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Mediation research paper
Mediation research paper
Mediation advocacy
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Due to the lack of binding international and regional legislations, international commercial mediation in Asia is mainly governed by national rules. Mediation has deep roots in many Asian countries, especially in states influenced by Confucianism with such as China, Japan or Singapore. In spite of the increasing use of mediation to settle disputes arising from cross-border commercial transactions in many Asian states , only a few jurisdictions like Hong Kong and India enacted national rules regulating this dispute resolution measure. Therefore the national legal basis for international commercial mediation varies among Asian countries.
Being considered as the birthplace of mediation , China has enjoyed a long history in the mediation of business
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India is recognized as a country having a long history of mediation due to the existence and development of different forms of mediation to resolve business dispute since the pre-British India . In 1947, the concept of mediation/conciliation received legislative recognition in India for the first time in the Industrial Disputes Act which imposed the duty of conciliator to mediate and promote the settlement of industrial dispute. In 1996, an independent law regulating international commercial mediation, namely Arbitration and Conciliation Act, was adopted by Indian Parliament. It is also the first independent rule on international commercial mediation in Asia. In addition, Section 89 of the Code of Civil Procedure 1908 amended in 1999 provided for reference of cases pending in Courts to ADR which included mediation. Likely, due to the implementation of various mediation systems to resolve land, commercial or labor disputes since 1922, a special act regulating the court-based mediation proceedings was promulgated in Japan, namely Civil Conciliation Act (Minji Chotei Ho, Act No.222). Moreover, to encourage to development of private mediation proceedings, on 1 December 2004, the Act on promotion of use of Alternative Dispute Resolution was issued, which was followed by an Ordinance of the Ministry of Justice on 28 April 2006 and an Order of the cabinet. This
In considering the probable benefits of mediation, Ridley-Duff & Bennett (2011) argues it would be helpful to consider various critical underlying theoretical questions: What is the reasons the negotiation failed? What are the barriers of effective resolution conflict by negotiation? Mediation saves time, money, promotes communication and cooperation, provides an environment to voluntarily resolve disputes, private and confidential, can reduce hostility and encourage healthy relationships, stress, can result in a win-win solution (Clarkson, Cross, Jentz & Miller,
Ulrich, G. (1999). Widening the circle: Adapting traditional Indian dispute resolution methods to implement alternative dispute resolution and restorative justice in modern communities. Hamline Journal of Public Law and Policy. 20, (2), 419-452.
Mediation first took off when Baron and Kenny published their manuscript in 1986. Since then it has been cited 72,357 times (2017). Titled “The Moderator-Mediator Distinction,” they set out to conceptually define what these variables were and how could be applied to social psychological research. Although mediation has been around before Baron and Kenny’s paper, many researchers today refer to the “Baron and Kenny” method when approaching a potential mediation model. As suggested, there are three regression equations to test for mediation, and these three factors must be true. First, the independent variable must affect the mediator. Second, the independent variable must affect the dependent variable (Baron & Kenny, 1986); others have suggested this second assumption can be violated, this will be examined later on. Third, the mediator must affect the dependent variable (Baron & Kenny, 1986). It is then a perfect mediation when the independent variable has no effect on the dependent variable when the mediator is controlled. When using multiple
Mediation is whereby a detached third party helps the disputants to reach a bearable agreement on their differences (Moore, 2003). Family mediation involves resolving disputes between the divorcing couple through an informal negotiation (Benjamin & Irving
Understanding clients` needs, ability to empathize and connect, to provide individual counselling, and to choose the most appropriate avenue for resolving clients` problems, involves a high degree of cultural competence. Cultural competence is important in every profession, but it is especially important in law because “Culture is key to how we experience, and how we respond to conflict.” The cultural background of the parties directly influences preference of the process, strategy and tactics utilized, and the desired outcome. Meta-analysis and an empirical evidence available in Social Sciences supports the position that the cultural background of the parties is one of the major factors that influences behaviour during the dispute. For example, according to the studies in Social Psychology, the differences arise from the values that the particular society holds. For example, in Western cultures, people are viewed as autonomous individuals who are responsible for their actions. However, Eastern societies are known for their Interdependence. In this instance, Independent cultures are oriented towards the self, and Interdependent cultures are oriented towards one`s social group. In Independent cultures an individual is concentrating on himself/herself, therefore their ties with their group members are somewhat weak. Interdependent cultures, on the other hand, are the cultures where an individual is part of a group and the group serves to aid the group member at various stages of his/her life. Independent societies emphasize the importance of the self and goals directed toward oneself, whereas, Interdependent societies stress the importance of others and the goals serve to benefit
Ott, Marvin C. "Mediation as a Method of Conflict Resolution: Two Cases." International Organization 26.04 (1972): 595-618. JSTOR. Web. 3 Dec. 2013.
