Identify the legal significance and methodology of the following
Negotiation: This is conducted by the disputants among themselves per se, in order to arrive at an acceptable settlement. The legal significance of negotiations would emanate upon signing and registering of a legal document after the settlement is affected. The methodology of negotiations would be discussions between the parties among themselves, with a person assuming the role of moderator who controls and monitors the negotiation proceedings.
Mediation: In mediation, the main role is that of the mediator who is either an insider or a professional mediator, or consultant appointed by the disputant to resolve the issues through mediation. The mediator confabulates with the various parties either individually or in group, and tenders his recommendations for a viable solution which may be acceptable to all disputants. A mediation award is not mandatory and any party may, at their discretion, refuse to accept the mediator’s award.
Arbitration: It is a process by which a professional arbitrator may be needed to resolve disputes. His award is mandatory and has to be accepted by all parties. In most cases, disputants seek recourse from arbitration firm or company, whose officials have specialised knowledge and experience in dealing with disputes and resolving them through arbitration. The contract may also carry a clause in which it is mentioned that disputes would be settled though arbitration, and may also mention the name of the arbitration, if need be.
Med-Arbitration: A combination of mediation and arbitration is referred to as med-arbitration that is used to reach a viable solution. The award announced by the med-arbitration is legal, mandatory and may be enforceable. It needs to be mentioned that in most cases, contractual agreements provides for appointment of mediators, or arbitrators. The method is determined by the parties to the dispute.
Private trials: Private trials are very much like public trials, except that the jury are appointed by the parties themselves, in writing, and submitted to this Court. The private trials are more expedient, economical and efficient as compared to public trials. The dispute would be put under hold until the private trial is completed and the verdict announced. Since the jury is appointed by the disputants, the decisions are binding upon them
Summary Jury Trial: A Summary jury trial could be said to be a rehearsal of the actual trial, with the objective of seeking solutions without the need for a full scale legal proceeding. If the disputants are agreeable for summary trial, the jury is appointed. “The case shall be heard before a jury of six members or such lesser number as the parties may stipulate, drawn in accordance with usual procedures. Once a juror has served on a summary jury, he or she shall not serve on any regular jury during the same term.”
In case the verdict is acceptable by litigants, it is delivered as such. In case of dispute or non –admittance of verdict, its evidence would not be used for future legal court proceedings and persons who have been witnesses for the summary trial may not be able to stand witness in any further legal proceedings regarding the case.
Discuss the Advantages and Disadvantages of Mediation vs. Litigation
Advantages
The main advantages of mediation vis-a -vis litigation would be in terms of speed, expediency and shorter time frame in arriving at an agreeable decision, among its participants. Since mediation is a consensus decision, it needs to be abiding on all participants. Normally the process of mediation takes around 60-90 days, by which the stand of parties are known and, if possible a settlement could be reached.
The role of the mediator is that of a controlling and monitoring agency, to seek avenues for a peaceful and abiding solution among the parties. He does not enforce a decision, nor imposes a decision on the disputants. However, he helps them to find a solution. Therefore, since there is no question of mediation being an enforceable alternative dispute resolution procedure, it could be appropriate and appealing to the parties. Yet another significant advantage of mediation is that it is agreeable to all parties and therefore, its verdict cannot be rejected by the parties.
Disadvantages
The main disadvantages, however, in that since it is not a legally enforceable mechanism, it could be disputed or rejected by the parties, who may also not
co-operate with mediation procedures. If other ADR are to be used in favour of mediation, it would not be popular and widely used for dispute resolution.
Court decisions, on the other hand, although lengthy and expensive, are enforceable and tenable by the parties. However, aggrieved party may need to appeal to higher or superior Courts against verdicts of lower Courts. The main aspects in Court proceedings would be that the final verdict may not be agreeable to all litigants, and therefore, not many benefits would accrue from court proceedings or judgments.
Thus, it could be said that a lot regarding mediation and litigation would depend upon the contractual commitments and nature of disputes. Certain disputes of technical and complex nature, involving several aspects and intricacies cannot be resolved through mediation.
Give illustration of each of the following common uses of ARBITRATION: give a brief example and explain how is used in each case.
- Collective Bargaining (labor disputes)
- Employment Disputes (Termination)
- Insurance claims
- Environmental Disputes
Collective Bargaining (labor disputes)
The first aspect that needs to be considered is whether the collective bargaining agreement (CBA) embodies specific clauses allowing for arbitration of labor disputes. If one were to consider an example of an individual employee litigating for receipt of overtime benefits, it first needs to be seen whether an individual, and not a union, could bring about such suit of action. Also, whether he needs to first use up other meditative or conciliatory procedures before seeking resource to the use of arbitration.
Employment Disputes (Termination)
It is necessary to find out whether employment contract provides for disputes arising out of employment, or termination of services, to be referred to arbitration procedures. In the pioneering case of Gilmer v. Interstate/Johnson Corpn. In case, the terms of employment envisaged enforcement of arbitration in the event of employee, employer disputes.
When Gilmer preferred a case against the Company, the “Courts dismissed his lawsuit and ordered the parties to arbitration.” (Richard A. Bales: Compulsory arbitration: The grand experiment in employment: Ch. 7: Para 1: Compulsory employment arbitration in the securities industry: P. 89.
Insurance claims
The settlement of auto claims after the vehicle is totally damaged, in the normal process would fetch much less insurance claim, than probably the loan dues on the destructed car. However, under arbitration (part of the insurance contract) it is possible to get a higher award through arbitration. Not only is it a speedier and more economical process as compared to lawsuits, but it could also offer more benefits for the aggrieved parties.
Environmental Disputes
It is often seen that sea trade involves spillage of oil and wastes into the international waters which is a major cause of sea pollution and death of marine life. Several international laws have been put into place, seeking to penalize such unhealthy practices. Considering the high penalties that could be enforced by international anti-pollution bodies, it is seen that maritime contracts seek to invoke arbitration in order to limit risks and material liability in the event of environmental spoilage.