...L I T I G AT I O N A N D A D R LITIGATION ARBITRATION Stock byte/G etty Im ages What Parties Might Be Giving Up and Gaining When Deciding Not to Litigate: A Comparison of Litigation, Arbitration and Mediation 48 MAY/JULY 2008 TION MEDIA Deciding whether to litigate, arbitrate, or mediate requires an understanding of three dispute resolution processes. The authors begin with the major characteristics of litigation, and then discuss whether these characteristics are present in arbitration and mediation, and if not, how these processes differ. By Donald L. Carper and John B. LaRocco The authors teach at the College of Business Administration, California State University, in Sacramento, where Donald L. Carper is a professor emeritus of legal studies in business and conflict management, and John B. LaRocco is a professor of law. Prof. Carper is also an arbitrator and mediator and Prof. LaRocco is a labor arbitrator, mediator and fact finder. He serves on the American Arbitration Association’s labor panel. hy one might choose to use an alternative dispute resolution (ADR) process to resolve a legal problem is an interesting question, but it is not the focus of this article. Instead, it focuses on the fundamental attributes of litigation and explores whether these attributes are present in private arbitration and mediation. The purpose is to help people make an informed decision about the process they wish to use to resolve their dispute. This comparison also...
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...occur. The dispute must be in reference to members’ disregard for the rules and regulations documented in the learning team charter. Personal conflicts that arise between team members will not initially be subjected to be resolved through ADR. However, in case when members’ personal conflicts within the learning team impacts and disables productivity and efficiency will facilitate the ADR process. There will be two ways of facilitating an ADR in the event of a dispute • Mediation - The have to participate in a mediated negotiation with the... Alternative Dispute Resolution (ADR) Clause for Learning Team can be used to solve personal conflicts within class members by creating mutually satisfying solutions for the respect of other team members. The conflict can occur when not respecting Learning Team’s goals and ground rules to complete the assigned tasks. ADR uses mostly two type of process to resolve personal disagreements and conflicts: mediation and arbitration. Mediation. The...
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...Agreement: Mediation and Arbitration Agreement Dear [Name of ABC Company Employee]: Although ABC Company hopes that employment disputes with its employees will not occur, ABC believes that when these disputes do arise, it is in the mutual interest of all concerned to handle them promptly and with a minimum of disturbance to the operations of ABC's businesses and the lives of its employees. Accordingly, to provide for more expeditious resolution of certain employment-related disputes that may arise between ABC Company and its employees, ABC has instituted a mandatory mediation and arbitration procedure (the ABC Mediation and Arbitration Procedure or the Procedure) for all employees [indicate eligibility restriction, if any]. Under the Procedure, certain disputes that may arise from your employment with ABC or the termination of your employment must (after appropriate attempts to resolve your dispute internally through ABC management channels) be submitted for resolution by non-binding mediation and, if necessary, mandatory arbitration. In agreeing to submit certain employment disputes for resolution by private mediation and (if necessary) arbitration, you acknowledge that this Agreement is given in exchange for rights to which you are not otherwise entitled--namely, your employment as an ABC Company employee and the more expeditious resolution of employment disputes. In exchange for your agreement to submit these disputes to mediation and (if necessary) binding arbitration, ABC...
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...is going (Grand Canyon University, 2011). To be fair, this physician is claiming an “injury.” It is also fair and true to say that this claim was made after this physician was notified that the relationship will be severed after four months. Due to the sequence of events and the circumstances of this case, any logical, objective, and fair-minded observer would question the underlying motive of this claim and, subsequently, its validity. However, since cases like this are not usually adjudicated in the moral court or court of public opinions, this facility is prepared to explore its options and seek resolution either through a formal arrangement, a formal institution, or a legal entity such as the following: Court of law, arbitration, mediation, and / or settlement. In order to make an informed and appropriate decision, it is not only necessary to analyze and fully understand each choice conceptually and practically, but it is also important to assess the pros and cons as well. Court of Law According to Merriam Webster dictionary (1828), court of law is an arm of the judicial branch of government that adjudicates cases and administers justice, using legislation or precedence. On the basis of this definition alone, it is clear that the ideal step to take is to defend this case in the court of law in order to obtain justice. However, the circumstances of this case are...
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...advantages and disadvantages of grievance mediation. Grievance mediation is “the use of a neutral third party as one step in a grievance procedure,” (Carrell & Heavrin, 2010, p. 496, para 1). Some of the advantages of grievance mediation are cost savings, time savings, both parties can identify their case without worrying about the decision being final, being able to resolve issues, cost settlement can be avoided. Neither party will have to incur the charges that they would have to pay in arbitration. Time will be saved with mediation. Mediation typically takes 44 days while arbitration takes around 473 days. If the parties do not come to an agreement both sides can evaluate the weaknesses and strengths of the information they provided. “65 percent indicated the use of interest-based grievance mediation had led to a better union-management relationship,” (Carrell & Heavrin, 2010, p. 497, para 1). Some of the disadvantages of grievance mediation is the fact that if there is no agreement reached in that time and the two parties have to go to arbitration they will have wasted time and money. The mediator does not have the authority to make binding decisions. Grievance mediation is an alternative dispute resolution that can be used but does not mean the decisions made during this time are binding so if both parties do not agree they can seek to go to arbitration. There are advantages and disadvantages to grievance mediation; one just has to decide which one would be...
