This essay analysis Alternative Dispute Law and more specific mediation and arbitration sections. Mediation and Arbitration is part of Alternative Dispute resolution. In first part I will try explain the term without prejudice and its legal implications in the case of Unilever plc v The Procter & Gamble Co - [2001] 1 All ER 783. In the judgment of Robert Walker LJ in Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 was described the most important exceptions to the without prejudice rule. Also there is analysis of mediation principle and received experience of mediation in the ADR lecture. Additionally analyzed Arbitration and more precisely Arbitrators impartiality and independence.
Part A1 (a)
Legal implications and exceptions of ‘without prejudice‘
Without prejudice is legal term and it’s used in common law, criminal or civil law. Term is used usually by party whom wrote a claim and forbids other party from refiling the case and without prejudice most of the time refers to procedural problems. It does not matter whether it’s made in writing or orally, from being put before the court as evidence of admissions against the interest of the party, which made them. The term "without prejudice" is used in the progression of negotiations to resolve the case. It point out that a certain conversation, meting, letter or other communication cannot be presented as evidence in court. This type of negotiation has to be honest effort to settle argument between the parties. Sometimes courts can exclude some communication evidence as without prejudice, which is containing offers of settlement. Primary reason to have communication before the courts is to save the cost of court proceedings. Then the court making decision who will bear...
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..., since arbitrator may like one party or other or maybe third party, since arbitrations may come from very different cultural and commercial backgrounds. The parties are allowed in the early stated of arbitration to exclude if very is a doubt of impartiality of arbitrator.
In the present day the status of arbitration has increased. To retain the status working and bearing on impartiality and independence of the arbitrators play a vital role. To challenge the arbitrator impendence or impartiality can be very hard. Party has to be carefully before challenge arbitrator, since the successfully challenge are rare. However if party really have concerns, then the parties should challenge it and not delay since the delay can be disastrous. In context of arbitration tests have to be applied for finding of bias, since prudent arbitrator can disclose connection with parties.
The law is seen in two ways; as being fair, neutral and having an unbiased arbitrator,
In psychological research it is important to understand the effects of moderators and mediators to the research being conducted. A moderator is a variable that exists prior to the experiment which affects the reaction of the independent variable on the dependent variable. A mediator is a variable that reduces the significance of the relationship of an independent variable on the dependent variable. A way to understand this concept is to explore specific examples.
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.)
The word prejudice is derived from the Latin word " praejudicium" and refers to prejudging without any factual evidence. Being prejudiced usually means having preconceived beliefs about groups of people or cultural practices. Discrimination is the "differential and unequal treatment of other groups of people, usually along racial, religious or ethnic lines." The distinction is that prejudice then refers to people's attitudes and beliefs, and discrimination to their overt behavior directed at another group. (Parrillo 76)
In terms of evaluating cases, there are two powerful instruments which the judiciary should be in place to ensure that there was no favouritism displayed towards any party and these are impartiality and independence. Influence and pressure can come from inside and outside of the court. The executive, legislature, the press and even other judges might interfere with the cases which no longer makes the dealing objective but rather subjective.
Aurizon case of industrial dispute is not much different than that of the various existing cases related to employee relation and industrial dispute. Situation of Aurizon also cannot be considered isolated to that of the various other employers, who adopts absolute and inflexible position in their workplace negotiations in cases of industrial dispute. While, the union and workers are also strongly defend their claims for change or any demand which they posed. Thus, it can be stated that in such scenario effective resolution of the industrial dispute cases can only be achieved when both parties come for negotiation and get agreed on mutually beneficial terms and conditions. In consideration to specific case scenario of the Aurizon industrial dispute case it can be stated that pluralist approach to conflict became evident form the case facts, as two powerful and divergent subgroups of management and trade union is existing in system which has generated the need of collective bargaining.
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.
Alternative Dispute Resolution or ADR refers to a number of various processes that can be used to resolve legal disputes other than by litigation. Recently, methods of dispute resolution which focus on arbitration, mediation and negotiation as an alternative to adjudication have gained notoriety. This notoriety may have been caused by the public perception that ADR methods are less expensive, more efficient, and more satisfactory than the normal traditional course of litigation. The goals of establishing these processes to resolve disputes as an alternative to more formal legal processes include: 1) to make the regular court system more efficient, less costly and more responsive to the needs of the litigants; 2) to offer alternative methods of dispute resolution in addition to the regular court system; and 3) to provide public education about the available alternatives.
ADR holds an extensive, easily influenced and diverging choice of processes for finding solutions to disputes which are personified by structured negotiation and consensus. It is regarded that arbitration is a familiar ADR technique, however, it is more of an 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). "The key difference between ADR and those traditional techniques of litigation and arbitration is that ADR techniques are used to produce a resolution to dispute through a negotiated agreement while litigation and arbitration are processes by which a result is imposed on the parties. " We can say that many issues arise with terms.
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. Bibliography Byars, L. L. (1997). The.
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.
The judiciary should not only be impartial when dealing with cases but independent too. Whenever cases are being assessed, both impartiality and independence should go hand in hand to avoid
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.
Mediation process involves fewer procedural rules in comparison to litigation or court room sittings. Mediation proceedings can be tailored to fit the needs of the parties, the mediator can be ask to play a diplomatic role or get more involved by expressing an opin...