Lecture 38, Arbitration-Conflict Management-Lecture Notes, Study notes of Conflict Management

Download Lecture 38, Arbitration-Conflict Management-Lecture Notes and more Study notes Conflict Management in PDF only on Docsity! 126 Lesson 38 ARBITRATION II Quotation "Excellence is to do a common thing in an uncommon way". Booker, T. (Moving from complicated court procedures to simplified and more human procedures to resolve disputes among individuals.) We will learn the following points in this lecture 1. How the arbitration process works. 2. The situations in which courts intervene to enforce, modify, or eliminate the process or outcome of arbitration. 3. The many ways in which the law supports a deferential attitude toward the arbitration process. 4. The reviewability of arbitration awards. 5. The problems of choice of law in interstate, international, and multinational arbitration. Arbitration Mediation, arbitration, and litigation are the main forms of ADR. Local Govt. Ordinance 2001, have many sections relating to ADR (Alternative Dispute Resolution). Arbitration is a legal process whereby a neutral third party (arbitrator) hears the dispute and issues an award. Arbitration awards are final and binding on the parties and can only be challenged in very exceptional circumstances. An arbitration award has a status similar to a judgment and arbitration. Arbitration award: The binding decision issued by an arbitrator is called arbitration award. Executory agreements to arbitrate: Agreements to submit future disputes, not currently in existence, to arbitration are called executory agreements to arbitrate. De novo: Latin, meaning, “a new.” In the law, a retrial of a previously decided dispute, in which all of the legal and factual issues may be relitigated and redecided. A trial de novo is in contrast to an appeal, in which only errors of law can be the basis for a change in outcome. Binding arbitration: arbitration in which the outcome is binding on all disputants (“true” arbitration). Bindingness of the outcome High-low arbitration: arbitrator’s decision is restricted to a range of possible outcomes by prior agreement of the disputants. Varieties that restrict the nature of the arbitrators award Private arbitration: arbitration not under auspices of public sector. Private or public sector Interest arbitration: arbitration to determine terms of collective bargaining agreement Types of labor arbitration Executory arbitration: agreement to arbitrate predates dispute. When a contract to arbitrate is formed Informal arbitration: arbitration characterized by minimal participation by lawyers, minimal discovery, procedural rules, or rules of evidence. Arbitrator may act in a facilitative manner. Formality and rigidity of the process Varieties of mediation docsity.com 127 Varieties of Arbitration Beyond the dichotomy between traditional and legalistic arbitration, there are other variants commonly seen in today’s arbitration practice. Executory and Ad-Hoc arbitration: Executory arbitration is arbitration provided according to an executory agreement. Ad-hoc arbitration is arbitration agreed to after the fact of a dispute. Administered and non-administered arbitration: Another way to distinguish forms of arbitration is to consider whether the arbitration is administered or non- administered. Interest and Rights Arbitration: Labor arbitration is divided into interest arbitration and rights arbitration according to the sorts of issues being arbitrated. Other arbitration varieties: One can distinguish between private arbitration and court-based arbitration. Quicker, cheaper and less stressful than litigation Often quicker and cheaper than litigation Expensive and time- consuming Parties decide whether to settle; agreements are enforceable contracts Decisions can be binding with limited appeal rights Verdicts final, subject to appeal Parties make decisionArbiter makes decisionJudge/Jury makes decision Private and confidentialHearings are privatePublic record Informal fact-findingLimited discoveryFormal discovery Rules of evidence do not apply Rules of evidence relaxed Formal rules of evidence Least formal processLess formal processFormal process MediationArbitrationLitigation Process of Arbitration Arbitration consists of eight basic steps: 1. Creating the arbitration contract 2. Demanding, choosing, or opting for arbitration 3. Selecting the arbitrator or penal of arbitrators 4. Selecting a set of procedural rules 5. Preparing for arbitration 6. Participating in the arbitration hearing 7. Issuing the arbitration award 8. Enforcing the award docsity.com