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...analyze what the New York, Courts attitudes have been towards arbitration and the mediation clauses. I have done some research on what the courts have said about the desirability of sing alternative dispute resolution methods to settle disputes. In my research I have look at two particular cases. The first case I examined was CB Richard Ellis, Inc. v. American Envtl. Waste Mgmt., 1998 U.S. Dist. LEXIS 20064 (1998). In this case the Court stated that “The Federal Arbitration Act defines Arbitration as a process that will “Settle” the controversy, when the court is analyzing in whether to grant an order to compel mediation.” Further, when a court considers a motion to compel arbitration or mediation, the court must determine whether or not the issues presented are arbitratable. The court must determine if the parties have agreed to arbitration and if so, the court will need to assess the scope of the agreement to determine if it includes the asserted claims. Also, the court must decide any asserted Federal statutory claims are intended by the United States Congress to be non- arbitrable. If some, but not all of them are arbitrable, the court will have to decide whether to stay the proceedings as to any remaining claims. Typically, “Federal policy strongly recommends arbitration and mediation.” The Supreme Court has stated “Any doubts concerning the scope of arbitrable issues, should be resolved in favor of arbitration, whether the problem at hand is to be construed that the...
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...Third Party Conflict Resolution January 17, 2013 Third Party Conflict Resolution In the negotiation process, the use of third-party conflict resolutions often comes into play when parties cannot seem to reach an agreement regarding resolving mutual interests. These types of third-party conflict resolutions are: arbitration, collaboration, litigation and mediation. For the Seatcor Manufacturing Company, the use of third-party conflict resolution is necessary. The researchers of Team A have reported collaborative ideas of this case by (1) analyzing the possible intervention strategies, (2) applying what is thought to be the best strategy, (3) explained how the best strategy should resolve the conflict, and (4) developed a contingency plan in case the best strategy does not work, or is rejected. Intervention strategies Possible intervention strategies include negotiation, mediation, arbitration, litigation, collaboration and hybrids. Two types of hybrid intervention strategies are mediation – arbitration and arbitration-mediation. • Negotiation - There are four elements to the negotiation process, which include managing interdependence, engaging in mutual adjustment, creating or claiming value, and managing conflict. Negotiations consist of two or more parties be that individuals, groups, or organizations. A conflict of needs and desires exist between parties and the parties chose to negotiate. Parties expect a “give and take” process that is fundamental...
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...Negotiation Mediation Conciliation Arbitration Negotiation: this is the first way of ADR and the parties involved (which is usually two or more) attempt to come to an agreement or try to compromise before using any other methods of ADR. This can be done with or without a solicitor however the decision made is not legally binding. Negotiation is private as only the parties involved are there when the negotiation takes place, it is also cheap as there is no cost unless a solicitor is involved. Mediation: there are always three or more parties involved in mediation and one of the parties is the mediator. The mediator doesn’t have an active role in resolving the dispute but acts a facilitator so the parties find a way to solve their issues themselves, even if the issue is resolved the decision made isn’t legally binding. Conciliation: unlike mediation where the mediator doesn’t have an active role, in conciliation the conciliator does. The conciliator suggests ideas that would solve the dispute between the parties however the decision that may be reached is not legally binding. Rather than the parties going to court conciliation is offered to them as an alternative, this is usually done in the workplace. Arbitration: out of all methods of ADR arbitration is the only one where the arbitrator has the authority to make the decision legally binding as the decision is governed by the ‘Arbitration Act 1996’. As arbitration is voluntary both sides must agree to arbitration. They...
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...These are mediation and arbitration. If Precision Inc. and the supplier decides to mediate to settle the dispute, both parties will need to agree on the mediator who is neutral and impartial to assist both parties and help them to find a mutually satisfactory resolution. Based on the fact that, our company, Precision Inc., has been working with the supplier for 7 years and there are no alternative suppliers to order high quality devices, it may be beneficial for us to get together with the Supplier and discuss the importance of on-time delivery of right devices to our business. Because the Supplier indicated that our employees made a mistake and responsible for the order confusion, it would be win-win if both sides hear from each of their perspectives and mutually agree under...
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...Arbitration For a dispute to be resolved through arbitration it is necessary that the two parties had agreed and had a clause on arbitration as the dispute resolution procedure at the time of getting in to the contract. Disputes arising from the contract will be referred to the arbitrators. It is a dispute resolution process where the opposing parties select or appoint an individual called an Arbitrator or a panel of arbitrators. Usually one arbitrator is appointed from each party and the two arbitrators appointed will select the third arbitrator to act as the chairman of the panel. Upon appointment, the Arbitrators will arrange the process to hear and consider the evidence, review arguments and afterwards will publish an award in which the items of dispute are decided. Legislation governing arbitration in Sri Lanka is the Arbitration act of 1995. Main highlights of this act include Safeguarding party autonomy with regard to arbitration procedure, eliminate interference of courts, possibility to exclude appeals to supreme court, provision for enforcement of foreign arbitration award. Advantages of arbitration includes less cost compared to litigation, non disclosure of company information as it is privately held and flexibility. But the companies are bound to accept the decision of the arbitrator and it will create a win lose situation. Arbitration is today most commonly used for the resolution of commercial disputes. It is also widely used in international commercial transactions...