It has become common to speak of international commercial arbitration since the early 20th century. Development and growth in the interdependence of the global economy and forces of globalization has help boost the concept of international commercial arbitration. Today, economic and business experts, states the fact that no business is purely local, as even the smallest local firms get affected by global events. Globalization has helped eliminate barrier and people are more connected than they were even before. Advanced technology and transportation has also fueled and speed up the connectivity process.
Yan, Jun, and Ritch L. Sorenson. "The influence of Confucian ideology on conflict in Chinese family business." International journal of cross cultural management 4.1 (2004): 5-17.
Industrial dispute is a definition where it defines the problems that occur between workers and the management due to unsatisfactory working conditions for instance, the problems may arise for pay/salary or wages conditions, absent from work, hours of working and etc. (Dictionary.cambridge.org, 2015) industrial dispute is defined under section 2(a) industrial relation act 1967 and the definition of industrial dispute is any problem that occurs between an employer and his employee regarding its employment or the working conditions of any such workman. There are many cases that are relevant to industrial dispute between employers and employees. The case that is looked into is the case of Gopalankrishnan Vasupillai vs Goodyear Malaysia Bhd & Anor.
Alternative Dispute Resolution (ADR) involves dispute resolution processes and techniques that fall outside of the government judicial process. There has been moves against ADR in the past by entities of many political parties and their associates, despite this, ADR has gained inclusive acceptance among both the broad community and the legal profession in past years. In fact, many courts now entail some parties to remedy to ADR of some type, usually mediation, before allowing the parties' cases to be tried. The increasing attractiveness of ADR can be clarified 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 obtain larger control over the selection of the individual or individuals who will decide their dispute.
For Marc and Mia, multitude of factors which include legal, sociological, and economic, contributes to a party's decision to settle out of court. It is believed that the shortcomings in the adversarial system in resolving disputes especially those involving parties from different countries fuelled the emergence of ADR. The proponents of this supposition hold that domestic laws relating to jurisdiction of courts in most countries were not tailored to accommodate eventuali...
(2) An award on agreed terms shall be made in accordance with the provisions of article 31 and shall state that it is an award. Such an award has the same status and effect as any other award on the merits of the case.” The arbitral tribunal may be told of the settlement by one of the parties alone, especially if the settlement has been recorded in a contract. Upon learning of the settlement, and being convinced that it had really taken place, the arbitral tribunal is called upon to terminate the proceedings, by which is meant the entire arbitration. It would be rare that a tribunal would do so without having received assurances from both or all the parties that the settlement had truly been agreed upon (unictad.org).
There are many differences between arbitration and mediation. The goal of mediation is dispute resolution without court involvement. It seeks compromise from each side of the dispute and each side feels as if they can claim at least a partial win. Mediation is a voluntary process whereas arbitration can be mandated if arbitration agreements were signed when an employee was hired. Mediation is facilitated by a mediator rather than a judge or arbitrator and may be appointed by a court or privately selected. Settlements reached during mediation are not legally binding without a court order (Leiberman.n.d.).
However, must be bear in mind that the mediator is at no power of making decisions which bind the parties. The mutual agreement or resolution which achieved during a mediation process will need enforcement by registering the resolution or settlement agreement in court. Although mediation seems like a better solution than the court process however, must be remember that not every mediation session will end up with a settlement or resolution as wanted, take for example a mediation which took place between one of Malaysia celebrity, Hanez Suraya and her Public Relation (PR) Officer, Mohd Fairus...
According to Section 4 of the act 1947 the appropriate government may, by notification in the official gazette, appoint such Conciliation Officers, charged with the duty of mediating in and promoting the settlement of industrial disputes.