to file for a review in the Labour Court.