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...short of litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called "compulsory" mediation; attendance that is, not settlement at mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.[2] Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of the use of mediation to settle disputes.[3] Please read: a personal appeal from Wikipedia founder Jimmy Wales Read now Alternative dispute resolution From Wikipedia, the free encyclopedia Jump to: navigation, search | This article needs attention from an expert in Law. Please add a reason or a talk parameter to this template to explain the issue with the article. WikiProject Law or the Law Portal may be able...
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...SUMMARY Dato’ Hj Nik Mahmud v. BIMB (1996) * FACTS: * The plaintiff with attorney had entered into a PSA and PPA with the defendant in respect of 25 lots of land in BBA concept. * The defendant purchased the properties and resold back to the plaintiff with additional prices and charges. * The plaintiff applied for an order that the charges be declared null and void. * He also applied for the return the titles of the properties, free of all encumbrances. * ISSUES: * Whether sale of land in accordance with IB Concept of BBA contravened the Malay Reservations Enactment 1930 of Kelantan. * Whether purchase and resale of land for profit by bank contravened the Malay Reservations Enactment 1930 of Kelantan * PRINCIPLES: * Section 7(i) of the Enactment prohibits any transfer or transmission or vesting of any right or interest of a Malay. However, when the property purchase agreement was signed, the right that could be acquired by the defendant under the agreement at that point of time, the agreement being still executor, was only a right to a registrable interest which right was yet to crystallized into a registrable interest. * The contemporaneous execution of the property purchase agreement and the property purchase agreement and the property sale agreement constituted part of the process required by the Islamic banking procedure before the plaintiff could avail himself of the financial facilities provided...
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...Adversarial litigation in the form of ADR Mechanism. New methods of dispute resolution such as ADR facilitate parties to deal with the underlying issues in dispute in a more cost-effective manner and with increased efficacy. In addition, these processes have the advantage of providing parties with the opportunity to reduce hostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in a peaceful manner, and achieve a greater sense of justice in each individual case. The resolution of disputes takes place usually in private and is more viable, economic, and efficient. ADR is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. (Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation Need of ADR in India: The system of dispensing justice in India has come under great stress for several reasons mainly because of the huge pendency of cases in courts. In India, the number of cases filed in the courts has shown a tremendous increase in recent years resulting in pendency and delays underlining the need for alternative dispute resolution methods. It is in this context that a Resolution was adopted by the Chief Ministers and the Chief Justices of States in a conference held in New Delhi on 4th December 1993 under the chairmanship of the then Prime Minister and presided over by the Chief...
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...litigation. In foundation, according to the form of dispute resolution chosen by the parties, alternative dispute resolution is similar to a private court. The parties typically agree to divide the costs of arbitration or mediation in the hope of resolving their dispute economically and in less time than last formal judicial process. Normally, when the parties can not reach a settlement of their dispute without a trial, a party engages in litigation. This part and incurs costs of $ 190.00, what it costs to bring an action in Superior Court in Pima County. Then the plaintiff must notify the opposing party notice of trial, also adding a $ 25 minimum to the amount already spent on presenting the action. So far we assumed that the notification to the opposing party is easy and only a defendant's resident state. If more than one defendant, or if there is a problem to notify a defendant, the costs increase accordingly. This is without counting the costs and fees incurred by both parties through the preparation and litigation of the dispute. As a result, private parties and opt to split the costs of some kind of dispute resolution because, ultimately, it comes out cheaper. On the basis the parties can choose between two types of alternative dispute resolution: arbitration and mediation. There are differences between the two types of alternative dispute resolution (ADR) to be discussed below, but there are also similarities. First, all forms of ADR are...
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...of this research is Evolution of the process of ADR in Bangladesh: Whether arbitration and mediation is appropriate procedure to solve dispute”. The aim of this research is to analyses the cachet and efficaciousness of the instrument of ADR in Bangladesh. At the same time an attempt is made to evaluate the sociological aspect of the ADR in Bangladesh. Hence, this writes up especially for those who have no legal background but want to have an idea about it is interesting to note that the concept of ADR is developing in Bangladesh as a performance of public duty by civil society groups advocating in support of progressive ideologies. I have collected all the materials from different books, scholars’ articles and offices from Law organization. I have collected the information about International aspect of ADR from different site of internet. At first I have collected different books relating to ADR. For the laws regarding ADR of Bangladesh and international, I have followed different Acts and Convention. INTRODUCTION The attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. Mediation differs from arbitration in which the third party (arbitrator) acts much like a judge but in an out-of-court less formal setting but does not actively participate in the discussion. Mediation has become very common in trying to resolve domestic relations disputes (divorce...
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